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Full text of "1937 supplement to the North Carolina Code of 1935 : containing all the General Laws of the 1936 Extra Session and the 1937 Regular Session of the Legislature"

STJPBElttTSBuET LIBRARY 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/1937supplementto1937nort 



1937 Supplement 



TO THE 



NORTH CAROLINA CODE 

of 1935 



Containing All the General Laws of 

the 1936 Extra Session and the 

1937 Regular Session of the Legislature 



COMPLETE ANNOTATIONS 



UNDER THE EDITORIAL SUPERVISION OF 

A. HEWSON MICHIE 
BEIRNE STEDMAN 

AND 

CHAS. W. SUBLETT 



THE MICHIE COMPANY, LAW PUBLISHERS 

CHARL6TTESVILLE, va. 

1937 



Copyright 1937 

BY 

The Michik Company 



Preface 



This complete supplement to Michie's North Carolina Code of 1935 contains all 
of the general laws enacted at the 1936 extra session, and the 1937 regular session 
of the Legislature, and full and comprehensive annotations beginning where the 
1935 Code left off and continuing until the date of publication. Amendments 
of former laws are inserted under the same section numbers appearing in the 1935 
Code. New laws appear under the proper chapter headings. The same standard 
of skillful editorial work which contributed to the popularity of the 1935 Code is 
maintained throughout this volume. Special attention is directed to the editors' 
notes pointing out the changes effected by the Laws of 1936 and 1937. It is be- 
lieved that these notes will prove invaluable and will save the lawyer from laborious 
comparisons. 

The index is confined to references to new laws 'enacted by the Legislature 
in its extra session of 1936, and its regular session of 1937. 



1937 Supplement to the North Carolina Code of 1935 



CHAPTER 1 

ADMINISTRATION 
Art. 1. Probate Jurisdiction 

§ 1. Clerk of superior court has probate juris- 
diction. 

Collateral Attack.— 

A clerk has jurisdiction to appoint an administrator where 
the affidavit of the applicant presumes the death of the 
decedent from his absence of seven years and the lack of 
communication from him. The order and appointment can 
only be avoided by showing the person not to be in fact 
dead. Chamblee v. Security Nat. Bank, 211 N. C. 48, 188 
S. E. 632. See § 28. 

Art. 3. Right to Administer 
§ 6. Order in which persons entitled. 

Right to Renounce and Nominate Another for Appoint- 
ment Is Recognized. — There is no express provision requir- 
ing the clerk to recognize the right of one belonging to a 
preferred class to renounce his right to qualify and at the 
same time nominate another for appointment in his stead, 
but this construction has been uniformly applied by the 
courts and has become firmly embedded in the law of ad- 
ministration in North Carolina. In re Estate of Smith, 210 
N. C. 622, 624, 188 S. E- 202. See Ritchie v. McAuslin, 2 
N. C. 220; Car they v. Webb, 6 N. C. 268; Smith v. Mun- 
roe, 23 N. C. 345; Pearce v. Castrix, 53 N. C. 71; Wallis 
v. Wallis, 60 N. C. 78; Hughes v. Pipkin, 61 N. C. 4; little 
v. Berry, 94 N. C. 433; Williams v. Neville, 108 N. C. 559, 
13 S. E. 240; In re Meyers, 113 N. C. 545, 18 S. E. 689; 
Boynton v. Heartt, 158 N. C. 488, 74 S. E- 470, Ann. Cas. 
1913D, 616; In re Estate of Jones, 177 N. C. 337, 98 S. E- 
827. 

Nominee of Next of Kin.- — The nominee of deceased's 
nearest of kin will be appointed administrator, if a fit and 
suitable person, as against those of lesser degree of kin- 
ship, provided that no person of the same class as the next 
of kin renouncing the right files a personal application for 
appointment. In re Estate of Smith, 210 N. C. 622, 188 
S. E- 202. 

§ 15. Failure to apply as renunciation. 

See the note to § 20 in this Supplement. 

§ 16. Person named as executor failing to 
qualify or renounce. 

See the note to § 20 in this Supplement. 

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

Six Months Is Reasonable Time to Apply for Appoint- 
ment of Administrator. — Construing this section and §§ 16 
and 15, together, the legislative intent is manifest that six 
months after the death of testator is a reasonable time 
within which application should be made, in proper in- 
stances, for appointment of administrator c. t. a. In re 
Estate of Smith, 210 N. C. 622, 188 S. E. 202. 

Art. 5. Administrator with Will Annexed 
§ 22. When letters c. t. a. issue. 

Waiver of Right to Appointment. — Where a legatee en- 
titled to preferential appointment as administrator c. t. a., 
fails to object to the appointment of an administrator c. t. a., 
but waits until after the death of the administrator ap- 
pointed more than a year after testator's death before as- 
serting his right and renouncing in favor of a third per- 
son, the legatee has waived his right, and his nominee is 
not entitled to appointment as against the nominee of the 
surviving sisters of testator. In re Estate of Smith, 210 
N. C. 622, 188 S. E. 202. 

And Right of Nomination and Substitution.— The right 
of nomination and substitution is confined to those them- 
selves qualified for appointment, and where a legatee has 
waived his right to be appointed administrator c. t. a. by 
failing to apply within a reasonable time, he also waives 
his right of nomination and substitution. In re Estate of 

[1 



Smith, 210 N. C. 622, 
thereto. 



S. E. 202. See § 6 and the note 



Art. 7. Appointment and Revocation 

§ 28. Facts to be shown on applying for ad- 
ministration. 

Appointment Based on Legal Presumption of Death.— 

Upon an affidavit showing that a person had been absent 
for over seven years and had not been heard from by 
relatives or friends, the fact that at the time of the ap- 
pointment it was contemplated that an action should be 
brought to determine any question that might arise con- 
trary to the legal presumption of death does not invali- 
date the appointment or nullify the proof afforded by the 
jurisdictional affidavit. Chamblee v. Security Nat. Bank, 
211 N. C. 48, 188 S. E. 632. See § 1. 

Art. 8. Bonds 
§ 33. Bond; approval; condition; penalty. 

Cited in Hicks v. Purvis, 208 N. C. 657, 182 S. E. 151. 

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

Cited, in Park View Hospital Ass'n v. Peoples Bank, 
etc., Co., 211 N. C. 244, 189 S. E- 766. 

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 al- 
lowance, after same has been assigned in ac- 
cordance with 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, 
Craven, Cumberland, Johnston, Rutherford, Stanly, 
Davidson, Currituck, Yadkin, Alexander, Stokes, 
Clay, Greene, Wayne, Franklin, Macon, Beaufort, 
Swain, Haywood, Caldwell, Burke, Gates, Rock- 
ingham, Graham, Person, Catawba, Dare, Tyrrell, 
Perquimans, Transylvania, Duplin, Hyde, Pen- 
der, Surry, Alamance, Lincoln, Granville, Cho- 
wan, Hoke, Lee, Vance, Robeson, Orange, David- 
son, Montgomery, Durham, Wake, Mecklenburg, 
Harnett, Buncombe, Union, Onslow, Nash, Hali- 
fax, Hertford, Pasquotank, McDowell, Rowan, 
New Hanover, Warren and Martin. (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; 
1935, cc. 69, 96, 367; 1937, cc. 13, 55, 121, 336, 377.) 

Editor's Note.— The amendments of 1937 made this section 
applicable to Buncombe, New Hanover, Warren, McDowell 
and Surry counties. Public E-aws 1937, c. 336, struck out 
Forsyth county and enacted special provisions applicable 
thereto. 

Art. 11 A. Discovery of Assets 
§ 65(b). Examination of persons or corporations 
believed to have possession of property of dece- 

] 



§ 65(c) 



ADMINISTRATION 



§ 74 



dent. — Whenever an executor or administrator 
makes oath before the clerk of the superior court 
of the county where the party to be examined re- 
sides or does business that he has reasonable 
ground to believe, setting forth the grounds of his 
belief, that any person, firm or corporation has in 
his or its possession any property of any kind be- 
longing to the estate of his decedent, said clerk 
shall issue a notice to said person or the member 
of the firm or officer, agent or employee of the 
firm or corporation designated in the affidavit, to 
appear before said clerk at his office at a time fixed 
in said notice, not less than three days after the 
issuance of said notice, and be examined under 
oath by said executor or administrator or his at- 
torney concerning the possession of said prop- 
erty. If upon such examination the person ex- 
amined admits that he or the firm or corporation 
for which he works has in his or its possession 
any property belonging solely to the decedent, 
and fails to show any satisfactory reason for re- 
taining possession of said property, the clerk of 
the superior court shall issue an order requiring 
said person, firm or corporation forthwith to de- 
liver said property to said executor or administra- 
tor, and may enforce compliance with said order 
by an attachment for contempt of court, and com- 
mit said person to jail until he shall deliver said 
property to said executor or administrator: Pro- 
vided, that in the case of a firm or corporation, 
whenever any person other than a partner or exec- 
utive officer of such firm or corporation is ex- 
amined, no such order shall be made until at least 
three days after service of notice upon a partner 
or executive officer of such firm or corporation to 
show cause why such order should not be made. 
(1937, c. 209, s. 1.) 

Editor's Note. — The purpose of this section is to expe- 
dite the settlement of a decedent's estate by permitting 
the representative to discover assets of the estate through 
and upon the authority of the probate court without hav- 
ing to resort, independently, to the rather slow and ex- 
pensive proceeding of claim and delivery. However, since 
the section seems to provide only for the situation where a 
party "admits" that the property held belongs to the de- 
cedent's estate and refuses for an inadequate reason to 
give it up, it would seem that the representative would still 
have to utilize claim and delivery proceedings in the case 
where the party in possession of the property denies that 
it belongs to the estate of the deceased. It is doubtful 
that the section would, by inference, authorize the clerk 
to try the title to such property. 15 N. C. Law Rev., No. 
4, p. 352. 

§ 63(c). Right of appeal. — Any person aggrieved 
by the order of the clerk of the superior court 
may, within five days, appeal to the judge holding 
the next term of the superior court of the county 
after said order is made or to the resident judge 
of the district, but as a condition precedent to his 
appeal he shall give a justified bond in a sum at 
least double the value of the property in question, 
conditioned upon the safe delivery of the property 
and the payment of damages for its detention, to 
the executor or administrator in the event that the 
order of the clerk should be finally sustained. 
When said bond is executed and delivered to the 
court no attachment shall be served upon the ap- 
pealing party, or, if he has already been com- 
mitted, he shall be released pending the final de- 
termination of the appeal. If the appellant fails 
to have his appeal heard at the next term of the 
superior court held in his county, or by the resi- 
dent judge of the district, within thirty days after 
giving notice of appeal, the clerk of the court may j 

[2 



recommit the appellant to jail until he shall de- 
liver the property to the executor or administra- 
tor as aforesaid. (1937, c. 209, s. 2.) 

§ 65(d). Costs. — The party against whom the 
final judgment is rendered shall be adjudged to 
pay the costs of the proceedings hereunder. (1937, 
c. 209, s. 3.) 

§ 65(e). Remedies supplemental. — The remedies 
provided in this article shall not be exclusive, but 
shall be in addition to any remedies which are now 
or may hereafter be provided. (1937, c. 209, s. 4.) 

Art. 13. Sales of Real Property 

§ 74. Sales of realty ordered, if personalty in- 
sufficient for debts. — 

Proceedings for the sale of the real estate of a 
decedent brought by his personal representative 
to create assets with which to pay debts must be 
instituted in the county where the land or some 
part thereof lies. If the land to be sold consists of 
one or more contiguous tracts lying in more 
than one county or consists of two or more sepa- 
rate tracts lying in different counties, proceedings 
may be instituted in any county in which a part 
of the land is situate, and the court of such county 
wherein the proceedings for sale are first brought 
shall have jurisdiction to proceed to a final dispo- 
sition of said proceedings as if all of said land 
were situate in the county where the proceedings 
were instituted unless the court making the or- 
der of sale shall fix some place other than at the 
courthouse door of the county in which the pro- 
ceeding was instituted; the place and time of sale 
shall be as directed in the order of the court. 
Where the land to be sold consists of one or more 
contiguous tracts lying in more than one county, 
said land shall be advertised in all counties in 
which any part of said land lies, but the sale shall 
be conducted at the courthouse door of the county 
in which the proceeding was instituted. Where 
the land consists of two or more distinct tracts 
lying in different counties, each tract shall be ad- 
vertised in and sold at the courthouse door of the 
county in which it lies. Certified copies of the 
proceedings under the seal of the court of the 
county in which the proceedings were instituted, 
together with certified copies of the letters testa- 
mentary or letters of administration of the per- 
sonal representative, shall be filed in the office of 
the clerk of superior court of each county where- 
in any part of the land lies and shall be recorded 
in the record of orders and decrees in special pro- 
ceedings in said office. (Rev., s. 68; Code, s. 1436; 
1868-9, c. 113, s. 42; 1923, c. 55; 1935, c. 43; 1937, 
c. 70.) 

Editor's Note.— The 1937 amendment inserted that part of 
the second sentence of the second paragraph beginning with 
the word "unless." As the first paragraph was not affected 
by the amendment it is not set out here. 

This amendment would seem to meet the demands of 
convenience where the part of the land to be sold is sit- 
uated in a county different from that in which the pro- 
ceedings to sell were instituted. It is likely that more 
interested purchasers will be found in the county where 
the land lies. 15 N. C. Law Rev., No. 4, p. 352. 

Contents of Petition to Sell Lands. — In proceedings to 
sell lands to make assets the petition should set forth, 
inter alia, as required by § 79, the value of the personal 
estate, as near as may be ascertained, and the applica- 
tion thereof, and an allegation merely that the personalty 
is insufficient is defective. Neighbors v. Evans, 210 N. C. 
550, 187 S. E. 796. 

Applied in Odom v. Palmer, 209 N. C. 93, 182 S. E). 741; 
Caffey v. Osborne, 210 N. C. 252, 186 S. 3. 364. 

] 



§ 75 



ADMINISTRATION 



§ 131 



§ 75. When court may order rental. 

Where an administrator, in good faith pending the mort- 
gaging of property of the estate to pay debts, personally 
pays the debts of the estate, he is entitled to be subro- 
gated to the rights of the creditors whose debts he had 
paid, and upon the execution of the mortgage, upon order 
of court, is entitled to repay himself from the proceeds 
of the loan. Caffey v. Osborne, 210 N. C. 252, 186 S. E- 
364. 

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

Mortgage after Two Years Followed by Sale Is Valid. 

—Where an heir executed a deed of trust more than two 
years after the granting of letters testamentary, and it 
was foreclosed, and the purchaser at the sale transferred 
title to a bona fide purchaser who had no actual knowledge 
that the personal assets were insufficient to pay debts of 
the estate, it was held that the fact that it appeared from 
the records that the estate had not been settled does not 
amount to notice that the personalty was insufficient, and 
the purchaser was a bona fide purchaser without notice, 
and the land is not subject to sale. Johnson v. Barefoot, 

208 N. C. 796, 182 S. E. 471. 

§ 79. Contents of petition for sale. 

The Purpose of Requisites in Application.— 

In accord with original. See Neighbors v. Evans, 210 
N. C. 550, 187 S. E- 796. 

§ 87. Undevised realty first sold. 

Cited in Anderson v. Bridgers, 209 N. C. 456, 184 S. E. 78. 

§ 88. Specifically devised realty; contribution. 

Cited in Anderson v. Bridgers, 209 N. C. 456, 184 S. E. 78. 

Art. 14. Proof and Payment of Debts of 
Decedent 
§ 93. Order of payment of debts. 

Strict Construction. — 

In accord with original. See Park View Hospital Ass'n 
v. Peoples Bank, etc., Co., 211 N. C. 244, 189 S. E. 766. 

Section Construed to Favor Bankruptcy Rule.— Upon the 
death of an obligor the administration laws step in and 
determine the settlement of his estate. These have hereto- 
fore been construed by the supreme court to favor the bank- 
ruptcy rule. Thus a secured creditor is required to ex- 
haust his security and then prove his claim for any balance 
still remaining or unpaid. Rierson v. Hanson, 211 N. C. 
203, 205, 189 S. E- 502. 

If decedent's estate be not sufficient to pay his debts in 
full, then they are to be paid in classes, with those of the 
last class, if and when reached, sharing ratably in what is 
left. Rigsbee v. Brogden, 209 N. C. 510, 512, 184 S. E- 24, 
citing Farmville Oil, etc., Co. v. Bourne, 205 N. C. 337, 
171 S. E. 368; First Security Trust Co. v. Lentz, 196 N. 
C. 398, 145 S. E. 776; Murchison v. Williams, 71 N. C. 135. 

Tax-Sale Certificate Is Not a Preferred Claim.— A tax- 
sale certificate in the hands of a remainderman, represent- 
ing taxes paid by the remainderman during the lifetime of 
the life tenant, may not be proved as a preferred claim 
against the estate of the life tenant, since the remainder- 
man's sole remedy upon the tax-sale certificate is by fore- 
closure under the provisions of § 8028. Rigsbee v. Brogden, 

209 N. C. 510, 184 S. E. 24. 

Taxes Assessed Are Preferred Claim.— As a life tenant 
is liable for taxes assessed against the property during his 
lifetime, under § 7982, when he dies without paying the 
same they constitute a claim against his estate and are 
payable in the third class. Rigsbee v. Brogden, 209 N. C. 
510, 184 S. E. 24. 

Charges for Water and Gas Connection Are Not a Pre- 
ferred Claim as Taxes. — Charges for water and gas connec- 
tions, incurred during the lifetime of a life tenant and un- 
paid at his death, do not constitute a preferred claim against 
his estate as taxes assessed on the estate prior to his death, 
since in no event would such charges stand upon a higher 
plane than assessments for permanent improvements. Rigs- 
bee v. Brogden, 209 N. C. 510, 184 S. E. 24. 

Nor Are Assessments for Public Improvements. — See 
Rigsbee v. Brogden, 209 N. C. 510, 184 S. E. 24. 

The words "medical services," include all services ren- 
dered to the deceased, because of his illness, upon the ad- 
vice of his physician, which were reasonably necessary for 
his care and comfort, and for his proper treatment by his 
physicians. Park View Hospital Ass'n v. Peoples Bank, 
etc., Co., 211 N. C. 244, 249, 189 S. E- 766. 

Board of Nurses Included in Medical Services.— The Board 

[3 



of graduate nurses who attended the deceased while he was 
a patient in plaintiffs' hospital was a claim included in the 
term "medical services" as used in this section. Park View 
Hospital Ass'n v. Peoples Bank, etc., Co., 211 N. C. 244, 
189 S. E- 766. 

§ 94. No preference within class. 

Stated in Park View Hospital Ass'n v. Peoples Bank, 
etc., Co., 211 N. C. 244, 189 S. E. 766. 

§ 101. If claim not presented in twelve months, 
representative discharged as to assets paid. 

Effect of Failure to Present Claim within Twelve Months. 

— Under this section a claimant who has not presented his 
claim within twelve months from the first publication of the 
general notice to creditors, is allowed to assert his demand 
only as against undistributed assets of the estate and with- 
out cost against the executor. In re Estate of Bost, 211 
N. C. 440, 443, 190 S. E. 756. 
Cited in Jackson v. Thomas, 211 N. C. 634, 191 S. E. 327. 

Art. 15. Accounts and Accounting 
§ 105. Annual accounts. 

Prima Facie Evidence Only. — 

In accord with original. See Braddy v. Pfaff, 210 N. C. 
248, 186 S. E. 340. 

Recorded Account Is Competent Evidence in Collateral 

Suit.— The account required by this section must be re- 
corded as required in § 952. Such account therefore is not 
hearsay but is competent evidence in a collateral suit. 
Braddy v. Pfaff, 210 N. C. 248, 186 S. E. 340. 

Duty of Clerk to Accept Executor's Annual Account. — 
Where property is devised or bequeathed by a will, upon 
certain trusts, and the testator does not appoint a trustee, 
it is the duty of the executor, to carry out the provisions 
of the will. It is error for the clerk to refuse to accept 
an annual account tendered by the executor for a year more 
than two years after the executor qualified but during the 
life of the trust estate. In re Wachovia Bank, etc., Co., 
210 N. C. 385, 390, 186 S. E. 510. See § 109 and the note 
thereto. 

§ 108. Gravestones authorized. 

Section Inapplicable. — This section was held inapplicable 
where executors, in obedience to testamentary instructions, 
expended more than $100 for a gravestone without order of 
court when the estate appeared to be solvent though in fact 
it was insolvent. In re Estate of Bost, 211 N. C. 440, 190 
S. E. 756. 

§ 109. Final accounts. 

When Section Not Applicable. — This statutory require- 
ment is not applicable where the duties imposed upon the 
executor by the will cannot be fully performed within two 
years from his qualification. In re Wachovia Bank, etc., 
Co., 210 N. C. 385, 390, 186 S. E. 510. See § 178. 

Review of Order to File Final Account and Turn Over 
Assets. — Where the clerk orders an executor to file final 
account and turn over the assets of the trust estate to it- 
self as trustee, which order is made as a matter of law upon 
the facts found and not as a matter of discretion, the or- 
der is reviewable by the Superior Court upon appeal. In 
re Wachovia Bank, etc., Co., 210 N. C. 385, 186 S. E. 510. 

§ 124. Exception to report; final report and 
judgment. 

Applied in In re Estate of Bost, 211 N. C. 440, 190 S. E- 

756. 

§ 125. Appeal from judgment; security for costs. 

Applied in In re Estate of Bost, 211 N. C. 440, 190 S. E. 

756. 

§ 130. Contents of judgment; execution. 

Under the facts and circumstances of the case a judg- 
ment against the estate of the deceased was held irregu- 
lar. Hood v. Stewart, 209 N. C. 424, 184 S. E. 36. 

§ 131. When judgment to fix with assets. 

A judgment against an executor or administrator in his 
representative capacity merely establishes the debt sued on 
and does not constitute a lien upon the lands of the estate, 
in the absence of a stipulation in the judgment to the con- 
trary, until leave of court is granted for execution for fail- 
ure of the representative to pay the ratable part of such 
judgment. Tucker v. Almond, 209 N. C. 333, 183 S. E. 407. 

Where a warranty deed was not registered until several 
years after the death of the grantor, during which time 



§ 132 



ATTORNEYS AT LAW 



§ 199(a) 



several judgments were obtained against the personal rep- 
resentative of the grantor, and the grantee in the deed sold 
same after the judgments had been docketed to a pur- 
chaser for value by warranty deed, it was held that un- 
der the provisions of this and §§ 132 and 136 the judg- 
ments did not constitute a lien on the land in violation of 
the warranty against encumbrances. Id. 
Applied in Hood v. Stewart, 209 N. C. 424, 184 S. E. 36. 

§ 132. Form and effect of execution. 

'See the note to § 131 in this Supplement. 

Applied in Hood v. Stewart, 209 N. C. 424, 184 S. E- 36. 

§ 135. Suits for accounting at term. 

Concurrent Jurisdiction. — 

Under this section the distributees of an estate may bring 
suit originally in the Superior Court against the adminis- 
trator for an accounting and for a breach of his bond. 
Leach v. Page, 211 N. C. 622, 191 S. E- 349. 

Action to recover for personal services rendered testator's 
•wife is properly brought in the Superior Court where it in- 
volves a construction of the will and an accounting. Meares 
v. Williamson, 209 N. C. 448, 184 S. E. 41. 

§ 136. Proceedings against land, if personal as- 
sets fail. 

Applied in Hood v. Stewart, 209 N. C. 424, 184 S. E. 36. 

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

Applied in Lopez v. United States, 82 F. (2d) 982. 

§ 139. Children advanced to render inventory; 
effect of refusal. 

Expenses for Schooling, etc., Properly Charged as Ad- 
vancements. — Intestate's grandchild, a daughter of intes- 
tate's deceased daughter, was charged with advancements 
for sums paid by intestate for her schooling and expenses 
incurred after she was eighteen or twenty years old, but no 
charge was made for expenses of rearing the grandchild. 
Upon the facts found by the referee the charge of advance- 
ments was correct. Wolfe v. Galloway, 211 N. C. 361, 190 
S. E. 213. 

Art. 18. Action by and against Representative 

§ 160. Death by wrongful act; recovery not as- 
sets; dying declarations. 

I. IN GENERAL. 

Applied in Hancock v. Wilson, 211 N. C. 129, 189 S. E- 
631; Lemings v. Southern Ry. Co., 211 N. C. 499, 191 S. 
E. 39. 

Cited in Peterson v. McManus, 208 N. C. 802, 182 S. E. 
483; Winslow v. Carolina Conference Ass'n, 211 N. C. 
571, 191 S. E- 403. 

II. LIMITATION OF THE ACTION. 

The fact that an action is not instituted within the lim- 
itation prescribed may be taken advantage of by demur- 
rer when the dates appear as a matter of record. George 
v. Atlanta, etc., Ry. Co., 210 N. C. 58, 185 S. E. 431. 

Where it appeared upon the face of the record that 
more than one year had elapsed between the accrual of 
the cause of action and the filing of the amended com- 
plaint, the demurrer of the corporate defendants was prop- 
erly sustained, the action against them not having been 
instituted within the limitation prescribed by this section. 
Id. 

§ 166. When creditors may sue on claim; exe- 
cution in such action. 

See the note to § 131 in this Supplement. 

Art. 19. Representative's Powers, Duties and 
Liabilities 

§ 170. Representative may maintain appropriate 
suits and proceedings. 

As to discovery of assets, see §§ 65(b)-65(e). 

Art. 20. Construction and Application of Chapter 
§ 178. Powers under will not affected. 



See §§ 105 and 109 and the notes thereto. 



CHAPTER 2 

ADOPTION OF MINORS 

§ 191(1). Petition for adoption and change of 
name. — Any proper adult person or husband and 
wife, jointly, who have legal residence in North 
Carolina may petition 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 any agency or institution op- 
erating under the laws of this state having guard- 
ianship 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 
where the child is born outside of the state of 
North Carolina, said child shall have been an 
actual resident of this state for a period of at least 
one year. Such petition 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 su- 
perior court, and the other to be sent to said state 
board of charities and public welfare. (1935, c. 
243; 1937, c. 422.) 

Editor's Note. — The 1937 amendment limited the one year's 
residence requirement to children born outside of state. 

For a critical analysis and appraisal of this chapter, see 
an article appearing in 13 N. C. Taw Rev., No. 4, p. 355. 



CHAPTER 2A 

AERONAUTICS 
Art. 1. Municipal Airports 



§ 191(a). Definition. 



Cited in Goswick v. Durham, 211 N. C. 687, 191 S. E. 

728. 



CHAPTER 3 

ALIENS 
§ 192. Rights as to real property. 

Editor's Note. — This section was inadvertently repealed 
by P. E. 1935, c. 243. See an article appearing in 13 N. C. 
Eaw Rev., No. 4, p. 355. 



CHAPTER 4 

ATTORNEYS AT LAW 

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

§ 199(a). Corporations and persons other than 
members of state bar prohibited from practicing 
law; exceptions. — It shall be unlawful for any 
corporation or any person or association of per- 
sons, except members of the bar of the state of 
North Carolina admitted and licensed to practice 
as attorneys at law, to appear as attorney or 
counsellor-at-law in any action or proceeding in 
any court in this state or before any judicial body 
or the North Carolina industrial commission or 
the unemployment compensation commission; 
(1937, c. 155, s. 1.) 

Editor's Note. — The 1937 amendment inserted the words "or 
the unemployment compensation commission" immediately 
preceding the first semicolon in this section. The rest of 
the section, not being affected by the amendment, is not set 
out here. 

This section is constitutional and valid, the right to prac- 
tice law being subject to legislative regulation within con- 



[4] 



§ 199(b) 



ATTORNEYS AT LAW 



§ 215(11) 



stitutional restrictions and limitations, and the statute not 
being- in contravention of any provision of the state or 
federal constitutions. Seawell v. Carolina Motor Club, 209 
N. C. 624, 184 S. E. 540. 

The right to practice law is personal and may not be ex- 
ercised by a corporation either directly or indirectly by em- 
ploying lawyers to practice for it. Seawell v. Carolina Mo- 
tor Club, 209 N. C. 624, 184 S. E. 540. 

What Is Deemed Practice of Law. — The practice of law 
is not limited to the conduct of cases in court, but em- 
braces, in its general sense, legal advice and counsel and 
the preparation of legal documents and contracts by which 
legal rights are secured, although such matter may or may 
not be pending in court. Seawell v. Carolina Motor Club, 
209 N. C. 624, 184 S. E. 540. 

Services of Motor Clubs Held to Violate Section. — Where 
defendant corporations, as a part of their services, were 
engaged in giving legal advice, in employing attorneys for 
members, in allowing lay members of the incorporated club 
to write letters on club stationery to persons involved in 
accidents with members of the club advising that such 
persons were liable in damages in law for negligence in 
causing such accidents, and in drawing up receipts stat- 
ing that a certain sum was received as settlement of such 
damages when collections were made as a result of such 
letters, they were held to be engaged in the practice of 
law in violation of this section. Seawell v. Carolina Motor 
Club, 209 N. C. 624, 184 S. E- 540. 

§ 199(b). Further prohibition as to practice of 
law by corporation; exception. — It shall be un- 
lawful for any corporation to practice or appear 
as an attorney for any person other than itself in 
any court in this state, or before any judicial 
body or the North Carolina industrial commission 
or the unemployment compensation commission; 

(1937, c. 155, s. 2.) 

Editor's Note. — The 1937 amendment inserted the words 
"or the unemployment compensation commission" immediately 
preceding the first semicolon in this section. The rest of 
the section, not being affected by the amendment, is not set 
out here. 

Art. 6. North Carolina State Bar 

§ 215(1). Creation of North Carolina state bar 
as an agency of the state. 

Quoted in In re Parker, 209 N. C. 693, 184 S. E. 532. 

§ 215(3). Government. 

Editor's Note.— Public I^aws 1937, c. 51, s. "1, struck out the 
former last paragraph of this section providing: "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 
o* the state of North Carolina." As no other change was 
made the section is not set out here. 

For a discussion of the 1937 amendment to this and the 
following three sections, see 15 N. C. I*aw Rev., No. 4, 
p. 330 et seq. 

§ 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 the con- 
trol of the discipline, disbarment and restoration 
of attorneys practicing law in this state: Pro- 
vided, that from any order suspending an attorney 
from the practice of law and from any order dis- 
barring an attorney, an appeal shall lie in the 
manner hereinafter provided, to the superior court 
of the county wherein the attorney involved re- 
sides. The council shall have power to administer 
this article; to formulate and adopt rules of pro- 
fessional ethics and conduct; to publish an official 
journal concerning matters of interest to the legal 
profession, and to do all such things necessary in 
the furtherance of the purposes of this article as 

[5 



are not prohibited by law. (1933, c. 210, s. 9; 
1935, c. 74, s. l; 1937, c. 51, s. 2.) 

Editor's Note.— Prior to the 1937 amendment an appeal lay 
"as of right" to the regular superior court judge. 

§ 215(10)b. Pay of board of law examiners. — 

Each member of the board of law examiners shall 
receive the sum of fifty dollars for his services in 
connection with each examination and shall re- 
ceive his actual expenses of travel and subsistence 
while engaged in duties assigned to him, provided 
that for transportation by the use of private auto- 
mobile the expense of travel shall not exceed five 
cents per mile. (1935, c. 33, s. 2; 1937, c. 35.) 

Editor's Note. — Prior to the 1937 amendment the maximum 
for subsistence was four dollars per day. The former ref- 
erence to the member of the supreme court was omitted by 
the amendment. 

§ 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; 5. Detention without a bona 
fide claim thereto of property received or money 
collected in any fiduciary capacity; 6. The viola- 
tion of any of the canons of ethics which have 
been adopted and promulgated by the council of 
the North Carolina state bar; may invoke the 
processes of the courts in any case in which they 
deem it desirable to do so, and shall formulate 
rules of procedure governing the trial of any such 
person which shall conform as near as may be to 
the procedure now provided by law for hearings 
before referees in compulsory references. Such 
rules shall provide for notice of the nature of the 
charges and an opportunity to be heard; for a 
complete record of the proceedings for purposes 
of appeal to the superior court of the county 
wherein the attorney involved resides on the rec- 
ord made before the council or the committee as 
the case may be. Upon such appeal to the su- 
perior court the accused attorney shall have the 
right to a trial by jury of the issues of fact aris- 
ing on the pleadings, but such trial shall be only 
upon the written evidence taken before the trial 
committee or council. From the decision of the 
superior court the council and the accused attor- 
ney shall each have the right of appeal to the su- 
preme court of North Carolina. Trial before the 
committee appointed for that purpose by the 
council shall be held in the county in which the 
accused member resides: Provided, however, 
that the committee conducting the hearing shall 
have power to remove the same to any county in 
which the offense, or any part thereof, was com- 
mitted, if in the opinion of such committee the 
ends of justice or convenience of witnesses require 
such removal. The procedure herein provided 



§ 215(1&) 



BANKS 



§ 218(c) 



shall also apply in all cases of discipline or disbar- 
ments arising under that portion of section eleven 
not hereby amended. (1933, c. 210, s. 11; 1937, c. 
51, s. 3.) ' 

Editor's Note.— The 1937 amendment so changed this sec- 
tion that a comparison here is not practical. 

§ 215(19). Inherent powers of courts unaffected. 
— Nothing contained in this article shall be con- 
strued as disabling or abridging the inherent pow- 
ers of the court to deal with its attorneys. (1937, 
c. 51, s. 4.) 



CHAPTER 5 

BANKS 

Art. 2. Creation 
§ 217 (p). Fiduciary powers and liabilities of 
merged banks or trust companies. 

Editor's Note. — A distinction is drawn between "consol- 
idation" and "merger." See Braak v. Hobbs, 210 N. C. 
379, 186 S. E- 500. 

Consolidated Bank Succeeds to Power as Trustee under 
Deed of Trust. — A bank, created as a result of a consol- 
idation of several state banks, may properly exercise the 
power of sale contained in a deed of trust in which one 
of its constituent banks was named trustee, upon default 
by the trustor, since under this section, the consolidated 
bank succeeds to such power. Braak v. Hobbs, 210 N. C. 
379, 186 S. E. 500. 

This section, although in form an independent statute, 
is in reality an amendment of chapter 77, Public Laws of 
North Carolina, 1925, and is therefore applicable in the 
instant case, although the deed of trust involved was ex- 
ecuted prior to its enactment. Braak v. Hobbs, 210 N. C. 
379, 384, 186 S. E\ 500. See Bateman v. Sterrett, 201 N. 
C. 59, 159 S. E. 14. 

Art. 3. Dissolution and Liquidation 

§ 218(b). Commissioner of banks may take 
charge, when. 

Presumption Exists That Bank Complied with Prereq- 
uisites before Resuming Operation. — See People's Bank v. 
Fidelity, etc., Co., 4 F. Supp. 379, 382. 

§ 218(c). Liquidation of banks, when commis- 
sioner to take possession. 

The Commissioner of Banks Acts in a Capacity Equiva- 
lent to a Receiver. — See Hood v. North Carolina Bank, etc., 
Co., 209 N. C. 367, 184 S. E. 51. 

And the bank as a legal entity is not dissolved and does 
not cease to exist, but its powers are exercised by the com- 
missioner (formerly the Corporation Commission) for the 
purpose of converting the assets, paying its liabilities, and 
distributing the surplus, if any, among the stockholders. 
People's Bank v. Fidelity, etc., Co., 4 F. Supp. 379, 383. 

No New Cause of Action Is Created Where Commissioner 
Is Made a Party to Previous Action by Bank. — See Peo- 
ple's Bank v. Fidelity, etc., Co., 4 F. Supp. 379, 383. 

An order authorizing the liquidating agent to sell a stock 
assessment judgment affects only the liquidating agent and 
whoever purchases by virtue thereof, and so far as stock- 
holders are concerned, the order is res inter alios acta. 
In re Carolina State Bank, 208 N. C. 509, 181 S. E. 621. 

An action on a note by the Commissioner of Banks, etc., 
is properly brought in the county in which the insolvent 
bank is situate and of which the liquidating agent is a 
resident, and defendants' motion for change of venue to 
the county of their residence is properly refused. Hood v. 
Progressive Stores, 209 N. C. 36, 182 S. E- 694. 

Complaint in action to vacate stock assessment failing to 
allege plaintiff was not a stockholder at time of bank's 
closing, fails to state a cause of action for the relief sought, 
and an allegation that there was no certificate of stock 
standing in plaintiff's name upon the books of the bank 
at the time is insufficient, since plaintiff may be an equi- 
table owner of stock and liable to assessment notwith- 
standing such fact. Oliver v. Hood, 209 N. C. 291, 183 S. E. 
657. 

Notice of Appeal from Assessment Must Be Given within 
Ten Days of Docketing.— Although no time is fixed by this 
section within which a stockholder must give notice of 
appeal from the assessment levied against him, the stat- 

[6 



ute provides that when the assessment is docketed it shall 
have the force and effect of a judgment, therefore under § 
641 notice of appeal from such assessment must be given 
within ten days after the docketing of the assessment, and 
when notice of appeal is not given within the time required 
and no application for certiorari made, the stockholder 
loses his right to appeal and the assessment is final and 
conclusive. In re Citizens' Bank, 209 N. C. 216, 183 S. E- 
410. 

If right to appeal is lost, stockholder may apply for a 
writ of certiorari. In a proper case he will be granted the 
writ, and thereby be assured a hearing in the Superior 
Court on his contention that the assessment was illegal. 
In re Citizens' Bank, 209 N. C. 216, 219, 183 S. E. 410. 

The manifest purpose of subdivision (14) is to place the 
out of town holder of a check or draft on a footing as fa- 
vorable as the one occupied by the local depositor. The 
local depositor can present his check and get the cash. If 
the bank collects the out of town check or draft received 
through the mails by charging it to the account of its 
customer, it is the bank's duty, under this statute, to remit 
the proceeds to the owner, and the owner has a lien thereon. 
The proceeds of the collection rightfully belong to the 
owner of the draft; thereafter they are not the property of 
the bank, and the general creditors have no right to par- 
ticipate therein. Royal Mfg. Co. v. Spradlin, 6 F. Supp. 
98, 100. 

This subdivision clearly supersedes the law as declared 
by the supreme court in Corporation Comm. v. Merchant's, 
etc., Bank, 137 N. C. 697, 50 S. E- 308, and similar deci- 
sions. The statute embodies what was declared to be the 
law by the United States Supreme Court in Dakin v. Bayly, 
290 U. S. 143, 54 S. Ct. 113, 78 E. Ed. 229, 90 A. E. R. 
999, where it was held that the forwarding bank of a draft 
for collection is nothing but the agent of the drawer, and 
that this agency continues until the proceeds are remitted, 
and that the forwarding bank is not a creditor of the col- 
lecting bank and for this reason cannot offset such items 
against its debt to the collecting bank. Id. 

It Is Applicable to National Banks.— See Royal Mfg. Co. 
v. Spradlin, 6 F. Supp. 98. 

The lien provided in subdivision (14) is in no wise con- 
tingent upon the insolvency of the bank. It attaches, in 
all cases, "from the date of the charge, entry or collection 
of any such funds." The lien exists before insolvency and 
subsequent insolvency does not invalidate it. Royal Mfg. 
Co. v. Spradlin, 6 F. Supp. 98, 101. 

The proviso in subdivision (14) does not create a pref- 
erence; it creates a statutory lien. The legislature used the 
word "preference" everywhere in the act preceding the pro- 
viso, but it used the word "lien" advisedly and to make it 
apply without regard to preferences. Id. 

Upon collection, the agency relation ceases, in the ab- 
sence of agreement to the contrary, and the position of the 
bank from then on is that of a mere debtor. Citizens Nat. 
Bank v. Fidelity, etc., Co., 86 F. (2d) 4, 6, citing Jennings 
v. United States Fidelity, etc., Co., 294 U. S. 216, 55 S. Ct. 
394, 395, 79 E. Ed. 869, 99 A. E- R. 1248. 

Where a certificate of deposit sent to the insolvent col- 
lecting bank was used in clearance, a draft for the bal- 
ance on the clearance transaction being received by the in- 
solvent collecting bank, it was held that a debtor and cred- 
itor relationship arose and that the creditor's successor was 
not entitled to preference. Citizens Nat. Bank v. Fidelity, 
etc., Co., 86 F. (2d) 4. 

It makes no difference that, instead of collecting cash on 
the certificate of deposit, the collecting bank used it in a 
clearance and received a draft for the balance due upon 
the clearance, which was ultimately collected in cash. If 
a bank accepts anything other than cash in payment of a 
negotiable instrument which it holds for collection, it be- 
comes, under the rules of the common law, liable as a 
debtor for the amount of the instrument, the reason for 
the rule being that, as the instrument is payable only in 
cash, the collecting bank by accepting something other 
than cash assumes the risk incident to such method of 
collection and is estopped to deny payment. Citizens Nat. 
Bank v. Fidelity, etc., Co., 86 F. (2d) 4, 6, citing Cleve 
v. Craven Chemical Co., 18 F. (2d) 711, 713, 52 A. E R. 
980; Federal Reserve Bank v. Malloy, 264 U. S. 160, 44 
S. Ct. 296, 68 E. Ed. 617, 31 A. E R. 1261. 

The agency to collect is coupled with an authority in the 
collecting bank to use the proceeds for its own purposes; 
and where the collecting bank, in accordance with the usual 
custom of the banking business, makes a collection in what 
it chooses to accept as money's worth and thereupon be- 
comes in law liable as a debtor for the amount of the col- 
lection, there is no reason to hold that the trust relationship 
is extended beyond such collection. Citizens Nat. Bank v. 
Fidelity, etc., Co., 86 F. (2d) 4, 6. 

] 



§ 219(a) 



BANKS 



§ 219(d) 



Commissioner's Report under Subdivision (18) Bars Suit 
to Enforce Statutory Liability of Stockholder.— Where all 

the debts of the old bank have been discharged and there 
are no creditors, as evidenced by the report of the com- 
missioner of banks under subdivision (18), it is obvious 
that suit cannot afterwards be maintained to enforce the 
statutory liability of an alleged stockholder in that bank. 
Hood v. Richardson Realty, 211 N. C. 582, 588, 191 S. E. 
410. 

Applied, as to subd. (13), in In re Carolina State Bank, 
208 N. C. 509, 181 S'. E. 621; as to subd's (10), (11), in 
Hood v. Elder Motor Co., 209 N. C. 303, 183 S. E. 529; 
as to subd. (13), in Hood v. Hewitt, 209 N. C. 810, 185 S. 
E. 161. 

Cited in In re United Bank, etc., Co., 209 N. C. 389, 184 
S. E. 64; Hood v. Clark, 211 N. C. 693, 191 S. E- 732. 

Art. 4. Stockholders 
§ 219(a). Stockholders, individual liability of. 

Liability Contractual.— 

In accord with original. See Hood v. Richardson Realty, 
211 N. C. 582, 191 S. E. 410. 

Statutory Liability Is for Benefit of Depositors and Other 
Creditors,— The statutory liability imposed upon stockhold- 
ers of an insolvent bank is created, not for the benefit of 
the bank, but for the benefit of depositors and other cred- 
itors, and constitutes a fund in the nature of a trust fund 
in the sense that it should be maintained intact and be 
available upon insolvency for equitable distribution among 
all creditors. Hood v. North Carolina Bank, etc., Co., 209 
N. C. 367, 184 S. E. 51. See also, Hood v. Richardson 
Realty, 211 N. C. 582, 588, 191 S. E. 410, citing Hill v. 
Smathers, 173 N. C. 642, 92 S. E. 607; Hood v. Martin, 203 
N. C. 620, 166 S. E. 793; Cook on Stock & Stockholders, 
§ 218. 

It Can Not Be Regarded as an Assignable Chose in Ac- 
tion.— As the stockholder's liability is fixed by this section 
and is imposed solely for the benefit of the creditors of the 
bank in which the stock is held, it cannot be regarded as 
an assignable chose in action, ordinarily entitling the assignee 
to sue for its enforcement. Nor would it pass under the 
general designation of assets. Hood v. Richardson Realty, 
211 N. C. 582, 588, 191 S. E. 410. 

A bank, in consideration of discharging all debts of an 
insolvent bank, took over all its assets, including the statu- 
tory liability of the stockholders of the insolvent bank. 
This transaction amounted to a sale and purchase and all 
debts of the insolvent bank being discharged, the stat- 
utory liability of its stockholders, upon which no assess- 
ment had been made nor judgment docketed, could no 
longer be enforced, and the transferee bank may not com- 
plain that some of the assets so bought were worthless, or 
maintain the position of creditor of the insolvent bank for 
the purpose of enforcing the statutory liability of its stock- 
holders in the absence of a contract of guaranty, or under- 
taking to repay, or facts sufficient to raise the equity of 
subrogation. Id. 

Stockholders Can Not Be Relieved of Liability to Preju- 
dice of Creditors.— The principle that a corporation cannot 
relieve a stockholder of liability for the balance due on un- 
paid stock to the prejudice of creditors of the corporation 
applies to the statutory liability of bank stockholders. 
Hood v. North Carolina Bank, etc., Co., 209 N. C. 367, 184 
S. E. 51. 

Assignee of Judgment against Executor for Assessment 
Is Not Entitled to Set Up Personal Liability of Executor. 
— Plaintiff assignee of a judgment against an executor in 
his representative capacity for a stock assessment made 
on shares of stock of a bank in liquidation, sought by sub- 
sequent proceedings to charge the executor personally with 
liability upon allegations that the executor personally owned 
the bank stock, legally or equitably. The mere assignment 
of the judgment, without more, was held to transfer only 
the rights of the assignor of the judgment in his status of 
judgment creditor and not his personal rights not incident 
to such status, and plaintiff was not entitled to set up the 
personal liability of the executor. Jones v. Franklin's Es- 
tate, 209 N. C. 585, 183 S. E- 732. 

The amendment of 1935 abolished the statutory double 
liability of stockholders in the banks of this state, and it 
is made applicable to all shares of stock, issued or to be is- 
sued. Hood v. Richardson Realty, 211 N. C. 582, 590, 191 
S. E. 410. 

Where since the levy of the assessment the holders of 
bank stock have been relieved of their double liability by 
this section, unless the defendants were rendered liable 
by the prior original assessment, they cannot now be made 
liable therefor. Fidelity Security Co. v. Hight, 211 N. C. 
117, 118, 189 S. E. 174. 



Constitutionality of Amendment.— As between a stock- 
holder and one who was a depositor or creditor of a bank 
prior to the amendment of 1935, the statute, which prescribes 
that the stockholder's liability shall cease with respect to 
shares which had theretofore been issued, would seem to 
offend the constitutional provision of Art. I, sec. 10, of the 
Constitution of the United States prohibiting the passage of 
an act impairing the obligation of a contract. But where 
no rights had vested, and where neither assessment had 
been levied nor judgment rendered against the stockholder 
prior to the passage of the Act of 1935, it would seem that 
the act would avail in the present suit. Hood v. Richard- 
son Realty, 211 N. C. 582, 590, 191 S. E. 410. 

Applied in In re Citizen's Bank, 209 N. C. 216, 183 S. E- 
410; In re United Bank, etc., Co., 209 N. C. 389, 184 S. E- 
64; Hood v. Hewitt, 209 N. C. 810, 185 S. E. 161. 

§ 219(c). Eixecutors, trustees, etc., not person- 
ally liable. 

Assignee of Judgment for Stock Assessment against Ex- 
ecutor Is Not Entitled to Set Up Personal Liability of Ex- 
ecutor. — Plaintiff assignee of a judgment against an execu- 
tor in his representative capacity for a stock assessment 
made on shares of stock of a bank in liquidation, sought 
by subsequent proceedings to charge the executor person- 
ally with liability upon allegations that the executor per- 
sonally owned the bank stock, legally or equitably. The 
mere assignment of the judgment, without more, was held 
to transfer only the rights of the assignor of the judg- 
ment in his status of judgment creditor and not his personal 
rights not incident to such status, and plaintiff was not 
entitled to set up the personal liability of the executor. 
Jones v. Franklin's Estate, 209 N. C. 585, 183 S. E. 792. 

Liability Attaches to Estate or Funds in Hands of Trus- 
tees, etc. — By this provision an administrator, executor, 
guardian, or trustee is not personally liable for the statutory 
liability on bank stock held in their representative capaci- 
ties, but such liability attaches to the estate or funds in 
their hands. Hood v. North Carolina Bank, etc., Co., 209 
N. C. 367, 184 S. E. 51. 

And where a trustee breached its duty in failing to sell 
bank stock for reinvestment, its wrongful act will not re- 
lieve the estate of the statutory liability to the prejudice 
of depositors and creditors of the bank. Id. 

A trust estate is liable for assessment on bank stock 
owned regardless of the method by which the trust is es- 
tablished, and where shares of bank stock appear on the 
books of the bank in the name of "executors," the statu- 
tory liability thereon of the estate may not be defeated by 
showing that the stock was held by the executors as ex- 
ecutors and trustees under the will for the benefit of minor 
ulterior beneficiaries, the beneficiaries of the income from 
the trust estate being of age, and there being nothing on 
the books of the bank to disclose the trusteeship. Hood 
v. North Carolina Bank, etc., Co., 209 N. C. 367, 184 S. 
E. 51. 

Liability of Bank Trustee to Trust Estate Can Not Be 
Set Up as Counterclaim against Liability of Estate. — The 
liability of a bank trustee to the trust estate for its neg- 
ligent failure to sell for reinvestment shares of stock of the 
bank belonging to the trust estate cannot be set up as a 
counterclaim or set-off against the statutory liability of the 
estate upon the insolvency of the bank. In re United Bank, 
etc., Co., 209 N. C. 389, 184 S. E- 64. 

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

This section exempts those who in good faith transfer 
stock to any person of full age. Hood v. North Carolina 
Bank, etc., Co., 209 N. C. 367, 378, 184 S. E- 51. 

The question of intent and good faith must be determined 
by the surrounding circumstances. The fact that the de- 
fendant transferred his stock to his insolvent son without 
consideration, and that this was done six days after the 
only other commercial bank in the city had failed and been 
taken over for liquidation by the Commissioner of Banks, 
would constitute some evidence bearing on the question of 
the purpose of the transfer and be susceptible of the rea- 
sonable inference that it was done in order to evade lia- 
bility on the stock. Hood v. Clark, 211 N. C. 693, 694, 191 
S. E. 732. 

Word "Suspension" Refers to Stockholders' Liability.— 
While the word "suspension" is ordinarily defined as a 
"temporary stop," a "temporary delay, interruption, or 
cessation," and as to commercial institutions, sometimes, 
"business failure," yet taken in the connection in which it 
is used in this section, the reference is to bank stockhold- 
ers' liability and to the proceedings to enforce it. Hood 
v. Clark, 211 N. C. 693, 694 191 S. E. 732. 



[7] 



§ 220(a) 



BANKS 



§ 220(b) 



Art. 5. Powers and Duties 
§ 220(a). General powers. — 

6. Any commercial bank, savings bank, or trust 
company, heretofore or hereafter organized under 
any general or special laws of this state and any 
national bank doing business in this state, shall 
have power, in addition to such other powers as 
it may have: 

(a) Upon the making of a loan or discount, to 
deduct in advance, from the proceeds of such loan, 
interest at a rate not exceeding six per centum 
(6%) per annum upon the amount of the loan from 
the date thereof until the maturity of the final in- 
stallment, notwithstanding that the principal 
amount of such loan is required to be repaid in 
installments: Provided, no loan made under the 
provisions of this section shall exceed fifteen hun- 
dred ($1,500.00) dollars to any one person, firm, 
partnership, or corporation. 

(b) Nothing in this section shall be construed 
as in any wise extending or increasing or decreas- 
ing the powers of commercial banks, savings 
banks, or trust companies or national banks to 
make loans or discount notes other than as here- 
in or by other laws expressly provided. (1921, c. 
4, s. 26; 1923, c. 148, s. 5; 1924, c. 67; 1925, c. 279; 
1927, c. 47, s. 5; 1931, e. 243, s. 5; 1933, c. 303; 1935, 
c. 81, s. 1, c. 82; 1937, c. 154.) 

Editor's Note.— The 1937 amendment, directing that the 
above subsection be added to this section, repeals any pro- 
visions of § 225(a), or any other laws, in conflict therewith. 
The rest of the section, not being affected by the amend- 
ment, is not set out. 

§ 220(a) 1. Banks, fiduciaries, etc., may invest 
in bonds guaranteed by United States — 

(3) Bonds Deemed Cash in Settlements by 
Fiduciaries. — In settlements by guardians, execu- 
tors, administrators, trustees and others acting in 
a fiduciary capacity, the bonds and securities here- 
in mentioned shall be deemed cash to the amount 
actually paid for same, including the premium, if 
any, paid for such bonds, and may be paid as such 
by the transfer thereof to the persons entitled and 
without any liability for a greater rate of interest 
than the amount actually accruing from such 
bonds. (1935, c. 164; 1937, c. 433.) 

Editor's Note. — The 1937 amendment struck- out the words 
"not exceeding par value thereof" formerly appearing in 
subsection (3) of this section. The rest of the section, not 
being affected by the amendment, is not set out here. 

For an analysis of this section, see 13 N. C. I/aw Rev., 
No. 4, p. 362. 

§ 220(a) 2. Banks, fiduciaries, etc., authorized 
to invest in mortgages of federal housing admin- 
istration, etc. — (1) Insured Mortgages and Obli- 
gations of National Mortgage Associations. — It 
shall be lawful for all commercial and industrial 
banks, trust companies, building and loan associa- 
tions, insurance companies, and other financial in- 
stitutions engaged in business in this state, and for 
guardians, executors, administrators, trustees or 
others acting in a fiduciary capacity in this state 
to invest, to the same extent that such funds may 
be invested in interest-bearing obligations of the 
United States, their funds or the moneys in their 
custody or possession which are eligible for in- 
vestment, in bonds or notes secured by a mort- 
gage or deed of trust insured by the federal hous- 
ing administrator, in mortgages on real estate 
which have been accepted for insurance by the 
federal housing administrator, and in obligation 
of national mortgage associations. 

[ 



(2) Insured Loans. — • All such banks, trust 
companies, building and loan associations and in- 
surance companies, and other financial institutions, 
and also all such guardians, executors, administra- 
tors, trustees or others acting in a fiduciary ca- 
pacity in this state, may make such loans, secured 
by real estate, as the federal housing administra- 
tor has insured or has made a commitment to in- 
sure, and may obtain such insurance. 

(3) Eligibility for Credit Insurance. — All banks, 
trust companies, building and loan associations, 
insurance companies and other financial institu- 
tions, on being approved as eligible for credit in- 
surance by the federal housing administrator, may 
make such loans as are insured by the federal 
housing administrator. 

(4) Certain Securities Made Eligible for Col- 
lateral, etc. — Wherever, by statute of this state, 
collateral is required as security for the deposit of 
public or other funds; or deposits are required to 
be made with any public official or department; 
or an investment of capital or surplus, or a re- 
serve or other fund, is required to be maintained, 
consisting of designated securities, bonds, and 
notes secured by a mortgage or deed of trust in- 
sured by the federal housing administrator, de- 
bentures issued by the federal housing administra- 
tor and obligations of national mortgage associa- 
tions shall be eligible for such purposes. 

(5) General Laws Not Applicable. — No law of 
this state prescribing the nature, amount or form 
of security or requiring security upon which loans 
or investments may be made, or prescribing or 
limiting the rates or time of payment of the inter- 
est any obligation may bear, or prescribing or 
limiting the period for which loans or investments 
may be made, shall be deemed to apply to loans 
or investments made pursuant to the foregoing 
paragraphs. (1935, cc. 71, 378; 1937, c. 333.) 

Editor's Note. — The 1937 amendment made this section ap- 
plicable to building and loan associations, and made other 
changes. 

§ 220(b). Limitations on investments or secu- 
rities. — The investment of any bonds or other in- 
terest-bearing securities of any one firm, individ- 
ual or corporation, unless it be the interest-bear- 
ing obligations of the United States, obligations 
issued under authority of the Federal Farm Loan 
Act, as amended, or issued by the Federal Home 
Loan Banks, or the Home Owners' Loan Corpora- 
tion, state of North Carolina, or other state of the 
United States, or of some city, town, township, 
county school district, or other political subdivi- 
sion of the state of North Carolina, shall at no 
time be more than twenty per cent of the unim- 
paired capital 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 sur- 
plus in excess of two hundred and fifty thousand 
dollars: 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; 1935, c. 
199; 1937, c. 186.) 

Editor's Note. — The 1937 amendment inserted the words 
"obligations issued under authority of the Federal Farm 

] 



§ 220(d) 



BASTARDY 



§ 276(0 



Loan Act, as amended, or issued by the Federal Home Loan 
Banks, or the Home Owners' Loan Corporation." 

§ 220(d). Loans, limitations of. — 

Provided further, that the limitations of this 
section shall not apply to that portion of a loan or 
investment secured by a guarantee or a commit- 
ment made by the reconstruction finance corpora- 
tion or by the federal reserve bank, or by them 
jointly. (1921, c. 4, s. 29; 1923, c. 148, s. 6; 1925, 
e. 119, s. 1; 1927, c. 47, s. 7; 1937, c. 419.) 

Editor's Note.— The 1937 amendment directed that the above 
proviso be added at the end of this section. The rest of the 
section, not being affected by the amendment, is not set out 
here. 

§ 220(h). Forged check, payment of. 

Receipt of Statement by Bookkeeper Who Forged Checks 
Is Receipt by Corporation.— The receipt of a corporation's 
bank statement by its bookkeeper is receipt of the state- 
ment by the corporation, and it may not recover against 
the bank for the payment of forged checks when notice is 
not given within sixty days after such receipt of the bank 
statement, even though the checks were forged by the 
bookkeeper, who destroyed them after he received the can- 
celed checks from the bank. Greensboro Ice, etc., Co. v. 
Security Nat. Bank, 210 N. C. 244, 186 S. E. 362. 

§ 220(m). Nonpayment of check in error, lia- 
bility for. 

A bank wrongfully and unlawfully refusing to pay a 
check breaches its contract and the depositor is entitled 
to nominal damages at least. Thomas v. American Trust 
Co., 208 N. C. 653, 182 S. E. 136. 

Charge on Injury to Credit and Reputation Not Sup- 
ported by Evidence Is Error. — In an action to recover for 
the wrongful and unlawful refusal by a bank to pay a 
depositor's check, it is error for the court to charge the 
jury on the issue of damage that it should consider the 
evidence of damage sustained by plaintiff through injury 
to his credit and reputation in the community resulting 
from the bank's wrongful act when there is no evidence 
that plaintiff's credit or reputation had been injured 
thereby. Thomas v. American Trust Co., 208 N. C. 653, 
182 S. F. 136. 

§ 220(r). Establishment of branches. 

For a comment on the last proviso of this section, see 
13 N. C. Law Rev., No. 4, p. 360. 

§ 220 (aa). Checks payable in exchange. 

This section has no application to certificates of de- 
posit. Citizens Nat. Bank v. Fidelity, etc., Co., 86 F. 
(2d) 4, 7. 

§ 2ft0(gg). Governor empowered to proclaim 
banking holidays. 

Cited in Hood v. Clark, 211 N. C. 693, 191 S. E. 732. 

Art. 8. Bank Examiners 
§ 223(e). Examiners may make arrest. 

For article discussing arrest without a warrant, see 15 
N. C. Law Rev., No. 2, p. 101. 

Art. 10. Industrial Banks 
§ 225(a). Industrial bank defined. 

See note under § 220(a). 

§ 225(g). Restriction on powers. — No indus- 
trial bank shall deposit any of its funds in any 
banking corporation unless such corporation has 
been designated as such depositary by a vote of a 
majority of the directors, or of the executive com- 
mittee, exclusive of any director who is an offi- 
cer, director, or trustee of the depositary, so des- 
ignated, present at any meeting duly called at 
which a quorum is in attendance, and approved by 
the commissioner of banks. (1923, c. 225, s. 7; 
1931, c. 243, s. 5; 1937, c. 220.) 

Editor's Note. — The 1937 amendment struck out the former 
provision prohibiting loans for longer than one year. 

[ 



§ 225 (o). Stockholders, individual liability of. 

See the note to § 219(a) in this Supplement. 

In General. — 

This section is applicable, notwithstanding the shares of 
stock owned are fully paid and nonassessable by the cor- 
poration. The section does not affect, or purport to af- 
fect, the contract between the corporation and its stock- 
holders with respect to the shares of its stock owned by 
its stockholder. The liability imposed by it is for the 
benefit of creditors and not for the benefit of the corpora- 
tion itself. The effect of the section is to impose upon 
every stockholder of an industrial banking corporation, or- 
ganized and doing business under the laws of this state, 
a statutory liability to all persons who shall become cred- 
itors of the corporation, after its enactment. Hood v Hew- 
itt, 209 N. C. 810, 815, 185 S. F. 161. 

This section as construed is constitutional. Hood v. Hew- 
itt, 209 N. C. 810, 185 S. E. 161. See also, Smathers v. 
Western Carolina Bank, 135 N. C. 410, 47 S. F- 893, wherein 
a similar construction of § 219(a) was held constitutional. 



CHAPTER 6 

BASTARDY 

§ 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) -276 (i) shall be any person less 
than fourteen 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. 228, s. 1; 1937, c. 432, s. 1.) 

Editor's Note. — Prior to the 1937 amendment the age speci- 
fied was ten years. 

Constitutionality. — This section does not violate due proc- 
ess of law or impose imprisonment but by the law of the 
land. State v. S'pillman, 210 N. C. 271, 186 S. E- 322. 

The willfulness of the neglect is an essential ingredient 
of the offense, and as such must not only be charged in the 
bill, but must be proved beyond a reasonable doubt. State 
v. Spillman, 210 N. C. 271, 272, 186 S. E. 322. 

State Must Prove Paternity of Child and Willful Neg- 
lect.— It is not necessary that defendant's paternity of the 
child should be first judicially determined, but the state 
must prove on the trial, first, defendant's paternity of the 
child, and then his willful neglect or refusal to support the 
child. State v. Spillman, 210 N. C. 271, 186 S. E. 322. 

Since the statute raises no presumption against a person 
accused, the failure to support being evidence of willful- 
ness, but raising no presumption thereof, but to the con- 
trary, the statute requires the state to overcome the pre- 
sumption of innocence both as to the willfulness of the 
neglect to support the illegitimate child and defendant's 
paternity of the child. State v. Spillman, 210 N. C. 271, 
186 S. E. 322. 

Offense Punishable after Effective Date of Section Al- 
though Child Born before. — A parent may be prosecuted 
under this section for willful failure to support his illegit- 
imate child begotten and born before the effective date of 
the statute, the offense being the willful failure to support 
an illegitimate child, and it being sufficient if such willful 
failure occur after the effective date of the statute. State 
v. Parker, 209 N. C. 32, 182 S. E. 723. 

Defective Warrant.— Where the warrant fails to charge 
that defendant's failure to support his illegitimate child was 
willful, defendant's motion in arrest of judgment should be 
allowed. State v. Tarleton, 208 N. C. 734, 182 S. E- 481. 

Applied in State v. Moore, 209 N. C. 44, 182 S'. E. 692. 

§ 276(f). Jurisdiction of inferior courts; issues 
and orders. — Proceedings under this act shall be 
instituted only in the superior court of any county 
of this state and in any county recorder's court, 
any city recorder's court or municipal court. 

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 

] 



§ 323(b) 



CITIZENSHIP RESTORED 



§ 390(1) 



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; 1937, 
c. 432, s. 2.) 

Editor's Note.— The 1937 amendment directed that the first 
paragraph above be inserted in lieu of this section. How- 
ever, as it seems apparent that it was not the legislative in- 
tent to repeal the second paragraph, it is also set out here. 

The possibility of imposing a sentence of imprisonment in 
excess of thirty days was thought by some to exclude the 
jurisdiction of justices of the peace, but in many instances 
they did exercise jurisdiction. The amendment clearly ex- 
cludes justices. 15 N. C. Law Rev., No. 4, p. 347. 

Acquittal on Charge of Non- Support Bars Appeal Involv- 
ing Issue of Parentage.— Where the jury found the defend- 
ant to be the father of the bastard child, but not guilty of 
non- support, this is an acquittal. The defendant therefore 
is not entitled to an appeal under § 4650 for the refusal of 
the court to allow his motions that the action be dismissed, 
and that the answer to the issue of parentage be set aside. 
State v. Hiatt, 211 N. C. 116, 189 S. E. 124. 



CHAPTER 8 

BONDS 

Art. l. Official Bonds 

§ 323(b). Members of highway patrol and all 
other peace officers, required to give bond. — The 

state of North Carolina shall require of each 
member of the highway patrol and of every other 
peace officer employed by the state, elected or 
appointed, to give a bond with good security pay- 
able to the state of North Carolina, in a sum not 
less than one thousand ($1,000.00) dollars and not 
more than two thousand five hundred ($2,500.00) 
dollars, conditioned as well for the faithful dis- 
charge of his or her duty as such patrolman or 
other peace officer as for his diligently endeavor- 
ing to faithfully collect and pay over all sums of 
money received. Said bond shall be duly ap- 
proved and filed in the office of the insurance 
commissioner, and certified copies of the same by 
the insurance commissioner shall be received and 
read in evidence in all actions and proceedings 
where the original might be. (1937, c. 339, s. 1.) 
See § 4530(1). 

§ 326(a). Payment of premiums on official 
bonds. — In all cases where the officers or any of 
them named in section three hundred twenty- 
six are required to give a bond, and the said of- 



ficer or officers are paid by a set or fixed salary, 
the county commissioners of the county in which 
said officer or officers are elected are authorized 
and empowered to pay the premiums on the 
bonds of any and all such officer or officers. (1937, 
c. 440.) 

Art. 4. Actions on Bonds 

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

Applied in Bank of Spruce Pine v. McKinney, 209 N. C. 
668, 184 S. E. 506. 

§ 356. Summary remedy on official bond. 

See the note to the next succeeding section. 

§ 357. Officer unlawfully detaining money lia- 
ble for damages. 

This section must be considered in connection with the 
preceding section. Pasquotank County v. Hood, 209 N. C. 
552, 554, 184 S. E. 5. 

This and Preceding Section Are Not Applicable to Liq- 
uidation of Banks by Commissioner of Banks. — This and 
the preceding section are inapplicable to impose liability for 
damages in a case where the Commissioner of Banks took 
over the affairs of a bank which had been theretofore con- 
stituted the financial agent of the county and which had 
county funds on deposit and in its possession. Pasquotank 
County v. Hood, 209 N. C. 552, 555, 184 S. E. 5. 

The Commissioner of Banks holding a portion of the fund, 
subject to the orders of the court and for the purpose of 
liquidation, could not be said to constitute an "unlawful 
detention," nor should he in his representative capacity be 
liable in damages as a penalty for so doing. The punish- 
ment would not fall upon a defaulting or delinquent pub- 
lic officer, as intended by the statute, but would penalize 
funds held in trust for all the creditors and stockholders 
whose stock assessments have helped to contribute. Id. 



CHAPTER 9 

BOUNDARIES 
§ 361. Special proceeding to establish. 

Procedure. — As the procedure for the application of this 
section is that prescribed in § 363, subsec. 4, it is compe- 
tent for the defendant under §§ 457 and 758 to plead the 
equitable relief of mutual mistake, having the cause trans- 
ferred to the civil issue docket, and having the common 
grantor of the plaintiff and defendant made a party de- 
fendant. Smith v. Johnson, 209 N. C. 729, 184 S. £. 486. 

§ 362. Occupation sufficient ownership. 

Sufficiency of Ownership — When Title Not in Dispute. — 

Where it is admitted that plaintiff's title was not in dis- 
pute, and that defendant's title was not in dispute except 
as to the true boundary line, the refusal of the court to 
submit an issue as to plaintiff's title, in addition to the is- 
sue as to the true boundary line, will not be held for er- 
ror. Clark v. Dill, 208 N. C. 421, 181 S. E. 281. 

V 



CHAPTER 11 

CITIZENSHIP RESTORED 

§ 390(1). Restoration of rights of citizenship 
to persons committed to certain training schools. 

— Any person convicted of any crime whereby 
any rights of citizenship are forfeited, and the 
judgment of the court pronounced provides a 
sentence, and such sentence is suspended upon 
the condition that such person be admitted to 
and remain at one of the following schools: East- 
ern Carolina Industrial Training School for Boys, 
the Stonewall Jackson Manual Training and In- 
dustrial School, the Morrison Training School 
for Negro Boys, or the State Home and In- 
dustrial School for Girls, until lawfully dis- 
charged, and upon payment of costs, such person 
may be restored to such forfeited rights of citi- 



[10] 



§ 390(2) 



CIVIL PROCEDURE 



§ 440 



zenship upon application and petition to the judge 
presiding at any term of the superior court held 
in the county in which the conviction was had, at 
any time after one year from the date of the law- 
ful discharge from any such school. (1937, c. 384, 
s. 1.) 

§ 390(2). Contents of petition; affidavits of rep- 
utable citizens; hearing; decree of restoration. — 

The petition provided for in section 390(1) shall 
set out the nature of the crime committed, the 
time of conviction, the judgment of the court, and 
shall recite that the costs of suit have been paid, 
the lawful discharge of the applicant from the 
school to which he or she was admitted, and that 
applicant has never before had restored to him 
lost rights of citizenship, which petition shall be 
verified by the oath of the applicant, and accom- 
panied by the affidavits of ten reputable citizens 
of the county in which said conviction took place, 
who shall state that they are well acquainted with 
the applicant, and that they are of the opinion 
that the applicant should have restored to him 
the lost rights of citizenship. The petition shall 
be heard by the judge during a term of court, and 
if he is satisfied as to the truth of the matters set 
out in the petition and the affidavits, he shall de- 
cree the applicant's restoration to the lost rights 
of citizenship and the clerk shall spread the de- 
cree upon his minute dockets. (1937, c. 384, s. 2.) 



CHAPTER 12 

CIVIL PROCEDURE 

SUBCHAPTER I. DEFINITIONS AND 
GENERAL PROVISIONS 

Art. 1. Definitions 

§ 395. Criminal action. 

Subsection Two Affords Remedy against Alleged Uncon- 
stitutional Discriminations. — By prosecuting under this sec- 
tion persons doing- acts allowed by a statute a remedy 
against alleged unconstitutional discriminations of a stat- 
ute is afforded. Newman v. Watkins, 208 N. C. 675, 182 
S. E. 453. 

Which Affords an Adequate Remedy. — Where the alleged 
acts of the defendant are criminal the plaintiff is not en- 
titled to equitable relief in the nature of an injunction but 
is furnished an adequate remedy by this section. Carolina 
Motor Service v. Atlantic Coast Line R. Co., 210 N. C. 
36, 185 S. F- 479, 104 A. L. R. 1165. 

SUBCHAPTER II. LIMITATIONS 

Art. 3. Limitations, General Provisions 

§ 411. Defendant out of state; when action be- 
gun or judgment enforced. 

"The times herein limited" means. 

In accord with original. See Hill v. Lindsay, 210 N. C. 
■694, 188 S. F. 406. 

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

Nonsuit Operates as Res Adjudicata Only Where Second 
Action Is Substantially Identical with First. — 

In accord with original. See Ingle v. Cassady, 211 N. C. 
287, 189 S. F- 776. 

Parol Evidence to Prove Nature of, Action. — 

In accord with original. See Little v. Bost, 208 N. C. 
762, 182 S. F. 448. 
Actions to Which Applicable. — 

Where the original action was instituted in the state court 
within less than three years after the cause of action ac- 
crued, and the present action was instituted in the federal 
court within less than a year after the nonsuit was taken 
in the original action, there can be no question as to the 

[11 



protection of this statute being available. Federal Reserve 
Bank v. Kalin, 81 F. (2d) 1003, 1007. 

§ 416. New promise must be in writing. 

III. PART PAYMENT. 
Elements Essential to Take Case Out of Statute. — 

In accord with original. See Bryant v. Kellum, 209 N. C. 
112, 182 S. F- 708. 

Art. 4. Limitations, Real Property 
§ 425. Title against state. 

Sufficiency of Possession. — 

The evidence was held sufficient to be submitted to the 
jury on the issue of plaintiffs' actual, open, continuous, no- 
torious, and adverse possession of the lands sufficient to 
ripen title in plaintiffs under the provisions of this section, 
and defendants' motion to nonsuit was erroneously granted. 
Owens v. Blackwood Lbr. Co., 210 N. C. 504, 187 S. F. 804. 

§ 426. Possession presumed out of state. 

Quoted in Owens v. Blackwood Lbr. Co., 210 N. C. 504, 
187 S. F. 804. 

§ 428. Seven years possession under colorable 
title. 

II. NOTE TO SECTION 42S. 

Cited in Owens v. Blackwood Lbr. Co., 210 N. C. 504, 
187 S. F- 804. 

§ 430. Twenty years adverse possession. 

Tenants in Common — Possession of One Possession of AIL— 

Where the possession of one cotenant is pursuant to an 
agreement of all eotenants, his possession for more than 
twenty years is insufficient to bar his eotenants or their 
privies. Stallings v. Keeter, 211 N. C. 298, 190 S. F- 473. 

Question for Jury.— In accord with second paragraph in 
original. See Owens v. Blackwood Lbr. Co., 210 N. C. 
504, 187 S. F. 804; Caskey v. West, 210 N. C. 240, 186 S. 
F- 324. 

Art. 5. Limitations, Other than Real Property 

§ 437. Ten years.— 

5. For the allotment of dower upon lands not 
in the actual possession of the widow following 
the death of her husband. (Rev., s. 391; Code, s. 
152; C. C. P., ss. 14, 31; 1937, c. 368.) 

Editor's Note.— The 1937 amendment directed that the above 
subsection be added to this section. The rest of the section, 
not being affected by the amendment, is not set out. 

For a discussion of the effect of the amendment, see 15 N. 
C. Law Rev., No. 4, p. 354. 

I. IN GENERAL. 

Applied in Davis v. Cockman, 211 N. C. 630, 191 S. F- 322. 

III. SUBS. (2) SEALED INSTRUMENTS. 
Application to Sureties. — 

In accord with original. See North Carolina Bank, etc., 
Co. v. Williams, 209 N. C. 806, 185 S. F. 18. 
Application to Bills, Notes, etc. — 

Where the note contained the word "seal" opposite the 
signature it was held to be conclusive as to the nature of 
the instrument. Therefore this section controls as to the 
time within which an action might be brought. Federal 
Reserve Bank v. Kalin, 81 F. (2d) 1003. 

IV. SUBS. (3) MORTGAGE FORECLOSURE. 
Foreclosure Held Only Remedy in Absence of Signed Note. 

— 'Where the plaintiff did not sign the note and was not 
bound thereby, having executed only a deed of trust on 
her land as additional security for the debt, in the event 
of default in payment foreclosure of the deed of trust is 
the only action maintainable against her. This section, 
therefore, prescribes the time within which an action may 
be brought. Carter v. Bost, 209 N. C. 830, 184 S. F- 817. 

§ 439. Six years. 

II. SUBSECTION ONE— PUBLIC OFFICERS. 

Application to Registers of Deeds. — In accord with orig- 
inal. See Bank of Spruce Pine v. McKinney, 209 N. C. 
668, 184 S. F. 506. 

§ 440. Five years. 

I. IN GENERAL. 
Quoted in Blevins v. Northwest Carolina Utilities, 209 N. 
C. 683, 184 S. F. 517. 

] 



§ 441 



CIVIL PROCEDURE 



§ 449 



§ 441. Three years. 

I. IN GENERAL. 

Section Not Applicable. — Where the plaintiff did not sign 
the note and was not bound thereby, having executed only 
a deed of trust on her land as additional security for the 
debt, this section has no application. Carter v. Bost, 209 
N. C. 830, 184 S. E. 817. See § 437, analysis line IV. 

Cited in Mebane Graded School Dist. v. Alamance County, 
211 N. C. 213, 189 S. E- 873. 
IV. SUBSECTION THREE— TRESPASS UPON REALTY. 

Application in Action to Recover Damages Resulting from 
Sewage Disposal Plant. — Where the plaintiff executed a deed 
of trust, deeded his equity of redemption to his sons, and 
the deed of trust was foreclosed, all more than three years 
before the institution of the action, and the plaintiff did not 
again acquire title until less than a year before the ac- 
tion, it was held in an action to recover damages to the 
land resulting from defendant's sewage disposal plant that 
the measure of damages should have been predicated upon 
the difference in value at the time plaintiff again acquired 
title and the date of the institution of the action, and an in- 
struction that the jury should assess as damages the differ- 
ence in the market value of the land on the date of the 
institution of the action and the date three years prior 
thereto, constitutes reversible error. Ballad v. Cherryville, 

210 N. C. 728, 188 S. E\ 334. 

Cited in Teseneer v. Henrietta Mills Co., 209 N. C. 615, 
184 S. E. 535. 

VI. SUBSECTION SIX— SURETIES OF EXECUTORS, 
ETC. 

Action to recover for alleged breach of bond as adminis- 
tratrix accrues at the time the alleged breach is committed, 
this subdivision having no provision relating to discovery 
of the breach of the official bond as is provided for in cases 
under subdivision (9). Hicks v. Purvis, 208 N. C. 657, 182 
S. E. 151. 

IX. SUBSECTION NINE— FRAUD OR MISTAKE. 

Action for Omission from Deed. — Where a reversionary 
clause was omitted from a deed by mistake of the drafts- 
man it was held that the registration of the deed was 
insufficient to constitute notice to plaintiffs, and the action 
was not barred until three years after plaintiffs discov- 
ered, or should have discovered, the mistake in the exer- 
cise of due diligence. Ollis v. Board of Education, 210 N. 
C. 489, 187 S. E. 772. 

Action Barred by Negligence in Asserting Right.— The 
plaintiffs contended that usurious interest was paid de- 
fendant by their agent without their knowledge, and that 
therefore their action to recover the penalty for usury was 
not barred although instituted more than two years after 
the last usurious payment (see § 442). It was held that 
the plaintiffs are not entitled to invoke the statute, it ap- 
pearing that plaintiffs did not institute action until more 
than three years after they had executed a note bearing 
six per cent interest in renewal of the original note upon 
which usury was paid,, and that plaintiffs were negligent 
in asserting their rights if any they had. Ghormley v. Hy- 
att, 208 N. C. 478, 181 S. E- 242. 

Cited in McCormick v. Jackson, 209 N. C. 359, 183 S. E- 
369. 

X. SUBSECTION X— REALTY SOLD FOR TAXES. 
This section does not apply where the owner remains in 
possession. Bailey v. Howell, 209 N. C. 712, 184 S'. E. 476. 

§ 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; 
provided, however, that the provisions of this par- 
agraph shall not apply to claims based upon 
bonds, notes and interest coupons. 

(1937, c. 359.) 

I. SUBSECTION ONE— POLITICAL SUBDIVISIONS 
OF STATE. 

Editor's Note. — The 1937 amendment added the proviso to 
paragraph one. The rest of the section, not being affected 
by the amendment, is not set out. 

Cited in Mebane Graded School Dist. v. Alamance County, 

211 N. C. 213, 189 S. E. 873. 

II. SUBSECTION TWO— PENALTY FOR USURY. 
When Statute Begins to Run. — 

In accord with original. See Ghormley v. Hyatt, 208 N. 
C. 478, 181 S. E. 242. 



Attorney's Fee Held Not Usurious. — See Woody v. Pru- 
dential Life Ins. Co., 209 N. C. 364, 183 S. E. 296. 

§ 443. One year. 

Subsection Three — Action for Libel. — Where, in an action 
for libel, defendants admit that the article was published 
in defendant magazine on a certain date, and plaintiff shows 
that the action was instituted one day less than a year 
thereafter, defendant is not entitled to nonsuit upon his 
plea of the one-year statute of limitations. Harrell v. 
Goerch, 209 N. C. 741, 184 S. E- 489. 

SUBCHAPTER III. PARTIES 

Art. 6. Parties 

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

I. REAL PARTIES IN INTEREST. 
A. In General. 
Who Is Real Party in Interest.— 

The requirement that an action must be maintained by 
the real party in interest means some interest in the sub- 
ject matter of the litigation and not merely an interest in 
the action. Choate Rental Co. v. Justice, 211 N. C. 54, 188 
S. E. 609. 

Exception Does Not Apply to Fire Insurance Companies. 
— If the exception in this section ("But this section does 
not authorize the assignment of a thing in action not aris- 
ing out of contract") operated to prevent a fire insurance 
company, on paying a loss, from suing the one whose neg- 
ligence caused the loss, it was repealed by Laws 1899, ch. 
54, sec. 43 (see now § 6437), which provides that the insur- 
ance company should be subrogated, to the extent of the 
payment by it, to all right of recovery by assured. Buck- 
ner v. United States Fire Ins. Co., 209 N. C. 640, 647, 184 
S. E- 520, citing Hamburg- Bremen Fire Ins. Co. v. Atlantic 
Coast Line R. Co., 132 N. C. 75, 43 S. E- 548. 

Stated in Lawson v . Langley, 211 N. C. 526, 191 S. E- 229. 

B. Personal Actions. 

Transferee of Claim. — The discretion conferred by § 461 
is a sound discretion to be exercised where the circum- 
stances render it proper that the action be prosecuted in the 
name of the transferee rather than in that of the original 
plaintiff; and one circumstance calling for the exercise of 
the discretion is the fact that the transferor, as in this case, 
has parted with all interest to the transferee, since this 
section requires that the action be prosecuted in the name 
of the real party in interest. Hood v. Bell, 84 F. (2d) 136, 
138. 

Action on Note by Liquidating Agent. — In an action on a 
note executed to a bank, the liquidating agent of the payee 
bank and the Reconstruction Finance Corporation, to which 
the note had been pledged as collateral security are both 
interested parties and may jointly sue the makers of the 
note. Hood v. Progressive Stores, 209 N. C. 36, 182 S. E. 
694. 

Shippers Are Real Parties in Interest in Action for Dis- 
crimination in Rates.— Where certain carriers by truck sought 
injunctive relief against railroad carriers for discrimination 
in rates against certain cities and against certain commod- 
ities, it was held that the basis for injunctive relief must 
be an interference or threatened interference with a legal 
right of the petitioner, not of a third party and that the 
shippers would be the real parties in interest not the con- 
tract truck carriers. Carolina Motor Service v. Atlantic 
Coast Line R. Co., 210 N. C. 36, 38, 185 S. E. 479, 104 A. 
L. R. 1165. 

Action on Fidelity Bond. — Where stockholders and directors 
gave their note to the bank for the amount of a shortage 
due to embezzlement by a cashier to prevent liquidation, 
and the bank neither surrenders nor assigns the fidelity bond 
of the defaulting cashier, the bank is the real party in in- 
terest and entitled to maintain an action upon the bond. 
People's Bank v. Fidelity, etc., Co., 4 F. Supp. 379, 382. 

Lessor Must Bring Action of Summary Ejectment. — Al- 
though an agent of the lessor may make the oath in writ- 
ing required in summary ejectment under § 2367, the ac- 
tion must be prosecuted in the name of the lessor as the 
real party in interest, and it may not be maintained in the 
name of the lessor's rental agent. Choate Rental Co. v. 
Justice, 211 N. C. 54, 188 S. E- 609. 

§ 44)9. Action by executor or trustee. 

By this section, fiduciaries are not made the real parties 
in interest, but are empowered to bring an action for the 
real beneficiaries. Lawson v. Langley, 211 N. C. 526, 191 
S'. E. 229. 
'Cited in Orr v. Twiggs, 210 N. C. 578, 187 S. E. 791. 



[12 



§ 450 



CIVIL PROCEDURE 



§ 484 



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

Foreign or Domestic Corporation Can Not Be Appointed 

Next Friend.— Only a person whose fitness has first been 
ascertained by the court is eligible for appointment by the 
court as next friend of a minor to institute suit, and nei- 
ther a foreign nor domestic corporation may be appointed 
next friend of an infant. In re Will of Roediger, 209 
N. C. 470, 184 S. E. 74. See also Appx. VII,. part II, § 16 
and note. 

Stated in Dawson v. Dangley, 211 N. C. 526, 191 S. E- 
229. 

§ 457. Joinder of parties; action by or against 
one for benefit of a class. 

Common Grantor of Plaintiff and Defendant Made Party 
Defendant after Mutual Mistake.— Where there is allega- 
tion of mutual mistake of the common grantor of the 
plaintiff and defendant, and of the plaintiff and defendant 
as grantees in the deeds simultaneously executed and de- 
livered to them by said grantor, it was held proper for the 
court to make the grantor a party defendant. Smith v. 
Johnson, 209 N. C. 729, 731, 184 S. E- 486. 

§ 458. Persons severally liable. 

Action on Promissory Note. — Since the holder of a note 
may sue any or all persons severally liable thereon, an 
endorser may not attack for fraud a judgment entered 
against him on the note in a suit maintained by the maker 
in his capacity of administrator of the holder, in which 
suit he takes a nonsuit against himself as maker of the 
note. Castleberry v. Sasser, 210 N. C. 576, 187 S. E- 761. 

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

Quoted in Peterson v. McManus, 208 N. C. 802, 182 S. 
E- 483. 

§ 461. Abatement of actions. 

The discretion conferred by this section is a sound dis- 
cretion to be exercised where the circumstances render it 
proper that the action be prosecuted in the name of the 
transferee rather than in that of the original plaintiff; and 
one circumstance calling for the exercise of the discretion 
is the fact that the transferor, as in this case, has parted 
with all interest to the transferee, since § 446 requires that 
the action be prosecuted in the name of the real party 
in interest. Hood v. Bell, 84 F. (2d) 136. 

Applied in People's Bank v. Fidelity, etc., Co., 4 F. Supp. 
379. 

§ 462. Procedure on death of party. 

Judgment Set Aside Where No One Authorized to Repre- 
sent Estate at Trial. — Where it appears that at the time of 
trial there was no one authorized to represent the estate, 
this constitutes a meritorious reason for setting aside the 
judgment, and this result is not affected by the payment of 
fees to the attorneys purporting to represent defendant by 
the executor c. t. a., under order of court, since the exec- 
utor c. t. a. was not made a party to the suit, and did not 
appear therein. Taylor v. Caudle, 208 N. C. 298, 180 S. E- 
699. 

SUBCHAPTER IV. VENUE 
Art. 7. Venue 
§ 463. Where subject of action situated. 

I. IN GENERAL. 

These sections relating to venue all refer to "actions" and 
have no reference to the writ of habeas corpus which has 
been denominated a "high prerogative writ." McEachern 
v. McEachern, 210 N. C. 98, 102, 185 S. E. 684. 

II. ACTIONS RELATING TO REAL PROPERTY. 

Injuries to Land. — 

The action to recover for injuries to land caused by back- 
ing water upon it is transitory. Cox v. Oakdale Cotton 
Mills, 211 N. C. 473, 190 S. E. 750. 

§ 464. Where cause of action arose. 

Action Dismissed as to Town Is Properly Remanded to 
County of Origin.— Where the plaintiff instituted a suit in 
the county of her residence, the county in which defendant 
administrator qualified, and upon joinder of a town as a 
party defendant, the action was removed to the county in 
which the town is located, the town's demurrer being sus- 
tained and the action dismissed as to it, it was held that 
the court properly remanded the action to the county in 

[13 



Joyner, 209 



which it was originally instituted. Banks 
N. C. 261, 183 S'. E. 273. 

§ 465. Official bonds, executors and administra- 
tors. 

Compelling Institution of Action in Particular County 
Does Not Prevent Motion for Removal. — Where a plaintiff 
was compelled to institute his action in a particular county 
by reason of the mandate of this section, his act in so do- 
ing could not therefore be imputed to him as a voluntary 
choice of venue so as to prevent him from lodging a motion 
for removal under § 470(2). Pushman v. Dameron, 208 N. 
C. 336, 337, 180 S. E. 578. 

Hence a trial judge in the exercise of a sound discretion, 
has the power to remove the cause to another county for 
trial. Pushman v. Dameron, 208 N. C. 336, 337, 180 S. E. 
578. 

Since the wording of this section does not necessarily 
mean that the cause should be actually tried in such county. 
Pushman v. Dameron, 208 N. C. 336, 337, 180 S. E. 578. 

Quoted in Bohannon v. Wachovia Bank, etc., Co., 210 N. 
C. 679, 188 S. E. 390. 

§ 469. Venue in all other cases. 

An action on a note by the commissioner of banks, etc., 
is properly brought in the county in which the insolvent 
bank is situate and of which the liquidating agent is a resi- 
dent, and defendants' motion for change of venue to the 
county of their residence is properly refused. Hood v. Pro- 
gressive Stores, 209 N. C. 36, 182 S. E- 694. 

Stated in Dawson v. Dangley, 211 N. C. 526, 191 S. E- 229. 

§ 470. Change of venue. 

I. IN GENERAL. 

Stated, in Dawson v. Dangley, 211 N. C. 526, 191 S. E- 
229. 

Cited in Cox v. Oakdale Cotton Mills, 211 N. C. 473, 190 
S. E. 750. 

II. THE APPLICATION FOR REMOVAL. 
A. Time of Demand. 

Instituting Action under § 465 Does Not Prevent Motion 
for Change. — Where the plaintiff under § 465 is bound to 
institute the action in the county in which defendant gave 
bond, his act in so doing cannot be imputed to him as a 
voluntary choice of venue, so as to prevent the lodging of 
a motion under this section. Pushman v. Dameron, 208 
N. C. 336, 180 S. E. 578. 

Right of Defendant after Complaint Filed.— Where an or- 
der for the examination for an adverse party is granted be- 
fore the filing of the complaint, a motion for change of 
venue as a matter of right may be denied without prejudice 
to defendant's right to move for change of venue after the 
filing of the complaint, the right of defendant to object to 
venue, applying after complaint is filed. Bohannon v. Wach- 
ovia Bank, etc., Co., 210 N. C. 679, 188 S. E- 390. 

SUBCHAPTER V. COMMENCEMENT OF 
ACTIONS 

Art. 8. Summons 

§ 476. Contents, return, seal. 

Editor's Note.— For act, supplemental to this section, au- 
thorizing tax collector to serve process in tax foreclosure 
suits in Beaufort county, see Public Daws 1937, c. 65, s. 1. 

For an analysis of this section, see 13 N. C. Daw Rev., 
No. 4, p. 371. 

Summons in Quo Warranto Proceedings Must Meet Req- 
uisites of Section. — In order for a valid service of sum- 
mons in quo warranto proceedings under the provisions of 
§ 881, it is necessary that the true copy of the summons 
provided for in that section meet the requisites of this sec- 
tion. McDeod v. Pearson, 208 N. C. 539, 181 S. E- 753. 

Substantial Compliance. — There is a substantial compli- 
ance with this section where the summons commanded the 
plaintiff to appear and show cause why a trustee should 
not be appointed in the place of the original trustee. The 
plaintiff could readily understand what the summons meant. 
Nail v. McConnell, 211 N. C. 258, 262, 190 S. E- 210. 

§ 479. When officer must execute and return. 

Cited in Dunn v. Wilson, 210 N. C. 493, 187 S. E- 802. 

§ 484. Service by publication. 

V. SERVICE BY PUBLICATION IN ACTION FOR 
DIVORCE. 

Applied in Burrowes v. Burrowes, 210 N. C. 788, 188 S. 
E. 648. 



§ 489 



CIVIL PROCEDURE 



§ 523 



§ 489. Proof of service. 

Cited in Dunn v. Wilson, 210 N. C. 493, 187 S. E. 802. 

§ 491(a). Service upon non-resident drivers of 
motor vehicles. 

This section makes no provision for service on the per- 
sonal representative of a deceased automobile owner who 

dies after an accident occurring in this state and before 
service of process, and service under the statute upon such 
personal representative confers no jurisdiction on our courts, 
since an agency, unless coupled with an interest, is termi- 
nated by the death of the principal. Dowling v. Winters, 208 
N. C. 521, 181 S. E. 751. 

This section does not warrant service upon a nonresident 
owner in an action for abuse of process based upon such 
owner's arrest of plaintiff after a collision between their cars 
in this state, since the action for abuse of process does not 
arise out of a collision in which defendant was involved by 
reason of the operation of his automobile in this state. 
Lindsay v. Short, 210 N. C. 287, 186 S. E. 239. 

§ 492. Defense after judgment on substituted 
service. 

Record Held to Disclose "Good Cause Shown" and a 
Meritorious Defense.— See Blankenship v. DeCasco, 211 N. 
C. 290, 189 S'. E. 773. 

Art. 9. Prosecution Bonds 
§ 494. Suit as a pauper; counsel. 

Editor's Note. — The 1937 amendment, applicable only to 
Durham, Forsyth, Nash and Northampton counties, directed 
that the following sentence be added to this section: "Pro- 
vided that before any judge or clerk shall make an order 
allowing a person to sue as a pauper the applicant shall per- 
sonally appear before the judge or clerk and be examined 
under oath, showing to the satisfaction of the court that he 
is unable to give the undertaking or make the deposit as 
required by the preceding action." 

SUBCHAPTER VI. PLEADINGS 
Art. 12. Complaint 
§ 506. Contents. 

III. STATEMENT OF FACTS CONSTITUTING THE 

CAUSE OF ACTION. 
"A plain and concise statement of facts." — 

In accord with original. See Citizen's Bank v. Gahagan, 

210 N. C. 464, 187 S. E- 580. 

§ 507. What causes of action may be joined. 

I. IN GENERAL. 
Former Equity Practice Followed. — Before this section 
was adopted, the doctrine of multifariousness was generally 
understood by the profession, and as the Code has in the 
main conformed to the equity practice, it may be well to 
look to those old landmarks for a guide through the mist 
that envelopes the subject. Barkley v. McClung Realty Co., 

211 N. C. 540, 543, 191 S. E. 3, citing Young v. Young, 81 
N. C. 91. 

II. CAUSES OF ACTION WITH REFERENCE TO 
TRANSACTION, OR SUBJECT OF ACTION. 

The general rule. — In accord with original. See Barkley 
v. McClung Realty Co., 211 N. C. 540, 542, 191 S. E. 3. 
Series of Transactions Forming One Course of Dealing. — 

In accord with original. See Barkley v. McClung Realty 
Co., 211 N. C. 540, 543, 191 S. E- 3. 

V. MUST AFFECT ALL PARTIES AND HAVE THE 

SAME VENUE. 
Causes Affecting Different Parties. — 

An action against insurer to reform plaintiff's fire insur- 
ance policy and to upset settlement and recover an addi- 
tional sum under the policy as reformed, and against plain- 
tiff's mortgagee to restrain foreclosure and recover rents, 
is defective in that the several causes do not affect all 
parties to the action, and the action is properly dismissed 
upon demurrer for misjoinder of parties and causes. Mills 
v. North Carolina Joint Stock Land Bank, 208 N. C. 674, 
182 S. E. 336. 



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

For an analysis of summons in inferior courts, 
N. C. Law Rev., No. 4, p. 372. 



Art. 14. Demurrer 
§ 511. Grounds for. 

I. IN GENERAL. 

By filing answer defendants waive right to demur ex- 
cept for want of jurisdiction or for failure of the com- 
plaint to state a cause of action, and such waiver applies 
to an amended complaint when the amended complaint is 
substantially the same as the original complaint to which 
answer was filed. Schnibben v. Ballard, etc., Co., 210 
N. C. 193, 185 S. E. 646. 

Applied in Board of Drainage Com'rs v. Jarvis, 211 N. 
C. 690, 191 S. E. 514; Smith v. Sink, 211 N. C. 725. 

Cited in Leach v. Page, 211 N. C. 622, 191 S. E- 349. 
VI. MISJOINDER OF SEVERAL CAUSES OF ACTION. 

What Constitutes Misjoinder. — 

Defendant's demurrer to the complaint on the ground of 
misjoinder in that the complaint stated three separate causes 
of action, was properly overruled, for although the com- 
plaint does not allege that the separate deeds were exe- 
cuted by the defendants, respectively, pursuant to a con- 
spiracy to hinder, delay, and defraud creditors, an infer- 
ence to that effect is not only permissible but inescapable 
from the facts alleged. Barkley v. McClung Realty Co., 211 
N. C. 540, 191 S. E. 3. 

VII. FAILURE TO STATE SUFFICIENT FACTS. 

Question of Sufficiency Can Be Presented Only by Demur- 
rer.— The sufficiency of the allegations of a complaint is 
not presented by a motion that certain designated allega- 
tions be stricken from the complaint, on the ground that 
said allegations are improper, irrelevant, and immaterial. 
That question can be presented only by a demurrer to the 
complaint, either in writing or ore tenus. Poovey v. 
Hickory, 210 N. C. 630, 631, 188 S. E. 78. 

Applied in Heater v. Carolina Power, etc., Co., 210 N. 
C. 88, 185 S. E. 447; Reed v. Farmer, 211 N. C. 249, 189 
S. E. 882; Swaringen v. Poplin, 211 N. C. 700, 191 S. E. 
746. 

Cited in Bennett v. Southern Ry. Co., 211 N. C. 474, 
191 S. E- 240. 

§ 515. Procedure after return of judgment. 

Statute Liberally Construed. — 

In accord with original. See Citizens Bank v. Gahagan, 
210 N. C. 464, 187 S. E- 464. 

Discretion of Court. — 

In accord with original. See Hood v. Elder Motor Co., 
209 N. C. 303, 183 S. E. 529. 

Amendment after Demurrer Sustained.— Under this sec- 
tion where the supreme court affirms the judgment of the 
court below sustaining the demurrer of one of defendants, 
the decision is without prejudice to plaintiff's right to 
amend the complaint, if so advised. Byrd v. Waldrop, 210 
N. C. 669, 188 S. E. 101, wherein the court inadvertently 
referred to " § 575. 

Art. 15. Answer 
§ 521. Counterclaim. 

II. CLAIMS ARISING OUT OF PLAINTIFF'S 
DEMAND. 
A. General Rules and Instances. 
Tort against Contract Claim. — 

In accord with second paragraph in original. See Wei- 
ner v. Equel's Style Shop, 210 N. C. 705, 188 S. E. 331. 
III. CLAIMS ARISING OUT OF INDEPENDENT 
CONTRACT. 

Liability on County Treasurer's Bond against Past Due 
County Bonds.— Where defendants were indebted to plain- 
tiff county as principal and sureties on the bond of the 
county treasurer for funds of the county which the treas- 
urer had not accounted for because of the failure of the 
bank in which the funds were deposited, it was held that 
the defendants were entitled to offset their debt to the 
county with past- due county bonds owned by them, since 
the respective obligations of the county and defendants 
arose out of contract, and either party might have recovered 
judgment against the other on their respective obligations, 
and the county's obligation to defendants existed prior to 
the institution of the action. Swain County v. Welch, 208 
N. C. 439, 181 S. E. 321. 



§ 523. Contributory negligence pleaded and 
proved. 

Contributory negligence must be pleaded in the answer 
and proved on the trial, the burden on the issue being upon 
see 13 defendant under this section. Ramsey v. Nash Furniture 
Co., 209 N. C. 165, 183 S. E- 536. 

[14] 



§ 525 



CIVIL PROCEDURE 



§ 564 



Defendant must plead contributory negligence in order to 
be entitled to the submission of the issue to the jury. Be- 

van v. Carter, 210 N. C. 291, 186 S. E. 321. 

A demurrer to the complaint on the ground of contribu- 
tory negligence will not be sustained unless upon the face 
of the complaint itself contributory negligence is patent 
and unquestionable. Ramsey v. Nash Furniture Co., 209 
N. C. 165, 183 S. E- 536. 
Motion to Nonsuit— .Scintilla of Evidence- 
Where there is evidence at the trial tending to sustain 
the allegations of the complaint, the defendant is not en- 
titled to a judgment as of nonsuit, unless all the evidence, 
considered in the light most favorable to the plaintiff, sus- 
tains the defenses, e. g., contributory negligence, relied upon 
by the defendant in bar of plaintiff's recovery. Pittman 
v. Downing, 209 N. C. 219, 222, 183 S'. E. 362. 

A four-year-old child is incapable of negligence, primary 
or contributory. Bevan v. Carter, 210 N. C. 291, 186 S. E- 
321. 

Applied in Stovall v. Ragland, 211 N. C. 536, 190 S'. E- 
899. 

Art. 16. Reply 
§ 525. Content; demurrer to answer. 

Applied in Bryan v. Acme Mfg. Co., 209 N. C. 720, 184 S. 
E. 471. 

Art. 17. Pleadings, General Provisions 
§ 535. Pleadings construed liberally. 

In Favor of Pleader. — 

In accord with original. See Bailey v. Roberts, 208 N. C. 
532, 181 S. E. 754; Leach v. Page, 211 N. C. 622, 191 S. E. 
349; Anthony v. Knight, 211 N. C. 637, 191 S. E. 323. 

Statement of Cause of Action.— 

In accord with fourth paragraph in original. See Ram- 
sey v. Nash Furniture Co., 209 N. C. 165, 168, 183 S. E- 536; 
Cummings v. Dunning, 210 N. C. 156, 185 S. E. 653. 

Although under this section allegations of pleadings are 
to be construed liberally "with a view to substantial jus- 
tice between the parties," § 506 makes it a necessary re- 
quirement that the complaint shall contain "a plain and 
concise statement of the facts constituting a cause of ac- 
tion," which means that it shall contain a plain and con- 
cise statement of all the facts necessary to enable the plain- 
tiff to recover. Citizens Bank v. Gahagan, 210 N. C. 464, 
466, 187 S. E. 580. 

The material allegations of the complaint are that at the 
foreclosure sale the land was bought by the secretary and 
treasurer of the corporate mortgagee, and that this official 
was "acting in said capacity at the time he purchased said 
land at the foreclosure sale, and was acting as the agent of 
said bank," and that this official shortly thereafter con- 
veyed the land to the mortgagee, which thus indirectly 
purchased at its own sale. Held that the complaint is not 
so wholly insufficient that it can be overthrown by a 
demurrer. Council v. Greensboro Joint Stock Land Bank, 
211 N. C. 262, 265, 189 S. E- m. 

Cited in Nail v. McConnell, 211 N. C. 258, 190 S. E, 210. 

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

Editor's Note- 
In addition to the authorities cited under this catchfine 
in the original, see Leach v. Page, 211 N. C. 622, 191 S. E- 
349. 

Power to Make Explicit Ex Mero Motu. — 

In accord with original. See Bowling v. Fidelity Bank, 
209 N. C. 463, 184 S. E. 13. 

Discretion of Court. — 

Under this section the Superior Court is authorized in 
the exercise of its discretion to strike from a pleading 
any allegations of purely evidential and probative facts. 
Life Ins. Co. v. Smathers, 211 N. C. 373, 190 S. E- 484. 

Time of Motion. — 

In accord with first paragraph in original. See Bowling 
v. Fidelity Bank, 209 N. C. 463, 184 S. E. 13. 

A motion to strike out does not challenge sufficiency of 
the complaint to state a cause of action, but concedes that 
sufficient facts are alleged, and presents only the propri- 
ety, relevancy, or materiality of the allegations sought to 
be stricken out. Poovey v. Hickory, 210 N. C. 630, 188 
S. E. 78. 

"Oratorical" Allegations Are Not Improper. — Although 
the allegations are made in language which the defendant 
thinks is somewhat oratorical, this does not make them 
improper, irrelevant, or immaterial, nor can it be held 
that as a matter of law the reading of such allegations to 
the court, in the presence of the jury, will be prejudicial 

[1 



to the rights of the defendant. Poovey v. Hickory, 210 
N. C. 630, 633, 188 S. E. 78. 

Allowance of Amendments. — Under this section and § 534 
when there is a defective cause of action, although in due 
form, the plaintiff cannot recover unless the court in its 
discretion, on reasonable terms, allows an amendment. 
When a good cause of action is set out, but defective 
in form, the court may require the pleadings to be made 
definite and certain by amendment. Bowling v. Fidelity 
Bank, 209 N. C. 463, 184 S. E. 13, citing Allen v. Carolina 
Cent. Ry. Co., 120 N. C. 548, 27 S. E. 76. 

Review of Refusal of Motion to Strike. — 

In accord with original. See Scott v. Bryan, 210 N. C. 
478, 187 S. E. 756. 

§ 542, Pleadings in libel and slander. 

Where defendants had not pleaded privilege, justifica- 
tion, etc., it was error to withhold case from the jury. 

Harrell v. Goerch, 209 N. C. 741, 742, 184 S. E- 489. 

In the absence of a plea of privilege, justification, or mit- 
igating circumstances, the evidence was sufficient to be 
submitted to the jury on the question of whether the gen- 
eral manager was acting within the scope of his author- 
ity in uttering certain slanderous words in an action there- 
for against the corporation. Alley v. Dong, 209 N. C. 
245, 183 S. E- 294. 

§ 543. Allegations not denied, deemed true. 

Applied in Little v. Rhyne, 211 N. C. 431, 190 S. E. 725. 

Art. 18, Amendments 

§ 547. Amendments in discretion of courts. 
I. IN GENERAL. 

Amendment after Demurrer. — The trial court has the dis- 
cretionary power to allow plaintiff to amend his com- 
plaint, upon the hearing of defendants' demurrer thereto, 
so as to allege that the negligence complained of was the 
proximate cause of the injury. Bailey v. Roberts, 208 N. 
C. 532, 181 S. E. 754. 

III. INTRODUCING NEW CAUSE OF ACTION, 
DEFENSE OR RELIEF. 

Permissible When It Introduces No New Cause. — 

In accord with original. See Wilmington v. Board of 
Education, 210 N. C. 197, 185 S. E- 767. 
IV. CONFORMING PLEADINGS TO FACTS FOUND. 

Leave to Amend to Conform Pleadings to Facts. — 

The court has discretionary power to allow a pleading 
to be amended after the introduction of evidence so as to 
make the pleading conform to the evidence. Hicks v. 
Nivens, 210 N. C. 44,, 185 S. E- 469. 

VI. AMENDMENTS AS TO PARTIES. 

Generally. — In accord with original. See North Carolina 
Bank, etc., Co. v. Williams, 209 N. C. 806, 185 S. E- 18. 

Discretionary and Not Reviewable.— 

In accord with original. See Wilmington v. Board of 
Education, 210 N. C. 197, 185 S. E. 767. 

V. AMENDMENTS OF PROCESS. 

Amendment in Attachment Proceedings. — Amendment un- 
der this section may not be permitted where the rights of 
third persons are injuriously affected. And where the surety 
on defendant's undertaking has executed a bond in a sub- 
stantial sum, in accordance with § 815, to discharge the lien 
on property which has been attached by virtue of a warrant 
based solely on an unfounded allegation in the affidavit, the 
allowance of an amendment thereafter to set up a new ground 
of attachmet would have the effect of imposing on the surety 
an obligation which he did not assume. Rushing v. Ash- 
craft, 211 N. C. 627, 629, 191 S. E- 332. 

SUBCHAPTER VII. TRIAL, AND ITS 
INCIDENTS 

Art. 19. Trial 
§ 564. Judge to explain law, but give no opin- 
ion on facts. 

II. OPINION OF JUDGE. 
A. General Considerations. 

The provisions of this section are mandatory. State v. 
Evans, 211 N. C. 458, 459, 190 S. E. 724. 

Section Not Confined to Charge. — 

In accord with original. See State v. Oakley, 210 N. C. 
206, 186 S. E. 244. 

Motive of Judge Immaterial. — 

In accord with original. See State v. Oakley, 210 N. C. 
206, 186 S. E. 244. 



§ 565 



CIVIL PROCEDURE 



§ 567 



Applied in Wilson v. Inter-Ocean Cas. Co., 210 N. C. 585, 
188 S, E. 102; State v. Batts, 210 N. C. 659, 188 S. E. 99. 

Cited in Hancock v. Wilson, 211 N. C. 129, 189 S. E. 631; 
Noland Co. v. Jones, 211 N. C. 462, 190 S. E- 720. 
B. What Constitutes an Opinion. 

Direct Language Not Necessary to Constitute Error. — 

In accord with original. See State v. Rhinehart, 209 N. 
C. 150, 153, 183 S. E- 388. 

Remarks That Fact Is "Sufficiently Proved."— The mortu- 
ary tables (see § 1790), are but evidence of life expectancy, 
to be taken in connection with other evidence of health, 
constitution, and habits, and an instruction that intestate's 
life expectancy was so many years, based upon the tables, 
violates this rule and the rule against an expression of opin- 
ion by the court as to whether a fact is sufficiently proven. 
Wachovia Bank, etc., Co. v. Atlantic Greyhound Lines, 210 
N. C. 293, 186 S. E. 320. 

Remarks Must Be Prejudicial. — 

To constitute reversible error, an expression of opinion on 
the part of the court must be prejudicial to the interest of 



the appellant. 
E. 75. 



State v. Puett, 210 N. C. 633,, 635, 

C. Illustrative Cases. 

1. Remarks Held Not Erroneous. 

b. Remarks Concerning Witnesses. 

Defendant Not Prejudiced by Remarks During Cross- Ex- 
amination of State's Witness. — Remarks of the court in the 
presence of the jury which tend to discredit a witness will 
be held for reversible error upon appeal of the injured party, 
but when such remarks are made during defendant's cross- 
examination of a state's witness, defendant .cannot be prej- 
udiced thereby and his exception thereto cannot be sus- 
tained. State v. Puett, 210 N. C. 633, 188 S. E. 75. 
d. Miscellaneous Remarks. 

Question as to Verdict. — The question of the court as to 
whether the verdict of guilty referred to first degree bur- 
glary held to be an inquiry and not an expression of opin- 
ion. State v. Walls, 211 N. C. 487, 497, 191 S. E. 232. 
2. Remarks Held Error, 
a. Remarks Concerning a Party to the Trial. 

Identification of Defendant.— 

Where the state relied upon testimony that tracks had 
been followed from the scene of the crime to the defend- 
ant's room, but did not prove them to be the defendant's, 
the expression of the court, "You tracked the defendant to 
whose house?" was held prejudicial, and especially so as 
the evidence of the state was circumstantial. State v. 
Oakley, 210 N. C. 206, 211, 186 S. E. 244. 

b. Remarks Concerning Witnesses. 

Remarks Having Effect of Impeaching Witnesses.— Where 
questions propounded by the court have the effect of im- 
peaching witnesses they are in violation of this section and 
defendants' exceptive assignments of error thereto must be 
sustained. State v. Winckler, 210 N. C. 556, 187 S. E. 792. 
c. Remarks Concerning Weight and Credibility of Testimony. 

Concerning Corroboration of Defendant's Testimony. — 
Where the defendant, charged with homicide, testified as to 
his version of the fatal killing upon his contention of self- 
defense, and narrated the actions of himself, his oldest son, 
and the deceased, and where upon the conclusion of his 
testimony the court, by interrogation objected to by de- 
fendant's counsel, brought out the fact that the son was 
seventeen years old, and was present in the courtroom, the 
charge of the court which set forth as the contention of the 
state that defendant's testimony could not be relied upon 
because uncorroborated, notwithstanding the fact that de- 
fendant's oldest son, who saw what happened, was present 
in the court room was held to constitute reversible error. 
State v. Bean, 211 N. C. 59, 188 S. E. 610. 

III. EXPLANATION OF LAW AND EVIDENCE. 
A. General Considerations of the Charge. 
Charge Must Be Considered as a Whole. — 

Where it appears that the charge, when read contextu- 
ally as a whole, was not prejudicial in its manner of stat- 
ing the evidence and contentions of the parties, an excep- 
tion, based upon detached portions thereof, will not be sus- 
tained. Braddy v. Pfaff, 210 N. C. 248, 186 S. E. 340. 

Charges Held Not to Impinge This Section. — See State v. 
Hester, 209 N. C. 99, 182 S'. E- 738; State v. Hodgin, 210 
N. C. 371, 186 S. E. 495; State v. Atlantic Ice, etc., Co., 210 
N. C. 742, 188 S. E. 412. 

B. Explanation Required. 
1. In General. 

Rule Stated.— 

In both criminal and civil causes under this section, a 
judge in his charge to the jury should present every sub- 
stantial and essential feature of the case embraced within 

[16 



the issue and arising on the evidence, and this without any 
special prayer for instructions to that effect. He should 
state in a plain and correct manner the evidence in the case 
and explain the law arising thereon, and a failure to do so, 
when properly presented, shall be held for error. Mebane 
Graded School Dist. v. Alamance County, 211 N. C. 213, 
226, 189 S. E. 873, citing State v. Merrick, 171 N. C. 788, 
88 S. E. 501. 

Explanation of Subordinate Features of Case.— 

In the absence of a special request for instructions, the 
failure of the charge to define certain terms constituting a 
subordinate feature of the charge will not be held for er- 
ror. State v. Puckett, 211 N. C. 66, 189 S. E. 183. 
3. Explanation of Law. 

Charge Covering Subordinate Features. — 

In accord with original. See Mebane Graded School Dist. 
v. Alamance County, 211 N. C. 213, 189 S. E- 873; Headen 
v. Bluebird Transp. Corp., 211 N. C. 639, 191 S. E- 331. 

Party Must Request. — 

Defendant desiring more full or detailed instructions as 
to any particular phase of evidence or law should request 
special instructions. State v. Hendricks, 207 N. C. 873, 178 
S. E. 557. 

Charge on Degrees of Crime. — 

Where the defendant admits his guilt of murder in the 
second degree, it is not error for the trial court to act 
upon the admission, and after fully charging the elements 
of murder in the first degree, and defining murder in the 
second degree, to instruct the jury to return a verdict of 
murder in the second degree if they should fail to find any 
one of the elements of first degree murder, as defined, be- 
yond a reasonable doubt. State v. Grier, 209 N. C. 298, 
183 S. E. 272. 

Failure to Instruct as to Law of Self Defense.— See State 
v. Thornton, 211 N. C. 413, 190 S. E. 758; State v. God- 
win, 211 N. C. 419, 190 S. E. 761. 

C. Illustrative Cases. 

Failure to Define "Conspiracy." — Where the court charged 
the jury that defendant would be guilty of first degree mur- 
der even if one of the others fired the fatal shot, if it was 
fired in the execution of their unlawful conspiracy and 
agreement the defendant excepted on the ground that the 
court did not define "conspiracy." It was held that the 
exception could not be sustained, in the absence of a spe- 
cial request for instructions, the term "conspiracy" being 
used synonymously with "agreement," and the charge be- 
ing clear and easily understood, and defendant being guilty 
of murder in the first degree under the evidence regard- 
less of the existence of a technical conspiracy. State v. 
Puckett, 211 N. C. 66, 189 S. E- 183. 

Instruction on Contributory Negligence. — Instruction as to 
contributory negligence of 8J^ year old child, held to fully 
comply with this section, where the judge explained that the 
degree of care required of a child is that he exercise care 
and prudence equal to his capacity. Leach v. Varley, 211 
N. C. 207, 210, 189 S. E. 636. 

§ 565. Request for instructions. 

Section Mandatory. — 

In accord with original. See Hicks v. Nivens, 210 N. C. 
44, 47, 185 S. E. 469. 

A party must aptly tender written request for special in- 
structions desired by him in order for an exception to the 
charge for its failure to contain such instructions to be con- 
sidered on appeal. State v. Spillman, 210 N. C. 271, 186 
S. E- 322. 

Failure to Give Proper Instruction Is Reversible Error. — 
When a party tenders a request for a specific instruction, 
correct in itself and supported by the evidence, the failure 
of the trial court to give such instruction, in substance at 
least, either in response to the prayer or in some portion 
of the charge, is reversible error. Calhoun v. State High- 
way, etc., Comm., 208 N. C. 424, 181 S. E- 271. 

Court Need Not Use Exact Words of Instruction. — 

In accord with original. See Coral Gables v. Ayres, 208 
N. C. 426, 181 S. E- 263. 

Applied in Taylor v. Rierson, 210 N. C. 185, 185 S. E- 627. 

§ 567. Demurrer to evidence. 

Judgment as of Nonsuit May Be Entered by Trial Court 
of Its Own Motion.— A judgment as of nonsuit entered by 
the trial court of its own motion will not be held for error 
when the evidence would justify a directed verdict, a non- 
suit and a directed verdict having the same legal effect. 
Ferrell v. Metropolitan Life Ins. Co., 208 N. C. 420, 181 S. 
E. 327. 

Time to Make Motion to Nonsuit. — 

Where a party fails to move for judgment as of nonsuit 
at the close of plaintiff's evidence, its motion therefor at 
the close of all the evidence cannot be granted, since the 



§ 568 



CIVIL PROCEDURE 



§ 584 



right to demur to the evidence is waived. Jones v. Dixie 
Fire Ins. Co., 210 N. C. 559, 187 S. E. 769. See also State 
v. Ormond, 211 N. C. 437, 191 S. E- 22. 

Plaintiff Entitled to Benefit of Inferences.— 

In accord with original. See Owens v. Blackwood I^br. 
Co., 210 N. C. 504, 187 S. E. 804; Miller v. Wood, 210 N. 
C. 520, 187 S. E- 765; Ford v. Atlantic Coast Line R. Co., 
209 N. C. 108, 182 S. E- 717; Teseneer v. Henrietta Mills 
Co., 209 N. C. 615, 184 S. E. 535; Hancock v. Wilson, 211 
N. C. 129, 189 S. E. 631; Harper v. Seaboard Air Line Ry. 
Co., 211 N. C. 398, 190 S. E. 750; Cole v. Atlantic Coast 
Line R. Co., 211 N. C. 591, 191 S. E. 353; Debnam v. 
Whiteville, 211 N. C. 618, 191 S. E. 325; Headen v. Blue- 
bird Transp. Corp., 211 N. C. 639, 191 S. E. 331; Inde- 
pendent Oil Co. v. Broadfoot Iron Works, 211 N. C. 668, 
191 S. E. 508. 

Not Allowed after Verdict — 

In accord with second paragraph in original. See Jones 
v. Dixie Fire Ins. Co., 210 N. C. 559, 187 S. E- 769. 

Motion Must Be Renewed 1 . — 

In accord with original. See Choate Rental Co. v. Jus- 
tice, 211 N. C. 54, 188 S. E. 609. 

Waiver. — 

In accord with first paragraph in original. See Fer- 
rell v. Metropolitan Life Ins. Co., 208 N. C. 420, 181 S. E. 
327; Stephenson v. Honeycutt, 209 N. C. 701, 184 S. E- 
482. 

When Nonsuit Proper. — 

In accord with original. See Blackwell v. Coca-Cola 
Bottling Co., 208 N. C. 751, 182 S. E- 469. 

Contributory Negligence. — 

In accord with fifth paragraph in original. See Ram- 
sey v. Nash Furniture Co., 209 N. C. 165, 170, 183 S. E. 
536; Hinshaw v. Pepper, 210 N. C. 573, 187 S. E- 786; Ow- 
ens v. Atlantic Coast Line R. Co., 207 N. C. 856, 857, 175 
S. E. 717. 

Originally, under this section, in cases to which it was 
applicable, there was considerable doubt as to whether a 
plea of contributory negligence — the burden of such issue be- 
ing on the defendant — could be taken advantage of on a 
motion to nonsuit, but it is now well settled that such may 
be done when the contributory negligence of the plaintiff is 
established by his own evidence, as he thus proves him- 
self out of court. Hayes v. Western Union Tel. Co., 211 
N. C. 192, 193, 189 S. E- 499. 

Contributory Negligence — Demurrer Sustained. — 

Where the evidence tended to show that plaintiff's intes- 
tate was negligent up to the time of the injury and the 
doctrine of the "last clear chance" is inapplicable, it was 
held that defendant's demurrer to the evidence should have 
been sustained. Lemings v. Southern Ry. Co., 211 N. C. 
499, 191 S. E. 39. 

Evidence Sufficient to Deny Nonsuit.— See Niblock v. Blue 
Bird Taxi Co., 208 N. C. 737, 182 S. E. 330; Hampton v. 
Thomasville Coca-Cola Bottling Co., 208 N. C. 331, 180 S. 
E. 584; Dilling v. Federal Life Ins. Co., 209 N. C. 546, 183 
S. E. 752; Daniels v. Swift & Co., 209 N. C. 567, 183 S. E- 
748; Teseneer v. Henrietta Mills Co., 209 N. C. 615, 184 S. 
E. 535. 

Applied in Davenport v. Pennsylvania Fire Ins. Co., 207 
N. C. 861, 177 S. E. 187; Burns v. Charlotte, 210 N. C. 48, 
185 S. E. 443; Woodley v. Combs, 210 N. C. 482, 187 S. E. 
762; Ollis v. Board of Education, 210 N. C. 489, 187 S. E- 
772; Exum v. Baumrind, 210 N. C. 650, 188 S. E- 200; Joy- 
ner v. Dail, 210 N. C. 663, 188 S. E. 209; Dixson v. Johnson 
Realty Co., 209 N. C. 354, 183 S. E. 382; Queen v. DeHart, 
209 N. C. 414, 184 S. E. 7; McGraw v. Southern Ry. Co., 
209 N. C. 432, 184 S. E. 31; Jackson v. Scheiber, 209 N. 
C. 441, 184 S. E. 17; Williams v. Greensboro Fire Ins. Co., 
209 N. C. 765, 185 S. E- 21; Federal Life Ins. Co. v. Nichols, 
209 N. C. 817, 185 S. E. 10; Betts v. Jones, 208 N. C. 410, 

181 S. E. 334; Planters' Nat. Bank, etc., Co. v. Atlantic 
Coast Line R. Co., 208 N. C. 574, 181 S. E- 635; Cordell v. 
Brotherhood of Locomotive Firemen, etc., 208 N. C. 632, 

182 S. E. 141; Morris v. Seashore Transp. Co., 208 N. C. 
807, 182 S. E. 487; Anderson v. American Mut. Liability 
Ins. Co., 211 N. C. 23, 188 S. E. 642; Wilson v. Perkins, 211 
N. C. 110, 189 S. E. 179; Kelly v. Hunsucker, 211 N. C. 153, 

189 S. E. 664; Yates v. Thomasville Chair Co., 211 N. C. 
200, 189 S. E. 500; Breece v. Standard Oil Co., 211 N. C. 
211, 189 S. E. 498; Mebane Graded School Dist. v. Alamance 
County, 211 N. C. 213, 189 S. E- 873; Cashatt v. Brown, 211 
N. C. 367, 190 S. E. 480; Stovall v. Ragland, 211 N. C. 536, 

190 S. E- 899; Jackson v. Thomas, 211 N. C. 634, 191 S. E- 
327; Creech v. Sovereign Camp, W. O. W., 211 N. C. 658, 

191 S. E. 840; Smith v. Sink, 211 N. C. 725. 
Cited in Keith v. Gregg, 210 N. C. 802, 188 S. E. 849; 

Stallings v. Keeter, 211 N. C. 298, 190 S. E. 473; Little v. 
Rhyne, 211 N. C. 431, 190 S. E. 725; Noland Co. v. Jones, 
211 N. C. 462, 190 S. E. 720. 



§ 568. Waiver of jury trial. 

Applied in Best v. Garris, 211 N. C. 305, 190 S. E- 221. 

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

Separate Conclusions of Facts and Law. — 

Where the court fully and completely sets out the facts 
found by him and renders judgment thereon, an exception 
that the court did not state his findings of fact and con- 
clusions of law separately as required by this section, can- 
not be sustained, since the judgment constitutes the court's 
conclusion of law on the facts found. Dailey v. Washing- 
ton Nat. Ins. Co., 208 N. C. 817, 182 S. E- 332. 

Exceptions. — 

In accord with original. See Best v. Garris, 211 N. C. 
305, 190 S. E. 221. 

Exception to Judgment Presents Only Question Whether 
Facts Found Support It. — An exception to a judgment ren- 
dered in a trial by the court, without exception to the evi- 
dence or the court's findings of fact, presents the sole 
question of whether the facts found support the judgment. 
Best v. Garris, 211 N. C. 305, 190 S. E. 221. 

§ 570. Exceptions to decision of court. 

See the next foregoing section and the note thereto. 

Art. 20. Reference 
§ 572. By consent. 

Waiver of Jury Tried. — 

In accord with original. See In re Parker, 209 N. C. 
693, 184 S. E- 532; Anderson v. McRae, 211 N. C. 197, 189 
S. E. 639. 

§ 578. Report; review and judgment. 

Power of Judge — Recommittal of Case. — 

In accord with original. See Carolina Mineral Co. v. 
Young, 211 N. C. 387, 190 S. E- 520. 

Judge of Superior Court may affirm, amend, modify, set 
aside, etc., the report of a referee. This he may do, how- 
ever, only in passing upon the exceptions, for in the ab- 
sence of exceptions to the factual findings of a referee, 
such findings are conclusive, but his rulings upon ques- 
tions of fact are conclusive upon the Supreme Court. An- 
derson v. McRae, 211 N. C. 197, 198, 189 S. E- 639. 



N. C. Supp.— 2 



Art. 21. Issues 
§ 580. Defined. 

See the note to § 584 in this Supplement. 

§ 581. Of law. 

See the note to § 584 in this Supplement. 

§ 582. Of fact. 

See the note to § 584 in this Supplement. 

Error to Submit Issue Not Raised by Pleadings.— Where 

the contract sued on is admitted in the answer, an issue 
as to the existence of the contract does not arise upon 
the pleadings, and it is error for the court to submit such 
issue to the jury. Fairmont School v. Bevis, 210 N. C. 
50, 185 S. E. 463. 

§ 583. Order of trial. 

See the note to § 584 in this Supplement. 

§ 584. Form and preparation. 

Editor's Note. — 

In accord with second paragraph in original. See Stan- 
back v. Haywood, 209 N. C. 798, 799, 184 S. E. 831, cit- 
ing Tucker v. Satterthwaite, 120 N. C. 118, 27 S. E. 45. 

It is within the sound discretion of the trial judge to de- 
termine what issues shall be submitted, and to frame them 
subject to the restrictions, first, that only issues of fact 
raised by the pleadings are submitted; secondly, that the 
verdict constitutes a sufficient basis for a judgment; and 
thirdly, that it does not appear that a party was debarred 
for want of an additional issue or issues of the opportunity 
to present to the jury some view of the law arising out of 
the evidence. Stanback v. Haywood, 209 N. C. 798, 799, 184 
S. E. 831. 

Court Adding Issue of Contributory Negligence. — Where 
the plaintiff brought suit against two defendants as joint 
tort-feasors, one defendant answering alleging contributory 
negligence and one defendant not filing an answer, and 
where the plaintiff tendered issues of negligence of the an- 
swering defendant, the court adding the issue of contrib- 
utory negligence arising upon the pleading of this defend- 
ant, it was held that as a rule the court must submit the 

[17] 



§ 590 



CIVIL PROCEDURE 



§ 618 



issue arising on the pleadings, but the plaintiff waived this 
by tendering only one issue as to the answering defend- 
ant, and allowing the case to be tried on that theory. Am- 
nions v. Fisher, 208 N. C. 712, 182 S. % 479. 

Art. 22. Verdict 
§ 590. Exceptions. 

Errors in Charge. — 

In accord with second paragraph in original. See Rice 
v. Swannanoa- Berkeley Hotel Co., 209 N. C. 519, 184 S. E. 3. 

§ 591. Motion to set aside. 

Discretion of the Judge. — 

A discretionary order entered at the term of the trial 
setting aside a verdict as contrary to the weight of the 
evidence is not reviewable, and an appeal therefrom will be 
dismissed in the absence of abuse of discretion. Anderson 
v. Holland, 209 N. C. 746, 184 S. E. 511. 

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. 

Appeals from Clerk to Judge. — 

In Ward v. Agrillo, 194 N. C. 321, 139 S. E- 451, cited in 
Howard v. Queen City Coach Co., 211 N. C. 329, 331, 190 
S. E. 478, it was said that in the absence of statutory pro- 
vision to that effect, the resident judge of a judicial dis- 
trict has no jurisdiction to hear and determine an appeal 
from a judgment of the clerk of the Superior Court of any 
county in his district, rendered pursuant to the provisions 
of this section, except when such judge is holding the courts 
of the district by assignment under the statute, or is hold- 
ing a term of court by exchange, or under a special com- 
mission from the Governor. 

§ 598. Rendered in vacation; confirmation of 
judicial sales. — In all cases where the superior 
court in vacation has jurisdiction, and all of the 
parties unite in the proceedings, they may apply 
for relief to the superior court in vacation, or in 
term time, at their election. 

Sales made by receivers or commissioners ap- 
pointed by the superior court, unless governed 
by the provisions of Consolidated Statutes, sec- 
tion two thousand five hundred and ninety-one, 
as amended, may after ten days from the date 
of sale, in the absence of objection or raise in bid, 
be confirmed, or in case of objection or raise in 
bid, re-sales may be ordered, without notice, in 
chambers in any county in the judicial district, in 
which the proceedings are pending, by the resi- 
dent judge or the judge holding the courts of said 
district; but this shall not diminish the power of 
the court in term time to act in such matters as 
now provided by law where no order has been 
made under this section. (Rev., s. 559; Code, s. 
230; 1871-2, c. 3; 1937, c. 361.) 

Editor's Note. — The 1937 amendment added the second 
sentence of this section. 

For article discussing effect of amendment, see 15 N. C. 
Law Rev., No. 4, p, 338. 

§ 600. Mistake, surprise, excusable neglect. 

I. IN GENERAL. 
Excusable Neglect and Meritorious Defense. — 

In accord with first paragraph in original. See Jones v. 
Craddock, 211 N. C. 382, 190 S. E. *224. 

Not Applicable to Irregular Verdicts. — 

In accord with original. See Hood v. Stewart, 209 N. C. 
424, 184 S. E. 36. 

Meritorious Defense Must Be Shown. — 

In accord with original. See Hooks v. Neighbors, 211 N. 
C. 382, 385, 190 S. E. 236. 

The remedy provided by this section is restricted to the 
parties aggrieved by the judgment or order sought to be 
set aside, and the superior court has no power to set aside 
a judgment or order once rendered upon motion of a stran- 
ger to the cause. In re Hood, 208 N. C. 509, 511, 181 S. 

[18 



E. 621, citing Smith v. New Bern, 73 N. C. 303; Edwards 
v. Phillips, 91 N. C. 355. 

HI. APPLICATION OF THE PRINCIPLES. 
A. Neglect of Party. 
Absence from Trial. — 

Where it appears that a party was in the courtroom at 
the time the court announced that motions in his case would 
be heard the following day, his motion to set aside the or- 
der made on the day stipulated on the ground of excusable 
neglect is properly denied. Abernethy v. First Security 
Trust Co., 211 N. C. 450, 190 S. E. 735. 

Failure to Defend after Denial of Motion for Continuance. 
—Where the trial court finds that defendants and their at- 
torney were present in court, that defendants' motion for a 
continuance was refused, and that defendants and their at- 
torney thereupon left the court room without definite agree- 
ment with the court or opposing counsel, and did not re- 
turn to defend the case, and that both defendants and their 
attorney had failed to exercise due diligence, the court's 
refusal of the motion to set aside the judgment will be af- 
firmed on appeal. Carter v. Anderson, 208 N. C. 529, 181 
S. E. 750. 

IV. PLEADING AND PRACTICE. 

Discretion of Judge Not Reviewable on Appeal.— 

The findings of fact by the trial court upon the hearing 
of a motion to set aside a judgment for excusable neglect 
are conclusive on appeal when supported by any competent 
evidence. Carter v. Anderson, 208 N. C. 529, 181 S. E- 750. 

§ 614. Where and how docketed; lien. 

I. IN GENERAL. 

Applied in Equitable Life Assur. Soc. v. Russos, 210 N. 
C. 121, 185 S. E. 632. 
Cited in Crow v. Morgan, 210 N. C. 153, 185 S. E. 668. 

II. CREATION OF THE LIEN AND PRIORITIES. 

A. Sufficiency. 

1. Realty. 

Docketing First in County of Rendition.— In accord with 

original. See Essex Inv. Co. v. Pickelsimer, 210 N. C. 541, 

187 S. E. 813. 

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

Right to contribution among joint tort-feasors exists solely 
by provision of this section. Lumbermen's Mut. Cas. Co. 
v. United States Fidelity, etc., Co., 211 N. C. 13, 188 S. E. 

634. 
Section Does Not Apply to Insurers of Tort-Feasors. — An 

insurer of one joint tort-feasor paying the judgment recov- 
ered against both joint tort-feasors is not entitled to equi- 
table subrogation as against the insurer of the other tort- 
feasor, there being no relation between the tort-feasors out- 
side the provision of the statute upon which the doctrine of 
equitable subrogation can be based, and the insurers of the 
tort-feasors not coming within the provision of the statute 
in regard to contribution. Lumbermen's Mut. Cas. Co. v. 
United States Fidelity, etc., Co., 211 N. C. 13, 188 S. E. 
634. 

Since the liability of insurance carriers of tort-feasors is 
contractual and not founded on tort, where no judgment had 
been recovered against such a carrier by any of the par- 
ties to an action, it was held that this section was inappli- 
cable as by its express terms it applies only to joint tort- 
feasors and to joint judgment debtors. Gaffney v. Lumber- 
men's Mut. Cas. Co., 209 N. C. 515, 184 S. E. 46; Lumber- 
man's Mut. Cas. Co. v. United States Fidelity, etc., Co., 
211 N. C. 13, 188 S. E. 634. 

Defendants May File Cross Action to Join Others as Joint 
Tort-Feasors. — Defendants in an action to recover for neg- 
ligent injury are entitled, under this section to have other 
defendants joined with them upon filing a cross action 
against such other defendants, alleging that such defend- 
ants were joint tort-feasors with them in causing the in- 
jury. Mangum v. Southern Ry. Co., 210 N. C. 134, 185 S. 
E. 644. 

Section Inapplicable Where Defendant Alleges Sole Lia- 
bility of Codefendant. — Where the defendant had another 
party joined as codefendant, and filed answer denying neg- 
ligence on his part and alleging that the negligence of his 
codefendant was the sole proximate cause of the injury in 
suit, but demanding no relief against his codefendant, it 
was held that the demurrer of the party joined should have 
been sustained as neither the complaint nor the answer of 
the original defendant alleged any cause of action against 
him, this section permitting contribution among joint tort- 
feasors, being therefore inapplicable since the answer of the 
original defendant alleges sole liability on the part of his 



§ 620 



CIVIL PROCEDURE 



§ 637 



codefendant and not joint tort-feasorship. Walker v. Eoy- 
all, 210 N. C. 466, 187 S. E. 565. 
Cited in Peterson v. McManus, 208 N. C. 802, 182 S'. E. 483. 

§ 620. Credits upon judgments. 

Amount Paid Plaintiff on Covenant Not to Sue as Credit. 

—Where some of defendants, sued as joint tort-feasors, pay- 
plaintiff a sum in consideration of a covenant not to sue, 
and thereafter the action is prosecuted against the other 
defendants, and judgment recovered against them, the de- 
fendants against whom judgment was entered are entitled 
to have the judgment credited with the amounts paid by 
the other defendants for the covenant not to sue upon the 
motion made prior to execution, the motion coming within 
the spirit if not the letter of this section. Brown v. Nor- 
folk Southern R. Co., 208 N. C. 423, 181 S. E. 279. 

§ 622(a). Cancellation of judgments discharged 
through bankruptcy proceedings. — When a ref- 
eree in bankruptcy furnishes the clerk of the su- 
perior court of any county in this state a writ- 
ten statement or certificate to the effect that a 
bankrupt has been discharged, indicating in said 
certificate that the plaintiff or judgment creditor 
in whose favor judgments against the defendant 
bankrupt are docketed in the office of the clerk 
of the superior court have received due notice as 
provided by law from the said referee, and that 
said judgments have been discharged, it shall be 
the duty of the clerk of the superior court to file 
said certificate and enter a notation thereof on the 
margin of said judgments. 

This section shall apply to judgments of this 
kind already docketed as well as to future judg- 
ments of the same kind. 

This section shall not apply to pending litiga- 
tion with reference to the authority of the clerk 
of the superior court to make such notation. 

For the filing of said instrument or certificate 
and making new notations the clerk of the supe- 
rior court shall be paid a fee of one dollar ($1.00). 
(1937, c. 234, ss, 1-4.) 

Editor's Note.— It appears that the effect of filing the cer- 
tificate as provided by this section is to give notice of the 
inefHcacy of the judgment to attach as a lien after the bank- 
ruptcy; not to give notice that the judgment is no lien at 
all, for it may have become a lien before the bankruptcy. 15 
N. C. Eaw Rev., No. 4, p. 336. 

Art. 24. Confession of Judgment 
§ 623. When and for what. 

Applied in Davis v. Cockman, 211 N. C. 630, 191 S. E. 
322. 

§ 624. Debtor to make verified statement. 

Section Strictly Construed. — 

Where the statutory requirements with respect to the 
form and contents of the statement have been fully com- 
plied with, as in the instant case, the court acquires ju- 
risdiction, and a judgment by confession, as authorized by 
the debtor in the statement, is valid for all purposes. 
Cline v. Cline, 209 N. C. 531, 535, 183 S. E. 904. 

Applied in Davis v. Cockman, 211 N. C. 630, 191 S. E- 
322. 

§ 625. Judgment; execution; installment debt. 

Failure to Endorse Judgment on Verified Statement Does 
Not Affect Validity.— The failure to endorse the judgment 
on the verified statement was an irregularity which does not 
affect the validity of the judgment, which the entry on the 
judgment docket made by the clerk, or under his immedi- 
ate supervision, shows was rendered by the court. Cline 
v. Cline, 209 N. C. 531, 535, 183 S. E. 904. 

Applied in Davis v. Cockman, 211 N. C. 630, 191 S. E. 
322. 

Art. 25. Submission of Controversy 
without Action 
§ 626. Submission, affidavit, and judgment. 

Applied in Powell v. Hood, 211 N. C. 137, 189 S. E. 483; 
Park View Hospital Ass'n v. Peoples Bank, etc., Co., 211 

[1 



N. C. 244, 189 S. E. 766; St. Louis Union Trust Co. v. Fos- 
ter, 211 N. C. 331, 190 S. E. 522; High Point v. Clark, 211 
N. C. 607, 191 S. E. 318. 

Cited in Swain County v. Welch, 208 N. C. 439, 181 S. E- 
321; North Carolina Mtg. Corp. v. Morgan, 208 N. C. 743, 
182 S. E. 450; Benson v. Johnston County, 209 N. C. 751, 
185 S. E- 6; Tucker v. Almond, 209 N. C. 333, 183 S. E. 
407; Daly v. Pate, 210 N. C. 222, 186 S. E. 348; Lawrence 
v. Shaw, 210 N. C. 352, 186 S. E. 504; Braak v. Hobbs, 210 
N. C. 379, 186 S. E. 500; Morrow v. Durham, 210 N. C. 
564, 187 S. E. 752; Gurganus v. Bullock, 210 N. C. 670, 188 
S. E. 85; Hardware Mut. Fire Ins. Co. v. Stinson, 210 N. 
C. 69, 185 S. E. 449; Mecklenburg County v. Sterchi Bros. 
Stores, 210 N. C. 79, 185 S. E- 454. 

Art. 25A. Declaratory Judgments 

§ 628(a). Courts of record permitted to enter 
declaratory judgments of rights, status and other 
legal relations. 

In General.— This article does not extend to the submis- 
sion of the theoretical problem or a mere abstraction, and 
it is no part of the function of the courts, in the exercise 
of the judicial power vested in them by the constitution, to 
give advisory opinions, or to answer moot questions, or to 
maintain a legal bureau for those who may chance to be in- 
terested, for the time being, in the pursuit of some aca- 
demic matter. Allison v. Sharp, 209 N. C. 477, 481, 184 S. 
E. 27, citing Poore v. Poore, 201 N. C. 791, 161 S. E. 532; 
Carolina Power, etc., Co. v. Iseley, 203 N. C. 811, 167 S. 
E. 56. 

This article affords a means of testing the validity of a 
statute requiring persons presenting themselves for regis- 
tration to prove to the satisfaction of the registrar their 
ability to read or write any section of the Constitution (§ 
5939), plaintiffs and all the people of the state being vitally 
affected by the statute in controversy. Allison v. Sharp, 
209 N. C. 477, 184 S. E- 27. 

But an ex parte proceeding to determine petitioner's ra- 
cial status is not within its scope. Allison v. Sharp, 209 
N. C. 477, 481, 184 S. E- 27, citing In re Eubanks, 202 N. 
C. 357, 162 S. E. 769. 

Applied in Carr v. Jimmerson, 210 N. C. 570, 187 S. E. 
800. 

Cited in Corl v. Corl, 209 N. C. 7, 182 S. E- 725. 

§ 628(b). Courts given power of construction 
of all instruments. 

See the note to § 628(a) in this Supplement. 

§ 628(c). Who may apply for a declaration. 

Applied in Rierson v. Hanson, 211 N. C. 203, 189 S. E. 
502. 

§ 628(h). Parties. 

See the note to § 628(a) in this Supplement. 

SUBCHAPTER IX. APPEAL 
Art. 26. Appeal 

§ 634. Clerk to transfer issues of fact to civil 
issue docket. 

Section Governs Appeals from Judgment of Clerk in 
Dower Proceedings. — In dower proceedings issues of law 
and of fact were raised on the pleadings which had been 
filed before the clerk. At the hearing of the proceeding 
by the clerk, the parties waived a trial by jury of the is- 
sues of fact, and filed with the clerk a statement on facts 
agreed. On these facts the clerk rendered a judgment ad- 
verse to the plaintiff. The plaintiff excepted to the judg- 
ment, and appealed to the Superior Court in term time. It 
was held that this section and not § 635, was applicable to 
plaintiff's appeal from the judgment of the clerk of the 
Superior Court, and there was error in the order of the 
judge dismissing plaintiff's appeal on his finding that 
plaintiff had failed to perfect her appeal, as required by 
§ 635. McLawhorn v. Smith, 211 N. C. 513, 518, 191 S. 
E. 35. 

§ 635. Duty of clerk on appeal. 

See note to the preceding section. 

§ 637. Judge determines entire controversy; 
may recommit. 

Quoted in Sharpe v. Sharpe, 210 N. C. 92, 185 S. E- 634. 



§ 638 



CIVIL PROCEDURE 



§ 711 



§ 638. Appeal from superior court judge. 
II. APPEAL IN GENERAL. 
A. General Considerations. 
Cited in State v. Williams, 209 N. C. 57, 182 S. E- 711. 

§ 641. When appeal taken. 

Notice of Appeal from Assessment. — Since the docketing 
of an assessment under § 218(c) (13) has the force and 
effect of a judgment, notice of appeal from such assess- 
ment by a stockholder must be given within the time re- 
quired by this section. In re Citizens' Bank, 209 N. C. 
216, 183 S. K. 410. 

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

II. GENERAL CONSIDERATIONS— COUNTER CASE. 
Record Imports Verity. — 

In accord with original. See Abernethy v. Burns, 210 
N. C. 636, 188 S. E. 97; State v. Stiwinter, 211 N. C. 278, 
189 S. E. 868. 

Effect of Failure to Serve Counter Case. — 

In accord with original. See Abernethy v. Burns, 210 
N. C. 636, 188 S. E. 97. 

No Return of Appellant's Case. — 

In accord with original. See Coral Gables v. Ayres, 208 
N. C. 426, 181 S. E. 263. 

III. REQUISITES OF CASE ON APPEAL— EX- 
CEPTIONS. 

Concise Statement of Case. — 

Although case on appeal was not a concise statement of 
case it was held that the appeal would be allowed as a dis- 
missal would have been a denial of justice. Messick v. 
Hickory, 211 N. C. 531, 191 S. E- 43. 

V. SERVICE OF CASE AND COUNTER-CASE. 
A. Necessity and Mode of Service. 

Order Allowing Time for Serving Gountercase Does Not 
Affect Rule Prescribing Time of Appeal. — An order of the 
superior court enlarging the time for serving statement of 
case on appeal and exceptions thereto or countercase, does 
not affect the rules of court prescribing the term to which 
the appeal must be taken and the time within which the 
appeal must be docketed. State v. Moore, 210 N. C. 459, 
187 S. E. 586, 

§ 644. Settlement of case on appeal. 

Applied in Messick v. Hickory, 211 N. C. 531, 191 S. E. 43. 

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

Provided, that where the judge of the superior 
court or the clerk of the superior court has made 
an order allowing the appellant to appeal as a 
pauper and the appeal has been filed in the su- 
preme court, and an error or omission has been 
made in the affidavit or certificate of counsel, and 
the error is called to the attention of the court 
before the hearing of the argument of the case, 
the court shall permit an amended affidavit or 
certificate to be filed correcting the error or 
omission. (Rev., s. 597; Code, s. 553; 1889, c. 161; 
1873-4, c. 60; 1907, c. 878; 1937, c. 89.) 

As to the effect of the amendment, see 15 N. C. Law Rev., 
No. 4, p. 332. 

Editor's Note. — -The 1937 amendment directed that the above 
provision be added at the end of this section. The rest of 
the section, not being affected by the amendment, is not set 
out. 

Statement of Attorney. — 

In accord with original. See Eupton v. Hawkins, 210 N. 
C. 658, 188 S. E. HO. 

Defective Affidavit Can Not Be Cured after Five Day Pe- 
riod. — An affidavit which is defective in that it fails to aver 
that appellant is advised by counsel learned in the law 
that there is error of law in the judgment may not be cured 
by an additional affidavit filed after the expiration of the 
five days prescribed by the statute, or one filed after the 
date for docketing the appeal. Berwer v. Union Cent. Life 
Ins. Co., 210 N. C. 814, 188 S. E- 618. 

§ 650. Undertaking to stay execution on money 
judgment. 

Effect of Appeal. — Where from an order of the Superior 
Court requiring plaintiff to pay alimony pendente lite and 
counsel fees, plaintiff appeals to the Supreme Court and 
the cause is thereto removed, the Superior Court is there- 
after without jurisdiction to order the sale of plaintiff's 



land to satisfy the judgment or the execution of a stay 
bond. Vaughan v. Vaughan, 211 N. C. 354, 190 S. E. 492. 

§ 654. Docket entry of stay. 

Cited in Queen v. DeHart, 209 N. C. 414, 184 S. E. 7. 

§ 661. Appeal from justice docketed for trial 
de novo. 

Same — Judge Cannot Allow Docketing Later. — Under this 
section an appeal from justice court must be docketed at 
that term of the superior court which begins more than ten 
days after judgment in justice court, and the superior court 
has no right to dispense with such requirement. Helsabeck 
v. Grubbs, 171 N. C. 337, 88 S. E. 473; Barnes v. Saleeby, 177 
N. C. 256, 98 S. E. 708. Formerly the rule was different. 
See West v. Reynolds, 94 N. C. 333. 

SUBCHAPTER X. EXECUTION 
Art. 27. Execution 
§ 660. Issued from and returned to court of ren- 
dition. 

This section and § 711 must be construed in pari materia 
with other statutes relating to the same matter. Essex Inv. 
Co. v. Pickelsimer, 210 N. C. 541, 187 S. E. 813. See §§ 
851, 857, 859, and 1608(t). 

§ 673. Against the person. 

Execution for Conversion. — 

Under this section an affirmative answer to an issue es- 
tablishing that defendant had retained and converted to his 
own use, in violation of the terms of the contract of as- 
signment with plaintiff, property belonging to plaintiff, is 
sufficient to support a judgment that execution against the 
person of defendant issue upon application of plaintiff upon 
return of execution against the property unsatisfied, intent 
of defendant in doing the acts constituting a breach of 
trust being immaterial, and a specific finding of fraud be- 
ing unnecessary. East Coast Fertilizer Co. v. Hardee, 211 
N. C. 653, 191 S. E. 725. 

§ 678. Sale of trust estates; purchaser's title. 

Application to Certain Trusts Only. — 

In accord with original. See Chinnis v. Cobb, 210 N. C. 
104, 185 S. E. 638. 

Art. 28. Execution and Judicial Sales 
§ 687(b). Minimum notice required in all sales. 

Applied in little v. Harrison, 209 N. C. 360, 183 S. E. 
293. 

§ 690. Sale days; place of sale; ratification of 
prior sales. — ■ 

All sales or resales of real property heretofore 
made under order of the court or under the power 
of foreclosure contained in any deed of trust or 
mortgage on any day other than the first Monday 
in any month are hereby validated, ratified, and 
confirmed: Provided, this act shall not affect 
pending litigation; and provided further, that 
sales or resales of real property made under the 
power of foreclosure contained in any deed of 
trust or mortgage shall not be required to be 
made on any particular day of the week or month. 
(Rev., s. 643; Code, s. 454; 1876-7, c. 216, ss. 2, 
3; 1883, c. 94, ss. 1, 2; 1931, c. 23; 1937, c. 26.) 

Editor's Note.— The 1937 amendment added the above pro- 
vision at the end of this section. The rest of the section, 
not being affected by the amendment, is not set out. 

Art. 30. Supplemental Proceedings 
§ 711. Execution unsatisfied, debtor ordered to 
answer. 

Part of Judgment Owned by Person Other Than Defend- 
ant Can Not Be Attached.— In Armour Fertilizer Works 
v. Newbern, 210 N. C. 9, 185 S. E. 471, it was held that at 
the time of the rendition of a judgment another person 
was the equitable owner of a stipulated part thereof, so 
defendant had no legal or equitable interest in such part, 
and plaintiff was not entitled to attach such part in the 
supplemental proceedings instituted by it against defend- 
ant. 



[20 



§ 721 



CIVIL PROCEDURE 



§ 860 



§ 721. Debtor's property ordered sold. 

Earnings for Sixty Days. — 

Delete the citation of Wilmington v. Sprunt, appearing 
in the first paragraph under this catchline, and substitute 
in lieu thereof: 114 N. C. 310, 314. 

SUBCHAPTER XI. HOMESTEAD AND 

EXEMPTIONS 
Art. 31. Property Exempt from Execution 
§ 729. Conveyed homestead not exempt. 

This section seems to deal with "allotted homesteads." 

See Chadbourn Sash, etc., Co. v. Parker, 153 N. C. 130 
69 S. E, 1; Cheek v. Walden, 195 N. C. 752, 143 S. E. 465 
Duplin County v. Harrell, 195 N. C. 445, 142 S. E- 481 
Equitable Life Assur. Soc. v. Russos, 210 N. C. 121, 124, 
185 S. E. 632. 

§ 737. Personal property appraised on demand. 

Same — Time of Allotment. — 

In accord with second paragraph in original. See Crow 
v. Morgan, 210 N. C. 153, 185 S. E. 668. 

Property from. Which Exemption Is Made. — 

In accord with original. See Crow v. Morgan, 210 N. 
C. 153, 185 S. E. 668. 

Both Creditor and Debtor Are Entitled to Have Pro- 
cedure Conform to Statute.— In the allotment of the per- 
sonal property exemption, the creditor as well as the debtor 
is entitled to have the procedure conform to the constitu- 
tional provisions and the statutes enacted pursuant thereto. 
Crow v. Morgan, 210 N. C. 153, 185 S. E. 668. 

§ 740. Exceptions to valuation and allotment; 
procedure. 

Applied in Crow v. Morgan, 210 N. C. 153, 185 S. E- 668. 

§ 751. Forms. 

Cited in Crow v. Morgan, 210 N. C. 153, 185 S. E. 668. 

SUBCHAPTER XII. SPECIAL 
PROCEEDINGS 

Art. 32. Special Proceedings 

§ 752. Chapter applicable to special proceed- 
ings. 

Abandonment of Proceedings. — By virtue of this section 
petitioners in condemnation proceedings may abandon the 
proceedings and take a voluntary nonsuit even after the 
commissioners have made their appraisal and report and 
petitioners have filed exceptions thereto, provided petition- 
ers abandon the proceedings before confirmation of the 
commissioners' report. Nantahala Power, etc., Co. v. Whit- 
ing Mfg. Co., 209 N. C. 560, 184 S. E. 48. 

§ 753. Contested special proceedings; com- 
mencement; summons. 

Less Than Ten Days' Notice Given. — A judgment under 
a service of less than ten days, although irregular, is valid 
until reversed or vacated by a direct action, and cannot be 
collaterally attacked. Nail v. McConnell, 211 N. C. 258, 
261, 190 S. E. 210. 

§ 758. Defenses pleaded; transferred to civil is- 
sue docket; amendments. 

Clerk Must Transfer Case Where Equitable Defense 
Pleaded.— 

In Smith v. Johnson, 209 N. C. 729, 184 S. E- 486, it was 
held that defendant could plead the equitable relief of mu- 
tual mistake and when this plea was filed the clerk prop- 
erly transferred the cause to the civil issue docket. 



SUBCHAPTER XIII. PROVISIONAL 
REMEDIES 

Art. 34. Attachment 
§ 798. In what actions attachment granted. 

Origin of the Writ.— 

In accord with original. See Chinnis v. Cobb, 210 N. C. 
104, 185 S. E. 638. 

Nature and Function. — 

In accord with original. See Chinnis v. Cobb, 210 N. C. 
104, 185 S. E. 638. 

Only property which is subject to execution is attachable. 
Chinnis v. Cobb, 210 N. C. 104, 109, 185 S. E. 638, citing 
Willis v. Anderson, 188 N. C. 479, 124 S. E. 834. 

Attachment may be levied on land as under execution, and 



whatever interest the debtor has subject to execution may 
be attached, but the debtor must have some beneficial in- 
terest in the land. Chinnis v. Cobb, 210 N. C. 104, 109, 185 
S. E. 638, citing Willis v. Anderson, 188 N. C. 479, 124 S. 
E. 834. 

Interest in Land under Spendthrift Trust Not Subject to 
Attachment. — Plaintiff attached property which had be- 
longed to defendant's mother prior to her death. Thereafter 
the will was probated which devised the property in trust 
for defendant under a spendthrift trust. It was held that 
defendant took nothing as heir at law of her mother, and 
her interest in the land under the spendthrift trust was not 
subject to attachment, and the fact that the attachment 
was attempted to be levied prior to the probate of the will 
created no lien on the land. Chinnis v. Cobb, 210 N. C. 
104, 185 S. E. 638. 

Applied in Banner v. Carolina Button Corp., 209 N. C. 
697, 184 S. E. 508. 

§ 815. Defendant's undertaking. 

Discharge of Surety. — 

When the surety signs a bond under this section, he en- 
ters into the obligation with reference to the cause as it 
then stands, so when a new element of liability is intro- 
duced by an amendment, the surety is discharged. Rush- 
ing v. Ashcraft, 211 N. C. 627, 629, 191 S. E- 332. 

Art. 35. Claim and Delivery 
§ 830. Claim for delivery of personal property. 

Cited in C. I. T. Corp. v. Watkins, 208 N. C. 448, 181 S. 
E. 270. 

§ 833, Plaintiff's undertaking. 

Measure of Damages Where Property Can Not Be Re- 
turned. — Where defendant recovers judgment and the prop- 
erty cannot be returned to him, the measure of damages 
is the value of the property at the time of its seizure, and 
an instruction that defendant, from whom an automobile 
had been taken in claim and delivery by the assignor of a 
chattel mortgage thereon, would be entitled to recover, if 
plaintiff's seizure of the property were wrongful, the amount 
paid on the purchase price of the car less the value of the 
use obtained from the car by defendant, is held error. C. 
I. T. Corp. v. Watkins, 208 N. C. 448, 181 S. E. 270. 

Art. 36. Injunction 
§ 851. What judges have jurisdiction. 

Appointment of Receiver by County Court.— A general 
county court is without jurisdiction to appoint a receiver 
for a judgment debtor having property in another county 
against whom judgment is rendered in the county court. 
Essex Inv. Co. v. Piekelsimer, 210 N. C. 541, 187 S. E. 813. 

§ 858. To restrain collection of taxes. 

Illegal or Invalid Tax. — 

Unless otherwise provided by statute, injunction at the 
instance of a taxpayer is regarded as an appropriate rem- 
edy to resist the levy of an invalid assessment, or to re- 
strain the collection of an illegal tax. Barbee v. Board of 
Com'rs, 210 N. C. 717, 719, 188 S. E. 314. See Reynolds v. 
Asheville, 199 N. C. 212, 154 S. E. 85. 

Art. 37. Receivers 
§ 859. What judge appoints. 



Quoted in Essex Inv. Co. 
187 S. E. 813. 



Piekelsimer, 210 N. C. 541, 



§ 860. In what cases appointed. 

The power to appoint a receiver is inherent in a court 
of equity. The change to the Code did not abridge, but 
enlarged, it. In re Penny, 10 F. Supp. 638, 640. 

A receiver will not be appointed where there is a full 
and adequate remedy at law. In re Penny, 10 F. Supp. 
638, 640'. 

Unless Defense of Adequate Remedy at Law Is Waived. 
—A simple contract creditor may obtain, in proper cases, 
equitable relief where answer admits indebtedness and con- 
sents to appointment of receiver, waiving the defense of 
adequate remedy at law. In re Penny, 10 F. Supp. 638, 
640, citing Newberry v. Davison Chemical Co., 65 F. (2d) 
724; Harkin v. Brundage, 276 U. S. 36, 51, 48 S. Ct. 268 
72 L. Ed. 457. 

Where the debtor and one small creditor agree to have 
a receiver appointed and to restrain all other creditors 
from doing anything, a receivership under such circum- 
stances is an agency for the defendant, and the title of 

[21] 



§ 861 



CIVIL PROCEDURE 



§ 900 



Such a receiver to the assets of the bankrupt debtor is 
merely colorable and he may be required to turn over as- 
sets to trustee in bankruptcy. In re Penny, 10 F. Supp. 
638, 641. 

Exhaustion of Remedy at Law. — 

A receiver of defendant's property will not be appointed 
at the request of a judgment creditor without more being 
shown where he has the remedy of execution against the 
property. Scoggins v. Gooch, 211 N. C. 677, 191 S. E. 750. 

Before Judgment. — 

In order to appoint a receiver before judgment under 
this section, it must appear that claimant has an appar- 
ent right to property which is the subject of the action 
and the property or the rents are in danger of being lost, 
Witz v. Gray, 116 N. C. 48, 20 S. E. 1019; Pearce v. El- 
well, 116 N. C. 595, 21 S. E. 305; and it is generally nec- 
essary to show that the party in possession is insolvent, 
Ellington v. Currie, 193 N. C. 610, 137 S. E- 869. In re 
Penny, 10 F. Supp. 638, 640. 

Where an executor's petition to sell lands alleges merely 
that personalty is insufficient to pay debts, plaintiff exec- 
utor is not entitled to the appointment of a receiver for 
the lands on the ground that the action cannot be tried 
until a subsequent term, and that the devisee had refused 
to pay taxes, the allegation merely that the personalty is 
insufficient failing to show plaintiff executor's apparent 
right to the relief as required for the appointment of a 
receiver under the provisions of subsection (1) of this sec- 
tion, especially when the devisee denies the allegation that 
the personalty is insufficient. Neighbors v. Evans, 210 N. 
C. 550, 187 S. E- 796. 

County Court Can Not Appoint Receiver after Judgment 
Docketed in Superior Court. — After the judgment of a gen- 
eral county .court is docketed in the Superior Court of the 
county the county court has no further jurisdiction of the 
case and may not thereafter hear a motion for the appoint- 
ment of a receiver for the judgment debtor. Essex Inv. Co. 
v. Pickelsimer, 210 N. C. 541, 187 S. E- 813. 

§ 861. Appointment refused on bond being 
given. 

Applied in Little v. Wachovia Bank, etc., Co., 208 N. C. 
726, 182 S'. E. 491. 

SUBCHAPTER XIV. ACTIONS IN 
PARTICULAR CASES 

Art. 39. Mandamus 
§ 866. Begun by summons and verified com- 
plain;. 

III. WHEN MANDAMUS WILL LIE. 

A. General Rules. 

Mandamus will not lie except to enforce a clear legal 

right against a party under legal obligation to perform the 

act sought to be enforced. Sovereign Camp, W. O. W. 

v. Board of Com'rs, 208 N. C. 433, 181 S. E- 339. 

§ 867. For money demanded. 

The 1933 amendment to this section as constitutional, 

since it does not impair the obligations of a contract, U. S. 
Const., Art. 1, sec. 10; N. C. Const., Art. 1, sec. 17, the 
effect of the statute being merely to alter the method of 
procedure in which there can be no vested right. Sovereign 
Camp, W. O. W. v. Board of Com'rs, 208 N. C. 433, 181 S. 
E. 339. 

Necessity for Judgment Prior to Action to Enforce Money 
Demand. — Where plaintiff alleged ownership of certain 
county bonds, and sought mandamus to compel the county 
to levy taxes sufficient to pay same the effect of the ac- 
tion is to enforce a money demand, which can not be main- 
tained under this section as amended by Public Laws 1933, 
unless the claim has been reduced to judgment. Sovereign 
Camp, W. O. W. v. Board of Com'rs, 208 N. C. 433, 181 
S. E. 339. 

Art. 40. Quo Warranto 

§ 869. Writs of sci. fa. and quo warranto abol- 
ished. 

Applied in Stephens v. Dowell, 208 N. C. 555, 181 S. E- 
629; Swaringen v. Poplin, 211 N. C. 700, 191 S. E. 746. 

§ 870. Action by attorney-general. 

Determining Title to Public Office. — One of the chief pur- 
poses of quo warranto or an information in the nature of 
quo warranto is to try the title to an office. This is the 
method prescribed for settling a controversy between rival 
claimants when one is in possession of the office under a 



claim of right and in the exercise of official functions or the 
performance of official duties; and the jurisdiction of the 
Superior Court in this behalf has never been abdicated in 
favor of the board of county canvassers or other officers of 
an election. Swaringen v. Poplin, 211 N. C. 700, 702, 191 
S. E. 746, citing Harkrader v. Lawrence, 190 N. C. 441, 130 
S. E. 35. 

Quo Warranto Is Not Proper Remedy to Test Validity of 
Tax.— Quo warranto is the sole remedy to test the validity 
of an election to public office, but not to test the validity 
of a tax even though it is levied under the authority of a 
popular election. Barbee v. Board of Com'rs, 210 N. C. 
717, 188 S. E. 314. 

§ 871. Action by private person with leave. 

Cited in Barbee v. Board of Com'rs, 210 N. C. 717, 188 
S. E. 314. 

§ 881. Service of summons and complaint. 

If the copy of summons left at defendant's residence be 
not essentially a true copy of the original, then it would 
be insufficient under the statute, for only by virtue of this 
section, is substituted service allowable in this way. Mc- 
Leod v. Pearson, 208 N. C. 539, 540, 181 S'. E. 753. 

If the copy of summons left at defendant's residence be 
a true copy of the original, but was neither signed by the 
clerk nor under seal, it is fatally defective. Id. 

SUBCHAPTER XV. INCIDENTAE PRO- 
CEDURE IN CIVIL ACTIONS 

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

Costs— When Taxed on Plaintiff.— Where defendant ten- 
ders judgment in its answer for the amount recovered by 
plaintiff, which tender is refused by plaintiff upon her 
claim that she is entitled to recover a larger amount, the 
costs are properly taxed against plaintiff. Webster v. 
Wachovia Bank, etc., Co., 208 N. C. 759, 182 S. E- 333. 

Art. 44. Examination of Parties 
§ 899. Action for discovery abolished. 

Substitute for Bill of Discovery. — 

In accord with original. See McGraw v. Southern Ry. 
Co., 209 N. C. 432, 184 S. E. 31. 
Applied in Enloe v. Charlotte Coca-Cola Bottling Co., 

210 N. C. 262, 186 S. E. 242. 

Cited in McGraw v. Southern Ry. Co., 209 N. C. 432, 
184 S'. E. 31. 

§ 900. Adverse party examined. 

Construction. — 

In accord with original. See McGraw v. Southern Ry. 
Co., 209 N. C. 432, 439, 184 S. E- 31; Douglas v. Buchanan, 

211 N. C. 664, 191 S. E. 736. 
Substitute for Bill of Discovery. — 

In accord with original. See Bohannon v. Wachovia 
Bank, etc., Co., 210 N. C. 679, 188 S. E. 390; Douglas v. 
Buchanan, 211 N. C. 664, 191 S. E. 736. 

Leave of Court Unnecessary. — 

In accord with original. See Douglas v. Buchanan, 211 
N. C. 664, 191 S. E- 736. 

Right to Cross- Examine Witnesses Is Available Only at 
Time of Examination. — Where the examination of witnesses 
prior to trial is had under the provisions of this and the 
following sections and the testimony elicited from the wit- 
nesses read at the trial, the party against whom such evi- 
dence is introduced is not entitled as a matter of right to 
cross-examine such witnesses, although they are present 
at the trial, the right to object to the competency of the 
evidence and cross-examine the witnesses being available 
to the party only at the time the examination of the wit- 
nesses is had. McGraw v. Southern Ry. Co., 209 N. C. 
432, 184 S. E. 31. 

Nonresidence. — 

Where an order striking an answer under § 903 was 
void because of an alternative condition attached the ques- 
tion of whether the court had the power to order the in- 
dividual defendant, who had moved to another state, to 
appear under this section is not presented for decision. 
Hagedorn v. Hagedorn, 210 N. C. 164, 185 S. E. 768. 

Appeal from Refusal to Set Aside Order for Examina- 
tion Is Not Premature. — An appeal from the refusal of the 
court to set aside an order of the clerk for the examina- 
tion of an adverse party under this section was held not 
premature, the appeal presenting the question of whether 
plaintiff's affidavit upon which the order was made states 



[22] 



§ 901 



CLERK OF SUPERIOR COURT 



§ 962(b) 



facts sufficient to constitute a cause of action. Bohannon 
v. Wachovia Bank, etc., Co., 210 N. C. 679, 188 S. E. 390. 

§ 901. Before trial in his own county. 

Examination at Option of Party Claiming. — 

In accord with original. See McGraw v. Southern Ry. 
Co., 209 N. C. 432, 184 S. E. 31. 

Cited in Bohannon v. Wachovia Bank, etc., Co., 210 N. 
C. 679, 188 S'. E. 390. 

§ 903. Compelling attendance of party for ex- 
amination before trial. 

May Be Read by Either Party.— 

In accord with original. See McGraw v. Southern Ry. 
Co., 209 N. C. 432, 184 S. E. 31. 

Entire Examination Must Be Read. — Where a party 
reads in evidence an examination of an adverse party 
had under the provisions of § 899 et seq., he must read 
the whole of the examination, and the admission in evi- 
dence of the direct examination of such party while omit- 
ting the cross-examination is reversible error. Enloe v. 
Charlotte Coca-Cola Bottling Co., 210 N. C. 262, 186 S. E- 
242. 

§ 903. Party's refusal to testify; penalty. 

In Hagedorn v. Hagedorn, 210 N. C. 164, 165, 185 S. 
E> 768, the court was precluded from deciding the power 
to strike out an answer under authority of this section, 
because of the alternative condition attached to the or- 
der, which rendered it void. 

§ 904. Rebuttal of party's testimony. 

Quoted in McGraw v. Southern Ry. Co., 209 N. C. 432, 
184 S. E. 31. 

Art. 46. Notices 
§ 921. Officer's return evidence of service. 

Officer's Return Is Prima Facie Correct. — 

In accord with second paragraph of original. See Pen- 
ley v. Rader, 208 N. C. 702, 704, 182 S. E- 337. 

Where the sheriff's return was regular upon its face, but 
each plaintiff testified that service was not made on him, 
but did not testify as to whether service was made on the 
other plaintiff, and there was no evidence corroborating 
plaintiffs' testimony, defendant sheriff's motion for judg- 
ment as of nonsuit was properly granted. Penley v. Ra- 
der, 208 N. C. 702, 182 S. E. 337. 

Where the officer's return shows service it is deemed 
prima facie correct under this section and the remedy of 
defendant asserting nonservice is by motion in the cause 
upon a showing of nonservice by clear and unequivocal 
proof. Dunn v. Wilson, 210 N. C. 493, 187 S. E. 802. 



CHAPTER 13 

CLERK OF SUPERIOR COURT 
Art. 1(A). Assistant Clerks 

§ 934(a). Appointment; oath; powers and ju- 
risdiction; responsibility of clerks. 

While the clerk of the superior court is a constitutional 
officer, the duties of clerks are prescribed by statute, and 
the legislature may prescribe that such duties may be per- 
formed by assistant clerks as in this and the following 
sections, and an attack upon the appointment of a guard- 
ian by an assistant clerk on the ground that the statute 
delegating the powers of clerks to assistant clerks is un- 
constitutional is untenable. In re Barker, 210 N. C. 617, 
188 S. E. 205. 

Art. 3. Powers and Duties 
§ 938. Powers enumerated. 

Legislature May Take Away or Modify Powers.— The 

powers and duties of clerks enumerated in this section are 
given and fixed by legislative enactment, and there is no 
constitutional barrier to the legislature's taking away, 
adding to, or modifying them; or authorizing them to be 
exercised and performed by another. In re Barker, 210 
N. C. 617, 619, 188 S. E. 205. 
Applied in Braddy v. Praff, 210 N. C. 248, 186 S. E. 340. 

§ 939. Disqualification to act. 

Reference.— As to the purpose of the 1935 amendment, see 
13 N. C. Law Rev., No. 4, p. 370. 



§ 952. To keep books; enumeration. — 

4. Cross-index to judgments, which shall con- 
tain a direct and reverse alphabetical index of all 
final judgments in civil actions rendered in the 
court, with the dates and numbers thereof, and 
also of all final judgments rendered in other 
courts and authorized by law to be entered on 
his judgment docket. Pending the docketing of 
judgments in the judgment docket and cross-in- 
dexing the same as herein provided for, the clerk 
shall keep a temporary index to all judgments 
entered in his said court or received in his court 
from any court for docketing; and he shall im- 
mediately index all judgments rendered in his 
court or received in his court for docketing, and 
index the names of all parties against whom judg- 
ments have been rendered or entered alphabeti- 
cally in said temporary index, and which tempo- 
rary index shall be preserved and open to the 
public until said judgments shall have been dock- 
eted in the judgment docket and cross-indexed in 
the permanent cross-index to judgments, as here- 
in provided for. 
(1937, c. 93.) 

Editor's Note.— The 1937 amendment added the second sen- 
tence of subsection 4. The rest of the section, not being af- 
fected by the amendment, is not set out. 

By virtue of the amendment, searchers of real property 
titles may examine the temporary index of judgments and 
ascertain in advance whether or not judgments have been 
rendered which, when docketed will affect the title to the 
reality in which their clients are interested. The new law 
will thus tend to facilitate real estate loans and transfers. 
15 N. C. Law Rev., No. 4, p. 337. 

Recording of Verified Report Purports Verity. — Plaintiff, 
purchaser of the real property at execution sale of a judg- 
ment against the devisee, offered in evidence, as proof of 
payment and that title had vested in the devisee, a special 
report, duly verified, filed by the executrix stating that 
the devisee had paid the estate the amount stipulated by 
the will. This special, verified report of the executrix was 
a document authorized and required to be recorded, was 
relevant to the issue, and was competent in evidence, its 
recording purporting verity and objection to its admission 
on the ground of hearsay in that it contained a declara- 
tion of a person not a party to the action is untenable, the 
recorded, verified report being more than a mere declara- 
tion by the executrix. Braddy v. Pfaff, 210 N. C. 248, 186 
S. E. 340. 

Art. 5. Money in Hand; Investments 

§ 961(a). Payment of sum due minor insurance 
beneficiary. — Where a minor is named as bene- 
ficiary in a policy or policies of insurance issued 
in a sum not exceeding five hundred ($500.00) 
dollars, and the insured dies prior to the majority 
of such beneficiary, any sums due on such policy 
may be paid to the public guardian or clerk of the 
superior court of the county wherein such bene- 
ficiary resides, to be administered by such clerk 
or public guardian for the benefit of said minor, 
and the receipt of the clerk or public guardian 
in such cases shall be a full and complete dis- 
charge of the company or association for any 
sums due under such policy or policies. (1937, c. 
201.) 

§ 962(b). Investments prescribed; funds from 
lands of infants and persons non compos men- 
tis.— 

(e) North Carolina county or municipal bonds 
which are approved by the local government 
commission. 

(1937, c. 188.) 

Editor's Note. — The 1937 amendment substituted _ "local 
government commission" for "sinking fund commission" 



[23] 



§ 970 



CORPORATION COMMISSION 



§ 1037(d) 



formerly appearing in subsection (e). The rest of the sec- 
tion, not being affected by the amendment, is not set out. 



CHAPTER 15 

COMMON LAW 

§ 970. Common law declared to be in force. 

Extent of Common Law. — So much of the common law 
as is not destructive of, repugnant to, or inconsistent with 
our form of government, and which has not been repealed 
or abrogated by statute or become obsolete, is in full force 
and effect in this jurisdiction. State v. Hampton, 210 N. 
C. 283, 186 S. E. 251. 

The solicitation of another to commit a felony is a crime, 
although the solicitation is of no effect, and the crime is 
not committed, the common law rule being in effect and 
controlling. State v. Hampton, 210 N. C. 283, 186 S. E- 
251. 

Cited in dissenting opinion, in Wachovia Bank, etc., Co. 
v. Jones, 210 N. C. 339, 186 S. E- 335. 



CHAPTER 17 

CONTEMPT 

§ 978. Contempts enumerated; common law re- 
pealed. 

Quoted, in dissenting opinion, in State v. Perry, 210 N. 
C. 796, 188 S. E. 639. 



CHAPTER 18 

CONTRACTS REQUIRING WRITING 

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

Contracts Not within the Statute.— 

Where a business run in the name of J. W. J. was in 
charge of W. P. J., J. W. J.'s son, and J. W. J. being 
desirous of having goods shipped to W. P. J. permitted 
them to be shipped in the name of J. W. J. & Son., say- 
ing to plaintiff, "you won't lose anything by it," and a 
payment on account was made by "J. W. J. & Son," 
this section was held inapplicable. Noland Co. v. Jones, 
211 N. C. 462, 190 S. E. 720. 

What Determines Nature of Promise.— Whether a prom- 
ise is an original one not coming within the provisions of 
this section, or a superadded one barred by the statute, 
does not depend altogether on the form of expression, but 
the situation of the parties, and whether they understood 
the promise to be direct or collateral, should also be con- 
sidered. Dozier v. Wood, 208 N. C. 414, 181 S. E. 336. 

Oral Agreement of Stockholders to Be Responsible for 
Merchandise Held to Be an Original Promise.— Defendants 
agreed orally to be personally responsible for merchan- 
dise shipped to a corporation of which they were the main 
stockholders, and which they later took over. It was held 
that the agreement was an original promise not coming 
within the statute of frauds. Brown v. Benton, 209 N. C. 
285, 183 S. E. 292. 

The Same Being True of Agreement to Furnish Mer- 
chandise for Use on Farm. — Evidence of defendant's states 
ments to plaintiff merchant at the time plaintiff agreed to 
furnish certain merchandise for use on defendant's farm is 
held susceptible of the interpretation that defendant's 
promise to pay therefor was an" original promise not com- 
ing within this section, and not a superadded one barred by 
the statute, and the question of interpretation should have 
been submitted to the jury. Dozier v. Wood, 208 N. C. 
414, 181 S. E. 336. 

Question for Jury as to Whether Original Promise Cov- 
ered Second Transaction. — Where evidence tended to show 
that defendants ordered two or three cars of lumber, both 
defendants being present and promising to be personally 
responsible therefor, and after the first car was shipped, 
one of defendants went to plaintiff and told him to ship 
another car under the same arrangements, it was sufficient 
to be submitted to the jury on the question whether the 
original promise of both defendants, made when both were 
present, covered the second car as well as the first. Brown 
v. Benton, 209 N. C. 285, 183 S. E. 292. 



§ 988. Contract for sale of land; leases. 

I. IN GENERAL. 
Rights of Vendee under Parol Contract.— The vendor, in 
a parol contract to convey land, will not be permitted to 
evict a vendee who has entered and made improvements, 
until the latter has been repaid the purchase money and 
compensated for betterments. Union Cent. Life Ins. Co. 
v. Cordon, 208 N. C. 723, 182 S. E- 496, 497, citing Vann 
v. Newsom, 110 N. C. 122, 14 S. E. 519, and Eaton v. 
Doub, 190 N. C. 14, 22, 128 S. E- 494, 498, 40 A. L. R. 273. 

II. WHAT CONSTITUTES AN INTEREST IN OR 

CONCERNING LAND. 
Agreement That Is Not One to Sell or Convey Land.— 

Where plaintiff alleged that his vendor agreed to procure 
a release of the land from a prior deed of trust upon the 
payment by the plaintiff of a note given for the balance of 
the purchase price of the land, and secured by a deed of 
trust to his vendor, the agreement is not one to sell or 
convey land, or any interest in or concerning same, and 
does not come within the provisions of this section. Hare 
v. Hare, 208 N. C. 442, 181 S. E- 246. 

III. SUFFICIENCY OF COMPLIANCE WITH SECTION. 
A. In General. 
Deed Held to Be a Sufficient Writing.— A deed duly exe- 
cuted and acknowledged and found among the valuable 
papers of the grantor after his death is a sufficient writ- 
ing within the meaning of the statute of frauds of a con- 
tract of grantor to convey the lands to the grantees in 
consideration of grantees' taking care of grantor for the 
remainder of his life. Austin v. MeCollum, 210 N. C. 
817, 188 S. E. 646. 



CHAPTER 19 

CONVEYANCES 
Art. 1. Construction and Sufficiency 
§ 991. Fee presumed, though word "heirs" 
omitted. 

Applied in New York Life Ins. Co. v. Lassiter, 209 N. 
C. 156, 160, 183 S. E. 616. 

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. 

B. Husband's Acknowledgment and Proof Thereof. 
It is necessary that a wife's deed be signed by the hus- 
band and acknowledged by both husband and wife. Joiner 
v. Firemen's Ins. Co., 6 F. Supp. 103, 104. 

§ 1003. Wife need not join in purchase-money 
mortgage 1 . 

Where Wife of Grantee Acquires No Dower Right. — Where 
two deeds of trust are executed and substituted for the orig- 
inal purchase money deed of trust, which is canceled, the 
wife of the grantee acquires no dower right in the land, the 
original debt for the purchase money not having been extin- 
guished. Case v. Fitzsimons, 209 N. C. 783, 184 S. E. 818. 



CHAPTER 21 

CORPORATION COMMISSION; UTILITIES 
COMMISSIONER 

Art. 3. Powers and Duties 

§ 1037(d). Certificate of convenience and neces- 
sity. 

This section is not applicable to an electric membership 
corporation, organized under the provisions of § 1694(7-28). 
And by reason of the provisions of section 1694(28) of the 
statute under which it was organized, there was no error 
in the holding of the lower court that the defendant elec- 
tric membership corporation was not required, before be- 
ginning the construction or operation of its facilities for 
serving its members by furnishing them electricity for 
lights and power, to obtain from the Utilities Commis- 
sioner of North Carolina a certificate that public conven- 
ience and necessity requires or will require the construc- 
tion and operation of said facilities by said defendant. 



[24] 



§ 1042; 



CORPORATION COMMISSION 



§ lH2(o) 



Carolina Power, etc., Co. v. Johnston County Elec. Mem- 
bership Corp., 211 N. C. 717, 720. 

§ 1042, To provide for union depots. 

Cited in Cole v. Atlantic Coast Line R. Co., 211 N. C. 
591, 191 S. E. 353. 

Art. 5. Railroad Freight Rates 

§ 1083. Application for investigation of rates; 
appeal; rates pending appeal. — 

All incorporated cities and towns in the state 
are deemed to be directly interested in the rates 
charged for the transportation of property by rail- 
roads and other common carriers operating into 
and out of such municipalities and in any discrim- 
ination in such rates and services as between mu- 
nicipalities; and, their welfare being thereby af- 
fected, any incorporated city or town in North 
Carolina is authorized and empowered to file its 
petition with the utilities commissioner for inves- 
tigation and determination of all matters affecting 
rates for the transportation of property by rail- 
roads and other common carriers to or from 
such municipality, and also to prevent or remove 
any unfair or unreasonable difference or discrim- 
ination, to its prejudice or disadvantage, between 
the rates or the services at, in or to another such 
municipality within the state; and such municipal- 
ity shall have the right, as a party in interest, to 
be represented and appear before, and to appeal 
from any decision which may be rendered there- 
in by the utilities commissioner, in the manner 
provided by Consolidated Statutes, section one 
thousand and ninety-seven. (Ex. Sess., 1913, c. 
20, s. 7; 1937, c. 401.) 

Editor's Note. — The 1937 amendment directed that the above 
provision be added at the end of this section. The rest of the 
section, not being affected by the amendment, is not set out 
here. 

The authority given to municipalities to appear before 
the utilities commissioner and to appeal from his decisions 
relates to intrastate rates only, as the commissioner has no 
authority over interstate rates. 15 N. C. I^aw Rev., No. 4, 
p. 366. 

Art. 7. Penalties and Actions 
§ 1107. Discrimination between connecting lines. 

Reference. — As to the practice of specifying in published 
tariffs particular routes formed with connecting carriers, 
see 13 N. C. Law Rev., No. 4, p. 364. 

§ 1112. Remedies, cumulative. 

Cited in Powell v. Hamlet Ice Co., 209 N. C. 195, 183 
S. E. 386, dissenting opinion. 

Art. 8. Utilities Commissioner 

§ 1112(b). Supervisory powers. — 

(3) By electric light, power, water, and gas 
companies, pipe lines originating in North Caro- 
lina for the transportation of petroleum products, 
and corporations, other than such as are munic- 
ipally owned or conducted, and all other com- 
panies, corporations, or individuals engaged in 
furnishing electricity, electric light current, power, 
or in transmitting or selling the same or pro- 
ducing the same from the water courses of this 
state ; 

(1937, c. 108, s. 2.) 

Editor's Note^-The 1937 amendment inserted the reference 
to pipe lines in subsection (3). The rest of the section, not 
being affected by the amendment, is not set out. 

§ 1112(fl). Transportation advisory commis- 
sion abolished; powers and duties transferred to 
utilities commission. — The transportation advis- 
ory commission, created under chapter two 

[2 



hundred sixty-six, Public Laws one thousand 
nine hundred twenty-five [§ 7516 (e) et seq.], and 
organized and operating thereunder and by vir- 
tue of amendments thereto, is hereby abolished 
from and after July first, one thousand nine hun- 
dred thirty-seven. All the powers and duties 
heretofore exercised by the said transportation 
advisory commission are hereby transferred to 
the utilities commission created by chapter one 
hundred thirty-four, Public Laws of one thousand 
nine hundred thirty-three [§ 1112(a) et seq.] ; and 
on and after said July first, one thousand nine 
hundred thirty-seven, in all proceedings then pend- 
ing wherein the said transportation advisory com- 
mission is petitioner, or plaintiff, or defendant, 
the said utilities commission shall be petitioner, 
party plaintiff or party defendant, as the case may 
be, and shall be empowered and authorized to 
prosecute same to a conclusion. The said utili- 
ties commission is hereby fully clothed with all 
rights, authority, and powers heretofore vested in 
the transportation advisory commission under all 
of the laws creating the said commission, or 
amending the same, or any other statutes what- 
soever. (1937, c. 434, s. 1.) 

Editor's Note. — The act from which this section was codi- 
fied provides for the auditing of all funds of the transporta- 
tion advisory commission, and turning over any surplus re- 
maining to the state treasurer. 

§ 1112(o). Commissioner to keep himself in- 
formed as to utilities; approval of rail rate in- 
creases without hearing. — 

Provided, that in individual cases not involving 
increases above the normal rate structure, or in 
individual cases where the proposed increase is 
deemed justifiable, the utilities commissioner may 
approve, without hearing, the petitions of carriers 
where the rate and/or charge involves transporta- 
tion exclusively by rail; and provided further, 
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; 1937, c. 165.) 

The 1937 amendment inserted the above provisos in lieu 
of the proviso formerly appearing at the end of this section. 
The rest of the section, not being affected by the amendment, 
is not set out. — Ed. Note. 

If this chapter had provided that rates could be decreased 
without affording the railroad a hearing it would have been 
unconstitutional. It has been said that the law authoriz- 
ing the raising of rates without a hearing may be valid, 
but the question raised, is it good policy? Doubtless con- 
venience is served by dispensing with the necessity for hear- 
ings in raising individual rates when no one would be likely 
to appear with evidence in opposition if there were a hear- 
ing. But would not the legitimate objects of the act have 
been served if authority to raise the rates without a hear- 
ing had been specifically qualified by provisions authorizing 
objections to be made within a given period after the or- 
der? 15 N. C. Law Rev., No. 4, p. 365. 

The proviso to this section deprived the Utilities Com- 
missioner of jurisdiction over reductions in rates. This 
means that any railroad acting lawfully, that is, individ- 
ually and with proper intent, may reduce its own rates 
free of the control of the Utilities Commissioner, but it 
does not mean that it can, acting unlawfully or as a result 
of a conspiracy with other railroads, use this uncontrolled 
power to injure a competitor and it does not follow that 
conspiracies in violation of chapter 53 are made legal by 
the proviso. Bennett v. Southern Ry. Co., 211 N. C. 474, 
483, 191 S. E. 240, decided prior to the 1937 amendment. 

Where certain carriers by truck sought injunctive relief 
against railroad carriers for reduction in rates as to cer- 
tain commodities, and as between certain localities, it was 
held that they had no legal right to. have their contract 
price protected against lawful competition from rail car- 
riers, who could, under this section, reduce rates at will. 
Carolina Motor Service v. Atlantic Coast L,ine R. Co., 210 

5] 



§ 1112(1) 



CORPORATIONS 



§ 1181(b) 



N. C. 36, 185 S. E. 479, 104 A. h. R. 1165, decided prior to 
the 1937 amendment. 

Art. 9. Public Utilities Act of 1933 
§ 1112(1). Definitions. 

The provisions of this article as to rate regulation are 
not in conflict with §§ 2559-2574. Bennett v. Southern Ry. 
Co., 211 N. C. 474, 191 S. E. 240. 

§ 1112(6). Discrimination prohibited. 

Where certain carriers by truck sought injunctive re- 
lief against railroad carriers for discrimination in rates 
against certain cities and against certain commodities, it 
was held that the basis for injunctive relief must be an 
interference or threatened interference with a legal right 
of the petitioner, not of a third party and that the ship- 
pers would be the real parties in interest not the contract 
truck carriers. Carolina Motor Service v. Atlantic Coast 
Line R. Co., 210 N. C. 36, 38, 185 S. E- 479, 104 A. I*. R. 
1165. 

§ 1112(32). Abandonment and reduction of serv- 
ice. 

Where a power company discontinued its service for non- 
payment of charges, the customer, upon payment of the 
charges, is entitled to restoration of the service where 
the company did not obtain an order under this section. 
Sweetheart I,ake v. Carolina Power, etc., Co., 211 N. C. 
269, 271, 189 S'. E. 785. 



CHAPTER 22 

CORPORATIONS 
Art. 2. Formation 
§ 1116. When incorporators become corporation. 

/ Applied in Britt v. Howell, 210 N. C. 475, 187 S. E. 566. 

Art. 3. Powers and Restrictions 

§ 1137(a). Process agent in county where prin- 
cipal office located; service on inactive corpora- 
tions. — Every corporation chartered under the 
laws of North Carolina shall have an officer or 
agent in the county where its principal office is 
located upon whom process can be had, and shall 
at all times keep on file with the secretary of 
state the name and address of such process officer 
or agent, and upon the return of any sheriff or 
other officer of such county that such corporation 
or process officer or agent cannot be found, serv- 
ice may be had upon such corporation by leaving 
a copy with the secretary of state, who shall mail 
the copy so served upon him to the process agent 
or officer at the address last given and on file 
with him, or if none, to the corporation at the ad- 
dress given in its charter; and any such corpora- 
tion so served shall be in court for all purposes 
from and after the date of such service on the sec- 
retary of state. 

For service as above provided to be performed 
by the secretary of state he shall receive a fee of 
one dollar ($1.00), to be paid by the party at 
whose instance the service is made. 

This section shall not be in derogation of any 
other act or law pertaining to the service of sum- 
mons or process, but shall be in addition thereto. 
(1937, c. 133, ss. 1-3.) 

For article discussing the effect of this chapter, see 15 N. 
C. Law Rev., No. 4, p. 340. 

§ 1138(a). Certain corporate conveyances vali- 
dated. — All deeds and conveyances of land in this 
state, made by any corporation of this state prior 
to January first, one thousand nine hundred thirty- 
five, executed in its corporate name and signed 
and attested by its proper officers, from which the 



corporate seal was omitted, shall be good and 
valid, notwithstanding the failure to attach said 
corporate seal. This section shall not affect pend- 
ing litigation. (1937, c. 360, ss. 1, 2.) 

Art. 4. Directors and Officers 

§ 1144. Directors. — The business of every cor- 
poration shall be managed by its directors, who 
must be at least three in number, and at all times 
bona fide stockholders or the guardian of a bona 
fide stockholder, or the executor or administrator 
of the estate of a deceased bona fide stockholder, 
or a director in a corporation which is a bona fide 
stockholder, in case the corporation is one issu- 
ing stock. 
(1937, c. 179.) 

Editor's Note. — The 1937 amendment inserted the words 
"or the guardian of a bona fide stockholder, or the executor 
or administrator of the estate of a deceased bona fide stock- 
holder, or a director in a corporation which is a bona fide 
stockholder" in the first sentence. The rest of the section, 
not being affected by the amendment, is not set out. 

Art. 6. Meetings, Elections and Dividends 

§ 1177. Jurisdiction of superior court over cor- 
porate elections. — Whenever there shall be any 
dispute with reference to the election of directors 
by the stockholders of any corporation in the 
hands of a receivership, or whenever there shall 
be any dispute with reference to the election of 
officers of any corporation by directors or stock- 
holders, if the stockholders elect the officers, the 
resident or presiding judge of the district may, 
after ten days' notice to the stockholders, or to 
the directors as the case may be, hear at cham- 
bers, in the county in which the principal office 
of the corporation is situated, evidence in the form 
of affidavits as to dispute, and may continue from 
time to time such hearing for the purpose of es- 
tablishing facts with reference thereto to his sat- 
isfaction; and upon the completion of his hearing 
may order a new election or may declare the re- 
sult of the election so held, or may continue the 
directors or officers, as the case may be, until a 
new election shall be held: Provided, however, 
that no order shall be entered temporarily affect- 
ing the status of the corporation. With refer- 
ence to notice, evidence, and the findings by the 
judge hearing the same, the proceedings shall 
be, as far as possible, the same as in injunctions. 
(Rev., s. 1189; 1901, c. 2, s. 47; 1935, c. 413; 
1937, c. 347.) 

Editor's Note.— Prior to the 1937 amendment this section 
contained a provision for the appointment of receivers. 

Art. 7. Foreign Corporations 
§ 1181(b). Secretary of state directed to re- 
quire domestication of all foreign corporations do- 
ing business in state. — The secretary of state is 
hereby directed to require that every foreign cor- 
poration doing business in North Carolina, as per- 
mitted under the provisions of Consolidated Stat- 
utes, section one thousand one hundred and eighty, 
shall file in the office of the secretary of state a 
copy of its charter or articles of agreement, in 
the manner required by Consolidated^ Statutes, 
section one thousand one hundred and eighty-one, 
and all amendments thereto, and otherwise fully 
comply with the provisions of said law, including 
the payment to the secretary of state of fees fixed 
by said law for the privilege of doing business in 
this state and domestication therein. The secre- 



[26] 



§ 1197 



CORPORATIONS 



§ 1224(1) 



tary of state is authorized and empowered to em- 
ploy such assistants as shall be deemed necessary 
in his office for the purpose of carrying out and 
enforcing the provisions of this section, and for 
making such investigations as shall be necessary 
to ascertain foreign corporations now doing busi- 
ness in North Carolina which may have failed or 
hereafter fail to domesticate as required by law. 
(1937, c. 343.) 

Art. 8. Dissolution 

§ 1197. Wages for two months lien on assets. 
— In case of the insolvency of a corporation, part- 
nership or individual, all persons doing labor or 
service of whatever character in its regular em- 
ployment have a lien upon the assets thereof for 
the amount of wages due to them for all labor, 
work, and services rendered within two months 
next preceding the date when proceedings in in- 
solvency were actually instituted and begun 
against the corporation, partnership or individual, 
which lien is prior to all other liens that can be 
acquired against such assets. (Rev., s. 1206; 1901, 
c. 2, s. 87; 1937, c. 223.) 

Editor's Note. — The 1937 amendment inserted the words 
"partnership or individual" twice in this section. 

§ 1199. Debts not extinguished nor actions 
abated. 

Where a corporation has been served with summons and 
has filed answer, the action against it does not abate upon 
its subsequent dissolution, and its directors are made trus- 
tees of its property by §§ 1193 and 1194. Lertz v. Hughes 
Bros., 208 N. C. 490, 181 S. E. 342. 

Art. 10. Receivers 
§ 1212. Proof of claims; time limit. 

Cited in Kenny Co. v. Hinton Hotel Co., 208 N. C. 295, 
180 S. E, 696. 

Art. 11. Taxes and Fees 

§ 1218. Taxes for riling; secretary of state not 
to file corporate papers until prescribed fees, etc., 
paid.— 

The secretary of state shall not file any articles, 
certificates, applications, amendments, reports,, or 
other papers relating to any corporation, domestic 
or foreign, organized under or subject to the pro- 
visions of this chapter until all fees, taxes, and 
charges provided to be paid in connection there- 
with shall have been paid to him. (Rev., s. 1233; 
1901, c. 2, s. 96; 1911, c. 155, s. 5; 1929, c. 36; 1935, 
c. 10; 1937, c. 171.) 

Editor's Note. — The 1937 amendment directed that the above 
provision be added at the end of this section. The rest of 
the section, not being affected by the amendment, is not 
set out. 

§ 1220. Corporate property in receiver's hands 
liable for taxes. 

Where City and County Have No Lien on Proceeds of 
Sale. — Where the receiver of a corporation sold personal 
property of the corporation, comprising its sole assets, un- 
der orders of the court, and deposited the proceeds of sale 
to his credit as receiver, and the city and county in which 
the corporation was located levied executions on the funds 
on deposit, claiming that they, respectively, were entitled 
to preferred claims against the funds for personal prop- 
erty taxes for several years prior to the appointment of 
the receiver, it was held that since under § 7986 a lien for 
personal property taxes does not attach until levy thereon 
and no lien for taxes was created prior to the sale of the 
property free from tax liens by the receiver, the city and 
county have no lien on the proceeds of sale of the prop- 
erty and are not entitled to a preferred claim against the 
funds. Currie v. Southern Manufacturers Club, 210 N. C. 
150, 185 S. E. 666. 



Art. 14. Severance of Certain Partially Merged 

Charitable, Educational or Social 

Corporations 

§ 1224(j). Application of article. — This article 
shall apply only to charitable, educational or so- 
cial corporation, not under the patronage or con- 
trol of the state nor under the patronage or con- 
trol of any religious denomination, which has been 
formed by the de jure merger of two or more cor- 
porations of such character, the merger having been 
brought about either under chapter four hundred 
eight of the Public Laws of one thousand nine 
hundred thirty-three or chapter seventy-seven of 
the Public Laws of one thousand nine hundred 
twenty-five [§§ 1224(a)-1224(i)], or under other 
special or general laws, but where for any reason 
the merger has not been carried out in fact to the 
extent of the actual surrender of shares of stock 
or of other evidences of membership in the re- 
spective corporations and the issuance of new 
stock or new evidences of membership in the 
merged corporation. A charitable, educational or 
social corporation, organized by the merger of 
two such corporations, may be severed and re- 
stored to the status of the merging or original 
corporations by complying with the provisions of 
this article, with the exceptions above set out. 
(1937, c. 256, s. 1.) 

§ 1224(k). Resolution providing for severance; 
accounting. — At any regular or duly called meet- 
ing of the board of directors or other governing 
body of such merged corporation, a resolution 
may be adopted providing for the severance of the 
corporations and restoration to each of the orig- 
inal corporations of the properties owned by each 
at the time of the merger, and the restoration to 
the stockholders or members of the stock, rights 
and privileges owned by them in the merging 
corporations at the time of the merger, and pro- 
viding for an accounting as between the respective 
corporations of their receipts, disbursements and 
obligations incurred since the attempted merger, 
the accounting to be on the assumption the cor- 
porations had never been merged. (1937, c. 256, 
S. 2.) 

§ 1224(1). Stockholders' meeting; notice; rati- 
fication of resolution. — Upon the adoption by the 
board of directors or other governing body of the 
merged corporations of such resolution of sever- 
ance, a meeting shall be called by the said govern- 
ing body of the members or stockholders of the 
merged corporation. A notice shall be sent to 
each stockholder or member of the merged cor- 
poration by registered mail at least ten days be- 
fore the date of the stockholders' or members' 
meeting. Such notice shall be mailed to the last 
address of the stockholder or member as it ap- 
pears on the records of the merged corporation. 
Such notice shall also be published once in a 
newspaper of general circulation in the county in 
which the corporation has its principal office at 
least ten days before the meeting, stating the sub- 
stance of the resolution of severance and giving 
the time and place of the meeting. If at such 
meeting of stockholders or members a resolution 
shall be adopted ratifying the resolution of the 
board of directors or governing body, and provid- 
ing for the severance of the merged corporation 
into its constituent corporations as they existed 



[27] 



§ 1224(m) 



CORPORATIONS 



§ 1224(q> 



immediately prior to the merger, and such resolu- 
tion shall be adopted by a majority of three- 
fourths of the total membership or total number 
of stockholders by shares, as the voting privilege 
may be exercised in the merged corporation, then 
the merged corporation shall be severed, on com- 
pliance with the further procedural provisions of 
this article. (1937, c. 256, s. 3.) 

§ 1224 (m). Election of officers for severed cor- 
porations. — On the adoption of such resolution of 
severance by the stockholders or members, the 
president of the merged corporation shall, either 
at said meeting or within ten days thereafter, ap- 
point an acting chairman of the membership or 
stockholders of each corporation, and shall call a 
meeting of the members or stockholders of each 
corporation for the purpose of electing officers of 
each of the severed corporations, such meetings 
to he held in accordance with the charter and by- 
laws of the severed corporations as they existed 
prior to the merger. (1937, c. 256, s. 4.) 

§ 1224(n). Agreement between officers and di- 
rectors for division and accounting. — The officers 
and directors of the several corporations shall 
thereupon enter into an agreement setting out in 
substantial detail the division of the properties of 
the merged corporation and providing for the ac- 
counting of all receipts and disbursements as be- 
tween the severed corporations on the same basis 
as if the respective corporations had never been 
merged. Such agreement shall thereupon be sub- 
mitted to the stockholders or members of the 
severed corporations at a meeting to be called in 
accordance with the charter or by-laws of the 
severed corporations. At such meeting such 
agreement shall become effective when approved 
by a majority of the stockholders or members. 
Thereupon said agreement shall be executed by 
the respective officers of the severed corporations, 
and deeds and other appropriate instruments shall 
be executed by the officers of the respective cor- 
porations to carry out the terms of the agreement. 
(1937, c. 256, s. 5.) 

§ 1224(o). Certificates of severance. — Upon the 
approval of the terms of the severance agreement, 
as provided in the preceding section, the presi- 
dent and board of directors of the respective cor- 
porations shall execute a certificate under the 
seal of the corporation setting forth in substance 
the terms of the resolution of severance adopted 
by the stockholders or members of the merged 
corporation provided for by section 1224(1), and 
also setting forth the fact and date of the ratifica- 
tion of such severance agreement by the major- 
ity of the members or stockholders of the sev- 
ered corporations, and shall file the same with 
the secretary of the state of North Carolina. 
Such certificate, duly certified by the secretary of 
state under the seal of his office, shall also be re- 
corded in the office of the clerk of the superior 
court of the county in this state in which the 
principal office of the merged corporation was es- 
tablished, and also in the offices of the clerks of 
the superior court for each of the counties in 
which the respective severed corporations shall 
have or shall establish their principal offices. On 
the filing of such certificates in the office of the 
clerk or clerks of the superior courts, as herein 
provided, said severance shall be complete to all 



intents and purposes as if the merger had never 
taken place. Upon the recording of such certifi- 
cate it shall be presumptive evidence of the state- 
ments of fact contained in said certificate, and 
after sixty days it shall be conclusive evidence of 
such statements of fact, except as to any stock- 
holder or member who shall have demanded the 
value of his stock or membership. (1937, c. 256, 
s. 6.) 

§ 1224(p.). Original rights restored; liabilities 
unaffected. — On the completion of the procedure 
set out in the previous section the stockholders 
or members in the respective corporations, or 
their representatives or assigns, as the case may 
be, shall to all intents and purposes be restored 
to the same rights and privileges which they, or 
their predecessors in interest, held in the original 
corporations: Provided, that any member or 
stockholder who has conveyed or for any reason 
forfeited his rights in the merged corporation 
shall not, by reason of the severance of the 
merged corporations, be restored to the rights he 
had in the original corporations at the time of the 
merger. Nothing contained in this article, how- 
ever, shall be deemed to affect any debts, liabili- 
ties or obligations assumed or incurred by the 
merged corporation during the period of the 
merger, but each of the severed corporations 
shall, with respect to such debts or other obliga- 
tions, remain liable jointly and severally. (1937, 
c. 256, s. 7.) 

§ 1224(q). Objection to severance and demand 
for payment for stock; failure to object deemed 
assent. — If any stockholder or member entitled to 
vote in the merged corporation shall vote against 
the merger at the stockholders' or members' 
meeting provided in section 1224(1), or shall, prior 
to the taking of the vote at such meeting, object 
thereto in writing, and if such dissenting or ob- 
jecting stockholder or member shall, within 
twenty days after such meeting, demand in writ- 
ing from the merged corporation payment of his 
stock or of his interest in the merged corporation 
by reason of his membership therein, the merged 
corporation shall, within thirty days thereafter, 
pay to him the value of his stock or membership 
at the date of the adoption of the resolution of 
severance at the stockholders' or members' meet- 
ing. In case of disagreement as to the value 
thereof, it shall be lawful for any such stock- 
holder or member, within thirty days after he has 
made demand in writing as aforesaid, or has voted 
against the resolution as aforesaid, and upon writ- 
ten notice to the merged corporation to appeal 
by petition to the superior court of the county in 
which the principal office of the merged corpora- 
tion is located to appoint three appraisers to ap- 
praise the value of his stock or membership. The 
award of the appraisers, or a majority of them, if 
not opposed within ten days after the same shall 
have been filed in court, shall be confirmed by the 
court or clerk, and when confirmed shall be final 
and conclusive. If such report is opposed and 
excepted to, the exceptions shall be transferred 
to the civil issue docket of the superior court, and 
there tried in the same manner, as nearly as may 
be practicable, as is provided in section one thou- 
sand seven hundred and twenty-four of the Con- 
solidated Statutes for the trial of exceptions to 



[28] 



§ 1224(r) 



COUNTIES AND COUNTY COMMISSIONERS 



§ 1297 



the appraisal of land condemned for public pur- 
poses. The court shall assess against the merged 
corporation the costs of said proceeding. On the 
making of such demand in writing, as aforesaid, 
any such stockholder or member shall cease to 
be a stockholder or member in said merged cor- 
poration, and shall have no rights with respect 
thereto, except the right to receive payment for 
the value of his stock or membership. Each stock- 
holder or member in the merged corporation en- 
titled to vote, who does not vote against the sev- 
erance, and each stockholder or member at the 
time of the adoption of the resolution of severance 
provided in section 1224(1) not entitled to vote, 
who does not object thereto in writing, as afore- 
said, shall be deemed to have assented to the sev- 
erance. (1937, c. 256, s. 8.) 

§ 1224(r). Pending litigation not affected. — 

Any action or proceeding pending by or against 
the merged corporation may be prosecuted to 
judgment as if such severance had not taken 
place, or the severed corporation, or either of 
them, may be substituted in its place. (1937, c. 
256, s. 9.) 

§ 1224 (s). Fees of secretary of state.— The 
fees to be charged by the secretary of state for 
filing the certificate of severance and the issu- 
ance of his certificate thereon shall be the same 
as provided by law for the filing of an original 
certificate of incorporation of charitable, educa- 
tional or social corporations. (1937, c. 256, s. 10.) 



CHAPTER 23 

COSTS 
Art. 1. Generally 
§ 1229(a). Stenographer's fee in Wayne County. 

Editor's Note. — Public Laws 1937, c. 120, amended this sec- 
tion by adding the following sub- sections: 

(a) The stenographer's fee in all actions and special pro- 
ceedings, now pending, or hereafter brought in the superior 
court of Wayne county and the county court of Wayne 
county shall be five ($5.00) dollars: Provided, however, that 
such stenographer's fee shall not be taxed in any action or 
proceeding unless a jury shall be empaneled and evidence 
shall be offered: Provided further, that such fee shall not be 
taxed in any action in the county court unless the services 
of a court stenographer shall be employed. 

(b) The jury fee in all civil actions or special proceedings, 
now pending, or hereafter brought in the superior court of 
Wayne county or in the county court of Wayne county shall 
be three ($3.00) dollars: Provided, however, that such jury 
fee shall not be taxed in any action or proceeding unless a 
jury shall be empaneled and evidence shall be offered. 

(c) The jury fee in all criminal actions, now pending, or 
hereafter brought in the superior court of Wayne county or 
in the county court of Wayne county, shall be four ($4.00) 
dollars: Provided, however, that such jury fee shall not be 
taxed in any action in the county court of Wayne county un- 
less a jury shall be empaneled. 

Art. 3. Civil Actions and Proceedings 

§ 1241. Costs allowed plaintiff; limited by re- 
covery; several suits on one instrument. 

V. NO MORE RECOVERY OF COSTS THAN 
DAMAGES. 

Applied, as to action of slander, in Wolfe v. Montgom- 
ery Ward & Co., 211 N. C. 295, 189 S. E. 772. 

§ 1244. Costs allowed either party or apportioned 
in discretion of court; attorneys' fees. — 

The word "costs" as the same appears and is 
used in this section shall be construed to include 



reasonable attorneys' fees in such amounts as the 
court shall in its discretion determine and allow. 
(Rev., s. 1268; Code, ss. 2134, 2161, 1660, 1294, 2039, 
2056, 533, 1422, 1323; 1889, c. 37; 1893, c, 149, s. 6; 
1937, c. 143.) 

Editor's Note. — The 1937 amendment, which added the 
above paragraph at the end of this section, provides: "This 
act shall not apply to pending causes." The rest of the sec- 
tion, not being affected by the amendment, is not set out 
here. 

For article discussing the effect of the amendment, see 15 
N. C. Ivaw Rev., No. 4, p. 333. 

Art. 5. Liability of Counties in Criminal Actions 

§ 1260. Local modification as to counties paying 
costs. — 

In Northampton county where in criminal pro- 
ceedings before the recorder's court, the grand 
jury, or superior court the defendant is found not 
guilty or a true bill is not found by the grand jury, 
or the defendant is found guilty and is sen- 
tenced by the court to serve on the roads or a term 
in jail, then the said county shall pay full fees to 
the sheriff, officer, or constable who served any 
process in such proceeding. (1937, c. 43.) 

Editor's Note.— Public Acts 1937, c. 43, directed that the 
above paragraph be added at the end of this section. The 
rest of the section, not being affected by the amendment, is 
not set out here. 



CHAPTER 24 

COUNTIES AND COUNTY COMMIS- 
SIONERS 

Art. l. Corporate Existence and Powers of Counties 

§ 1290. County as corporation; acts through 
commissioners. 

Same — Differs from Cities and Towns. — In accord with 
original. See Martin v. Board of Com'rs, 208 N. C. 354, 
180 S. E. 777. 

§ 1291(b). Reconveyance of property donated to 
county, etc., for specific purpose. — Any county, 
city or town to which any real property has been 
conveyed, without consideration, to be used for a 
specific purpose set out in the deed, shall have au- 
thority to reconvey the same without considera- 
tion to the grantor, his heirs, assigns or nominees 
whenever the governing body of such municipality 
shall officially determine that the said property will 
not be used for the purpose for which it was given: 
Provided, that due notice of such proposed con- 
veyance shall be given by advertisement for two 
successive weeks in some newspaper of general 
circulation in the county. (1937, c. 441.) 

Art. 2. County Commissioners 

§ 1293. Local modifications as to term and num- 
ber. 

Cited in Martin v. Board of Com'rs, 208 N. C. 354, 180 
S. E- 777. 

§ 1297. Powers of board. — 

834. Same — In Certain Counties. — Subject to the 
approval of the director of local government, the 
boards of county commissioners of Duplin, Avery, 
Dare, Tyrrell, Pender, Clay, Alleghany, Cherokee, 
Edgecombe, Graham, Granville, Halifax, Iredell, 
Jackson, Macon, Montgomery, Person, Polk, 
Rutherford, Swain, Watauga, Wilson, Durham, 
Mitchell, Burke, McDowell, Perquimans, Alamance, 
Henderson, Buncombe, Randolph and Scotland 



[29] 



§ 1316(a) 



COUNTIES AND COUNTY COMMISSIONERS 



§ 1334(96) 



counties are hereby authorized to levy such special 
property taxes as may be necessary not to exceed 
five cents on the one hundred dollars valuation for 
the following special purposes respectively, in addi- 
tion to any tax now allowed by law for such pur- 
poses and in addition to the rate allowed by the 
constitution: (1) For the expense of the quadrennial 
valuation or assessment of the taxable property, 
(2) for the expense of holding courts in the county 
levying the tax and the expense of maintenance of 
jails and jail prisoners. (1931, c. 441; 1935, c. 330; 
1937, c. 41.) 

Editor's Note.— -The 1937 amendment added Buncombe and 
Randolph to the list of counties in this subsection. The rest 
of the section, not being affected by the amendment, is not 
set out here. 

Issuance of Bonds for Erection of New Jail Authorized. 
—Where it was stipulated in the agreed facts that defend- 
ant county's jail was unsafe and insanitary, and the erec- 
tion of a new jail was a public necessity, bonds necessary 
to provide funds for the erection of a new jail, with 
plumbing, heating, and electrical work, are for a special 
necessary county expense under this section and § 1317, 
therefore the issuance of such bonds is given special leg- 
islative approval by §§ 1321(a), 1334(8) (a) and (d). Cast- 
evens v. Stanly County, 209 N. C. 75, 183 S. E. 3. 

The board of commissioners has the power and duty of 
auditing and passing upon the validity of claims. If they 
refuse to audit or act upon a claim, mandamus will lie 
to compel them to do so. If after a hearing they refuse 
to allow or issue a warrant for its payment, an action will 
lie against the commissioners to establish the debt and for 
such other relief as the party may be entitled to. Reed 
v. Farmer, 211 N. C. 249, 253, 189 S. E. 882, citing Martin 
v. Clark, 135 N. C. 178, 47 S. E. 397. 

Art. 5A. Contracts 

§ 1316(a). Contracts involving expenditure of 
$1,000 or more let after advertisement for bids. 

Excessive Deposit Does Not Invalidate Bond. — The fact 

that the city required a deposit in excess of the amount 
required by this section does not invalidate the bond. 
Northeastern Const. Co. v. Winston- Salem, 83 F. (2d) 57, 
61, 104 A. L. R. 1142. 

Where Contract of City Manager Was Not Binding.— 
Where the proposal of the city was materially changed 
before the bid of the construction company was accepted, 
neither the bidder nor its surety consenting to the change, 
and where there was no authority on the part of the city 
manager of public works to make the contract or direct 
any change until after a contract was entered into, the 
holding of the court that there was a binding contract 
was held to be erroneous. Northeastern Const. Co. v. 
Winston- Salem, 83 F. (2d) 57, 61, 104 A. h. R. 1142. 

Authority of Commissioner of Public Works to Change 
Specifications Does Not Give Engineer Any Power until 
Binding Contract Is Executed. — A clause in the specifi- 
cations accompanying the advertisement for the bids giv- 
ing the commissioner of public works the power, at any 
time, to make changes in the specifications as to the work 
and make variations in the quantity of the work either 
before the commencement of the work or during its prog- 
ress does not give the engineer any power over the trans- 
action until a binding contract is executed and entered 
into, and in no sense gives him any power or authority 
as a contracting party. Northeastern Const. Co. v. Win- 
ston-Salem, 83 F. (2d) 57, 60, 104 A. I,. R. 1142. 

Art. 6. Courthouse and Jail Buildings 
§ 1317. Built and repaired by commissioners. 

Reference. — See the note to § 1297 of this Supplement. 

The duty to make proper rules and regulations imposes 
a discretionary duty on the board of commissioners exer- 
cisable only in its corporate capacity, and the commission- 
ers are not liable as individuals unless they corruptly or 
with malice fail to make proper rules and regulations. 
Moye v. Mcl>whorn, 208 N. C. 812, 182 S. E. 493. 



§ 1321(a). Bonds for building, altering and re- 
pairing courthouses; issuance authorized. 

Issuance of Bonds for Erection of New Jail Held to Be 
Authorized. — Where the defendant county's jail was unsafe 
and insanitary, and the erection of a new one was a pub- j County, 209 N. C. 75, 183 S. E 

[30] 



lie necessity, the issuance of bonds for this purpose was 
held to have been given special legislative approval by this 
section and § 1334(8) (a) and (d). Castevens v. Stanly 
County, 209 N. C. 75, 183 S. E. 3. See §§ 1297 and 1317 
of this Supplement. 

The taxes necessary to pay principal and interest of such 
bond issue by the county held not to be subject to the lim- 
itations of N. C. Const., Art. V, § 6, Art. VII, § 7. Cast- 
evens v. Stanly County, 209 N. C. 75, 183 S. E. 3. 

Art. 7. County Revenue 

§ 1330. Demand before suit against municipal- 
ity; complaint. 

Purpose of Section. — The purpose of this section was to 
give the municipality an opportunity to pass upon and 
pay a claim involving a money demand before it could be 
subjected to the burden and expense of litigation. It man- 
ifestly has no application to suits in equity the object of 
which is to protect and preserve the rights of complain- 
ant as against threatened action by the city or its offi- 
cers. George v. Asheville, 80 F. (2d) 50, 53, 103 A. L. 
R. 568. 

Art. 7A. County Finance Act 

§ 1334(8). Purposes for which bonds may be is- 
sued and taxes levied. 

References.— See §§ 1297, 1317, and 1321(a) of this Sup- 
plement and notes thereto. 

Refunding Bonds May Be Issued without Submitting 
Question to Qualified Voters. — Reasonable and necessary 
expenses incurred in good faith to effect a refunding of 
county indebtedness authorized by this section held to be 
a necessary expense of the county, and bonds may be is- 
sued therefor without submitting the question to the qual- 
ified voters of the county. Morrow v. Board of Com'rs,. 
210 N. C. 564, 187 S. E. 752. 

Section Does Not Include Teacherage as Necessary Equip- 
ment of School. — To hold as a matter of law that a teach- 
erage is a part of the necessary equipment of a rural con- 
solidated school would be to go farther than the General 
Assembly has gone, and, perhaps, entail some judicial en- 
graftment. This section is not fraught with any dubiety of 
meaning. A teacherage, which is to be run for profit and 
solely for the benefit of the teachers, is not included within 
its terms. Denny v. Mecklenburg County, 211 N. C. 558,. 
559, 191 S. E. 26. 

§ 1334(17). Hearing; passage of order; debt lim- 
itations. 

Where a county has assumed all indebtedness of its po- 
litical subdivisions for school purposes, and a proposed bond 
issue to provide funds necessary to the maintenance of the 
constitutional school term in the county is within the lim- 
itations of this section, and comes within the provisions of 
the Emergency Bond Act, § 1334(86) et seq., taxes for the 
payment of principal and interest of the proposed bond is- 
sue will not be subject to any limitation on the tax rate. 
Castevens v. Stanly County, 209 N. C. 75, 183 S. E. 3. 

Art. 7C. County Fiscal Control 

§ 1334(70). Daily deposits by collecting or re- 
ceiving officers. 

Applied in Standard Inv. Co. v. Snow Hill, 78 F. (2d) 33. 

Art. 7F. Emergency County Bond Act 

§ 1334(92). Taxes levied for the payment of the 
bonds. 

See § 1334(17) of this Supplement and note thereto. 

§ 1334(96). Application and construction of 
law. 

A county may issue its bonds for a necessary special pur- 
pose with the special approval of the General Assembly, or 
to raise funds necessary to the maintenance of the consti- 
tutional school term, without submitting the issuance of the 
bonds to a vote, notwithstanding the provisions of a spe- 
cial statute requiring a vote, when the purpose of the bond 
issue is to provide the county's part of the expense of a 
project for which a federal grant is available, and the pro- 
posed bond issue comes within the provisions of this arti- 
cle, the special act being harmonized with this article to> 
effectuate the legislative intent. Castevens v. Stanly 

3. 



§ 1335 



COURTS— SUPERIOR COURTS 



§ 1435(f) 



Art. 8. County Poor 

§ 1335. Support of poor; superintendent of 
county home; paupers removing to county; hos- 
pital treatment. 

Tax Is Not Subject to Limitation on Tax Rate Imposed 
by Constitution. — The tax contemplated is for a special, nec- 
essary purpose, with special approval of the General As- 
sembly, and is not, therefore, subject to the limitation on 
the tax rate imposed by Art. V, sec. 6 of the Constitu- 
tion. Martin v. Board of Com'rs, 208 N. C. 354, 180 S. E- 
777. 

Tax for Medical Care May Be Levied without Approval of 
the Qualified Voters. — The tax to provide funds necessary 
for the medical care and hospitalization of the indigent sick 
of a county is for a necessary expense of the county, and 
may be levied without the approval of the qualified vot- 
ers of the county. Martin v. Board of Com'rs, 208 N. C. 
354, 180 S. E. 777. See Art. VII, sec. 7 of the Constitu- 
tion. 

Contract Not Held Invalid Because of Duration.— Where 
the General Assembly has authorized a county to enter 
into a contract with a public hospital for the care of its 
indigent sick for a period of thirty years, and the board 
of commissioners of the county, in the exercise of the dis- 
cretion vested in the board by the statute, has agreed to 
contract for that period, the contract will not be held in- 
valid because of its duration. Martin v. Board of Com'rs, 
208 N. C. 354, 180 S. E. 777. 

Art. 9. County Prisoners 

§ 1364(1). Use of county prisoners in maintain- 
ing roads, not within state system. — The state high- 
way and public works commission may, on official 
request from a board of county commissioners au- 
thorize such board of county commissioners to use 
any county prisoners, upon such terms as may be 
agreed upon, to maintain and grade any neighbor- 
hood road within the county not at such time 
within the system of the state highway commission, 
but this authorization shall not authorize the levy- 
ing of any tax for support of local roads; and like 
authority is extended to the boards of drainage 
commissioners for public drainage districts for the 
maintenance and upkeep of such districts. (1937, 
c. 297, s. 3 x /2.) 



CHAPTER 26 

COUNTY TREASURER 
§ 1387. Election of county treasurer. 

Editor's Note.— Public Laws 1937, c. 103, abolished the of- 
fice of treasurer in Buncombe county and transferred its 
functions and duties to the county accountant. 



CHAPTER 27 

COURTS 

SUBCHAPTER I. SUPREME COURT 

Art. 1. Organization and Terms 

§ 1403. Number of justices. — The supreme court 
of North Carolina shall consist of a chief justice 
and six associate justices, to be chosen in the man- 
ner now prescribed by law. (Rev., s. 1532; Const., 
Art. 4, s. 6; 1937, c. 16, s. 1.) 

Editor's Note. — The 1937 amendment increased the associate 
justices from four to six. 

§ 1407. Quorum.— Four justices shall constitute 
a quorum for the transaction of the business of the 
court. (Rev., s. 1534; Code, s. 956; 1889, c. 230; 
1937, c. 16, s. 2.) 

Editor's Note.— Prior to the 1937 amendment three justices 
constituted a quorum. 

[3 



Art. 2. Jurisdiction 

§ 1412. Power to render judgment and issue 
execution. 

I. IN GENERAL. 
Errors Which Have to Be Assigned. — 

In accord with original. See In re Will of Roediger, 209 
N. C. 470, 184 S. E. 74. 

§ 1421. Power to make rules of court. 
Cited in In re Will of Roediger, 209 N. C. 470, 184 S. E. 74. 

Art. 3. Officers of Court 

§ 1428. Librarian and assistant appointed. — The 

justices of the supreme court have charge of the 
law library and may, in their discretion, employ a 
librarian and an assistant librarian, who shall per- 
form their duties under such rules and regulations 
as may be prescribed by the court. (Rev., s. 5084; 
Code, s. 3606; 1889, c. 482; 1883, c. 100; 1937, c. 
173.) 

Editor's Note. — The 1937 amendment authorized the ap- 
pointment of an assistant librarian. 

SUBCHAPTER II. SUPERIOR COURTS 
Art. 4. Organization 

§ 1435(d). Governor to make appointment of 
four special judges. — The governor of North Caro- 
lina may appoint four persons who shall possess 
the requirements and qualifications of special judges 
as prescribed by article four, section eleven of the 
constitution, and who shall take the same oath of 
office and otherwise be subject to the same re- 
quirements and disabilities as are or may be pre- 
scribed by law for judges of the superior court, 
save the requirements of residence in a particular 
district, to be special judges of the superior courts 
of the state of North Carolina. Two of the said 
judges shall be appointed from the western judicial 
division and two from the eastern judicial division, 
as now established. The governor shall issue a 
commission to each of said judges so appointed for 
a term to begin July first, nineteen hundred thirty- 
seven, and to end June thirtieth, nineteen hundred 
thirty-nine, and the said commission shall consti- % 
tute his authority to perform the duties of the of- 
fice of a special judge of the superior courts dur- 
ing the time named therein. (1927, c. 206, s. 1; 
1929, c. 137, s. 1; 1931, c. 29, s. 1; 1933, c. 217, s. 
1; 1935, c. 97, s. 1; 1937, c. 72, s. 1.) 

Editor's Note.— The 1937 amendment reenacted sections 
1435(d)- 1435 (k) without change except as to dates. 

§ 1435(e). Time for appointment. — Each special 
judge shall be appointed by the governor on or 
before July first, nineteen hundred thirty-seven, 
and shall be subject to removal from office for the 
same causes and in the same manner as regular 
judges of the superior court; and vacancies occur- 
ring in the offices created by this act shall be filled 
by the governor in like manner for the unexpired 
term thereof. (1927, c. 206, s. 2; 1929, c. 137, s. 2; 
1931, c. 29, s. 2; 1933, c. 217, s. 2; 1935, c. 97, s. 2; 
1937, c. 72, s. 2.) 

§ 1435(f). Further appointments. — The governor 
is further authorized and empowered, if in his 
judgment the necessity exists therefor, to appoint 
at such time as he may determine, not exceeding 
two additional judges, one of whom shall be a resi- 
dent of the eastern judicial division and one of 
whom shall be a resident of the western judicial 
division, whose term of office shall begin from his 

1] 



§ 1435(g) 



COURTS— SUPERIOR COURTS 



§ 1443 



or their appointment and qualification and to end 
June thirtieth, nineteen hundred thirty-nine. All 
the provisions of this act applicable to the four 
special judges directed and appointed shall be ap- 
plicable to the two special judges authorized to 
be appointed under this section. (1927, c. 206, s. 
3; 1929, c. 137, s. 3; 1931, c. 29, s. 3; 1933, c. 217, 
s. 3; 1935, c. 97, s. 3; 1937, c. 72, s. 3.) 

§ 1435(g). Extent of authority. — The authority 
herein pursuant to article four, section eleven, of 
the constitution of North Carolina, conferred upon 
the governor to appoint such special judges shall 
extend to regular as well as special terms of the 
superior court, with either civil or criminal juris- 
diction, or both, as may be designated by the stat- 
utes or by the governor pursuant to law. (1927, 
c. 206, s. 4; 1929, c. 137, s. 4; 1931, c. 29, s. 4; 1933, 
c. 217, s. 4; 1935, c. 97, s. 4; 1937, c. 72, s. 4.) 

§ 1435(h). Jurisdiction as of regular judges. — 

Such special judges during the time noted in their 
commission shall have all the jurisdiction which 
is now or may be hereafter lawfully exercised by 
the regular judges of the superior courts in the 
courts which they are appointed or assigned by the 
governor to hold, and shall have power to deter- 
mine all matters and injunctions, receiverships, 
motions, habeas corpus proceedings and special 
proceedings or an appeal otherwise properly before 
them; but writs of injunction, orders to show cause, 
and other remedial or amendatory writs, orders 
and notices shall be returnable before them only 
in the county where the suit, proceeding or other 
cause is pending unless such judge is then hold- 
ing the courts of that district, in which case the 
same may be returnable before him as before the 
regular judge of the superior court; and the same, 
when issued by any such special judge, may al- 
ways be made returnable by him before the resi- 
dent or presiding superior court judge of each dis- 
trict to the same extent and in the same manner as 
any superior court judge might do in like case. 
(1927, c. 206, s. 5; 1929, c. 137, s. 5; 1931, c. 29, s. 
5; 1933, c. 217, s. 5; 1935, c. 97, s. 5; 1937, c. 72, 
s. 5.) 

§ 1435(i). Salary; expenses; terms; practice of 
law. — The special judges so appointed shall receive 
the same salary and traveling expenses as now 
are, or may hereafter be, paid or allowed to judges 
of the superior court for holding their regularly 
assigned courts, and they shall hold all such regu- 
lar and special terms of court as they may be di- 
rected and assigned by the governor to hold, with- 
out additional compensation: Provided, that no per- 
son appointed under this act shall engage in the 
private practice of law. (1927, c. 206, s. 6; 1929, c. 
137, s. 6; 1931, c. 29, s. 6; 1933, c. 217, s. 6; 1935, 
c. 97, s. 6; 1937, c. 72, s. 6.) 

§ 1435 (j). Authority to settle case on appeal. — 

Nothing herein shall be construed to prohibit such 
special judges from settling cases on appeal and 
making all proper orders in regard thereto after 
the time for which they were commissioned has 
expired. (1927, c. 206, s. 7; 1929, c. 137, s. 7; 1931, 
c. 29, s. 7; 1933, c. 217, s. 7; 1935, c. 97, s. 7; 1937, 
c. 72, s. 7.) 

§ 1435(k). Conflicting law repealed. — All laws 
and clauses of laws which may be in conflict with 



the seven preceding sections, to the extent of such 
conflict, are hereby repealed: Provided, that noth- 
ing herein shall in any manner affect sections 
1435(a) and 3884(a) of the Consolidated Statutes. 
(1929, c. 137, s. 8; 1931, c. 29, s. 8; 1931, c. 217, s. 
8; 1935, c. 97, s. 8; 1937, c. 72, s. 8.) 

Art. 5. Jurisdiction 
§ 1436. Original jurisdiction. 

I. IN GENERAL. 

Applied in Bryan v. Street, 209 N. C. 284, 183 S. E. 366. 

Art. 6. Judicial Districts and Terms of Court 

§ 1441. Number of districts. — The state shall be 
divided into twenty-one superior court judicial dis- 
tricts, numbered first to twenty-first, composed of 
the counties hereafter designated. (1913, c. 63; 
1913, c. 196; 1937, c. 413, s. 1.) 

Editor's Note.— Prior to the 1937 amendment there were 
twenty districts. 

§ 1442. Eastern and western judicial divisions. 

— The state shall be divided into two judicial di- 
visions, the Eastern and Western Judicial Divi- 
sions. The counties which are now or may here- 
after be included in the judicial districts from one 
to ten, both inclusive, shall constitute the Eastern 
Division, and the counties which are now or may 
hereafter he included in the judicial districts from 
eleven to twenty-one, both inclusive, shall constitute 
the Western Division. The judicial districts shall 
retain their numbers from one up to twenty-one, 
and all such other districts as may from time to 
time be added by the creation of new districts shall 
be numbered consecutively. (1915, c. 15; 1937, c. 
413, s. 2.) 

Editor's Note. — The 1937 amendment substituted "twenty- 
one" for "twenty" formerly appearing- in this section. 

§ 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 
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: Provided, however, 
that the schedule of courts of any county or judi- 
cial district may be revised or reformed and the 
number of terms of court may be increased or de- 
creased from time to time as may appear advisable 
to the court calendar commission; which said com- 
mission shall be composed of the chief justice of 
the supreme court and four judges of the supe- 
rior court, to be appointed by the governor for a 
period of four years each. The members of said 
commission shall serve without compensation 
other than their necessary expenses incurred in 
attending meetings of said commission. (1913, 
cc. 63, 196; 1937, c. 408.) 

Eastern Division 

First District 
Camden — First Monday after the first Monday 
in March and the fourth Monday after the first 



[32] 



§ 1443 



COURTS— SUPERIOR COURTS 



§ 1443 



Monday in September. (1913, c. 196; 1921, c. 105; 
1937, c. 283, s. 1.) 

Chowan — Fourth Monday after the first Mon- 
day in March; first Monday after the first Mon- 
day in September; fourteenth Monday after the 
first Monday in September. (1913, c. 196; 1931, 
c. 87; 1933, c. 456; 1937, c. 102.) 

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 
civil cases only; second Monday after the first 
Monday in March for criminal cases only; fifth 
Monday 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; 
sixteenth Monday after the first Monday in March 
for the trial of criminal and civil cases; second 
Monday after the first Monday in September for 
the trial of criminal cases with a grand jury in 
attendance; third Monday after the first Monday 
in September for civil cases only; fifth Monday 
after the first Monday in September for civil cases 
only; ninth Monday after the first Monday in 
September 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; 1935, c. 176; 1937, cc. 40, 283, s. 2.) 

Second District 
Wilson — Fourth Monday before the first Mon- 
day in March, to continue for two weeks, the first 
week for criminal cases only, and the second 
week for civil cases only; tenth Monday after 
the first Monday in March, to continue for two 
weeks, the first week for criminal cases only, and 
the second week for civil cases only; sixteenth 
Monday after the first Monday in March, for civil 
cases only; first Monday in September; fourth 
Monday after the first Monday in September, for 
civil cases only; eighth Monday after the first 
Monday in September, to continue for two weeks, 
for civil cases only; thirteenth Monday after the 
first Monday in September and for this term of 
court a special or emergency judge shall be as- 
signed by the governor to hold the same. (1913, 
c. 196; 1915, c. 45; 1917, c. 12; 1919, c. 133; 1921, 
c. 10; 1937, c. 104.) 

Third District 
Northampton — Fourth Monday after the first 
Monday in March; Eighth Monday after the first 
Monday in September, each to continue for two 
weeks; first Monday in August to continue for one 
week. (1913, c. 196; 1929, cc. 123, 244; 1933, c. 
409; 1935, c. 148; 1937, c. 64.) 

Fourth District 
Wayne — Sixth Monday before first Monday in 
March, fifth Monday after the first Monday in 
March, twelfth Monday after the first Monday in 
March, second Monday before the first Monday 
in September, each to continue for one week; 
twelfth Monday after the first Monday in Sep- 
tember, to continue for two weeks; fifth Monday 
before the first Monday in March, sixth Monday 
after the first Monday in March, thirteenth Mon- 
day after the first Monday in March, first Monday 
before the first Monday in September, each to 
N. C. Supp.— 3 [ 3 



continue for two weeks, for civil cases only; first 
Monday in March and fifth Monday after the 
first Monday in September, each to continue for 
two weeks, for civil cases only. 

If no regular judge is available for the two 
weeks' term of court beginning on the first Mon- 
day in March, or for the second week of the terms 
beginning on the fifth Monday before the first 
Monday in March, or on the sixth Monday after 
the first Monday in March, or on the thirteenth 
Monday after the first Monday in March, or on 
the first Monday before the first Monday in Sep- 
tember, the governor may assign a special judge 
to hold said court. (1913, c. 196; 1927, c. 77; 1929, 
c. 132, s. 1; 1937, c. 192.) 

Harnett — Eighth Monday before the first Mon- 
day in March, one week, for the trial of criminal 
cases only; fourth Monday before the first Mon- 
day in March to continue for two weeks, for the 
trial of civil cases only; second Monday after the 
first Monday in March, for the trial of criminal 
cases only; fourth Monday after the first Mon- 
day in March to continue for two weeks for the 
trial of civil cases only; ninth Monday after the 
first Monday in March for the trial of civil cases 
only; eleventh Monday after the first Monday in 
March, one week, for the trial of criminal cases 
only; fourteenth Monday after the first Monday 
in March, two weeks, for the trial of civil cases 
only; first Monday in September for criminal 
cases only; second Monday after the first Mon- 
day in September for the trial of civil cases only; 
fourth Monday after the first Monday in Septem- 
ber to continue for two weeks, civil cases only; 
tenth Monday after the first Monday in Septem- 
ber to continue for two weeks, for the trial of 
criminal cases only. (1913, c. 196; 1927, c. 161, 
c. 212; 1931, c. 147; 1937, c. 105.) 

Fifth District 

Jones — Fourth Monday after the first Monday 
in March; fifth Monday after the first Monday 
in November; and second Monday after the first 
Monday in September. 

If the judge regularly assigned to the district in 
which said county is situate be unable because of 
another regular term of court in said district, or 
for other cause, to hold any term of court in said 
county, the governor may appoint a judge to hold 
such term from among the regular or emergency 
judges. (1913, c. 196; Ex Sess. 1913, c. 19; P. 
L. 1915, c. 363; 1921, c. 159; 1937, c. 29.) 

Seventh District 

Wake — Criminal courts: Eighth Monday be- 
fore the first Monday in March; first Monday 
in March; fifth Monday after the first Monday 
in March; ninth Monday after the first Monday 
in March; thirteenth Monday after the first Mon- 
day in March; eighth Monday before the first 
Monday in September; first Monday after the first 
Monday in September; fifth Monday after the 
first Monday in September; ninth Monday after 
the first Monday in September; fourteenth Mon- 
day after the first Monday in September. These 
terms shall be for criminal cases only. 

Civil courts: Fifth Monday before the first 
Monday in March; third Monday before the first 
Monday in March; first Monday after the first 
Monday in March, to continue for two weeks; 
third Monday after the first Monday in March, 
to continue for two weeks; sixth Monday after 



§ 1443 



COURTS— SUPERIOR COURTS 



§ 1443 



the first Monday in March, to continue for two 
weeks; eighth Monday after the first Monday in 
March; eleventh Monday after the first Monday 
in March, to continue for two weeks; fourteenth 
Monday after the first Monday in March, to con- 
tinue for two weeks; second Monday after the 
first Monday in September, to continue for two 
weeks; fourth Monday after the first Monday in 
September; seventh Monday after the first Mon- 
day in September, to continue for two weeks; 
twelfth Monday after the first Monday in Sep- 
tember, to continue for two weeks. These terms 
shall be for civil cases only, and no criminal proc- 
ess shall be returnable to such terms. Provided, 
that the term beginning on the second Monday 
after the first Monday in September shall be a 
mixed term for the trial of both civil and criminal 
cases, and that the term for trial of criminal 
cases beginning on the fourteenth Monday after 
the first Monday in September shall continue for 
two weeks. 

Additional courts: In addition to the courts 
above set out for Wake county, the following 
terms of superior court for the trial of civil cases 
in Wake county shall be held, to wit: the seventh 
Monday before the first Monday in March to 
continue for two weeks; the fourth Monday be- 
fore the first Monday in March to continue for 
one week; the second Monday before the first 
Monday in March to continue for two weeks; the 
first Monday in March to continue for one week; 
the fifth Monday after the first Monday in March 
to continue for one week; the ninth Monday after 
the first Monday in March to continue for one 
week; the tenth Monday after the first Monday in 
March to continue for one week; the thirteenth 
Monday after the first Monday in March to con- 
tinue for one week; the sixteenth Monday after 
the first Monday in March to continue for two 
weeks; the first Monday before the first Mon- 
day in September to continue for two weeks; the 
first Monday in September to continue for one 
week; the fifth Monday after the first Monday in 
September to continue for two weeks; the ninth 
Monday after the first Monday in September to 
continue for three weeks; the fourteenth Mon- 
day after the first Monday in September to con- 
tinue for two weeks. These terms above provided 
for shall be for civil cases only. And in addition 
to the courts above set out for Wake county, the 
following terms of superior court for the trial of 
criminal or civil cases, or both, in Wake county 
shall be held, to wit: the sixth Monday before 
the first Monday in March to continue for two 
weeks; the second Monday before the first Mon- 
day in March to continue for two weeks; the sec- 
ond Monday after the first Monday in March to 
continue for two weeks; the seventh Monday after 
the first Monday in March to continue for one 
week; the eleventh Monday after the first Mon- 
day in March to continue for one week; the six- 
teenth Monday after the first Monday in March 
to continue for two weeks; the first Monday be- 
fore the first Monday in September to continue 
for two weeks; the third Monday after the first 
Monday in September to continue for one week; 
the eighth Monday after the first Monday in Sep- 
tember to continue for one week; the tenth Mon- 
day after the first Monday in September to con- 
tinue for two weeks. These terms last above pro- 
vided for shall be for criminal or civil cases, or 



both. The said terms of court, both civil and 
criminal, herein provided for may be held con- 
temporaneously with other courts in said county. 
The said terms of court shall be held by regular 
or special or emergency judges who shall be as- 
signed by the governor. (1913, c. 196; 1917, c. 
116; 1919, c. 113; 1924, c. 77; 1937, cc. 163, 387.) 

Franklin — Fourth Monday before the first Mon- 
day in March, to continue for one week for the 
trial of criminal cases only; second Monday after 
the first Monday in March, to continue for two 
weeks for the trial of civil cases only; sixth Mon- 
day after the first Monday in March, to continue 
for one week for the trial of criminal cases only; 
first Monday in September, to continue for two 
weeks for the trial of civil cases only; sixth Mon- 
day after the first Monday in September, to con- 
tinue for one week for the trial of criminal cases 
only; tenth Monday after the first Monday in 
September, to continue for two weeks for the 
trial of civil cases only. (1913, c. 196; 1917, c. 116; 
1937, c. 387, s. 1.) 

The courts provided in the above paragraph to 
occur on the second Monday after the first Mon- 
day in March, and to continue for two weeks for 
civil cases, and also the terms so provided for 
criminal cases, convening the sixth Monday after 
the first Monday in March, and also the second 
week of the September term, shall be held by 
special or emergency judges to be assigned by the 
governor: Provided, however, as to the said 
criminal term appointed for the sixth Monday 
after the first Monday in March, if no special or 
emergency judge shall be available to hold said 
term, then it shall be held by the judge regularly 
riding the seventh judicial district. (1937, c. 387, 
s. 3.) 

Eighth District 

Columbus — > Second Monday before the first 
Monday in September, to continue two weeks for 
the trial of criminal and civil cases; eleventh Mon- 
day after the first Monday in September, to con- 
tinue two v/eeks, for the trial of civil cases only; 
fifth Monday before the first Monday in March, to 
continue one week, for the trial of criminal and 
civil cases; second Monday before the first Mon- 
day in March, to continue two weeks, for the trial 
of civil cases only; eighth Monday after the first 
Monday in March, to continue two weeks, for the 
trial of criminal and civil cases; sixteenth Monday 
after the first Monday in March, to continue one 
week, for the trial of criminal cases; fifth Monday 
after the first Monday in September, to continue 
one week, for the trial of criminal cases; fourth 
Monday before the first Monday in March, to 
continue one week, for the trial of criminal and 
civil cases, and for this term of court the governor 
shall appoint a judge to hold the same from 
among the regular, special or emergency judges. 
(1913, c. 196; Ex. Sess. 1913, c. 61; 1917, c. 124; 
1921, cc. 14, 149; Ex. Sess. 1921, c. 40; 1931, c. 
246; 1937, c. 52.) 

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 the justices of the peace; the second 
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 



§ 144a 



COURTS— SUPERIOR COURTS 



§ 144i 



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; 1937, c. 159.) 

Cumberland— Seventh Monday before the first 
Monday in March; first Monday in March (judge 
to be assigned) ; the first Monday after the first 
Monday in March; thirteenth Monday after the 
first Monday in March; first Monday before the. 
first Monday in September; eleventh Monday 
after the first Monday in September, two weeks; 
each for criminal cases only. Third Monday be- 
fore the first Monday in March; third Monday 
after the first Monday in March; ninth Monday 
after the first Monday in March; third Monday 
after the first Monday in September; seventh 
Monday after the first Monday in September, each 
to continue for two weeks, for civil cases only. 
At all criminal terms of court civil cases may be 
heard by consent of the parties, and motions may 
be heard upon ten days notice to the adverse party 
prior to said term. (1913, c. 196; Ex. Sess. 1913, c. 
23; 1931, c. 96; 1937, c. 159.) 

Robeson — Fifth Monday before the first. Mon- 
day in March two weeks for the trial of criminal 
cases; first Monday before the first Monday in 
March two weeks for the trial of civil cases; fifth 
Monday after the first Monday in March two 
weeks for the trial of criminal cases; eleventh 
Monday after the first Monday in March two 
weeks for the trial of civil cases; fourteenth Mon- 
day after the first Monday in March one week for 
the trial of civil cases; fifteenth Monday after the 
first Monday in March one week for the trial of 
criminal cases; eighth Monday before the first 
Monday in September one week for the trial of 
civil cases; third Monday before the first Monday 
in September one week for the trial of criminal 
cases; first Monday in September two weeks for 
the trial of criminal cases; fifth Monday after the 
first Monday in September two weeks for the trial 
of civil cases; ninth Monday after the first Mon- 
day in September one week for the trial of crim- 
inal cases; thirteenth Monday after the first Mon- 
day in September two weeks for the trial of civil 
cases; fifteenth Monday after the first Monday in 
September one week for the trial of criminal cases. 

There shall also be held in Robeson county su- 
perior courts, to which judges shall be assigned, 
the following terms: Second Monday after the 
first Monday in March one week for the trial of 
criminal cases; ninth Monday after the first Mon- 
day in March two weeks for the trial of criminal 
cases; third Monday after the first Monday in 
September one week for the trial of criminal cases; 



seventh Monday after the first Monday in Sep- 
tember one week for the trial of criminal cases. 

At all criminal terms all motions and divorce 
cases may be heard and jury trials in all civil 
cases may be heard by consent. The commission- 
ers of Robeson county, by and with the consent 
and approval of the solicitor of the ninth judicial 
district, in writing, may call off any term of su- 
perior court in said county scheduled above for 
the trial of criminal cases to which the judge must 
be assigned. The grand jury shall convene at all 
criminal terms of said courts unless the solicitor 
of the ninth judicial district shall, prior to the said 
court, notify the sheriff of Robeson county not 
to assemble the grand jury for said term, and such 
notice, in writing, shall be filed with the clerk of 
the board of commissioners of said county, and 
shall be spread upon the minutes of the board of 
commissioners thereof. (1913, c. 196; 1915, c. 208; 
1919, c. 105; 1923, c. 209; 1927, c. 84; 1931, c. 96; 
1935, c. 132; 1937, c. 167.) 

Western Division 
Eleventh District 

Alleghany — Eighth Monday after the first Mon- 
day in March, and the third Monday after the first 
Monday in September (both by regular judge), 
for the trial of criminal and civil cases. (1913, c. 
196; 1935, c. 246; 1937, c. 413, s. 4.) 

Ashe — Sixth Monday after the first Monday in 
March, and seventh Monday after the first Mon- 
day in September (both by regular judge), for 
the trial of criminal cases only; twelfth Monday 
after the first Monday in March, to continue for 
two weeks, for the trial of civil cases only; sixth 
Monday before the first Monday in September, to 
continue for two weeks, for the trial of civil cases 
only (regular judge) : Provided, that motions and 
uncontested civil cases may be heard at either of 
the terms designated for the trial of criminal cases 
only. (1913, c. 196; Ex. Sess. 1913, c. 34; Ex. 
Sess. 1921, c. 32; 1935, c. 246; 1937, c. 413, s. 4.) 

Forsyth — Eighth Monday before the first Mon- 
day in March; fourth Monday before the first 
Monday in March; first Monday in March; fourth 
Monday after the first Monday in March; ninth 
Monday after the first Monday in March; four- 
teenth Monday after the first Monday in March; 
eighth Monday before the first Monday in Sep- 
tember; first Monday in September; fifth Mon- 
day after the first Monday in September; ninth 
Monday after the first Monday in September- 
thirteenth Monday after the first Monday in Sep- 
tember, each of the said terms to continue for two 
weeks, for the trial of criminal and civil cases. 

Sixth Monday before the first Monday in March; 
second Monday before the first Monday in March; 
second Monday after the first Monday in March: 
sixth Monday after the first Monday in March; 
twelfth Monday after the first Monday in March; 
sixteenth Monday after the first Monday in 
March, continued into the ninth Monday before 
the first Monday in September; second Monday 
after the first Monday in September; seventh 
Monday after the first Monday in September: 
eleventh Monday after the first Monday in Sep- 
tember, each term to continue for two weeks, for 
the trial of civil cases only. 

Should there be a conflict of courts either in 
Ashe or Alleghany counties with the courts of 
Forsyth County, the governor shall assign an em- 
ergency or any other judge available to hold the 



[ 35 ] 



§ 1443 



COURTS— SUPERIOR COURTS 



§ 1443 



term of court in Forsyth county where there is a 
conflict. (1913, c. 196; 1917, c. 169; 1919, c. 87; 
1923, c. 151; 1927, c. 197; 1929, c. 131; 1933, cc. 
23t, 306; 1935, c. 246; 1937, c. 413, ss. 4, 5. P. 
L. 1917, c. 375, provides for a criminal calendar.) 
Thirteenth District 
Scotland — First Monday after the first Mon- 
day in March for one week, for the trial of crim- 
inal and civil cases; eighth Monday after the first 
Monday in March for one week, for the trial of 
civil cases only; fourth Monday before the first 
Monday in September 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 
the 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; 1937, C. 371.) 

Fourteenth District 

Mecklenburg — 

The following additional terms of superior court 
for the trial of civil cases in Mecklenburg county 
shall be held as follows: April fifth, April nine- 
teenth, May third, May seventeenth, May thirty- 
first, June fourteenth, August thirtieth, Septem- 
ber thirteenth, September twenty-seventh, Octo- 
ber eleventh, October twenty-fifth, November 
eighth, November twenty-second, and December 
sixth, one thousand nine hundred and thirty-seven; 
and January third, January seventeenth, January 
thirty-first, February fourteenth, February twenty- 
eighth, March fourteenth, March twenty-eighth, 
April eleventh, April twenty-fifth, May ninth, May 
twenty-third, June sixth, June twentieth, Au- 
gust twenty-ninth, September twelfth, September 
twenty-sixth, October tenth, October twenty- 
fourth, November seventh, November twenty-first, 
and December fifth, one thousand nine hundred 
and thirty-eight; and January second* January 
sixteenth, January thirtieth, February thirteenth, 
February twenty-seventh, March thirteenth, and 
March twenty-seventh, one thousand nine hun- 
dred and thirty-nine, which said terms of court 
may be held contemporaneously with other courts 
in said county or district, shall be for two weeks 
each, shall be for the trial of civil cases only, and 
shall be held by regular and/or special or emer- 
gency judges who shall be assigned by the gover- 
nor. 

The following additional terms of superior court 
for the trial of criminal cases in Mecklenburg 
county shall be held as follows: March fifteenth, 
June twenty-eighth, July twelfth, July twenty- 
sixth, August ninth, and December sixth, one 
thousand nine hundred and thirty-seven; March 
twenty-first, July fourth, July eighteenth, August 
first, August fifteenth, and December fifth, one 
thousand nine hundred and thirty-eight; and 
March twentieth, one thousand nine hundred and 
thirty-nine, which said terms of court may be held 
contemporaneously with other courts in said county 
or district, shall be for two weeks each, shall be 
for the trial of criminal cases only, and shall be 
held by regular and/or special or emergency 
judges who shall be assigned by the governor. 
(1937, c. 27.) 

Fifteenth District 

Alexander — Fourth Monday before the first 
Monday in March, to continue for two weeks, for 



the trial of civil and criminal cases; first Monday 
before the first Monday in September, to continue 
for two weeks, for the trial of criminal and civil 
cases. For these terms of court the governor may 
assign a judge to hold the same from among the 
regular, special or emergency judges. (1913, c. 
196; 1921, c. 166; 1933, c. 250, s. 4; 1935, cc. 101, 
252, s. 2; 1937, c. 214.) 

Seventeenth District 
Wilkes — First Monday in March for two weeks 
for the trial of criminal and civil cases; eighth 
Monday after the first Monday in March for two 
weeks for the trial of civil cases only; thirteenth 
Monday after the first Monday in March, for two 
weeks, for the trial of civil cases only; fourth 
Monday before the first Monday in September for 
two weeks for the trial of criminal and civil cases; 
fourth Monda}^ after the first Monday in Septem- 
ber, for two weeks, for the trial of civil cases only; 
eighth Monday after the first Monday in Septem- 
ber for two weeks, the first week thereof for the 
trial of criminal and civil cases, and the remaining 
one week for the trial of civil cases only. (1913, 
c. 196; 1919, c. 165; 1921, c. 166; 1935, c. 105, s. 1, 
c. 192; 1937, c. 48.) 

Eighteenth District 

McDowell — ■ Ninth Monday before the first 
Monday in March, to continue for one week for 
the trial of criminal cases only; the third Monday 
before the first Monday in March, to continue for 
two weeks for the trial of civil cases only; the 
fourteenth Monday after the first Monday in 
March, to continue for two weeks for the trial 
of both criminal and civil cases; eighth Monday 
before the first Monday in September, to continue 
two weeks for the trial of civil cases only; the first 
Monday in September, to continue for two weeks 
for the trial of both criminal and civil cases. (1913, 
c. 196; Ex. Sess. 1921, c. 24; 1923, c. 219; 1927, 
c. 207, s. 1; 1935, c. 127; 1937, c. 309.) 

Rutherford — First Monday before the first Mon- 
day in March, to continue for one week for the 
trial of civil cases only; sixth Monday after the 
first Monday in March, to continue for two weeks 
for the trial of civil cases only; tenth Monday 
after the first Monday in March, to continue for 
two weeks for the trial of both criminal and civil 
cases; sixteenth Monday after the first Monday in 
March, to continue for two weeks for the trial of 
civil cases only; third Monday after the first Mon- 
day in September, to continue for two weeks for 
the trial of civil cases only; ninth Monday after 
the first Monday in September, to continue for 
two weeks for the trial of both civil and criminal 
cases. (1913, c. 196; 1915, c. 116; Ex. Sess. 1921, 
c. 24; 1927, c. 207, s. 1; 1933, c. 232, s. 1; 1935, c. 
127; 1937, c. 309.) 

Twentieth District 
Haywood — • Eighth Monday before the first 
Monday in March, to continue for two weeks, 
for civil cases only; fourth Monday before the 
first Monday in March, to continue for two weeks; 
ninth Monday after the first Monday in March, 
to continue for two weeks, for civil cases only; 
eighth Monday before the first Monday in Sep- 
tember, to continue for two weeks; second Mon- 
day after the first Monday in September, for civil 
cases only and the eleventh Monday after the first 
Monday in September, each to continue for two> 



36 



§ 1443 



COURTS— JUSTICES OF THE PEACE 



§ 1463 



weeks. (1913, c. 196; 1917, cc. 7, 114; 1923, c. 35, 
s. 2; 1924, c. 27; 1937, c. 106.) 

Macon — Sixth Monday after the first Monday 
in March; second Monday before the first Mon- 
day in September, and thirteenth Monday after 
the first Monday in September, each to continue 
for two weeks. The board of commissioners of 
Macon county may, for good cause, decline to draw 
a jury for more than one week for any term of 
court provided for in this chapter. (1913, c. 196; 
1923, c. 35, s. 1; 1927, c. 245, s. 1; 1937, o. 106.) 

Clay — 'Eighth Monday after the first Monday in 
September. (1913, c. 196; 1927, c. 245, s. 1; 1937, 
c. 162.) 

Twenty-First District 

There is hereby created district number twenty- 
one composed of the following counties, and the 
superior courts thereof shall be held at the follow- 
ing times, to wit: 

Caswell — Second Monday after the first Mon- 
day in March to continue for two weeks; ninth 
Monday before the first Monday in September to 
continue for one week; tenth Monday after the 
first Monday in September to continue for two 
weeks, for the trial of criminal and civil cases. 
(1913, c. 196; 1919, c. 289; 1927, c. 202; 1933, c. 
45, s. 1; 1935, c. 246; 1937, cc. 107, 413, s. 5.) 

Rockingham — Sixth Monday before the first 
Monday in March to continue for two weeks; 
eleventh Monday after the first Monday in March 
to continue for two weeks; fourth Monday before 
the first Monday in September to continue for 
two weeks; eighth Monday after the first Monday 
in September to continue for two weeks; four- 
teenth Monday after the first Monday in Sep- 
tember to continue for one week, for the trial of 
criminal cases only. 

First Monday in March to continue two weeks; 
sixth Monday after the first Monday in March to 
continue for one week; ninth Monday after the 
first Monday in March to continue for two weeks; 
fourteenth Monday after the first Monday in 
March to continue for two weeks; first Monday 
in September to continue for two weeks; seventh 
Monday after the first Monday in September to 
continue for one week; twelfth Monday after the 
first Monday in September to continue for two 
weeks, for the trial of civil cases only. (1913, c. 196: 
Ex. Sess. 1913, c. 49; 1917, c. 107; 1933, cc. 45, 264; 
1935, c. 246; 1937, cc. 156, 413, s. 5. P. L- 1915, 
c. 60, provides for a calendar in Rockingham 
county.) 

Stokes — Fourth Monday after the first Monday 
in March to continue for one week for the trial 
of criminal cases only; fifth Monday after the first 
Monday in March to continue for one week for 
the trial of civil cases only; sixteenth Monday after 
the first Monday in March to continue for one 
week for the trial of criminal cases only; second 
Monday before the first Monday in September 
to continue for one week for trial of both crim- 
inal and civil cases; fifth Monday after the first 
Monday in September to continue for one week 
for the trial of criminal cases only; sixth Mon- 
day after the first Monday in September to con- 
tinue for one week, for the trial of civil cases only. 
(1913, c. 196; Ex. Sess. 1913, c. 1; 1921, c. 142; 
1923, c. 196; 1929, c. 158; 1937, c. 413, s. 5.) 

Surry — Eighth Monday before the first Mon- 
day in March to continue for one week; third 
Monday before the first Monday in March to con- 

[3 



tinue for one week; seventh Monday after the 
first Monday in March to continue for one week, 
second Monday after the first Monday in Septem- 
ber to continue for one week; fifteenth Monday 
after the first Monday in September to continue 
for one week, for the trial of criminal cases only. 
Seventh Monday before the first Monday in 
March to continue for one week; second Monday 
before the first Monday in March to continue for 
two weeks; eighth Monday after the first Mon- 
day in March to continue one week; thirteenth 
Monday after the first Monday in March to con- 
tinue for one week; eighth Monday before the 
first Monday in September to continue for two 
weeks; third Monday after the first Monday in 
September to continue for two weeks, for the 
trial of civil cases only. (1913, c. 196; Ex. Sess. 
1913, c. 34; Ex. Sess. 1921, c. 9; 1931, c. 251; 1933, 
cc. 180, 413; 1935, c. 246; 1937, cc. 210, 413, s. 5.) 

Editor's Note. — Only the parts of this section affected by 
the amendments of 1937 are set out above. If a county does 
not appear in the above presentation the terms of court are 
the same as those shown in the North Carolina Code of 1935. 

One amendment added the proviso to the first paragraph 
of this section. Another created the twenty -first judicial 
district composed of the counties of Caswell, Rockingham, 
Surry (formerly in the eleventh judicial district) and Stokes 
(formerly in the twelfth judicial district, now composed of 
the counties of Guilford and Davidson). See Public Laws 
1937, c. 413, which provides that the present resident judge 
ot the eleventh judicial district shall remain the resident 
judge of said district as now constituted, and the solicitor of 
the district shall be during his term of office the solicitor of 
the twenty-first judicial district. The governor was em- 
powered and directed to appoint a solicitor of the eleventh 
judicial district as now constituted, and a judge of the 
twenty-first judicial district as now constituted, whose terms 
of office shall expire on the first day of January following 
the next general election, and successors are to be elected at 
the next succeeding general election. 

Art. 7. Special Terms of Court 
§ 1450. Governor may order special terms. 

Applied in State v. Boykin, 211 N. C. 407, 191 S. E- 18. 

§ 1452. Notice of special terms. 

The notice is directory and not mandatory under this 
section. State v. Boykin, 211 N. C. 407, 413, 191 S. E. 18. 

And Is for the Benefit of the Public. — The notice which is 
required to be published under this section is designed not 
for the purpose of warning the jury of the coming term. 
These persons receive separate notices or summons. Rather, 
it serves the purpose of notifying the public. It follows, 
then, that the failure to comply with this section goes to 
the set-up or organization of the court itself rather than 
of the jury. State v. Boykin, 211 N. C. 407, 413, 191 S. 
E. 18. 

§ 1456. Attendance and process at special terms. 

Applied in State v. Boykin, 211 N. C. 407, 191 S. E. 18. 

SUBCHAPTER IIB. DOMESTIC 
RELATIONS COURTS 

Art. 8(B). Counties of at Least Twenty-Five 
Thousand Inhabitants 

§ 1481 (i). Election of judge and term of office; 
vacancy appointments; judge to select clerk; ju- 
venile court officers may be declared officers of 
new court. 

Editor's Note.— Public Laws 1937, c. 268, amended this sec- 
tion so as to provide for an assistant judge of the domestic 
relations court in Mecklenburg county. 

SUBCHAPTER III. JUSTICES OF THE 
PEACE 

Art. 9. Election and Qualification 
§ 1463. Election and number of justices. 

Editor's Note. — For act relating to Raleigh township in 
Wake county, see Public ]>ws 1937, c. 113. 

7] 



§ 1475 



COURTS— GENERAL COUNTY COURTS 



§ 1608(n) 



Art. 10. Jurisdiction 

§ 1475. Action dismissed for want of jurisdic- 
tion; remitter. 

Justice Has Jurisdiction to Recover Salary Which Failed 
to Equal Amount Stipulated in the "President's Re-employ- 
ment Agreement." — A justice of the peace has jurisdiction 
•of an action on contract to recover the amount by which the 
salary paid plaintiff failed to equal the amount stipulated in 
the "President's Re-employment Agreement," voluntarily 
signed by defendant employer, when the amount demanded 
does not exceed two hundred dollars. James v. Sartin Dry 
Cleaning Co., 208 N. C. 412, 181 S. E\ 341. 

Art. 15. Judgment and Execution 

§ 1517. Justice's judgment docketed; lien and 
execution. 

Same — Its Nature in Superior Court— 

In accord with second paragraph of original. See Essex 
Inv. Co. v. Pickelsimer, 210 N. C. 541, 187 S. E. 813. 

SUBCHAPTER IV. RECORDERS' 
COURTS 

Art. 18. Municipal Recorders' Courts 

§ 1536. In what cities and towns established; 
court of record. 

Cited in Stephens v. Dowell, 208 N. C. 555, 181 S. E. 
629; State v. Boykin, 211 N. C. 407, 191 S. E- 18. 

§ 1541. Criminal jurisdiction. 

Jurisdiction Given Over Crimes Below Grade of Felony. 

—In order that recorder's courts might be permitted to take 
cognizance of crime and try criminals without indictment, 
all crimes below the degree of felony have been declared 
to be "petty misdemeanors" by subsection (3) of this sec- 
tion. State v. Boykin, 211 N. C. 407, 412, 191 S'. E- 18. 

§ 1549. Issuance and service of process. 

Under the proceedings established in "recorder's courts," 
the complaint and warrant — which, if necessary, must be 
construed together— have been established as the proper 
proceeding, just as has come down from the common law 
as to crimes the punishment of which is within the juris- 
diction of a justice of the peace. State v. Boykin, 211 N. 
C. 407, 412, 191 S. E- 18. 

§ 1551. Clerk of court; election and duties; re- 
moval; fees. 

Cited in Stephens v. Dowell, 208 N. C. 555, 181 S. E- 
629. 

§ 1555. Jury trial, as in justice's court. 

Editor's Note.— For act, applicable only to Pitt county, pro- 
viding for transfer of cases to superior court upon demand 
for jury trial, see Public Laws 1937, c. 134. 

§ 1557. Officers' fees; fines and penalties paid. 

Editor's Note.— Public Laws 1937, c. 279, applicable to 
Cabarrus county only, provides that in cases wherein justices 
of the peace have not final jurisdiction, the fee of the re- 
corder shall be one dollar, and the fee of the prosecuting at- 
torney shall be not more than four dollars. 

Art. 19. County Recorders' Courts 

§ 1564. Recorder's election, qualification, and 
term of office. 

Editor's Note. — -For act providing for appointment of vice- 
recorder in Mecklenburg county, see Public Laws 1937, c. 253. 

§ 1569. Removal of cases from justices' courts. 

Editor's Note. — For act, applicable only to Mecklenburg 
county, relating to payment of costs, etc., see Public Laws 
1937, c. 386. 

§ 1574. Appeals to superior court. 

When the Superior Court sits upon an appeal from a 
judgment of a justice of the peace in a criminal action, or 
a judgment of a recorder's court under this section, it is 
sometimes said to be acting under the derivative jurisdic- 
tion of the court from which appeal is taken; the trial is 
had upon the warrant issued by the court which had ju- 



1 

[ 38 



court with the return to the appeal. State v. Boykin, 211 
N. C. 407, 412, 191 S. E- 18. 

Where the case is beyond the jurisdiction of the inferior 
court, it does not reach the Superior Court under this sec- 
tion by appeal, but only by the process of "binding over," 
and in such case only is an indictment necessary. Id. 

§ 1575. Clerk of superior court ex officio clerk 
of county recorders' court. 

Cited in State v. Boykin, 211 N. C. 407, 191 S. E. 18. 

§ 1582(b). Subchapter applies to Henderson 
county. 

Editor's Note. — For act abolishing the Henderson county 
recorder's court, see Public Laws 1937, c. 97. 

SUBCHAPTER V. GENERAL COUNTY 
COURTS 

Art. 24. Establishment, Organization and 
Jurisdiction 

§ 1608(f). Establishment authorized; official 
entitlement; jurisdiction. — In each county of this 
state except Caswell county, there may be estab- 
lished a court of civil and criminal jurisdiction, 
which shall be a court of record and which shall 
be maintained pursuant 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. 

(1937, c. 54.) 

Editor's Note. — The 1937 amendment inserted the excep- 
tion as to Caswell county in the first sentence. The rest of 
the section, not being affected by the amendment, is not set 
cut here. 

§ 1608(n). Civil jurisdiction, extent. — The 

jurisdiction of the general county court in civil 
actions shall be as follows: 

1. Jurisdiction concurrent with that of the jus- 
tices of the peace of the county; 

2. Jurisdiction concurrent with the superior 
court in all actions founded on contract; 

3. Jurisdiction concurrent with the superior 
court in all actions not founded upon contract; 

4. Jurisdiction concurrent with the superior 
court in all actions to try title to lands and to pre- 
vent trespass thereon and to restrain waste there- 
of; 

5. Jurisdiction concurrent with the superior 
court in all actions pending in said court to is- 
sue and grant temporary and permanent restrain- 
ing orders and injunctions; 

6. Jurisdiction concurrent with the superior 
court of all actions and proceedings for divorce 
and alimony, or either; 

7. Jurisdiction concurrent with the superior 
court in all matters pending in said court for the 
appointment of receivers, as provided in section 
eight hundred and fifty-nine, et seq. of the Con- 
solidated Statutes; 

8. Jurisdiction concurrent with the superior 
court to appoint receivers. (1923, c. 216, s. 14; 
1935, c. 171; 1937, c. 58.) 

Editor's Note. — The 1937 amendment added paragraphs 7 
and 8 to this section. 

Court Had No Jurisdiction to Appoint a Receiver for Judg- 
ment Debtor Having Property in Another County. — The ju- 
risdiction of a general county court is statutory, and it has 
no extraterritorial jurisdiction except that expressly given 
within the limitations of the Constitution, hence the gen- 
eral county court of Buncombe County was held without 
jurisdiction to appoint a receiver for a judgment debtor 
having property in another county against whom judgment 
is rendered in the county court, this section giving no power 
to appoint a receiver, and the authority to issue "process" 
given by § 1608(t), being limited ordinarily to summons to 



§ 1608 (s) 1 



COURTS— CIVIL COUNTY COURTS 



§ 1608 (xxx) 



C. 541, 187 S. E. 813, decided prior to the 1937 



mer, 210 N. 
amendment. 

§ 1608 (s) 1. Application of article. — This arti- 
cle shall not apply to any county in which there 
has been established a court, inferior to the su- 
perior court, by whatever name called, by a spe- 
cial act, nor shall this article apply to the follow- 
ing counties: Granville, Henderson, Iredell, New 
Hanover, Pasquotank, Randolph and Wake, [nor 
shall it apply to the counties in the sixteenth 
(16th)] seventeenth (17th) except Watauga 
county, and nineteenth (19th) judicial districts, ex- 
cept Buncombe county. (1924, c. 85, s. 24, f; 
1925, c. 9; 1927, c. 103, ss. 1, 2; 1929, c. 159, s. 1; 
1931, c. 19; 1937, c. 439.) 

Editor's Note. — The 1937 amendment made this article ap- 
plicable to Wautauga county and authorized the establish- 
ment of a county court therefor. 

Art. 25. Practice and Procedure 

§ 1608(t). Procedure in civil actions; return of 
process. 

Reference.— See note to § 1608(n) in this Supplement. 

§ 1608 (u). Trial by jury; waiver; deposit for 
jury fee. — In all civil actions the parties shall be 
deemed to have waived a jury trial unless demand 
shall be made therefor in the pleadings of the par- 
ties to the action when same are filed. The de- 
mand shall be in writing and signed by the party 
making it, or by his attorney, and accompanied 
by a deposit of three dollars to insure the pay- 
ment of the jury tax: Provided, such demand 
shall not be used to the prejudice of the party 
making it. Any defendant in a criminal action 
may demand a trial by jury, in which event such 
defendant shall not be required to deposit the sum 
of three dollars. Such jury shall be drawn as 
herein otherwise provided for. (1923, c. 216, s. 8; 
1924, c. 85, s. 1; 1937, c. 56.) 

Editor's Note. — Prior to the 1937 amendment demand for 
jury trial was required to be made "before the trial begins." 

Public Acts 1937, c. 85, applicable only to Duplin county, 
struck out the last two sentences of this section. 

§ 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 man- 
ner as is now provided for appeals from the su- 
perior 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 record 
on appeal to the superior court shall be docketed 
before the next term of the superior court ensuing 
after the case on appeal shall have been settled 
by the agreement of the parties or by order of 
the court, and the case shall stand for argument 
at the next term of the superior court ensuing 
after the record on appeal shall have been dock- 
eted ten days, unless otherwise ordered by the 
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. 

[ 39 



Upon such appeal the superior court may either 
affirm or modify the judgment of the general 
county court, or remand the cause for a new trial. 
From the judgment of the superior court an ap- 
peal may be taken to the supreme court as is now 
provided by law. (1923, c. 216, s. 18; 1933, c. 
109; 1937, c. 84.) 

Editor's Note — The 1937 amendment, inserting the second 
sentence of this section, provides: "This act shall apply to all 
cases tried before the ratification of this act in which an ap- 
peal has been entered and time for service of case on appeal 
and counter-case or exceptions has been extended by order 
of court with consent of counsel for parties." 

Superior Court Sits as an Appellate Court.— In hearing 
civil cases on appeal from the general county court, the 
Superior Court sits as an appellate court, subject to re- 
view by the Supreme Court. Jenkins v. Castelloe, 208 N. 
C. 406, 408, 181 S. E- 266, citing Cecil v. Snow Lbr. Co., 
197 N. C. 81, 147 S. E. 735. 

In Granting a New Trial It Is Essential That the Su- 
perior Court Specifically State the Rulings upon Excep- 
tions.— Where an appeal is taken from the general county 
court to the Superior Court for errors assigned in matters 
of law, as authorized by this section, and a new trial is 
granted by the Superior Court, it is essential that the rul- 
ings upon exceptions granting the new trial be specifically 
stated, so that in case of appeal to the Supreme Court, they 
may be separately assigned as error in accordance with 
Rule 19(3) of the Rules of Practice in the Supreme Court, 
and properly considered on appeal. Jenkins v. Castelloe, 

208 N. C. 406, 181 S. E. 266. 
Where the record is not docketed in the Superior Court 

within the time prescribed, the appeal is properly dismissed, 
it being formerly provided that appeals from the general 
county court shall be governed by the rules governing ap- 
peals from the Superior Courts to the Supreme Court, and 
dismissal in such circumstances is mandatory under Rule 
ot Practice in the Supreme Court No. 5. Grogg v. Graybeal, 

209 N. C. 575, 184 S. E. 85, decided prior to the 1937 amend- 
ment. 

§ 1603 (dd). Enforcement of judgments; stay of 
execution, etc. 

When the judgment of a general county court is dock- 
eted in the Superior Court of the county it becomes a judg- 
ment of the Superior Court in like manner as transcripted 
judgments of justices of the peace under § 1517, and the 
general county court has no further jurisdiction of the case, 
and may not thereafter hear a motion for the appointment 
of a receiver for the judgment debtor. Essex Inv. Co. v. 
Pickelsimer, 210 N. C. 541, 187 S. E- 813. 

SUBCHAPTER VI. CIVIL COUNTY 

COURTS 

Art. 28. Under Chapter 437, Acts of 1937 
§ 1603 (vvv). Establishment. — In addition to the 
plans now provided by law for the establishment 
of courts inferior to the superior court, there may 
be established by resolution of a majority of the 
members of the board of county commissioners of 
any county in the state a court of civil jurisdic- 
tion, which shall be a court of record, shall be 

called County Civil Court and shall have 

civil jurisdiction as herein provided. (1937, c. 437, 
s. 1.) 

§ 1608 (www). Qualification of judge. — The 

county civil court shall be presided over by a 
judge, who may be an attorney at law, who shall 
at the time of appointment and qualification be an 
elector in and for said county, and he shall not by 
reason of his term of office be prohibited from 
practicing the profession of attorney at law in 
other courts except as to matters pending in con- 
nection with or growing out of said county civil 
court. (1937, c. 437, s. 2.) 

§ 1608 (xxx). Appointment of judge; vacancies; 
substitute judge. — After the ratification of this ar- 
ticle and the establishment of such court by any 
county, it shall be the duty of the clerk of the 



§ leos(yyy) 



COURTS— CIVIL COUNTY COURTS 



§ 1808(jjjj) 



board of commissioners of such county to im- 
mediately notify the governor of the state, who 
shall appoint a judge to preside over such court, 
and each second year thereafter it shall be the 
duty of the governor of the state to appoint the 
judge of each such county civil court, who shall 
preside over said court; that the said judge shall 
hold office for a term of two years and until his 
successor is appointed and qualified. Any va- 
cancy occurring in the office of judge shall be filled 
by the governor of the state. 

When the judge of said county civil court is un- 
able to hold court on account of sickness, absence, 
disqualification or other cause, the governor of 
the state shall appoint some other person, who 
shall take the same oath and possess the same 
qualifications as provided for a judge, to act as 
substitute judge, who shall be invested' with all 
the powers and duties of the judge. At the time 
of fixing the salary for the judge, the board of 
county commissioners shall fix a per diem com- 
pensation for the substitute judge which shall be 
paid out of the salary fixed for the judge. (1937, 
c. 437, s. 3.) 

§ 1608(yyy). Oath of judge. — Before entering 
upon the duties of his office, the said judge shall 
take and subscribe an oath of office as is now pro- 
vided by law for the judges of the superior court, 
and file the same with the clerk of the superior 
court of said county; and said clerk shall record 
the same. (1937, c. 437, s. 4.) 

§ 1608 (zzz). Salary of judge.— The salary of 
said judge shall be fixed by the board of commis- 
sioners of the county, shall not be decreased dur- 
ing the term of office, and shall be paid in monthly 
installments out of the funds of the county. The 
judge shall be provided by the county board of 
commissioners with a suitable and convenient 
room for holding court at the county-seat. (1937, 
c. 437, s. 5.) 

§ 1608(aaaa). Disqualification of judge. — Where 
the judge is disqualified by reason of interest in 
any case, it shall be removed for trial to the su- 
perior court of the county. (1937, c. 437, s. 6.) 

§ 1608(bbbb). Clerk of court.— The clerk of the 
superior court shall be ex officio clerk of the 
county civil court established under the provisions 
of this article, and he shall have as nearly as pos- 
sible the same duties, powers and responsibilities, 
with reference to the county civil court as he has 
in his capacity as clerk of the superior court. The 
said clerk shall be liable upon his official bond for 
the discharge of his duties and caring for funds 
paid to him as clerk of the county civil court to 
the same extent as he is bound as clerk of supe- 
rior court. In addition to the salary or fees paid 
him as clerk of superior court, the clerk of the 
county civil court shall be paid such additional 
reasonable compensation as the board of county 
commissioners may fix; and the board of county 
commissioners are hereby authorized and empow- 
ered to provide the salary of such additional dep- 
uty or deputies as he may need. (1937, c. 437, 
s. 7.) 

§ 1608(cccc). Oath of clerks. — The clerks of 
the county civil court, before entering on the du- 
ties of their office, shall take and subscribe, be- 
fore some officer authorized by law to administer 
an oath, the oath required under general law, and 

[ 40 



in addition thereto shall take and subscribe to an 
oath to perform faithfully all the duties required 
of them under this article and file such oaths with 
the register of deeds for the county. ^1937, c. 

437, s. 8.) 

§ 1608(dddd). Appointment and removal of 
deputies. — Each clerk of the county civil court 
shall have the authority to appoint deputy clerks 
and the authority to revoke such appointments at 
will. He shall make a record of each appoint- 
ment and furnish a transcript of such record to 
the register of deeds, who shall record the same 
in the record of deeds and make a cross-index 
thereof. When the appointment of any deputy 
clerk is revoked, the clerk shall write on the mar- 
gin of the records of such appointment the word 
"revoked" and the date of revocation, and sign his 
name thereto. (1937, c. 437, s. 9.) 

§ 1608 (eeee). Oath and power of deputies. — If 

any deputy clerk shall be appointed as provided 
in this article, he shall take and subscribe to the 
oaths prescribed for clerks. Each deputy clerk 
appointed as herein provided shall have as nearly 
as possible the same powers and duties, with ref- 
erence to the county civil court, as a deputy clerk 
of the superior court has with reference to the 
superior court. (1937, c. 437, s. 10.) 

§ 1608(ffff). Sheriff. _ The sheriff of the 
county, or his deputies appointed, shall attend up- 
on this court in the same manner and with the 
same power and authority as he does and has in 
attendance upon the superior court of the county. 
The board of county commissioners of the county 
are authorized to make said sheriff such additional 
allowances as they may deem necessary and 
proper for such services, in addition to his salary 
or fees now fixed by law. (1937, c. 437, s. 11.) 

§ 1608 (gggg). Stenographer. — The board of 
county commissioners shall appoint an official 
stenographer of the court, whose duties shall be 
the same as those of the official stenographer of 
the superior court, and the compensation shall be 
fixed and paid by the board of county commission- 
ers. (1937, c. 437, s. 12.) 

§ 1608(hhhh). Jury trial. — In the trial of ac- 
tions in said court any party is entitled to the 
right of trial by jury as is provided in the trial of 
causes in the superior court, unless said right of 
trial by jury shall be waived as hereinafter pro- 
vided. (1937, c. 437, s. 13.) 

§ 1608(iiii). Waiver of jury trial; jurisdiction 
concurrent with superior court. — In those cases 
in which written pleadings are required to be filed, 
the parties shall be conclusively presumed to have 
expressly waived their right to trial 'by jury, un- 
less at the time of the filing of the complaint or 
petition the plaintiff, in writing, demands a jury 
trial; or, at the time of the filing of the answer or 
other pleading which raises an issue of fact, the 
defendant or other party filing such pleading de- 
mands, in writing, a jury trial. (1937, c. 437, s. 
13(a).) 

§ 1608(jjjj). Waiver of jury trial; jurisdiction 
concurrent with justice of peace. — In those cases 
in which no written pleadings are required, the 
parties shall be conclusively presumed to have ex- 
pressly waived their right to trial by jury, unless 



§ 1608(kkkk) 



COURTS— CIVIL COUNTY COURTS 



§ 1608 (tttt) 



at the time of the issuance of summons the plain- 
tiff or petitioner, in writing, demands a jury trial; 
or the defendant, at any time before the com- 
mencement of the trial, in writing, demands a jury 
trial. (1937, c. 437, s. 13(b).) 

§ 1608(kkkk). Jury trial in cases instituted in 
superior court or before magistrate. — In those 
cases which were or may hereafter be instituted 
before a justice of the peace and removed or ap- 
pealed to this court, and in those cases which were 
or may hereafter be instituted in superior court 
and removed to this court, a jury trial will be con- 
clusively presumed to have been expressly waived 
unless the party desiring a trial by jury shall make 
a demand therefor, in writing, at any time before 
the case is called for trial; in which event the 
number of the jury shall be as herein elsewhere 
provided. (1937, c. 437, s. 13(c).) 

§ 1608(1111). Jury of six; demand and deposit 
for jury of twelve.— The jury of said court shall 
be a jury of six unless, at any time before the call- 
ing of the cause for trial, either party, who has 
not waived the right to trial by jury by failing to 
demand a jury trial in apt time as provided here- 
in, or otherwise, demands a trial by a jury of 
twelve, in which event a jury of twelve shall be 
impaneled: Provided, that in those cases in which 
a jury of twelve is demanded the party shall, at 
the time of making the demand, pay to the clerk 
of said court a deposit of five dollars to insure the 
payment of the jury tax: Provided further, that 
where a party making such demand for a jury of 
twelve makes affidavit and satisfies the judge or 
clerk of said court that he is unable to make the 
deposit, such party shall not be required to make 
the same. The deposit for jury of twelve shall be 
returned to the party making it when the jury tax 
is paid by the losing party against whom the costs 
are taxed. (1937, c. 437, s. 13(d).) 

§ 1608(mmmm). Judge may impanel jury on 
own motion. — The judge of said court, when in 
his opinion the ends of justice would be best 
served by submitting an issue or issues to the jury, 
may call a jury of his own motion and submit to 
it such issue or issues as he may deem material. 
(1937, c. 437, s. 13(e).) 

§ 1608 (nnnn). Drawing juries; summons of ju- 
rors; pay of jurors. — The regular jurors shall be 
drawn from the superior court jury box; the 
drawing and summoning of said jurors shall be in 
the same manner as jurors are drawn and sum- 
moned for the superior court: Provided, however, 
only twelve jurors shall be drawn and summoned 
for any one week of court unless the judge speci- 
fies that a larger number shall be drawn. The 
judge of each county civil court, at least thirty 
days in advance, shall notify the chairman of the 
board of county commissioners when a jury will 
be needed. 

Jurors shall receive the same compensation as 
is provided by law for jurors serving in the su- 
perior court, to be paid out of the treasury of said 
county on presentation of a ticket duly issued by 
the clerk of said court. (1937, c. 437, s. 14.) 

§ 1608(oooo). Talesmen. — The judge shall 
have the right to call in talesmen to serve as ju- 
rors, according to the practice of the superior 
court, and to direct the sheriff to summon a suffi- 



cient number of talesmen to serve during any one 
week or a portion thereof for the proper dispatch 
of the business of the court. (1937, c. 437, s. 15.) 

§ 1608(pppp). When court opens; terms of 
court. — The county civil courts shall be open for 
the transaction of business within their jurisdic- 
tion whenever matters before the court require at- 
tention, except for the trial of issues of fact re- 
quiring a jury and the trial of contested causes 
wherein the county civil court is exercising juris- 
diction concurrent with that of the superior court, 
which shall be heard in term time. 

The judge of the county civil court is hereby au- 
thorized to fix the terms of said court upon con- 
sulting with the clerk of the court and the mem- 
bers of the bar of the county. (1937. c. 437, s. 16.) 

§ 1608 (qqqq). Jurisdiction. — The county civil 
court shall have jurisdiction only in civil matters 
and as follows: 

(1) Jurisdiction concurrent with that of the jus- 
tices of the peace of the county; 

(2) Jurisdiction concurrent with the superior 
court in all actions founded on contract wherein 
the amount demanded shall not exceed the sum 
of one thousand five hundred dollars, exclusive of 
interest and costs; 

(3) Jurisdiction concurrent with the superior 
court in all actions not founded on contract where- 
in the amount demanded shall not exceed the sum 
of one thousand five hundred dollars, exclusive of 
interests and costs; 

(4) Jurisdiction concurrent with the superior 
court in all actions to try title to lands, to prevent 
trespass thereon, and to restrain waste thereof 
wherein the value of the land does not exceed the 
sum of one thousand five hundred dollars; 

(5) Jurisdiction concurrent with the superior 
court in all actions and proceedings for divorce 
and alimony, or either, and to make such orders 
respecting the care, custody, tuition and mainte- 
nance of the minor children of the marriage as 
may be proper. (1937, c. 437, s. 17.) 

§ 1608(rrrr). Appeals from justice of the peace. 

— In all cases where there is an appeal from a jus- 
tice of the peace of a county wherein a county 
civil court has been established under the provi- 
sions of this article, such appeal shall be first 
heard de novo in the county civil court in the man- 
ner provided herein for hearing causes within the 
jurisdiction of a justice of the peace originating in 
the said county civil court. Said appeals shall be 
docketed in the county civil court within the same 
time limit and in the same manner as such ap- 
peals are now required to be docketed in the su- 
perior court. (1937, c. 437, s. 18.) 

§ 1608 (ssss). Removal of cause before justice 
of peace. — •When, upon affidavit made before en- 
tering upon the trial of any cause before any jus- 
tice of the peace of said county, it shall appear 
proper for said cause to be removed for trial to 
some other justice of the peace, as is now provided 
by law, said cause shall be removed for trial to 
the said county civil court. (1937, c. 437, s. 19.) 

§ 1608(tttt). Pending cases, transfer — By writ- 
ten consent of plaintiff and defendant filed with 
the clerk of superior court, any case within the 
jurisdiction of the county civil court, now or here- 
after pending in the superior court, may be trans- 



[41] 



§ 1608 (uuuu) 



COURTS— CIVIL COUNTY COURTS 



§ 1608 (yyyy) 



ferred to the docket of the county civil court and 
there tried; if a jury trial is desired, it shall be 
expressed in the agreement to transfer the case; 
otherwise, the right to trial by jury shall be con- 
clusively presumed to have been expressly waived. 
(1937, c. 437, s. 20.) 

§ 1608 (uuuu). Records; blanks, forms, books, 
stationery. — ■ The clerk of the county civil court 
shall keep separate records for use of the said 
court to be furnished by the county commission- 
ers, and they shall also provide such necessary 
blanks, forms, books, and stationery and office 
equipment as may be needed by the court; the 
clerk shall keep the same in the office of the clerk 
of such court. (1937, c. 437, s. 21. J 

§ 1608 (vvvv). Processes; pleadings; procedure, 
etc. — When the county civil court is exercising 
jurisdiction concurrent with that of the superior 
court, the rules of processes, pleadings, procedure, 
practice, and procuring evidence and judgment 
shall conform as nearly as possible to those of the 
superior court. 

When the county civil court is exercising juris- 
diction concurrent with that of justices of the 
peace, actions shall be commenced in the county 
civil court by summons issued and signed by the 
clerk or deputy; and orders to seize property in 
claim and delivery proceedings, warrants of at- 
tachment and subpoena may be issued by the 
clerk or deputy and the other rules of processes, 
pleadings, procedure, practice, and procuring evi- 
dence and judgments shall conform as nearly as 
possible to those of the courts of the justices of 
the peace of the county. (1937, c. 437, s. 22.) 

§ 1608 (wwww). Appeal to superior court, time 
for perfecting appeal, record on appeal, briefs, 
judgment, appeal to supreme court. — Appeals in 
actions may be taken from the county civil court 
within ten days from date of rendition of judg- 
ment to the superior court of the county in term 
time, for errors assigned in matters of law or le- 
gal inference, in the same manner as is provided 
for appeals from the superior court to the su- 
preme court, except as follows: 

(1) The appellant shall cause a copy of the 
statement of case on appeal to be served on the 
respondent within thirty days from the entry of 
the appeal taken, and the respondent, within fif- 
teen days after such service, shall return the copy 
with his approval or specific amendments endorsed 
or attached; if the case be approved by the re- 
spondent, it shall be filed with the clerk as a part 
of the record; if not returned with objections 
within the time prescribed, it shall be deemed ap- 
proved: Provided, that the judge trying the case 
shall have the power, in the exercise of his discre- 
tion, to enlarge the time in which to serve state- 
ment of case on appeal and exceptions thereto or 
counter statement of case. 

(2) The appellant shall file one typewritten 
copy of the statement of case on appeal, as set- 
tled, containing the exceptions and assignments of 
error, which, together with the original record, 
shall be transmitted by the clerk of the county 
civil court to the superior court as the complete 
record on appeal in said court. 

(3) The record in the case on appeal to the su- 
perior court must be docketed in the superioi 
court within ten days after the date of settling the 

[4 



case on appeal. If the appellant shall fail to per- 
fect his appeal within the prescribed time, the ap- 
pellee may file with the clerk of superior court a 
certificate of the clerk of court from which the ap- 
peal comes showing the names of the parties 
thereto, the time when the judgment and appeal 
were taken, the name of the appellant and the 
date of the settling of case on appeal, if any has 
been settled, with his motion to docket and dis- 
miss said appeal at appellant's cost, which motion 
shall be allowed at the first regular term or any 
succeeding regular term of the superior court. 

(4) Appellant shall file one typewritten brief 
with the clerk of superior court, and shall imme- 
diately mail or deliver to appellee's counsel a car- 
bon typewritten copy thereof. If appellant's brief 
has not been filed with the clerk of superior court, 
and no copy has been delivered to appellee's coun- 
sel within three weeks from the date of settling 
the case on appeal, the appeal will be dismissed 
on motion of appellee at the next regular term or 
any succeeding regular term of the superior court, 
unless for good cause shown the court shall give 
appellant further time to file his brief. 

(5) Appellee shall file one typewritten brief and 
a carbon copy thereof with the clerk of superior 
court within five weeks from the date of settling 
the case on appeal; the copy of same will be fur- 
nished counsel for appellant by the clerk of su- 
perior court, on application. On failure of the ap- 
pellee to file his brief by the time required, the 
case will be heard and determined at the next reg- 
ular term or any succeeding regular term of the 
superior court without argument from appellee, 
unless for good cause shown the court shall give 
appellee further time to file his brief. 

(6) It shall be the duty of any judge of the su- 
perior court holding court in any county where a 
court is established under the provisions of this 
article, to allot sufficient and adequate time dur- 
ing each regular term of the superior court held 
in such county for the hearing of appeals from the 
county civil court of such county: Provided, no 
such appeal shall be heard until five days has ex- 
pired since the filing of appellee's brief or since 
the time appellee's brief should have been filed. 

(7) Upon such appeal, the superior court may 
either affirm or modify the judgment of the county 
civil court or remand the cause for a new trial. 

(8) From the judgment of the superior court 
an appeal may be taken to the supreme court as 
is now provided by law. (1937, c. 437, s. 23.) 

§ 1608 (xxxx). Stay of execution; enforcements 
of judgments, etc. — Orders to stay execution on 

judgments entered in the county civil court shall 
be the same as in appeals from the superior court 
to the supreme court. 

Judgments of the county civil court shall be 
docketed in the judgment docket of the superior 
court as is provided for judgments of the superior 
court, and the judgment when docketed shall in 
all respects be a judgment of the superior court 
in the same manner and to the same extent as if 
rendered by the superior court, and shall be sub- 
ject to the same statute of limitations and the stat- 
utes relating to the revival of judgments in the 
superior court and issuing executions thereon. 
(1937, c. 437, s. 24.) 

§ 1608(yyyy). Court seal. — The county civil 
»] 



§ 1608 (zzzz) 



DIVORCE AND ALIMONY 



§ 1659(a) 



courts shall have a seal with the impression 

" County Civil Court," which shall be 

used in attestation of all summons, other proc- 
esses, acts, or judgments of said court whenever 
required, and in the same manner and in the same 
effect as the seal of other courts of record in the 
state of North Carolina. (1937, c. 437, s. 25.) 

§ 1608(zzzz). Costs and fees. — There shall be 
taxed in the county civil court the same costs and 
fees for services of the officers thereof as provided 
for the court having concurrent jurisdiction; such 
costs and fees shall be taxed and collected by the 
clerk and paid over monthly to the treasurer of 
the county as county funds to be dealt with by the 
commissioners. (1937, c. 437, s. 26.) 

§ 1608(aaaaa). Abolishing Court. — This court 
may be abolished by resolution of a majority of 
the board of county commissioners of any count}'' 
for such county by giving written notice of such 
intention six months prior to the end of the term 
of any presiding judge thereof, to become effective 
at the end of such term of office; and in case of 
the abolition of the court, cases then pending shall 
be transferred to the superior court and there 
tried. (1937, c. 437, s. 27.) 

§ 1608(bbbbb). Existing laws not repealed. — 

This article shall not be construed to repeal or 
modify any existing laws by which a county court 
may be created or to affect or repeal any court 
now or hereafter created under existing laws, and 
shall only be construed to be an additional method 
by which a county court may be established. 
(1937, c. 437, s. 28.) 

§ 1608(ccccc). Counties excepted. — The provi- 
sions of this article shall not apply to Caswell 
and Wayne counties. (1937, c. 437, s. 30.) 



SUBCHAPTER 



VII. COUNTY 
COURTS 



CRIMINAL 



§ 1608(10). Jurisdiction; appeal; judgment 
dockei. 

Editor's Note.— Public Laws 1937, c. 123, repealed Public 
Laws 1931, c. 241, relative to civil jurisdiction of recorder's 
court in Gates county. 



Art. 



CHAPTER 28 

DEBTOR AND CREDITOR 
1. Assignments for Benefit of Creditors 



§ 1611. Trustee to recover property conveyed 
fraudulently or in preference. 

Judgment Not a Preference Prohibited by This Section.— 

A judgment duly rendered by a court of competent ju- 
risdiction against a debtor assigning his property to a 
trustee for the benefit of creditors is not a transfer or con- 
veyance of property by the assignor, although the judgment 
is rendered within four months prior to the assignment to 
the trustee, and the judgment is not a preference prohib- 
ited by this section, and will not be declared void upon 
suit of the trustee. Pritchett v. Tolbert, 210 N. C. 644, 188 
S. E. 71. 

Execution on Personalty Prior to Registration of Deed of 
Assignment Creates Prior Lien. — Where a valid judgment 
is rendered within four months prior to an assignment for 
benefit of creditors by the judgment debtor, and execution 
is issued thereon and personal property of the debtor levied 
upon prior to the registration of the deed of assignment. 
the judgment is a lien upon the personal property levied 
upon prior to the title of the trustee in the deed of as- 
signment. Pritchett v. Tolbert, 210 N. C. 644, 188 S. E- 71. 



CHAPTER 29 

DESCENTS 

§ 1654. Rules of descent. 

Rule 12, Seizin defined. Every person, in whom 
a seizin is required by any of the provisions of 
this chapter, shall be deemed to have been seized, 
if he may have had any right, title or interest in 
the inheritance. (Rev., s. 1556; Code, s. 1281; R. 
C, c. 38, Rule 13.) 

Editor's Note. — A part of this section is reprinted to 
correct an error in the original. 

Section Held Not to Apply to Person Dying before Its 
Enactment. — The provisions of this section held not to af- 
fect the distribution of an estate of a person dying prior 
to the enactment of the statute, the provision of the stat- 
ute that it should apply to estates of such persons whose 
estates had not then been distributed being inoperative, and 
an illegitimate person dying prior to the enactment of the 
statute leaving only the brothers of his mother, or their 
legal representatives, him surviving, leaves no person sur- 
viving him entitled to inherit from him, and his property, 
both real and personal held to vest immediately in the Uni- 
versity of North Carolina under the Constitution and laws 
of this state. Carter v. Smith, 209 N. C. 788, 185 S. E. 15. 
See Editor's Note in the original. 



CHAPTER 30 

DIVORCE AND ALIMONY 
1659. Grounds for absolute divorce. 



Cited in Hyder v. Hyder, 210 N. C. 
rcwes v. Burrowes, 210 N. C. 788, 



486, 187 S. E. 
88 S. E. 648. 



Bur- 



§ 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 the application 
of either party, if and when the husband and wife 
have lived separate 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 addition to other acts and not con- 
strued as repealing other laws on the subject of 
divorce. (1931, c. 72; 1933, c. 163; 1937, c. 100, 
ss. 1, 2.) 

Editor's Note.— In Parker v. Parker, 210 N. C. 264, 186 S. 
E- 346, the supreme court ruled that no divorce could be 
obtained under this section unless a separation agreement, ex- 
press or implied, existed. The 1937 amendment, apparently 
intended to avoid this construction requiring the existence of 
a separation agreement, amends the statute by striking out 
the phrase, "either under deed of separation or otherwise." 
15 N. C. Law Rev., No. 4, p. 348. 

Either party may bring an action for absolute divorce 
under this section and the jury's finding that defendant did 
not abandon plaintiff without cause does not preclude judg- 
ment in plaintiff's favor. Campbell v. Campbell, 207 N. C 
859, 176 S. E. 250. 

Meaning of "Separation."— The word "separation," as ap- 
plied to the legal status of a husband and wife, means more 
than "abandonment;" it means a cessation of cohabitation 
oi husband and wife, by mutual agreement. Parker v. Par- 
ker, 210 N. C. 264, 266, 186 S. E- 346, citing ]>e v. I,ee, 
182 N. C. 61, 108 S. E. 352. 

Section Did Not Apply Where Separation Was without 
Cause and without Agreement.— While the applicant need 
not be the injured party, the statute did not authorize 
a divorce where the husband has separated himself from 
his wife, or the wife has separated herself from her hus- 
band, without cause and without agreement, express or im- 
plied. Parker v. Parker, 210 N. C. 264, 186 S. E. 346; 
Reynolds v. Reynolds, 210 N. C. 554, 187 S. E- 768; Hyder 
v. Hyder, 210 N. C. 486, 187 S. E- 798, decided prior to the 
1937 amendment. 

Question of Resumption of the Conjugal Relation after 



[43 



§ 1660 



DOGS 



§ 168] 



Separation Is for Jury.— Reynolds v. Reynolds, 210 N. C. 
554, 187 S. E. 768, decided prior to 1937 amendment. 

Husband Not Entitled to Divorce on His Own Criminal 
Conduct. — A husband may not ground an action for di- 
vorce under this section on his own criminal conduct to- 
wards his wife. Reynolds v. Reynolds, 208 N. C. 428, 181 
S. E- 338; Campbell v. Campbell, 207 N. C. 859, 176 S. E- 
250; Long v. Long, 206 N. C. 706, 175 S. E. 85, distin- 
guished. Followed in Hyder v. Hyder, 210 N. C. 486, 187 
S. E- 798. 

Cited in Goodman v. Goodman, 208 N. C. 416, 181 S. E. 
328. 

§ 1660. Grounds for divorce from bed and 
board. 

Only the party injured is entitled to a divorce under 
this section. Vaughan v. Vaughan, 211 N. C. 354, 358, 
190 S. E. 492, citing Carnes v. Carnes, 204 N. C. 636, 
169 S. E- 222; Albritton v. Albritton, 210 N. C. Ill, 185 
S. E. 762. 

Applied in Albritton v. Albritton, 210 N. C. Ill, 185 
S. E. 762. 



§ 1663(1). Resumption of maiden name au- 
thorized; adoptions of name of prior deceased 
husband validated. — Any woman at any time after 
the bonds of matrimony theretofore existing be- 
tween herself and her husband have been dis- 
solved by a decree of absolute divorce, may re- 
sume the use of her maiden name upon applica- 
tion to the clerk of the court of the county in 
which she resides, setting forth her intention so 
to do. Said application shall be addressed to the 
clerk of the court of the county in which such 
divorced woman resides, and shall set forth the 
full name of the former husband of the applicant, 
the name of the county in which said divorce was 
granted, and the term of court at which such di- 
vorce was granted, and shall be signed by the ap- 
plicant in her full maiden name. The clerks of 
court of the several counties of the state shall 
provide a permanent book in which shall be re- 
corded all such applications herein provided for, 
which shall be indexed under the name of the 
former husband of the applicant and under the 
maiden name of such applicant. The clerk of 
the court of the county in which said application 
shall be recorded shall charge a fee of one ($1.00) 
dollar for such registration. In every case where a 
married woman has heretofore been granted a di- 
vorce and has, since the divorce, adopted the 
name of a prior deceased husband, the adoption 
by her of such name is hereby validated. (1937, 
c. 53.) 

§ 1664. Custody of children in divorce. 

Habeas Corpus Is Not Appropriate Writ When Par- 
ties Are Divorced. — Although statutory habeas corpus is 
an appropriate writ to determine the custody of children as 
between married parents living in a state of separation 
under § 2241, it is not appropriate when they are divorced. 
McEachern v. McEachern, 210 N. C. 98, 185 S. E- 684. 

Five Days' Notice Is Applicable Only to Parent Who 
Does Not Have Control of Child. — The provision in the 
statute dispensing with the notice of five days, when it 
appears that the parent having possession or control of 
the infant child of the parties to the action has removed or 
is about to remove such child from the jurisdiction of the 
court is applicable only where the application or motion is 
made by the parent who does not have possession or con- 
trol of the child, and is for the protection of the rights of 
such parent, and not of the parent who has possession or 
control of the child at the time the application or motion 
is made. In such case, no notice to the adverse party is 
required. Burrowes v. Burrowes, 210 N. C. 788, 794, 188 
S. E. 648. 



§ 1666. Alimony pendente lite; notice to hus- 
band. 

III. PREREQUISITES TO AWARD. 
A. Entitled to Relief. 
Finding Facts as Alleged Sufficient. — 

In accord with original. See Vaughan v. Vaughan, 211 
N. C. 354, 190 S. E. 492. 

Upon application for alimony pendente lite the trial court 
is required to find the facts in order that the correctness 
of its ruling may be determined on appeal, and the grant- 
ing of the application solely upon a finding that defendant 
was the owner of certain properties is error. Dawson v. 
Dawson, 211 N. C. 453, 190 S. E. 749. 

§ 1667. Alimony without divorce. 

Independent Suits. — 

In accord with original. See Dawson v. Dawson, 211 
N. C. 453, 190 S. E. 749. 
Section Applies Only to Actions Instituted by Wife.— A 

child of divorced parents is not entitled to an allowance 
of counsel fees and suit money pendente lite in her ac- 
tion against her father to force him to provide for her 
support, this section and § 1666 applying only to actions 
instituted by the wife, and such right not existing at 
common law. Green v. Green, 210 N. C. 147, 185 S. E- 
651. 

Establishing of One Cause for Divorce Is Sufficient Al- 
though Three Alleged.— In a suit for alimony without di- 
vorce where three separate grounds for divorce a mensa 
et thoro were alleged in the complaint, it was held not 
necessary for the plaintiff to establish all of them in or- 
der to sustain her action, it being sufficient under this sec- 
tion if she established the defendant's guilt of any of the 
acts that would constitute a cause for divorce from bed 
and board as enumerated in § 1660. Albritton v. Albrit- 
ton, 210 N. C. Ill, 116, 185 S. E. 762. See also, Hagedorn 
v. Hagedorn, 211 N. C. 175, 189 S. E. 507. 

Where the complaint alleges facts sufficient to entitle 
plaintiff to alimony pendente lite under this section, it is 
not error for the court to grant plaintiff's motion therefor 
and refuse to find the facts upon which the order is based, 
since it will be presumed that the court found the facts as 
alleged in the complaint for the purposes of the hearing. 
Southard v. Southard, 208 N. C. 392, 180 S. E- 665. 

Cited in Reynolds v. Reynolds, 208 N. C. 578, 182 S. E- 
341; Hagedorn v. Hagedorn, 210 N. C. 164, 185 S. E. 768. 



CHAPTER 31 

DOGS 
§ 1673. Amount of tax. 

Editor's Note.— Public Laws 1937, c. 45, s. 2, provides that 
no person owning six or more fox hounds in Northampton 
county shall be required to pay any taxes on any of the 
same. 

Art. 2. License Taxes on Dogs 

§ 1681. Proceeds of tax to school fund; pro- 
viso, payment of damages; reimbursement by 
owner.— 

And provided also that all that portion of this 
section after the word "collected" in line three 
thereof, shall not apply to Anson, Beaufort, Hert- 
ford, Warren, Yadkin, Lincoln and Bladen coun- 
ties. (1919, c. 116, s. 7; 1925, cc. 15, 25, 79; 1933, 
c. 28; 1935, cc. 30, 361, 402; 1937, cc. 63, 75, 118, 
282, 370.) 

Editor's Note.— The amendments of 1937 inserted Beaufort, 
Warren, Hertford, Anson and Yadkin counties, respectively, 
in the last proviso of this section. The rest of the section, 
not being affected by the amendments, is not set out here. 

Public Laws 1933, c. 273, was repealed as to Mitchell county 
by Public Laws 1937, c. 73, and this section applies thereto. 

Public Laws 1937, c. 119, applicable only to Buncombe 
county, provided that dog taxes be applied one-half to the 
general fund of the county and one-half to the school fund. 
Public Laws 1937, c. 47, provided the same for Duplin county. 

Public Laws 1937, c. 92, provides: "No part of the taxes 
paid on dogs pursuant to chapter thirty-one of the Consoli- 
dated Statutes, and no part of any taxes collected in Greene 
county, shall be liable or used to pay for depredation, damage 
or injury to persons or property by dogs." 

Public Laws 1937, c. 23, provides that "no damages shall 



[ 44 



§ 1694(1) 



ESTATES 



§ 1740 



be paid by Caldwell county to any person for sheep or other 
property destroyed by dogs in said county." 

Public Laws 1937, c. 76, provides that "no damages shall 
be paid by Pender county to any person for sheep or other 
property destroyed by dogs in said county except such dam- 
ages as may be awarded within the discretion of the board 
of county commissioners." 



CHAPTER 31A 

ELECTRIFICATION 
Art. 1. Rural Electrification Authority 

§ 1694(1). Rural Electrification Authority cre- 
ated; appointment; terms of members. 

For an analysis of this chapter, see 13 N. C. Law Rev. 
No. 4, pp. 382, 383. 

Art. 2. Electric Membership Corporations 

§ 1694(28). Article complete in itself and con- 
trolling. 

See the note to § 1037(d) in this Supplement. 



CHAPTER 32 

ELECTRIC, TELEGRAPH, AND POWER 
COMPANIES 

Art- 1. Acquisition and Condemnation of 
Property 

§ 1698. Grant of eminent domain; exception as 
to mills and waterpowers. 

Cited in Blevins v. Northwest Carolina Utilities, 209 N. 
C. 683, 184 S. E- 517, opinion of Clarkson, J. 



CHAPTER 33 

EMINENT DOMAIN 
Art. 1. Right of Eminent Domain 

§ 1706. By whom right may be exercised. — 

The right of eminent domain may, under the pro- 
visions of this chapter, be exercised for the pur- 
pose of constructing their roads, canals, pipe 
lines originating in North Carolina for the trans- 
portation of petroleum products, lines of wires, or 
other works, which are authorized by law and 
which involve a public use or benefit, by the 
bodies politic, corporation, or persons following: 

1. Railroads, street railroads, plankroad, tram- 
road, turnpike, canal, pipe lines originating in 
North Carolina for the transportation of petro- 
leum products, telegraph, telephone, electric 
power or lighting, public water supply, flume, or 
incorporated bridge companies. 

(1937, c. 108, s. 1.) 

See 15 N. C. Law Rev.. No. 4, p. 362. 

Editor's Note.— The 1937 amendment inserted the reference 
to pipe lines in the first sentence of this section, and also in 
subsection 1. The rest of the section, not being affected by 
the amendment, is not set out. See § 3542(d) and note there- 
to. 

Art. 2. Condemnation Proceedings 
§ 1715. Proceedings when parties cannot agree. 

Proceeding Governed by Same Rules Laid Down for Civil 
Actions. — As a proceeding to condemn land under statu- 
tory power is a special proceeding and is so denominated 
by this section, the requirements of § 752 that, "except as 
otherwise provided," special proceedings shall be governed 
by the same rules laid down for civil actions are applicable 
thereto. Nantahala Power, etc., Co. v. Whiting Mfg. Co., 
209 N. C. 560, 561, 184 S. E- 48. 

Cited in Reed v. State Highway, etc., Comm., 209 N. C. 
648, 184 S. E- 513. 

[4 



§ 1716. Petition filed; contains what; copy 
served. 

Plaintiff Entitled to Recovery Where Evidence Is Insuffi- 
cient to Show Taking Was for Private Purpose. — Where 
there is no evidence upon the record showing that the tak- 
ing over of a road was for a private purpose sufficient to 
raise an issue of fact, the plaintiff is remitted to his rights 
under this section and § 3846(bb) for the recovery of just 
compensation. Reed v. State Highway, etc., Comm., 209 
N. C. 648, 184 S. E- 513. 

§ 1723. Exceptions to report; hearing; appeal; 
when title vests; restitution. 

The title of the landowner is not divested until final con- 
firmation and the payment in full of the amount appraised. 

Nantahala Power, etc., Co. v. Whiting Mfg. Co., 209 N. 
C. 560, 562, 184 S. E- 48. See § 1730 and note. 

If Value of Land Is Not Paid within Year the Right to 
Condemn Ceases. — After final judgment fixing petitioner's 
rights to condemn, and the value of the land, if the ap- 
praised value of the land be not paid within one year, the 
petitioner's right to take the property shall end, and the 
petitioner or claimant shall not be liable for the considera- 
tion (value of the land). Nantahala Power, etc., Co. v. 
Whiting Mfg. Co., 209 N. C. 560, 562, 184 S. E- 48. 

And Petitioners Are Liable for Costs. — This section con- 
templates that in the event, for any reason, the condem- 
nation proceedings are not carried through, all the costs of 
the proceeding, except the appraised value of the land, shall 
be paid by the petitioners. Nantahala Power, etc., Co. v. 
Whiting Mfg. Co., 209 N. C. 560, 563. 184 S'. E- 48. 

§ 1729. Court may make rules of procedure in. 

Quoted in Nantahala Power, etc., Co. v. Whiting Mfg. 
Co., 209 N. C. 560, 184 S. E- 48. 

§ 1730. Change of ownership pending proceed- 
ing 

The right to convey the land is not affected by the mere 
filing of condemnation proceedings, nor by appraisement 
without confirmation and payment, as all rights would pass 
to the grantee. Nantahala Power, etc., Co. v. Whiting Mfg. 
Co., 209 N. C. 560, 562, 184 S. E. 48, citing Livermon v. 
Roanoke, etc., R. Co., 109 N. C. 52, 13 S. E. 734; Beal v. 
Durham, etc., R. Co., 136 N. C. 298, 48 S. E. 674. 



CHAPTER 34 

ESTATES 
§ 1734. Fee tail converted into fee simple. 

III. APPLICATION AND ILLUSTRATIVE CASES. 
Devise to Daughter and Her "Bodily Heirs" Creates Fee- 
Simple Estate in Daughter.— A devise to testator's daugh- 
ter and her bodily heirs, and if she dies without bodily 
heirs, then in trust for the heirs of testator's sisters, is 
held to create a fee-simple estate in the daughter, defeasi- 
ble upon her dying without children or issue, it being ap- 
parent that the words "bodily heirs" used in the devise 
meant children or issue, as otherwise the limitation over to 
the heirs of testator's sisters would be meaningless. Mur- 
dock v. Deal, 208 N. C. 754, 182 S. E- 466. 

§ 1737. Limitations on failure of issue. 

Where father devised the land in question to plaintiff "to 
be hers and to her heirs, if any, and if no heirs, to be 
equally divided with my other children," and at the time 
plaintiff executed deed to defendant, which was refused 
by him, plaintiff was married, but had been abandoned by 
her husband, and had no children, it was held that the 
plaintiff's deed did not convey the indefeasible fee to the 
land free and clear of the claims of all persons, whether the 
limitation over be regarded as a limitation over on failure 
of issue, or as not coming within the rule in Shelley's 
case. Hudson v. Hudson, 208 N. C. 338, 180 S. E- 597. 

§ 1740. Possession transferred to use in certain 
conveyances. 

Rule That Beneficial Use Is Converted into Legal Owner- 
ship Does Not Apply to Active Trusts. — While this sec- 
tion converts the beneficial use into the legal ownership and 
unites the legal and equitable estates in the beneficiary, 
this rule applies only to passive or simple trusts and not 
to active trusts. Chinnis v. Cobb, 210 N. C. 104, 108, 185 

>] 



§ 1742 



EVIDENCE 



§ 1795 



S. E. 638, citing Lee v. Oates, 171 N. C. 717, 88 S. E- 
889; Patrick v. Beatty, 202 N. C. 454, 163 S. E. 572. 

An active trust is one where there is a special duty to 
be performed by the trustee in respect to the estate, such 
as collecting the rents and profits, or selling the estate, or 
the execution of some particular purpose. Chinnis v. Cobb, 
210 N. C. 104, 108, 185 S. E- 638, citing Perkins v. Brink- 
ley, 133 N. C. 154, 45 S. E. 541. 

§ 1742, Spendthrift trusts. 

Spendthrift Trust Held to Be an Active Trust as to Cor- 
pus of Estate.— A spendthrift trust directing the trustee to 
collect the rents and profits and pay same over to the ben- 
eficiary is an active trust so far as the corpus of the es- 
tate is concerned, upon which § 1740 does not operate to 
unite the beneficial and legal interests. Chinnis v. Cobb, 
210 N. C. 104, 185 S. E. 638. 

Trustee May Defend Action without Appearance of the 
Cestui.— The trustee of a spendthrift trust may defend an 
action seeking to attach the interest of the cestui que trust, 
both in the Superior Court and in the Supreme Court on 
Appeal, without the appearance of the cestui, the preserva- 
tion and protection of the property being incumbent upon 
him under the terms of the trust. Chinnis v. Cobb, 210 
N. C. 104, 185 S. E- 638. 

The interest of the cestui que trust in a spendthrift trust 
is not subject to attachment under § 798 et seq., since by 
express provision of this section the property is not liable 
for the debts of the cestui que trust in any manner. Chin- 
nis v. Cobb, 210 N. C. 104, 185 S. E. 638. 

§ 1743, Titles quieted. 

II. NATURE AND SCOPE. 
B. Interest Necessary to Bring Action. 
Remedy Given Whether in or Out of Possession. — 

In accord with original. See Vick v. Winslow, 209 N. C. 
540, 183 S. E. 750. 

§ 1744. Remainders to uncertain persons; pro- 
cedure for sale; proceeds secured. 



See Lancaster 



I. GENERAL CONSIDERATION. 
Purpose of Section. — 

In accord with first paragraph of original, 
v. Lancaster, 209 N. C. 673, 184 S. E- 527. 

II. ACTIONS IN SUPERIOR COURT FOR SALE. 
When Action Abates. — An action against a contingent re- 
mainderman to sell the lands under this section, abates 
upon the death of the remainderman prior to the termina- 
tion of the life estate when his limitation over is made to 



depend upon his surviving the life tenant. 
211 N. C. 312, 190 S. E. 490. 



Redden v. Toms, 



III. SALE AND REINVESTMENT. 
A. General Rules and Incidents Governing. 
Where Commissioner's Authority Was Limited to Sale 
of Property and Distribution of Proceeds. — Where a com- 
missioner was authorized by the court to sell part of the 
lands of an estate for reinvestment under the provisions of 
this section, and there were no restrictions in regard to the 
use of the property of the estate, and in the commissioner's 
report and recommendation of the offer to purchase no au- 
thority to restrict the use of the property was asked, and 
none granted in the order of the court, it was held that the 
commissioner was without authority to insert restrictions 
ia the deed to the purchaser, his authority being limited 
under the order of the court to the sale of the property and 
the distribution of the proceeds of sale. Southern Real Es- 
tate Loan, etc., Co. v. Atlantic Refining Co., 208 N. C. 501, 
181 S. E- 633. 



CHAPTER 35 

EVIDENCE 
Art. 5. Life Tables 
§ 1790. Mortuary tables as evidence. 

Editor's Note. — The mortality table set forth in this section 
should show the expectancy of life at age ten as 48.7 instead 
of 43.7 as printed in the Consolidated Statutes and in the 
Code of 1935. 

Tables Not Conclusive. — 

In accord with original. See Wachovia Bank, etc., Co. v. 
Atlantic Greyhound Lines, 210 N. C. 293, 186 S. E- 320; 
Hancock v. Wilson, 211 N. C. 129, 189 S. E- 631. 

[ 46 



§ 1791. Present worth of annuities. 

Applicable Only to Annuities. — 

In accord with original. See Brown v. Lipe, 210 N. C. 
199, 185 S. E- 681. 

Art. 6. Competency of Witnesses 

§ 1792, Witness not excluded by interest or 
crime. 

Applied in State v. Perry, 210 N. C. 796, 188 S. E. 639, 
dissenting opinion. 

§ 1793. Parties competent as witnesses. 

Testifying against Co-Defendant. — 

In accord with original. See State v. Perry, 210 N. C. 
796, 188 S. E- 639, dissenting opinion. 
Instructions Not to Incriminate Himself.— 

In accord with original. See State v. Perry, 210 N. C. 
796, 188 S. E- 639, dissenting opinion. 

Testimony of an Accomplice. — An accomplice may not 
testify on direct examination to facts tending to incrimi- 
nate defendant and at the same time refuse to answer ques- 
tions on cross-examination relating to matters embraced in 
his examination-in-chief, and where he refuses to answer 
relevant questions on cross-examination on the ground that 
his answers might tend to incriminate him, it is error for 
the court to refuse defendant's motion that his testimony- 
in-chief be stricken from the record, the refusal to answer 
the questions on cross-examination rendering the testimony- 
in-chief incompetent. State v. Perry, 210 N. C. 796, 188 
S. E- 639. See Const., Art. I, sec. 11. 

§ 1794. Parties competent as witnesses in cer- 
tain cases. 

Applied in State v. Perry, 210 N. C. 796, 188 S. E- 639, 
dissenting opinion. 

§ 1795. A party to a transaction excluded, when 
the other party is dead. 

I. GENERAL CONSIDERATION. 

Province of Court to Decide What Testimony May "Come 
In." — When a personal representative "opens the door" by 
testifying to a transaction, it is not in his province, but 
that of the court, to decide what testimony favorable to 
the adverse party may "come in." Mansfield v. Wade, 208 
N. C. 790, 796, 182 S. E- 475, citing Herring v. Ipock, 187 
N. C. 459, 121 S. E. 758. 

Neither Husband nor Wife Is an Interested Party.— 
Where husband and wife instituted separate suits to recover, 
each respectively, for personal services rendered by them to 
defendant's testate, it was held that each was competent 
to testify for the other, since neither had a direct pecun- 
iary interest in the action of the other, and was not there- 
fore an interested party in the other's action within the 
meaning of this section, the testimony not being as to a 
transaction between the witness and the deceased, but be- 
tween a third party and deceased. Burton v. Styers, 210 
N. C. 230, 186 S. E. 248. 

It has been consistently held by this court that the pro- 
hibition against the testimony of a "person interested in 
the event" extends only to those having a "direct legal 
or pecuniary interest," and not to the sentimental inter- 
est the husband or wife would naturally have in the law- 
suit of the other. Burton v. Styers, 210 N. C. 230, 231, 
186 S. E- 248, citing Hall v. Holloman, 136 N. C. 34, 48 S. 
E. 515; Helsabeck v. Doub, 167 N. C. 205, 83 S. E. 241, L- 
R. A. 1917A, 1; Vannoy v. Stafford, 209 N. C. 748, 184 S. 
E- 482. See § 1801 and note. 

The Same Being True of Attorney Formerly Holding Note 
for Collection. — An attorney formerly holding a note for 
collection is not an interested party in an action on the 
note within the meaning of this section, prohibiting testi- 
mony by interested parties as to transactions with or dec- 
larations of a decedent. Vannoy v. Stafford, 209 N. C. 748, 
184 S. E- 482. 

And of Draftsman Who Failed to Insert Reversionary 
Clause in Deed. — In an action for reformation of a deed to 
a county board of education for mistake of the draftsman 
in failing to insert a reversionary clause therein in accord- 
ance with the agreement between the grantors and grantee, 
testimony of the draftsman relating to declarations of a 
deceased member of the board and of the superintendent of 
schools, tending to show that it was agreed that the re- 
versionary clause should be inserted, was held not pre- 
cluded by this section, the draftsman not being a party in- 



§ 1798 



EVIDENCE 



§ 1808(3) 



terested in the event as contemplated by the statute. Ollis 
v. Board of Education, 210 N. C. 489, 187 S. E. 772. 

Applied in State v. Perry, 210 N. C. 796, 188 S. E- 639, 
dissenting opinion. 

IV. SUBJECT MATTER OF THE TRANSACTION. 
Will Cases — 

Under this section a party interested in the result of the 
action is incompetent to testify to declaration of the de- 
ceased, whose will is under attack, when the issue is as to 
undue influence. In re Will of Plott, 211 N. C. 451, 190 S. 
E. 717. 

§ 1798, Communications between physician and 
patient. 

What Information Included.— 

In accord with original. See Creech v. Sovereign Camp, 
W. O. W., 211 N. C. 658, 191 S. E- 840. 

Privilege May Be Waived.— 

In accord with original. See Creech v. Sovereign Camp, 
W. O. W., 211 N. C. 658, 191 S. E. 840. 

Judge's Finding of Record That Testimony Necessary.— 

In accord with original. See Creech v. Sovereign Camp, 
W. O. W., 211 N. C. 658, 191 S. E. 840. 

§ 1799. Defendant in criminal action compe- 
tent but not compellable to testify. 

Cross Reference. — For article discussing the limits to self- 
incrimination, see 15 N. C. Eaw Rev., No. 3, p. 229. 

Proper Instruction. — The court's remarks to the jury in 
instructing them that defendant was within his rights in not 
testifying, and that his failure to testify, should not be con- 
sidered against him, were held without error upon de- 
fendant's exception. State v. Home, 209 N. C. 725, 184 
S. E. 470. 

Applied in State v. Perry, 210 N. C. 796, 188 S. E. 639, 
dissenting opinion. 

Cited in State v. Vernon, 208 N. C. 340, ISO S. E. 590. 

§ 1801. Husband and wife as witnesses in civil 
actions. 

Cross Reference. — For note on privileged communications 
between husband and wife, see 15 N. C. Eaw Rev., No. 3, 
p. 282. 

Section Does Not Render Voluntary Disclosure Incompe- 
tent. — This section means that neither shall be compelled 
to disclose any such confidential communication, but does 
not perforce render a voluntary disclosure thereof incom- 
petent. Hagedorn v. Hagedorn, 211 N. C. 175, 178, 189 S. 
E- 507, citing Nelson v. Nelson, 197 N. C. 465, 149 S. E- 585. 

Applied in State v. Perry, 210 N. C. 796, 188 S. E- 639, 
dissenting opinion. 

§ 1802. Husband and wife as witnesses in crim- 
inal actions. 

Applied in State v. Perry, 210 N. C. 796, 188 S. E. 639, 
dissenting opinion. 

Art. 7. Attendance of Witness 
§ 1807. Witnesses attend until discharged; ef- 
fect of nonattendance. 

Applied in State v. Perry, 210 N. C. 796, 188 S. E. 639, 
dissenting opinion. 

Art. 7A. Attendance of Witnesses from 
without State 

§ 1808(1). Definitions. — "Witness" as used in 
this article shall include a person whose testi- 
mony is desired in any proceeding or investiga- 
tion by a grand jury or in a criminal action, pros- 
ecution or proceeding. 

The word "state" shall include any territory of 
the United States and District of Columbia. 

The word "summons" shall include a subpoena, 
order or other notice requiring the appearance of 
a witness. (1937, c. 217, s. 1.) 

See 15 N. C. Eaw Rev., No. 4, p. 345. 



§ 1808(2). Summoning witness in this state to 
testify in another state. — If a judge of a court of 
record in any state which by its laws has made 
provision for commanding persons within that 
state to attend and testify in this state certifies, 
under the seal of such court, that there is a crim- 

[47 



inal prosecution pending in such court, or that 
a grand jury investigation has commenced or is 
about to commence, that a person being within 
this state is a material witness in such prosecu- 
tion, or grand jury investigation, and that his 
presence will be required for a specified number 
of days, upon presentation of such certificate to 
any judge of a court of record in the county in 
which such person is, such judge shall fix a time 
and place for a hearing, and shall make an order 
directing the witness to appear at a time and 
place certain for the hearing. 

If at a hearing the judge determines that the 
witness is material and necessary, that it will not 
cause undue hardship to the witness to be com- 
pelled to attend and testify in the prosecution or 
a grand jury investigation in the other state, and 
that the laws of the state in which the prosecu- 
tion is pending, or grand jury investigation has 
commenced or is about to commence, and of any 
other state through which the witness may be re- 
quired to pass by ordinary course of travel, will 
give to him protection from arrest and the serv- 
ice of civil and criminal process, he shall issue 
a summons, with a copy of the certificate at- 
tached, directing the witness to attend and tes- 
tify in the court where the prosecution is pend- 
ing, or where a grand jury investigation has com- 
menced, or is about to commence, at a time and 
place specified in the summons. In any such 
hearing the certificate shall be prima facie evi- 
dence of all the facts stated therein. 

If said certificate recommends that the witness 
be taken into immediate custody and delivered to 
an officer of the requesting state to assure his at- 
tendance in the requesting state, such judge may, 
in lieu of notification of the hearing, direct that 
such witness be forthwith brought before him for 
said hearing; and the judge at the hearing, being 
satisfied of the desirability of such custody and 
delivery, for which determination the certificate 
shall be prima facie proof of such desirability 
may, in lieu of issuing subpoena or summons, or- 
der that said witness be forthwith taken into cus- 
tody and delivered to an officer of the requesting 
state. 

If the witness, who is summoned as above pro- 
vided, after being paid or tendered by some prop- 
erly authorized person the sum of ten cents a mile 
for each mile by the ordinary traveled route to 
and from the court where the prosecution is pend- 
ing and five dollars for each day that he is re- 
quired to travel and attend as a witness, fails with- 
out good cause to attend and testify as directed 
in the summons, he shall be punished in the man- 
ner provided for the punishment of any witness 
who disobeys a summons issued from a court of 
record in this state. (1937, c. 217, s, 2.) 

§ 1808(3). Witness from another state sum- 
moned to testify in this state. — If a person in any 
state which by its laws has made provision for 
commanding persons within its borders to at- 
tend and testify in criminal prosecutions, or grand 
jury investigations commenced or about to com- 
mence in this state, is a material witness in a 
prosecution pending in a court of record in this 
state, or in a grand jury investigation which has 
commenced or is about to commence, a judge of 
such court may issue a certificate under the seal 
of the court, stating these facts and specifying the 



§ 1808(4) 



FISH AND FISHERIES 



§ 1965(a) 



number of days the witness will be required. Said 
certificate may include a recommendation that the 
witness be taken into immediate custody and de- 
livered to an officer of this state to assure his at- 
tendance in this state. This certificate shall be 
presented to a judge of a court of record in the 
county in which the witness is found. 

If the witness is summoned to attend and tes- 
tify in this state he shall be tendered the sum of 
ten cents a mile for each mile by the ordinary 
traveled route to and from the court where the 
prosecution is pending, and five dollars for each 
day that he is required to travel and attend as a 
witness. A witness who has appeared in accord- 
ance with the provisions of the summons shall not 
be required to remain within this state a longer 
period of time than the period mentioned in the 
certificate unless otherwise ordered by the court. 
If such witness, after coming into this state, fails 
without good cause to attend and testify as di- 
lected in the summons, he shall be punished in the 
manner provided for the punishment of any wit- 
ness who disobeys, a summons issued from a court 
of record in this state. (1937, c. 217, s. 3.) 

§ 1808(4). Exemption from arrest and service of 
process. — ■ If a person comes into this state in 
obedience to a summons directing him to attend 
and testify in this state he shall not, while in this 
state pursuant to such summons, be subject to ar- 
rest or the service of process, civil or criminal, in 
connection with matters which arose before his 
entrance into this state under the summons. 

If a person passes through this state while go- 
ing to another state in obedience to a summons 
to attend and testify in that state, or while return- 
ing therefrom, he shall not while so passing 
through this state be subject to arrest or the serv- 
ices of process, civil or criminal, in connection 
with matters which arose before his entrance in- 
to this state under the summons. (1937, c. 217, 
s. 4.) 

§ 1808(5). Uniformity of interpretation. — This 
article shall be so interpreted and construed as to 
effectuate its general purpose to make uniform 
the law of the states which enact it. (1937, c. 217, 
s. 5.) 

§ 1808(6). Title of article.— This article may be 
cited as "Uniform Act to Secure the Attendance 
of Witnesses from without a State in Criminal 
Proceedings." (1937, c. 217, s. 6.) 

Art. 8. Depositions 

§ 1821. When deposition may be read on the 
trial. 

Selected Parts.— 

In accord with original. See Enloe v Charlotte Coca- 
Cola Bottling' Co., 210 N. C. 262, 186 S. K. 242. 



CHAPTER 36 

FENCES AND STOCK LAW 
Art. 3. Stock Law 
§ 1841. Term "stock" defined. 

Editor's Note. — For act to place certain portions of Onslow 
county under stock law, see Public Laws 1933, c. 151, 
amended by Public Laws 1937, c. 356. For act relating to 
Currituck county, see Public Laws 1937, c. 389. For act 
relating to portions of Dare county, see Public Laws 1937, 
c. 213. 



§ 1850. Impounding stock at large in territory. 

Applied in Beasley v. Fdwards, 211 N. C. 393, 190 S. E. 
221. 

§ 1851. Owner notified; sale of stock; applica- 
tion of proceeds. 

Where a party lawfully impounds a sow, sells same under 
provisions of a recorder's judgment, and pays himself his 
lawful fees for impounding the sow and his damages caused 
by the sow, and pays to the owner the amount due him out 
of the purchase price, the owner may not complain. Beas- 
ley v. Edwards, 211 N. C. 393, 190 S. E. 221. 

§ 1864. Local: Depredations of domestic fowls 
in certain counties. 

Editor's Note.— Public Laws 1937, c. 122, made the pro- 
visions of this section, relating to depredations of domestic 
fowls, applicable to the county of Wilson. 



CHAPTER 37 

FISH AND FISHERIES 

SUBCHAPTER III. FISH OTHER THAN 
SHELLFISH 

Art. 9. Commercial Fishing; General Regulations 

§ 1965(a). Fishing with nets, etc., by non-resi- 
dents prohibited.— It shall be unlawful for any 
person, firm or corporation, which has not been 
a bona fide resident of the state for twelve 
months continuously, next preceding the date on 
which the fishing shall commence, to use or 
cause to be used in the waters of the state, which 
shall include the distance of three nautical miles, 
measured from the outer beaches or shores of 
the state of North Carolina out and into the wa- 
ters of the Atlantic Ocean, any seines, trawls or 
nets of any kind for the purpose of taking fish for 
sale or exportation. Any person, firm or corpora- 
tion violating the provisions of this section shall 
be guilty of a misdemeanor, and upon conviction 
thereof, for the first offense shall be fined not less 
than five hundred dollars ($500.00) nor more than 
one thousand dollars ($1,000.00), or imprisoned for 
not less than six months nor more than twelve 
months, or both in the discretion of the court. 
And for any subsequent conviction for a viola- 
tion of this, section such defendant shall be fined 
not less than one thousand dollars ($1,000.00) nor 
more than two thousand dollars ($2,000.00), or 
imprisoned for not let less than twelve months 
nor more than two years in the discretion of the 
court. 

The finding by the fisheries commissioner, or 
any of his duly authorized agents, of any vessel, 
boat, or other craft within the distance of three 
nautical miles, as defined in this section, having 
any seines, trawls, or nets of any kind or a similar 
device aboard with fresh or live fish on deck or 
in the hold thereof or in any portion of the said 
vessel, boat, or craft, shall be prima facie evidence 
that the operator or operators and masters and 
members of the crew of said vessel, boat, or other 
craft are guilty of a violation of this section. 

It shall be the duty of the fisheries commis- 
sioner whenever he has reasonable grounds to 
believe that this section is being violated in any 
particular place, to go himself or send a duly au- 
thorized deputy to such place and such officer 
finding that the provisions of this section are be- 
ing violated is hereby authorized and empowered 
to seize and remove all nets, machinery, or other 



[ 48 



§ 2005 



GUARDIAN AND WARD 



§ 2150 



appliances or paraphernalia being used in viola- 
tion of this section, and to sell the same at pub- 
lic auction, after advertisement for ten days at 
the court house door in the county in which the 
seizure was made, or in which the seized prop- 
erty is taken under the provisions of this section, 
and apply the proceeds from said sale, first to 
payment of costs and expenses of such sale and 
removal, and pay the balance of said proceeds 
remaining, if any, to the school fund of the county 
in which or nearest to where the offense is com- 
mitted. 

Such fisheries commissioner, or his author- 
ized deputy, is further authorized and empow- 
ered to seize any boat, vessel or ship of any kind 
or nature, used in thus violating the law, and to 
bring the same into the nearest port in said state 
having sufficient depth of water to properly ac- 
commodate such boat, vessel or ship so seized. 
Such boat, vessel or ship so found being used 
contrary to the provisions of this statute, shall 
be forfeited to the state and the said fisheries 
commissioner is hereby authorized, empowered 
and directed to institute proceedings for the pur- 
pose of condemning and selling such boat, vessel 
or ship, in the name of the state, in the superior 
court in the county in which such seized boat, 
vessel or ship is taken under the provisions of 
this act. The owner of such boat may execute 
and deliver to the fisheries commissioner a bond, 
with adequate security, not less than the value 
of such boat, conditioned to return said boat to 
the custody of said fisheries commissioner, if up- 
on the trial of the cause in the superior court 
as aforesaid it should be determined that the said 
boat was forfeited. 

This authority to seize the said boat, under the 
circumstances hereinbefore detailed, shall in no 
way affect the liability of the owners and those I 
operating the boat and thus using it in fishing, ' 
to be prosecuted for the misdemeanor hereinbe- 
fore defined. Provided, nothing contained in this 
section shall be construed to prevent any person, 
firm or corporation, which has been a bona fide 
resident of the state of North Carolina for twelve 
months continuously next preceding the date on 
which the fishing shall commence from employ- 
ing non-resident employees in connection with 
fishing as authorized by law. (1931, c. 36, s. 1; 
1937, c. 261.) 

Editor's Note.— The 1937 amendment struck out the last 
sentence of the first paragraph and inserted the present last 
two sentences in place thereof. It also inserted the second 
paragraph, and omitted a provision as to compromise with 
boat, etc., owner for violation of section formerly appearing 
in the present fourth paragraph. 

Art. 10. Commercial Fishing; Local Regulations 
Part 2. Streams 
§ 2005. Lumber river and waters of Robeson, 
Columbus, Hoke, and Scotland: Fishing regulated. 

Editor's Note. — For act relating to Columbus county, see 
Public-Local Laws 1917, c. 394. 



CHAPTER 38 

GAME LAWS 
Art. 4. Close Season for Game 
§ 2110. Foxes. 

Editor's Note. — For act relating to close season in Anson 
county, see Public -Local Laws 1929, c. 244. 



Art. 6. Local Hunting Laws 
§ 2141(c) 1. Minimum penalty for violating 
game and inland fishing laws. — Any person, per- 
sons, firm, partnership, or corporation who is ad- 
judged by any court of competent jurisdiction 
guilty of violating any law, lawful order, rule or 
regulation relative to hunting, trapping, or fishing 
shall upon conviction of the first offense be fined 
not less than ten ($.10.00) dollars nor more than 
fifty ($50.00) dollars or imprisoned for not more 
than thirty days for each and every offense. 

The provisions of this section shall apply only 
to the counties of Beaufort, Buncombe, Gaston, 
Granville, Lincoln, and Mecklenburg. (1937, c. 
352, ss. 1, 2.) 

Art. 7. North Carolina Game Law of 1927 
as Amended 
§ 2141(1). Powers of commission; to acquire 
land. 

Delete Editor's Note appearing under this section in orig- 
inal. — Ed. note. 

§ 2141 (dd). License required. 

Editor's Note. — Public Laws 1937, c. 45, s. 1, applicable 
only to Northampton county, amended this section by adding 
thereto: "Provided, it shall be lawful for any person or per- 
sons whether a resident or non-resident of the state of North 
Carolina, to hunt foxes with dogs without procuring a hunt- 
ing license." 

Art. 8. North Carolina Game Law of 1935 
§ 2141(1). Title of article. 

Editor's Note.— Public Laws of 1935, chapter 486, repealed 
all inconsistent acts except Public Laws of 1935, Chapter 
160, relating to the protection of migratory waterfowl in 
Currituck sound in Currituck county. 

Art. 9. Using Silencer on Firearms 

§ 2141(28). Possession of firearm silencer, while 
hunting game, made unlawful. — It shall be unlaw- 
ful for any person while hunting game in this 
state to have in his possession a shotgun, pistol, 
rifle, or any firearm equipped with a silencer of 
any type or kind or any device or mechanism de- 
signed to silence, muffle, or minimize the report 
of such firearm, whether such silencer or device 
or mechanism is separate from or attached to 
such firearm. (1937, c. 152, s. 1.) 

§ 2141(29). Penalty for violation. — If any per- 
son shall be convicted of a violation of this article 
he shall be fined not less than one hundred 
($100.00) dollars or imprisoned not less than 
sixty days, or both, in the discretion of the court. 
(1937, c. 152, s. 2.) 

CHAPTER 39 

GAMING CONTRACTS AND FUTURES 

Art. 2. Contracts for "Futures" 
§ 2144. Certain contracts as to "futures" void. 

Contracts to Which This Section Applies. — 

A contract for "cotton futures" in which no actual de- 
livery is intended or contemplated is void and no action 
may be maintained thereon. Bodie v. Horn, 211 N. C. 397, 
190 S. E. 236. 



CHAPTER 40 

GUARDIAN AND WARD 

Art. 1. Jurisdiction in Matter of Guardianship 

§ 2150. Jurisdiction in clerk of superior court. 

Language of Section Confusing. — The language of the pro- 



N. C. Supp.— 4 



[ 49 



§ 2151 



HABEAS CORPUS 



§ 2208 



viso at the end of this section is confusing. The clause 
introduced by the words, "or if" appears by its terms to 
relate to guardians of infants only. The words, "idiots, 
lunatics, or inebriates" at the end may have been added by 
inadvertence. This interpretation is supported by the ob- 
vious fact that the designation by an idiot of a guardian 
should have no effect. 13 N. C. I^aw Rev., No. 4, p. 387. 

Place of Appointment. — 

Under this section the appointment of a guardian in a 
county other than the one in which the ward's surviving 
parent resides or the ward's estate is situate is void. Duke 
v. Johnston, 211 N. C. 171, 189 S. E. 504. 

Art. 2, Creation and Termination of 
Guardianship 
§ 2151. Appointment by parents; effect; powers 
and duties of guardian. 

Father Should Not Be Regarded as Wrongdoer When He 
Acts in Good Faith with Child's Money. — Since under this 
section the father is natural guardian for his minor chil- 
dren he should not be regarded as a trespasser or a wrong- 
doer when he acts in good faith with his child's money and 
makes purchases for its benefit. L,ifsey v. Bullock, 11 F. 
Supp. 728. 

§ 2156. Proceedings on application for guard- 
ianship. 

Failure to Notify Relative of Hearing Does Not Render 
Appointment of Guardian Void. — While the failure to no- 
tify the relatives of an alleged incompetent of the hearing 
to determine her competency is an irregularity, such ir- 
regularity does not render the appointment of a guardian 
in the proceedings void, but gives the relatives an oppor- 
tunity to attack such appointment, and where, upon such 
attack, the court finds upon supporting evidence that the 
guardian appointed is a fit and suitable person, the relatives 
are not entitled to the removal of the guardian. In re 
Barker, 210 N. C. 617, 188 S. F,. 205. 

§ 2157. Letters of guardianship. 

The appointment of a guardian can be shown only by the 
records in the office of the clerk of the Superior Court by 
whom the appointment was made, or by letters of appoint- 
ment issued by the clerk as required by this section, and 
parol evidence tending to show appointment is incompetent. 
Buncombe County v. Cain, 210 N. C. 766, 188 S'. E. 399. 

Art. 4. Powers and Duties of Guardian 
§ 2169. To take charge of estate. 

Under this section the guardian can select the forum, as 

there is no statute to the contrary. L,awson v. L,angley, 
211 N. C. 526, 530, 191 S. F- 229. 



Art. 5. Sales of Ward's Estate 
§ 2180. Special proceedings to sell; judge's ap- 
proval required. 

Reference.— See § 4103(b) of this Supplement and note 
thereto. 
Presumption That Statutory Requirements Have Been 

Met.— Although this section must be strictly complied with, 
where a guardian has applied for permission to mortgage 
her wards' land, and the clerk has entered an order there- 
for, which order has been approved by the court, there is 
a presumption that the statutory requirements have been 
met. Quick v. Federal Land Bank, 208 N. C. 562, 181 S. 
F- 746. 

Where the guardian's application for a loan stated that 
the proceeds thereof were to be used to purchase live stock 
necessary to the proper operation of the farm, to erect 
buildings on the land, and to provide improvements as de- 
fined by the Federal Farm I,oan Board, it was held that 
under the presumption that the provisions of this section 
were followed, the mortgage is valid and binding upon the 
wards' estate as to the funds used for permanent improve- 
ments on the land, but as to the funds used to purchase 
live stock the mortgage is void as to the wards, such fund 
not having been used to materially promote their interest, 
and the mortgage on the wards' estate in remainder to the 
extent of the proceeds used to purchase live stock should 
be set aside upon their petition therefor filed upon their 
coming of age. Id. 

Petition Signed by Person Not a Qualified Guardian Con- 
fers No Jurisdiction on Clerk.— A clerk of the Superior 
Court has jurisdiction to order the sale of a ward's lands 
only upon petition verified by the duly appointed and qual- 
ified guardian of the ward, and where such petition is filed 

[50 



and signed by a person purporting to act as guardian, but 
who had not been appointed guardian and had not quali- 
fied by filing bond, the petition confers no jurisdiction on 
the clerk. Buncombe County v. Cain, 210 N. C. 766, 188 
S. F. 399. 

And in Such Case the Purchaser at Sale Acquires No 
Title Adverse to Infant.— A purchaser of an infant's prop- 
erty at a sale made under an order which is void because 
the clerk who made the order had no jurisdiction of the 
proceeding in which the order was made, acquires no right, 
title, interest, or estate in said property, adverse to the 
infant. Buncombe County v. Cain, 210 N. C. 766, 775, 188 
S. F. 399. 

Art. 7. Public Guardians 
§ 2193. Powers, duties, liabilities, compensation. 

As to money due minor insurance beneficiary, see § 961(a). 

Art. 8. Foreign Guardians 
§ 2195. Right to removal of ward's personalty 
from state. — Where any ward, idiot, lunatic or 
insane person, residing in another state or terri- 
tory, or in the District of Columbia, or Canada, 
or other foreign country, is entitled to any per- 
sonal estate in this state, or personal property 
substituted for realty by decree of court, or to 
any money arising from the sale of real estate, 
whether the same be in the hands of any guard- 
ian residing in this state, or of any executor, ad- 
ministrator or other person holding for the ward, 
idiot, lunatic or insane person, or if the same (not 
being adversely held and claimed) be not in the 
lawful possession or control of any person, the 
guardian of the ward, idiot, lunatic or insane per- 
son, duly appointed at the place where such ward, 
idiot, lunatic or insane person resides, or in the 
event no guardian has been appointed the court 
or officer of the court authorized by the laws of 
the state or territory or for the District of Colum- 
bia or Canada or other foreign country to receive 
moneys belonging to any infants, idiots, lunatics 
or insane persons when no guardian has been ap- 
pointed for such person, may apply to have such 
estate removed to the residence of the infant, 
idiot, lunatic or insane person by petition filed be- 
fore the clerk of the superior court of the county 
in which the property or some portion thereof is 
situated; which shall be proceeded with as in 
other cases of special proceedings. (Rev., s. 1816; 
Code, ss. 1598, 1601; R. C, c. 54, s. 29; 1820, c. 
1044; 1842, c. 38; 1868-9, c. 201, ss. 35, 38; 1874-5, 
c. 168; 1913, c. 86, s. 1; 1937, c. 307.) 

Editor's Note. — The 1937 amendment made provision for the 
event "no guardian has been appointed." It also substituted 
"infant" for "ward" in a subsequent part of the section. 



CHAPTER 40A 

VETERANS' GUARDIANSHIP ACT 

§ 2202(12). Compensation at 5 per cent; addi- 
tional compensation; premiums on bonds. 

Where the clerk entered an order allowing a guardian ad- 
ditional compensation for extraordinary services and the 
Veterans Administration failed to perfect its appeal from 
the clerk's order, and thereafter applied to the judge of 
the Superior Court for a writ of certiorari, the petition for 
certiorari was denied upon the court's finding of laches and 
demerit. In re Snelgrove, 208 N. C. 670, 182 S. E. 335. 



CHAPTER 41 

HABEAS CORPUS 
Art. 2. Application 
§ 2208. To judge of supreme or superior court; 
in writing. 

Sections 463 et seq. concerning venue all refer to "actions" 



§ 2210 



INSANE PERSONS AND INCOMPETENTS 



§ 2304(p) 



and have no application to habeas corpus proceedings. Mc- 
Eachern v. McEachern, 210 N. C. 98, 185 S. E. 684. 

Discretionary Power of Judge as to Place Writ Is Re- 
turnable Not Reviewed in Absence of Abuse.— Since any 
judge of the Superior Court or Justice of the Supreme 
Court has the power to issue a writ of habeas corpus at 
any time or any place, he has the discretionary power to 
make the writ returnable at such place as he may deter- 
mine, which discretion will not be reviewed in the ab- 
sence of a showing of abuse or failure to afford full op- 
portunity to be heard, and therefore an exception to the 
refusal of a motion for change of venue of habeas corpus 
proceedings cannot be sustained. McEachern v . McEachern, 
210 N. C. 98, 185 S. E- 684. 

§ 2210. Issuance of writ without application. 

Reference. — See note to § 2208 of this Supplement. 

Art. 3. Writ 
§ 2212. Penalty for refusal to grant. 

Cited in McEachern v. McEachern, 210 N. C. 98, 185 S. 
E. 684. 

Art. 6. Proceedings and Judgment 
§ 2235. When party discharged. 

Editor's Note. — Delete the line containing the words 
"State Cannot Appeal. — The State can not appeal from an" 
immediately preceding the last paragraph in the original. 

Art. 7. Habeas Corpus for Custody of Children 
in Certain Cases 
§ 2241. Custody as between parents in certain 
cases; modification of order. 

When Section Applies. — 

In accord with second paragraph of original. See Mc- 
Eachern v. McEachern, 210 N. C. 98, 185 S. E- 684. 

When Parents Divorced Section 1664 Applies. — 

In accord with original. See McEachern v. McEachern, 
210 N. C. 98, 185 S. E- 684. 

Delete the word "excluded" near the end of the last sen- 
tence of the paragraph under this catchline and substitute 
in lieu thereof the word "exclusive." — Ed. note. 

Habeas Corpus Not Available Where Divorce Is Granted 
in Another State Where Parents Resided. — Habeas corpus 
is not available to determine the custody of a child as be- 
tween its divorced parents and where the divorce is granted 
in another state of which the parents were residents, the 
writ is not available to enforce the provisions of the divorce 
decree relating to the custody of the child as against the 
mother moving to this State and bringing the child with 
her. In re Ogden, 211 N. C. 100, 189 S. E- 119. 

Findings of Fact Are Conclusive When Based on Evidence. 
— The findings of fact by the court in proceedings in ha- 
beas corpus, to determine the custody of minor children of 
the parties, are conclusive when based on evidence. Mc- 
Eachern v. McEachern, 210 N. C. 98, 185 S. E. 684. 

§ 2242. Appeal to supreme court. 

Decree as between Divorced Parents Is Not Appealable. 

— A decree in habeas corpus proceedings to determine the 
custody of a child as between its divorced parents is not 
appealable, since the proceeding does not come within the 
provisions of this and § 2241, nor will the provisions made 
for the child be considered when the judge below finds that 
the child is in school and is being properly cared for by 
the parent having its custody, and awards its custody to 
such parent during the school term, the sole remedy be- 
ing by certiorari to invoke the constitutional power of the 
Supreme Court to supervise and control proceedings .of in- 
ferior courts. In re Ogden, 211 N. C. 100, 189 S. E- 119. 



CHAPTER 43 

INSANE PERSONS AND INCOMPETENTS 

Art. 2. Guardianship and Management of 
Estates of Incompetents 

§ 2285. Inquisition of lunacy; appointment of 
guardian. 

The effect of this section is to provide that the proceed- 
ing may be commenced by the filing of the petition, and 
that the inquisition may be held upon the notice therein 
provided being served upon the alleged incompetent, thereby 



[51 



dispensing with the necessity of issuing a summons. The 
notice to an incompetent to appear at a time and place 
named to present evidence and show cause, if any, why he 
should not be declared incompetent serves every function 
of a summons. In re Barker, 210 N. C. 617, 620, 188 S. 
E- 205. 

§ 2287. Restoration to sanity or sobriety; effect; 
how determined. — When any insane person or 
inebriate becomes of sound mind and memory, or 
becomes competent to manage his property, he 
is authorized to manage, sell and control all his 
property in as full and ample a manner as he 
could do before he became insane or inebriate, 
and a petition in behalf of such person may be 
filed before the clerk of the superior court of the 
county of his residence, setting forth the facts, 
duly verified by the oath of the petitioner [the pe- 
tition may be filed by the person formerly ad- 
judged to be insane, lunatic, inebriate or incompe- 
tent; or by any friend or relative of said person; 
or by the guardian of said person], whereup- 
on the clerk shall issue an order, upon notice 
to the person alleged to be no longer insane or 
inebriate, to the sheriff of the county, command- 
ing him to summon a jury of six freeholders to 
inquire into the sanity of the alleged sane person, 
formerly a lunatic, or the sobriety of such al- 
leged restored person, formerly an inebriate. The 
jury shall make return of their proceedings un- 
der their hands to the clerk, who shall file and 
record the same. If the jury find that the person 
whose mental or physical condition inquired of 
is sane and of sound mind and memory, or is no 
longer an inebriate, as the case may be, the said 
person is authorized to manage his affairs, make 
contracts and sell his property, both real and per- 
sonal, as if he had never been insane or inebriate. 
(Rev., s. 1893; Code, s. 1672; 1901, c. 191; 1903, 
c. 80; 1879, c. 324, s. 4; 1937, c. 311.) 

Editor's Note.— The 1937 amendment inserted in this section 
the words appearing in brackets. 

Art. 3A. Mortgage or Sale of Estates Held by 
the Entireties 
§ 2294(1). Where one spouse or both incompe- 
tent; special proceeding before clerk. 

For a complete analysis of this article, see 13 N. C. Eaw 
Rev., No. 4, p. 376. 

Art. 4. Surplus Income and Advancements 

§ 2296. Advancement of surplus income to next 
of kin. 

Cited in In re Jones, 211 N. C. 704, 191 S. E- 511. 

Art. 6. Sterilization of Persons Mentally 
Defective 
§ 2304(p). Prosecutors designated; duties. — If 

the person upon whom the operation is to be per- 
formed is an inmate or patient of one of the in- 
stitutions mentioned in section 2304(m), the exec- 
utive head of such institution or his duly author- 
ized agent shall act as prosecutor of the case. The 
county superintendent of public welfare may act 
as prosecutor or petitioner in instituting steriliza- 
tion proceedings in the case of any feeble-minded, 
epileptic, or mentally diseased person who is on 
parole from a state institution, and in the case of 
any such person who is an inmate of a state in- 
stitution, when authorized to do so by the super- 
intendent of such institution. 
(1937, c. 243.) 

SITE 



-d'ire^cted that the seo- 



:ary 



§ 2304 (f fa) 



JURORS 



§ 2312 



ond sentence above be inserted after the first sentence. The person, at a rate in excess of six per centum per annum, 



rest of the section, not being affected by the amendment, is 
not set out. 

§ 2304(ft~2). Temporary admission to state hos- 
pitals for sterilization. — Any feeble-minded, epilep- 
tic, or mentally diseased person, for whom the 
eugenics board of North Carolina has authorized 
sterilization, may be admitted to the appropriate 
state hospital for the performance of such opera- 
tion. The order of the eugenics board authorizing 
a surgeon on the regular or consulting staff of the. 
hospital to perform the operation will be sufficient 
authority to the superintendent of such hospital 
to receive, restrain, and control the patient until 
such time as it is deemed wise to release such 
patient. All such admissions shall be at the dis- 
cretion of the superintendent of the state hospital, 
and in making any agreement with any county or 
any state institution to perform such operations, 
the state hospital may collect a fee which shall not 
be greater than the cost of such operation and 
the cost of care and maintenance for the duration 
of the operation and the time required for the pa- 
tient to recuperate. 

The order of the eugenics board and the agree- 
ment of the superintendent of the state hospital 
to admit such patient shall be full and sufficient 
authority for the prosecutor or the sheriff of the 
county to deliver such patient to the proper state 
hospital. (1937, c. 221.) 



CHAPTER 44 

INTEREST 
§ 2305. Legal rate is six per cent. 

Insurance Companies Not Authorized to Charge Interest 
in Excess of Legal Rate. — Section 6291 dealing with loans 
by insurance companies secured by insurance policies does 
not authorize insurance companies to charge interest in 
excess of the legal rate prescribed in this section. Cowan 
v. Security Life, etc., Co., 211 N. C. 18, 188 S. E\ 812. 



§ 2306. Penalty for usury; corporate bonds may 
be sold below par. 

I. GENERAL CONSIDERATION. 
Where Person Is Not Entitled to Statutory Penalty.— 

Where a debtor seeks the aid of a court of equity on the 
ground that his debt is tainted with usury, he may have 
the usurious element, if any, eliminated from his debt only 
upon his paying the principal of his debt, with interest at 
the legal rate. In such case he is not entitled to the ben- 
efit of the statutory penalties for usury. Smith v. Bryant, 
209 N. C. 213, 215, 183 S. E. 276. 

And where there is no evidence that any holder of the 
note executed by plaintiffs has charged or received in- 
terest thereon in excess of six per cent, in an action on 
the note plaintiffs may not invoke the forfeiture of in- 
terest for usury. Id. 

And where the creditors of the mortgagor seek to en- 
join the foreclosure of a deed of trust on their creditor's 
property, and pray for an accounting to ascertain the 
amount of the debt upon allegations that usurious interest 
was charged thereon, upon sale of the property under 
orders of the court, the mortgagee is entitled to the prin- 
cipal amount of his debt, plus six per cent interest 
thereon, since the plaintiffs, seeking equitable relief, must 
do equity, and the mortgagee is entitled to the amount of 
the debt, plus the legal interest, unaffected by the forfei- 
ture or penalty for usury. Kenny Co. v. Hinton Hotel 
Co., 208 N. C. 295, 180 S. E- 697. 

The statutory penalty for usury may not be recovered 
against the payee of notes secured by deed of trust upon 
evidence showing that a certain sum was paid the trustee 
in the deed of trust, but not paid to or received by the 
payee of the notes. Hunter v. McClung Realty Co., 210 
N. C. 91, 185 S. E. 461. 

Insurance Companies Subject to Penalty. — An insurance 
company which charges, retains, or receives interest on a 
loan made by it in this State, to a policyholder or other 

[ 52 



is subject to the penalties prescribed by this section not- 
withstanding the provisions of § 6291 as to the premiums 
paid on policies. Cowan v. Security Life, etc., Co., 211 
N. C. 18, 22, 188 S. E- 812. 

II. SUBSTANCE CONTROLS NATURE OF TRANS- 
ACTION. 
B. Specific Instances. 

Sum. Paid to Trust Company Held to Be a Reasonable 
Brokerage Fee. — $2,600 paid to a trust company for its serv- 
ices in handling ninety $1,000 bonds bearing interest at the 
legal rate was held not to constitute usury, but a reason- 
able brokerage fee. McCubbins v. Virginia Trust Co., 80 
F. (2d) 984. 

VI. PLEADING AND PRACTICE. 

Evidence Properly Submitted to Jury. — Where the plain- 
tiff alleged usury and the defendant contended that the 
transaction was within the commission for the sale of bonds 
exception to the usury law it was held that as the evidence 
was conflicting it was properly submitted to the jury, and 
was sufficient to support its verdict in plaintiff's favor. 
Sherrill v. Hood, 208 N. C. 472, 181 S. E- 330. 

New Note Must Be in the Nature of a Compromise in 
Order to Constitute a Waiver of Right to Plead Usury. — A 
usurious contract is not purged of the usury by the exe- 
cution of renewals or by a change in the form of the con- 
tract, or by the giving of a separate note for the usurious 
charge, and in order for an agreement as to the total debt 
and the execution of a new note therefor to constitute a 
waiver of the right to plead usury, the new amount arrived 
at must be agreed to by the debtor as just and due the 
creditor, taking into consideration his claim of usury, and 
be in the nature of a compromise and settlement and be a 
novation rather than a renewal. Hill v. Lindsay, 210 N. 
C. 694, 188 S. E. 406. 

Thus where it was found that the parties agreed upon 
the total amount of the debt after an accounting involving 
the credit of sums obtained from the sale of collateral given 
for the debt, but not involving the question of usury, and 
that the debtor executed a new note for the balance thus 
arrived at, it was held insufficient to support the court's 
conclusion of law that the debtor waived the right to claim 
usury, the transaction being a renewal rather than a no- 
vation. Id. 

§ 2309. Contracts, except penal bonds, and 
judgments to bear interest; jury to distinguish 
principal. 

Interest Imposed by Law in Nature of Damages. — A debt 
draws interest from the date it becomes due, and when in- 
terest is not made payable on the face of the instrument, 
payment of interest will be imposed by law in the nature 
of damages for the retention of the principal of the debt. 
Security Nat. Bank v. Travelers' Ins. Co., 209 N. C. 17, 
182 S. E- 702. 

Facts Not Excusing Payment of Interest by Insurance 
Company. — Where under the terms of a policy of insurance 
payment is to be made to the beneficiary immediately upon 
receipt of due proof of death of insured, the failure of the 
insurer to make payment until more than a year after re- 
ceipt of such due proof entitles the beneficiaries to interest 
on the amount from the date of insurer's receipt of due 
proof, and payment of interest will not be excused because 
payment by insurer was delayed by reason of the fact that 
the trust agreement under which the policy was assigned 
was changed without notice to insurer by adding an indi- 
vidual trustee, and the fact that the corporate trustee be- 
came insolvent before payment and a substituted trustee 
appointed and insurer did not have notice of such substitu- 
tion until a much later date, insurer having had the use 
of the money during the period of delay. Security Nat. 
Bank v. Travelers' Ins. Co., 209 N. C. 17, 182 S. E. 702. 



CHAPTER 45 

JURORS 

Art. 1. Jury List and Drawing of 
Original Panel 

§ 2312. Jury list from taxpayers of good char- 
acter. 

Editor's Note.— Public Laws 1937, c. 19, applicable only to 
Ashe county, changed the date for selecting the jury list to 
the first Monday in March. 

Public Laws 1937, c. 200, amended this section by adding 
the following: "In Ashe county, non-payment of taxes shall 



§ 2313 



LANDLORD AND TENANT 



§ 2373, 



as to drawing 



shall be 
week of 



not be a bar to jury service nor prevent the placing of the 
names of persons otherwise qualified upon the jury list for 
said county." 

§ 2313. Names on list put in box. 

Editor's Note.— Public Laws 1937, applicable only to Ashe 
county changed date for putting names in box to "first 
Monday in March or a date selected and approved on the 
first Monday in March." 

Applied in State v. Walls, 211 N. C. 487, 191 &'. E. 232. 

§ 2314. Manner of drawing panel for term from 
box. 

Findings That Section Complied with Conclusive. — 

In accord with original. See State v. Walls, 211 N. C. 
487, 191 S. E. 232. 

Child Draws Jurors to Prevent Fraud. — The reason fot 
having a child not more than ten years of age to draw the 
jurors is to prevent fraud in the selection of the jury, so 
that the law can be administered impartially and without 
discrimination. The child draws from the jury box the 
names of all sorts and conditions of men, white and negro 
persons, Jew and Gentile, who are qualified to serve un- 
der the law. A more perfect system could hardly be de- 
vised to insure impartiality. State v. Walls, 211 N. C. 
487, 494, 191 S. E- 232. 

Effect of Excluding Negroes from Grand Jury. — The ex- 
clusion of all persons of the negro race from a grand jury, 
v/hich finds an indictment against a negro, where they are 
excluded solely because of their race or color, denies him 
the equal protection of the laws in violation of the Con- 
stitutions of North Carolina and of the United States. 
State v. Walls, 211 N. C. 487, 494, 191 S. E. 232. 

§ 2315. Local modifications 
panel. — ■ 

In Ashe county twenty-four jurors 
drawn and summoned for the second 
each civil term of court held in said county. (Rev., 
s. 1959; 1907, c. 239; Ex. Sess., 1913, c. 4; P. L., 
1915, cc. 233, 744, 764; 1921, c. 142; 1923, c. 107, 
s 2; 1923, c. 117; 1937, c. 19.) 

Editor's Note.— The 1937 amendment added the above para- 
graph. The rest of the section, not being affected by the 
amendment, is not set out. 

Art. 2. Petit Jurors; Attendance, Regulation 
and Privileges 

§ 2321. Summons to talesmen; their disqualifi- 
cations, 

Instruction of Court Held Not to Be an Order under 
This Section. — Where upon adjournment the court in- 
structed the sheriff to summon a number of men to act 
as talesmen in a case proposed to be called for the next 
day and upon the trial defendants moved that none of the 
men so summoned and none of the jurors already in the 
box should serve, but that the jury be selected from by- 
standers, it was held that the instruction of the court 
was not an order under this section ior talesmen or a 
special venire, and that the jurors summoned being sub- 
ject to all the qualifications of talesmen, and defendants 
having failed to exhaust their respective challenges to the 
poll, defendants' exceptions to the refusal of their mo- 
tions could not be sustained. State v. Anderson, 208 N. 
C. 771, 182 S. E. 643. 

§ 2329. Exemptions from jury duty. — 

The clerk of the superior court of each county 
is hereby empowered to excuse from jury duty 
any person or persons exempt under subsection 
one prior to the convening of the term of court 
for which such person or persons are required to 
serve as jurors. (1937, c. 151.) 

Editor's Note. — The 1937 amendment directed that the above 
paragraph be added to this section. The rest of the section, 
not being affected by the amendment, is not set out. 

Art. 4. Grand Jurors 
§ 2334. Grand juries in certain counties. 

Editor's Note. — For act relating to New Hanover county, 
see Public Taws 1937, c. 77. For act relating to Rowan 
county, see Public Laws 1937, c. 78. For act relating to 



Scotland county, see Public Laws 1924, Ex. Sess., c. 28, 
amended by Public Laws 1937, c. 372. 

Public Laws 1937, c. 20, repealed Public Laws 1935, c. 4, 
providing for selection of grand jury for Macon county. 

§ 2334(b). Same — In Durham county. — At the 

first term of court for the trial of criminal cases 
m Durham county after the first day of July, one 
thousand nine hundred and twenty-nine, there 
shall be chosen a grand jury as now provided by 
law, and the first nine members of said grand 
jury chosen at said term shall serve for a term 
of one vear, and the second nine members of said 
grand jury so chosen shall serve for a term of six 
months, and thereafter at the first regular and not 
special term of criminal court after the first days 
of January and July of each year there shall be 
chosen nine members of said grand jury to serve 
for a term of one }-ear. (1929, c. 122, s. 1; 1937, 
c. 21.) 

Editor's Note. — The 1937 amendment inserted the words 
"regular and not special" in the tenth and eleventh lines of 
this section. 

§ 2336. Foreman may administer oaths to wit- 
nesses. 

Section Directory Merely. — ■ 

In addition to the cases treated under this catchline in 
the original, see State v. Lancaster, 210 N. C. 584, 187 
S. E- 802. 



CHAPTER 46 

LANDLORD AND TENANT 

Art. 1. General Provisions 
§ 2343. Term forfeited for non-payment of rent. 

Section Not Applicable Where in the Lease the Lessee 
Waives All Notice to Vacate. — Tucker v. Arrowood, 211 N. 
C. 118, 119, 189 S. E. 180'. 

§ 2352. Lessee may surrender, where building 
destroyed or damaged. 

Damage Insufficient to Enable Lessee to Surrender Prem- 
ises.— Carolina Mtg. Co. v. Massie, 209 N. C. 146, 183 S. 
E. 425. 

Art. 3. Summary Ejectment 
§ 2365. Tenant holding over may be dispos- 
sessed in certain cases. 

V. THE ACTION. 
A landlord may institute suit in the Superior Court to 
eject his tenant, the remedy of summary ejectment before a 
justice of the peace not being exclusive, and in such action 
the Superior Court acquires jurisdiction where the defend- 
ant denies plaintiff's title, controverts the allegations of 
tenancy, and pleads betterments. Bryan v. Street, 209 N. 
C. 284, 183 S. E. 366V 

§ 2367. Summons issued by justice on verified 
complaint. 

Section Is Not an Exception to Requirement of § 446. — 

While this section clearly provides that the agent or at- 
torney of the lessor may make the oath in writing re- 
quired in actions in summary ejectment, it does not pro- 
vide an exception to the requirement of § 446. that "every 

the real party 
211 N. C. 54, 



name of 
. Tustice, 



action must be prosecuted in the 
in interest." Choate Rental Co. > 

55, 188 S. E- 609. 

§ 2372. Rent and costs tendered by tenant. 

Where Tender of Rents Does Not Prevent Forfeiture. — 

Where the lease provides that the landlord shall have the 
option to declare the lease void upon failure of lessee to 
pay rent when due, and waives notice to vacate, lessee may 
not prevent forfeiture by tendering rents due upon the trial. 
Tucker v. Arrowood, 211 N. C. 118, 189 S. E- 180. 

§ 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; 



53 



§ 2429 



LOCAL GOVERNMENT ACT 



§ 2492(50)b 



except in the counties of Iredell, Mecklenburg, 
Granville, Watauga, Davie, and Swain, upon ap- 
peal to the superior court either plaintiff or de- 
fendant may demand that the same shall be tried 
at the first term of said court after said appeal is 
docketed in said court, and said trial shall have 
precedence in the trial of all other cases, except 
the cases of exceptions to homesteads: Provided, 
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 parties 
•or the public require it; but no execution com- 
manding the removal of a defendant from the 
possession ofr the demised premises shall be sus- 
pended until the defendant gives an undertak- 
ing 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 s-uch 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. 2003; 
Code, s. 1772; 1868-9, c. 156, s. 25; 1883, c. 316; 
1921, c. 90; Ex. Sess., 1921, c. 17; 1933, c. 154; 
1937, c. 294.) 

Editor's Note.— The 1937 amendment struck out the word 
"Craven" formerly appearing in line five of this section. 



CHAPTER 48 

LIBEL AND SLANDER 

§ 2429. Libel against newspaper; notice before 
action. 

Applied in Harrell v. Goerch, 209 N. C. 741, 184 S. % 489. 

§ 2430. Effect of publication in good faith and 
retraction. 

Actual Damages Only Where Publication Is Made in Good 
Faith and There Has Been a Correction.— Where plaintiff's 
evidence establishes a false publication, and defendant's evi- 
dence shows that the publication was made in good faith 
through error, and that a correction and retraction was pub- 
lished upon defendant's ascertaining the facts, plaintiff _ is 
entitled to recover the actual damage sustained by him. 
Lay v. Gazette Pub. Co., 209 N. C. 134, 183 S. % 416. 

And No Punitive Damages in the Absence of Malice, or 
Wantonness and Recklessness.— Lay v. Gazette Pub. Co., 
209 N. C. 134, 183 S. E. 416. 

When Malice May Not Be Inferred by Jury.— Malice may 
not be inferred by the jury from a false publication when 
defendant's uncontradicted evidence rebuts the presumption 
by showing that the publication was made in good faith 
through error, and that a correction and retraction was 
published upon defendant's ascertaining the facts. Lay v. 
Gazette Pub. Co., 209 N. C. 134, 183 S. E. 416. 

[54] 



CHAPTER 49 

LIENS 

Art. 1. Mechanics', Laborers' and Material- 
men's Liens 

§ 2433. On buildings and property, real and 
personal. 

IV. PROPERTY COVERED. 

Lien on Personalty Is Dependent upon Possession. — While 
this section provides for a lien not only upon buildings and 
lots, but also upon "any kind of property, real or personal," 
other sections of the lien law provide the conditions upon 
which the lien is to come into existence and continue; and 
in case of personal property the lien is dependent upon 
possession and cannot be obtained by the filing of notice. 
Elk Creek Lbr. Co. v. Hamby, 84 F. (2d) 144, 147. 

§ 2435. On personal property repaired. 

The lien provided for by this section is dependent upon 
possession. Elk Creek Lbr. Co. v. Hamby, 84 F. (2d) 144, 

147. 

§ 2436. Laborer's lien on lumber and its prod- 
ucts. 

Reason for Enactment of Section. — It was because a lien 
could not be obtained for labor performed in the manufac- 
ture of lumber unless the party claiming it retained pos- 
session, that the Legislature enacted this section. Elk 
Creek Lbr. Co. v. Hamby, 84 F. (2d) 144, 147. 

Laborer Has No Lien unless He Complies with Section 
or Retains Possession. — A laborer who engages in the man- 
ufacture of lumber has a lien thereon under section 2435, 
for his just and reasonable charges so long as he retains 
possession of the lumber. A laborer, even though he does 
not retain possession, is entitled to a lien for wages for not 
exceeding thirty days if he gives the notice required by this 
section. But he obtains no lien unless he complies with this 
section or unless he retains possession so that he may assert 
a lien under § 2435. Elk Creek Lbr. Co. v. Hamby, 84 F. 
(2d) 144, 147. 

Preferred Lien Only When Section Strictly Complied with. 
— This section gives to laborers engaged in logging, saw- 
ing, etc., a lien on the lumber of their manufacture, which 
is superior to all other claims thereon, except that of a 
purchaser for value without notice. It gives this preferred 
lien, however, only for the wages of not exceeding thirty 
days labor, and only on condition that the provisions of this 
section be strictly complied with. Elk Creek Lbr. Co. v. 
Hamby, 84 F. (2d) 144, 146. 

Art. 2. Subcontractors', etc., Liens and Rights 
against Owners 

§ 2445. Contractor on municipal building to 
give bond; action on bond. 

Reference.— See 13 N. C. Law Rev., No. 4, p. 368, for an 
analysis of this section as amended in 1935. 



CHAPTER 49 (B) 

LOCAL GOVERNMENT ACT— VALIDA- 
TION OF INDEBTEDNESS OF UNIT 

Art. 1. Local Government Commission and 
Director of Local Government 

§ 2492(50)b. Provisions in bond resolutions set 
out. 

In Nash v. Board of Com'rs, 211 N. C. 301, 304, 190 S. 
E. 475, the provision that the holders or purchasers of said 
bonds "shall be subrogated to all the rights and powers of 
the holders of such indebtedness," which said provision was 
given "the force of contract between the unit and the_ hold- 
ers of said bonds," and was incorporated in the ordinance 
authorizing issuance of the bonds, hence the provision, hav- 
ing the sanction of law, will enter into and become an in- 
tegral part of the bonds when issued, with contractual 
force and effect, which may not be impaired by subsequent 
legislation. 



§ 2492(52) 



MILLS 



§ 2532 



Art. 2. Validation of Bonds, Notes and 
Indebtedness of Unit 

§ 2492(52). "Unit" denned. 

Cited in Castevens v. Stanly County, 211 N. C. 642, 191 
S. E- 739. 

§ 2492(55). Test cases testing validity of funding 
bonds. — ■ 

Jurisdiction of all parties defendant may be had 
by publication of a summons once a week for 
three successive weeks in some newspaper of gen- 
eral circulation published in each county in which 
any part of the unit lies, and jurisdiction shall be 
complete within twenty days after the date of the 
last publication of such summons in the manner 
herein provided. 

(1937, c. 80.) 

Editor's Note.— The 1937 amendment, applicable to pro- 
ceedings pending or hereafter instituted, substituted the 
words "date of the last" for the word "full" formerly ap- 
pearing in the third sentence of this section. The rest of 
the section, not being affected by the amendment, is not set 
out. 

The action authorized by this and the following four sec- 
tions is in the nature of a proceeding in rem, and is ad- 
versary both in form and in substance. These sections 
contemplate that issues both of law and of fact may be 
raised by pleadings duly filed, and that such issues shall 
be determined by the court. The court has no power by 
virtue of these sections to validate bonds which are for 
any reason invalid. It has power only to determine whether 
or not on the facts as found by the court and under the 
law applicable to these facts, the bonds are valid. Caste- 
vens v. Stanly County, 211 N. C. 642, 650, 191 S. E- 739. 

Service of Summons by Publication Is Sufficient. — The 
contention that an owner of taxable property within the 
unit, or a citizen residing therein, may be deprived of his 
property, without due process of law, or contrary to the 
law of the land, by a decree or judgment in the action de- 
claring or adjudging that the bonds and tax to be levied 
for their payment, are valid, because it is not required by 
this section that his name shall appear in the summons or 
in the complaint, or that the summons shall be served on 
him personally, cannot be sustained. The action is de- 
clared by this section to be in the nature of a proceeding in 
rem. In such case, all persons included within a well de- 
fined class may be made parties defendant, and service of 
summons by publication is sufficient, although such per- 
sons are not named in the summons. Castevens v. Stanly 
County, 211 N. C. 642, 651, 191 S. E. 739. 

If Published as Required by This Section. — See Castevens 
v. Stanly County, 211 N. C. 642, 651, 191 S. E- 739. 

§ 2492(57). Judgment establishing validity of 
issue. 

Section Does Not Estop Taxpayer from Challenging Va- 
lidity of Bonds. — The contention that by this section an 
owner of taxable property within the unit, or a citizen re- 
siding therein, is estopped from challenging the validity of 
the bonds and of the tax, without having had an oppor- 
tunity to be heard, cannot be sustained. No decree or 
judgment adverse to his rights can be rendered in an ac- 
tion instituted and prosecuted in accordance with the pro- 
visions of the statute, until every taxpayer and citizen of 
the unit has been lawfully served with summons, and 
until he has had ample opportunity to appear and file such 
pleadings as he may wish. If he has failed to avail him- 
self of his constitutional rights, which are fully protected 
by the statute, he has no just ground of complaint that 
the court will not hear him when he invokes its aid after 
the decree or judgment has been finally rendered, and 
others have relied upon its protection. Castevens v. Stanly 
County, 211 N. C. 642, 651, 191 S. E. 739. 

§ 2492(59). Levying special tax for proposed 
issues. 

This section and the four preceding sections are not un- 
constitutional either on the ground that the statute confers 
nonjudicial functions on the Superior Courts of this state 
or on the ground that the statute denies due process of 
law to taxpayers or citizens of a local governmental unit in 
this state, in violation of the provisions of the Fourteenth 
Amendment to the Constitution of the United States, or of 
the 17th section of Article I of the Constitution of North 



Carolina. Castevens v. Stanly County, 211 N. C. 642, 652, 
191 S. E. 739. 



Art. 1. 



CHAPTER 51 

MARRIED WOMEN 

Powers and Liabilities of Married 
Women 



§ 2506. Property of married woman secured to 
hei\ 

What Is Sufficient Written Assent to Make Wife's Deed 

Valid.— Since the deed of the husband conveys no title to 
his wife's land, but evidences his written assent to her 
conveyance, upon reason and authority, subscribing his 
name under seal to her deed, and acknowledging his exe- 
cution thereof as required by law, is a sufficient written 
assent to make her deed valid. Joiner v. Firemen's Ins. 
Co., 6 F. Supp. 103, 104. 

§ 2507. Capacity to contract. 

I. IN GENERAL. 
Effect of Section.— 

In accord with original. See Davis v. Cockman, 211 N. 
C. 630, 191 S. E. 322. 

IV. THE ACTION FOR BREACH. 
Where Specific Performance May Be Decreed. — Since the 
wife's contracts are valid without the written assent of her 
husband, and she is liable in damages for a breach thereof, 
specific performance may be decreed where the husband 
has subscribed his name under seal to her deed. Joiner 
v. Firemen's Ins. Co., 6 F. Supp. 103. 

§ 2515. Contracts of wife with husband affect- 
ing corpus or income of estate. 

I. IN GENERAL. 

Section Does Not Apply to Confession of Judgment in 
Favor of Creditors. — A judgment by confession in favor of 
creditors against a husband and wife is valid and the pri- 
vate examination of the wife is not necessary under this 
section which is applicable only to contracts between hus- 
band and wife. Davis v. Cockman, 211 N. C. 630, 191 S. 
E. 322. 

IV. EFFECT OF NONCOMPLIANCE. 

Defective Paper Good as Color of Title. — 

If such deed is not color of title, it is at least some evi- 
dence, under the ancient document rule, to be submitted to 
the jury on the question of adverse possession for 20 or 
30 years. Owens v. Blackwood Lbr. Co., 210 N. C. 504, 
184 S. E- 804. 

§ 2519. Estate by the curtesy. 

Applied in Caskey v. West, 210 N. C. 240, 186 S. E. 324. 

Art. 3. Free Traders 
§ 2530. Abandonment by husband. 

Cited in Hudson v. Hudson, 208 N. C. 338, 180 S. E. 597. 



CHAPTER 52 

MILLS 

Art. 1. Public Mills 

§ 2532. Miller to grind according to turn; tolls 
regulated. — 

Provided, further, that in Northampton, Chow- 
an 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. 

(1937, c. 4.) 

Editor's Note. — The 1937 amendment inserted the word 
"Chowan" in the second proviso. The rest of the section, 
not being affected by the amendment, is not set out. 

For act applying only to Sampson county, see Public L,aws 
1937, c. 164. 



[55] 



§ 2559 



MORTGAGES AND DEEDS OF TRUST 



§ 2593(b) 



CHAPTER 53 

MONOPOLIES AND TRUSTS 

§ 2559. Combinations in restraint of trade il- 
legal. 

Monopoly Denned. — "A monopoly consists in the owner- 
ship or control of so large a part of the market supply or 
output of a given commodity as to stifle competition, re- 
strict the freedom of commerce, and give the monopolist 
control over prices." State v. Atlantic Ice, etc., Co., 210 
N. C. 742, 747, 188 S. E- 412, quoting Black's Law Diction- 
ary (3d Ed.), p. 1202. 

In the modern and wider sense monopoly denotes a com- 
bination, organization, or entity so extensive and unified 
that its tendency is to suppress competition, to acquire a 
dominance in the market, and to secure the power to con- 
trol prices to the public harm with respect to any com- 
modity which people are under a practical compulsion to 
buy. State v. Atlantic Ice, etc., Co., 210 N. C. 742, 747, 188 
S. E. 412, citing Massachusetts v. Dyer, 243 Mass. 472, 138, 
N. E. 296. 

Stated in Bennett v. Southern Ry. Co., 211 N. C. 474, 191 
S. E. 240. 

§ 2563. Particular acts defined. 

The violation of this section is made criminal by § 2564, 

and as ordinarily the violation of a criminal statute may 
not be enjoined, individuals who apprehend injury by such 
violation are afforded a remedy by indictment and prose- 
cution under § 395(2). Carolina Motor Service v. Atlantic 
Coast Eine R. Co., 210 N. C. 36, 185 S. E- 479, 104 A. L. 
R. 1165. 

The provisions of the monopoly statutes apply to railroads 
just as they do to individuals and other corporations. Ben- 
nett v. Southern Ry. Co., 211 N. C. 474, 482, 191 S. E- 240. 

Subdivision three sufficiently defines the offense therein 
prohibited and is constitutional. State v. Atlantic Ice, etc.. 
Co., 210 N. C. 742, 188 S. E- 412. 

Coal Dealers Held to Be Competent Witnesses. — Where in 
the prosecution for violation of subdivision three of this sec- 
tion the State was allowed to introduce the testimony of 
coal dealers in the same city as to the cost of handling coal, 
the opinion testimony being based upon complicated and 
detailed facts relating to costs of buying, shipping, truck- 
ing, handling, shrinkage, labor, repairs, etc., the witnesses 
having had years of experience in operating their respective 
businesses in the city, it was held that the witnesses were 
experts and their opinion testimony was competent and was 
properly received in evidence. State v. Atlantic Ice, etc., 
Co., 210 N. C. 742, 188 S. E. 412. 

Proper Instruction as to Injuring or Destroying Competi- 
tors.— In a prosecution for violating this section relating to 
monopolies, an instruction that a person violates this section 
if he lowers the price of the product in question for the 
purpose of injuring or destroying competitors, and then, after 
competition is removed, he sells at a higher price to the 
detriment of the public, was held without error. State v. 
Atlantic Ice, etc., Co., 210 N. C. 742, 188 S. E- 412. 

"Willful" Defined.— That willful means the wrongful do- 
ing of an act without justification or excuse, was held a 
correct definition. State v. Atlantic Ice, etc., Co., 210 N. 
C. 742,, 188 S. E. 412. 

Combination of Railroads to Eliminate Motor Truck Com- 
petition. — A combination of railroads for the purpose of re- 
ducing rates on gasoline transportation within a certain area 
with the intent to eliminate motor truck competition and 
with the further purpose of raising and fixing a higher rate 
on the same commodity after the elimination of competi- 
tion is a violation of this section. Bennett v. Southern Ry. 
Co., 211 N. C. 474, 191 S. E- 240. 

Cited in Brown v. Norfolk So. R. Co., 208 N. C. 423, 181 
S. E. 279. 

§ 2564. Violation a misdemeanor; punishment. 

Reference.— See § 2563 in this Supplement. 

Applied in State v. Atlantic Ice, etc., Co., 210 N. C. 742, 
188 S. E. 412. 

Cited in Bennett v. Southern Ry. Co., 211 N. C. 474, 191 
S. E. 240. 

§ 2566. Continuous violations separate offenses. 

Quoted in State v. Atlantic Ice, etc., Co., 210 N. C. 742, 
188 S. E- 412. 

§ 2574. Civil action by person injured; treble 
damages. 

Causal Relation Between Violation and Injury Must Be 
Shown. — 



In accord with original. See Bennett v. Southern Ry. 
Co., 211 N. C. 474, 191 S. E. 240. 

Who May Bring Action. — The contention that an action 
for the violation of this chapter resulting in injury to a 
party's business can only be brought by the attorney gen- 
eral is contrary to the provisions of this section. Bennett 
v. Southern Ry. Co.. 211 N. C. 474, 191 S. E- 240. 



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. 

Cited in Nail v. McConnell, 211 N. C. 258, 190 S. E- 210. 

§ 2583. Clerk appoints successor to incompetent 
trustee. 



Ins. Co. v. Lassiter, 209 N. C. 
McConnell, 211 N. C. 258, 190 



Basnight, 209 N. 



Cited in New York Eife 
156, 183 S. E- 616; Nail v 
S. E- 210. 

§ 2583(a). Substitution of trustees in mortgages 
and deeds of trust. 

A sale of the property by the substituted trustee in ac- 
cordance with the terms of the instrument is valid, the ap- 
pointment of a substitute trustee not being a conveyance 
of any interest in land. North Carolina Mtg. Corp. v. 
Morgan, 208 N. C. 743, 182 S. E. 450. 

Substitute Trustee May Execute Deed to Purchaser. — A 
trustee, duly substituted for the original trustee under the 
provisions of the deed of trust and the statute, may exe- 
cute deed to the purchaser at a sale duly conducted by the 
original trustee. Pendergrast v. Home Mtg. Co., 211 N. 
C. 126, 189 S. E- 118. 

Cited in New York Eife Ins. Co. v. Eassiter, 209 N. C. 
156, 183 S. E- 616. 

Art. 3. Mortgage Sales 

§ 2588. Real property; notice of sale must de- 
scribe premises. 

Same — Sufficient Description. — 

In accord with original. See Blount 
C. 268, 183 S. E. 405. 

§ 2591. Reopening judicial sales, etc., on ad- 
vanced bid. 

Title of the Bidder. — In accord with original. See Rich- 
mond County v. Simmons, 209 N. C. 250, 183 S. E- 282. 

Where a resale is ordered the bidder at the first sale is 
released from any and all obligation by reason of his bid. 
Richmond County v. Simmons, 209 N. C. 250, 251, 183 Si 
E. 282. 

Cited in Dennis v. Dixon, 209 N. C. 199, 183 S. E- 360. 

§ 2593(b). Injunction of mortgage sales on equi- 
table grounds. 

Requiring Bond within Court's Discretion. — 

In accord with original. See Eittle v. Wachovia Bank, 
etc., Co., 208 N. C. 726, 182 S. E- 491. 
Where It Is Error for Court to Grant Motion to Nonsuit. 

— Where plaintiffs, trustors in a deed of trust, seek to en- 
join the consummation of a foreclosure sale had under the 
power contained in the instrument, and alleged that the 
price bid at the sale was grossly inadequate, which alle- 
gation is denied in the answer, it is error for the court 
to grant defendants' motion to nonsuit, plaintiffs being 
entitled to a hearing and a determination of the issue under 
the provisions of this section. Smith v. Bryant, 209 N. C. 
213, 183 S. E- 276. 

Injunction Held to Be Properly Continued to Hearing 
upon Court's Finding. — Where a mortgagor or trustor in- 
stitutes suit to enjoin the consummation of a foreclosure 
sale had under the terms of the instrument, and files bond 
to indemnify the mortgagee or cestui que trust against 
loss, the temporary injunction granted in the cause is 
properly continued to the hearing upon the court's finding 
that serious controversy exists between the parties and 
that plaintiff is entitled to a jury trial upon the issues 
of fact raised by the pleadings. Eittle v. Wachovia Bank, 
etc., Co., 208 N. C. 726, 182 S. E- 491. See § 861 and note. 

Where Court Determines Whether Bid Was Grossly In- 



56 



§ 2593(c) 



MOTOR VEHICLES 



§ 2613(j) 



adequate.— Where, in a suit to enjoin the consummation 
of a foreclosure sale the issue of whether the bid at the 
sale was grossly inadequate is raised by the pleadings, the 
parties are not entitled as a matter of law to have the 
issue determined by a jury, but the court may hear evi- 
dence and determine the issue, and should dismiss the ac- 
tion if it finds that the amount of the bid is the fair value 
of the land, or should enjoin the consummation of the 
sale if it finds that the bid is grossly inadequate. Smith 
v. Bryant, 209 N. C. 213, 183 S. E- 276. 

Stated in Richmond Mtg., etc., Corp. v. Wachovia Bank, 
etc., Co., 300 U. S. 124, 57 S. Ct. 338. 

Cited in Richmond Mtg., etc., Corp. v. Wachovia Bank, 
etc., Co., 210 N. C. 29, 185 S. E. 482. 

§ 2593(c). Ordering resales before confirmation; 
receivers for property; tax payments. 

Stated in Richmond Mtg., etc., Corp. v. Wachovia Bank, 
etc., Co., 300 U. S. 124, 57 S. Ct. 338. 

Cited in Richmond Mtg., etc., Corp. v. Wachovia Bank, 
etc., Co., 210 N. C. 29, 185 S. E. 482. 

§ 2593(d). Right of mortgagee to prove in de- 
ficiency suits reasonable value of property by way 
of defense. 

This section is constitutional and valid. Richmond Mtg., 
etc., Corp. v. Wachovia Bank, etc., Co., 210 N. C. 29, 185 
S. E. 482. 

This section has merely restricted the exercise of the 
contractual remedy to provide a procedure which, to some 
extent, renders the remedy by a trustee's sale consistent with 
that in equity. This does not impair the obligation of the 
contract. Richmond Mtg., etc., Corp. v. Wachovia Bank, 
etc., Co., 300 U. S. 124, 131, 57 S. E. 338. 

It applies only to foreclosure under powers of sale and 
not to actions to foreclose, and only instances where the 
creditor bids in the property, directly or indirectly, and not 
to instances where the property is bid in by independent 
third persons. Richmond Mtg., etc., Corp. v. Wachovia 
Bank, etc., Co., 210 N. C. 29, 185 S. E- 482. See also, Rich- 
mond Mtg., etc., Corp. v. Wachovia Bank, etc., Co., 300 
U. S. 124, 130, 57 S. Ct. 338. 

And alters and modifies one of the existing remedies for 
realization of the value of the security, but cannot fairly be 
said to do more than restrict the mortgagee to that for 
which he contracted, namely, payment in full. It recognizes 
the obligation of his contract and his right to its full en- 
forcement but limits that right so as to prevent his obtain- 
ing more than his due. Richmond Mtg., etc., Corp. v. 
Wachovia Bank, etc., Co., 300 U. S- 124, 130, 57 S. Ct. 338. 

It is not "emergency legislation," nor is its purpose to 
provide a "moratorium" for debtors during a temporary pe- 
riod of depression. Richmond Mtg., etc., Corp. v. Wach- 
ovia Bank, etc., Co., 210 N. C. 29, 34, 185 S. E- 482. 

Amount Bid Is Not Conclusive as to Value. — The amount 
bid by the creditor at the sale, and applied by him as a 
payment on the debt, is not conclusive as to the value of 
the property. Richmond Mtg., etc., Corp. v. Wachovia 
Bank, etc., Co., 210 X. C. 29, 34. 185 S. E. 482. 

This section recognizes the obligation of a debtor who has 
secured the payment of his debt by a mortgage or deed of 
trust to pay his debt in accordance with his contract, and 
does not impair such obligation. Richmond Mtg., etc., Corp. 
v. Wachovia Bank, etc., Co., 210 N. C. 29, 34, 185 S. E. 
482. 

And it recognizes the validity of powers of sale contained 
in mortgages or deeds of trust, but regulates the exercise 
of such powers by the application of well settled principles 
of equity. It provides for judicial supervision of sales made 
and conducted by creditors whose debt* are secured by 
mortgages or deeds of trust, and thereby provides protection 
for debtors whose property has been sold and purchased 
by their creditors for a sum which was not a fair value of 
the property at the time of the sale. Richmond Mtg., etc., 
Corp. v. Wachovia Bank, etc.. Co., 210 N. C. 29. 35. 185 
S. E. 482. 

§ 2593(e). Conflicting laws repealed; not appli- 
cable to tax suits. 

Cited in Richmond Mtg., etc., Corp. v. Wachovia Bank, 
etc., Co., 300 U. S. 124, 57 S. Ct. 338. 

§ 2593(f). Deficiency judgments abolished where 
mortgage represents part of purchase price. 

Cited in footnote to Louisville Joint Stock Land Bank v. 
Radford, 295 U. S. 555, 79 L. Ed. 1593, 55 S. Ct. 854, 97 
A. L. R. 1106; Richmond Mtg.. etc., Corp. v. Wachovia 
Bank, etc., Co., 300 U. S. 124. 57 S. Ct. 338. 



664 



CHAPTER 55 

MOTOR VEHICLES 
Art. 1. General Provisions 
§ 2598. Terms defined. 

Applied in Kelly v. Hunsucker, 211 X. C. 153, 189 S. E. 

Art. 3. License Fees 
§ 2612. Amount of license fees. 

Cited in Taft v. Maryland Cas. Co.. 211 X. C. 507, 191 
S. E. 10. 

Art. 3A. Gasoline Tax 

§ 2613 (il5). 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 [Provided, however, that 
motor vehicles designed but not used upon the 
highways of this state shall be entitled to the re- 
fund of gasoline tax as herein provided], upon the 
following conditions and in the following man- 
ner: 

(1937, c. 111.) 

Editor's Note. — The 1937 amendment inserted the words in 
brackets in the first sentence. The rest of the section, not 
being affected by the amendment, is not set out. 

Art. 3B. Motor Busses 
§ 2613 (j). Definitions.— 

(k) The term "motor vehicle carrier" means 
every corporation or person, as the term "cor- 
poration" and the term "person" are hereinbefore 
defined, or their lessees, trustees or receivers- 
owning, controlling, operating or managing any 
motor vehicle used in the business of transport- 
ing persons or property for compensation be- 
tween cities, or between towns, or between cities 
and towns, or over a regular route, over the pub- 
lic highways of the state, as public highways are 
defined herein. 

(r) The term "broker" means any person not 
included in the term "motor vehicle carrier" and 
not a bona fide employee or agent of any such 
carriers, who or which as principal or agent sells 
or ofiers for sale any transportation, or negotiates 
for or holds himself, or itself, out by solicitation, 
advertisement, or otherwise, as one who sells, 
provides, furnishes, contracts, or arranges for such 
transportation for compensation, either directlv 
or indirectly. 

(s) The term "forwarder" means any person 
not included in the terms "motor vehicle carrier" 
or "broker" as herein defined, who or which is- 
sues receipts of billings for property received by 
it for transportation, forwarding, or consolidating 
or for distribution by any medium of transporta- 
tion or combination of mediums of transportation, 
and who is not a carrier by rail, w^ater, air or ex- 
press, and other than the operations of a bona fide 
warehouseman. 

(t) The term "restricted common carrier by 
motor vehicle" means any person not included in 



57] 



§ 2613(k) 



MOTOR VEHICLES 



§ 2613(0) 



the definition "common carrier by motor vehicle" 
who or which undertakes, whether directly or by 
lease or other arrangement, to transport passen- 
gers or property restricted to any class or classes 
of passengers or to any class, kind or commodity 
or property by motor vehicle for compensation, 
whether over regular or irregular routes, and/or 
"excursion passenger vehicles" as defined in chap- 
ter one hundred twenty-two, Public Laws one 
thousand nine hundred twenty-seven [§ 2621(1) et 
seq.], and amendments thereto. (1925, c. 50, s. 
1; 1927, c. 136, s. 1; 1929, c. 193, s. 1; 1937, c. 247, 
ss. 1, 2.) 

Editor's Note. — The 1937 amendment inserted the words 
"or over a regular route" in subsection (k), and added 
subsections (r), (s) and (t). The rest of the section, not 
being' affected by tht amendment, is not set out. 

§ 2613 (k). To whom applicable. — No corpora- 
tion or person, their lessees, trustees, or receiv- 
ers shall operate over the public highways in this 
state any motor vehicle or motor vehicle with 
trailer, as hereinbefore defined as a motor vehicle 
carrier, for the transportation of persons or prop- 
erty between cities, or between towns, or between 
cities and towns, or over a regular route, for com- 
pensation, except in accordance with the provi- 
sions of this act, and said operation shall be sub- 
ject to control, supervision, and regulation by the 
commission in the manner provided by this act: 
Provided, that where the corporate limits of two 
or more cities join, they shall be treated as one 
for purposes of administering this act: provided, 
further, that nothing in this act shall prohibit a 
motor vehicle carrier under this act, nor any 
motor vehicle on which the franchise tax has been 
paid as provided in the current revenue act from 
making casual trips on call over routes established 
hereunder; provided, that on said casual trips no 
one shall be allowed to pick up any passenger 
or property along the route, nor be permitted 
on the return trip to carry any passengers or 
property other than those or that included in the 
original trip; nor shall it apply to motor vehicles 
used exclusively for transporting school students 
from and to their homes; nor to motor vehicles 
used exclusively for transporting persons to or 
from religious services; nor to motor vehicles 
used exclusively in carrying the United States 
mail; nor to motor vehicles used exclusively in 
transporting farm and dairy products from the 
farm or dairy to warehouse, creamery or other 
original storage or market; nor to motor ve- 
hicles used exclusively in the distribution of news- 
papers from the publisher to subscribers or dis- 
tributors; nor to motor vehicles used exclusively 
in the transportation of bona fide employees of an 
industrial plant to and from the places of their 
regular employment: Provided, that if a franchise 
operator shall furnish such transportation facilities 
to such mill or factory maintaining a residential 
unit of one thousand inhabitants or more, the fore- 
going exception shall not be operative: Provided, 
further, that this shall not repeal chapter three 
hundred and seventy-five, Public Laws, one thou- 
sand nine hundred and thirty-one. (1925, c. 50, s. 
2; 1927, c. 136, s. 2; 1929, cc. 193, s. 1, 254, s. 1; 
1935, c. Ill; 1937, c. 247, s. 2.) 

Editor's Note. — The 1937 amendment inserted the words 
"or over a regular route" in the eighth line of this section. 

§ 2613(1). Application for franchise certificate. — 



(j) Franchise certificates may be granted to re- 
stricted common carriers as defined herein for any 
period in the discretion of the commissioner not 
to exceed three years. 

(k) A brokerage license shall be issued to any 
qualified applicant therefor authorizing the whole 
or any part of the operations covered by the ap- 
plication if it is found that the applicant is fit, 
willing and able properly to perform the service 
proposed and to conform to the provisions of 
this article and the requirements, rules and regu- 
lations of the commissioner thereunder, and that 
the proposed service, to the extent to be author- 
ized by the license, is or will be consistent with 
the public interest and policy declared herein; 
otherwise, such application shall be denied. 

(1) No person shall engage in the business of 
a forwarder, subject to the provisions of this 
article, in intrastate operations within this state 
unless such person makes application to the com- 
missioner and obtains a certificate issued by the 
commissioner authorizing such person to engage 
in such business as provided herein for other 
common carriers by motor vehicle: Provided, 
that where any such forwarder hires instead of 
owning motor vehicle equipment, such forwarder 
shall become subject to the provisions herein pre- 
scribed for brokers: Provided further, that it 
shall be unlawful for any such forwarder in the 
performance of its operation in intrastate com- 
merce to employ or use any motor vehicle carrier 
which is not the lawful holder of an effective cer- 
tificate issued as provided in this article. The 
commissioner may in any certificate issued re- 
strict or prohibit the direct operation of any 
motor vehicles by such forwarder in intrastate 
commerce. Subject to the foregoing part of this 
subsection (1), a certificate shall be issued to any 
qualified applicant to conduct the business of for- 
warder in whole or in part, if it is found that the 
applicant is fit, willing and able properly to per- 
form the service proposed and to conform to the 
provisions of this article and the requirements, 
rules and regulations of the commissioner there- 
under, and that the proposed service, to the ex- 
tent to be authorized by the certificate, is or will 
be consistent with the public interest and policy 
declared by this article; otherwise, such applica- 
tion shall be denied. (1925, c. 50, s. 3; c. 137; 
1927, c. 136, s. 3; 1931, c. 182; 1933, c. 440, s. 1; 
1937, c. 247, s. 3.) 

Editor's Note.— The 1937 amendment added subsections (j), 
(k) and (1). The rest of the section, not being affected by 
the amendment, is not set out. 

§ 2613 (o). Insurance. — 

Provided, that the commissioner may permit 
the filing by any licensed assurer a uniform mas- 
ter insurance policy contract, the terms of which 
shall conform to the foregoing, and when ap- 
proved and accepted by the commissioner, shall 
be applicable to all insurance policy contracts 
filed by such assurer for motor vehicle carriers 
under this act, and thereafter, so long as the 
master policy contract shall remain in force, car- 
riers under this act may be permitted to file cer- 
tificates, in such form as the commissioner may 
prescribe, evidencing fleet coverage under the 
terms of such master policy instead of filing a 
separate individual policy contract in each case: 
Provided, that brokers and forwarders not oper- 



[58] 



§ 2613 (q) 



MOTOR VEHICLES 



§ 2613 (aa) 



ating motor vehicles under a certificate shall be 
required to file bond to cover financial responsi- 
bility not in excess of amounts required by the 
interstate commerce commission. (1927, c. 136, 
s. 6; 1937, c. 403.) 

Editor's Note.— The 1937 amendment directed that the above 
provision be added at the end of this section. The rest of 
the section, not being affected by the amendment, is not set 
out here. _ 

§ 2613 (q). General powers of commissioner. — 

The commissioner shall at any time, upon com- 
plaint, or upon his own motion, that any oper- 
ator transporting persons or property by a motor 
vehicle, licensed under the provisions of this or 
any other act by the state of North Carolina, be 
engaged in violating the provisions of this article 
•or any rules or regulations prescribed by the com- 
missioner, or violating any of the laws of the 
state with respect to the rights, duties, and privi- 
leges of motor vehicle carriers for the transpor- 
tation of either persons or property on franchise 
certificate issued under the provisions of this arti- 
cle, cause an order to be issued directing the 
owner of the motor vehicle alleged to be engaged 
in any of the acts specified to appear before the 
commissioner at a fixed time and place, at which 
time the commissioner shall investigate the com- 
plaint made; and if the commissioner shall be 
satisfied after such hearing that the said motor 
vehicle carrier has been engaged in practice or 
practices violating the terms of his franchise or 
the rules and regulations for the enforcement 
thereof, or, if not a franchise carrier, has been 
invading the prerogatives, privileges, or rights of 
a duly licensed franchise carrier by operating on 
the route of a common carrier by soliciting or 
transporting passengers or property at lower than 
approved rates for the common carrier, or with- 
out a bona fide contract, the commissioner shall 
issue an order requiring the suspension of such 
practice or practices conditioned upon the revoca- 
tion of the motor vehicle license of the offending 
party if he shall fail within the time specified by 
the commissioner to desist from such offending 
practice or practices; and upon the failure of any 
offending motor vehicle carrier to obey such or- 
der of the commissioner, the commissioner shall 
certify this fact to the commissioner of revenue, 
whereupon the commissioner of revenue shall 
cause the license or licenses of the offending 
motor vehicle carrier to be canceled, and such 
offending carrier who shall thereafter engage in 
the hauling of any persons or property for com- 
pensation shall be guilty of a misdemeanor, and 
each day's operation shall constitute a separate 
offense: Provided, the holder of any certificate, 
franchise or license whose certificate, franchise 
or license is ordered canceled hereunder shall have 
the right of appeal to the superior court as is now 
provided by law for appeals from the commis- 
sioner, but no such holder shall operate pending 
such appeal unless permitted to do so by order 
of the commissioner. (1927, c. 136, s. 8; 1937, c. 
247, s. 4.) 

Editor's Note. — The 1937 amendment struck out the former 
section and inserted the above in lieu thereof. The present 
section refers to "commissioner" instead of "commission." 

Obviously this section is leveled at those carriers operating 
or purporting to operate under contract with particular ship- 
pers rather than operating under a franchise and serving the 
public generally. Such contract carriers must now have 
bona fide contracts. This probably means that they may 



not take occasional business, but must have contracts with 
shippers running over a period of time and calling for con- 
tinued service. The provisions designed to prevent con- 
tract carriers from obtaining business by cutting rates below 
those of common carriers are a step in the direction already 
taken by other states which have set up systems of control 
of private contract motor carriers. 15 N. C. L,aw Rev., No. 
4, pp. 360, 361. 

§ 2613(v). Fares, charges, and free transporta- 
tion. — No motor vehicle carrier shall charge, de- 
mand, collect, or receive a greater or less or dif- 
ferent compensation for the transportation of 
persons or property, or for any service in connec- 
tion therewith, than the rates, fares, and charges 
applicable to such carrier as specified in its tar- 
iffs filed with and approved by the commission 
and in effect at the time; nor shall any such car- 
rier refund or remit in any manner or by any de- 
vice any portion of the rates, fares, or charges 
so specified, or extend to any person, firm, co- 
partnership, or corporation, or other organiza- 
tion, or association, privileges or facilities in the 
transportation of persons or property except such 
as are regularly and uniformly extended to all; 
and no such carrier shall, directly or indirectly, 
issue, give, tender, or honor any free fares except 
to its bona fide officers, agents, employees, and 
members of their immediate families, and such per- 
sons as the commission may designate in its em- 
ploy, the employ of the state highway and public 
works commission and/or the motor vehicle bureau, 
for the inspection of equipment and supervision of 
traffic upon the highways of the state: Provided, 
that motor vehicle carriers under the act may ex- 
change free transportation within the limits of this 
section. Provided, that any motor vehicle carrier 
may carry free any blind preacher within the state 
of North Carolina upon its busses or motor vehicles 
operating in the state of North Carolina, under the 
condition that said preacher shall carry or present 
to such motor vehicle carrier a certificate showing 
what church or sect he may represent and that 
he is in good and regular standing with that de- 
nomination or sect. (1927, c. 136, s. 13; 1929, c. 
58, s. 1; 1937, c. 247, s. 5.) 

Editor's Note. — The 1937 amendment added the clause re- 
lating to employees of the state highway and public works 
commission and the motor vehicle bureau. 

§ 2613 (aa). Maintenance of actions; fees; funds 
for enforcement; conferences, etc.— The commis- 
sion shall have the right and authority to enforce 
by injunction or other ancillary remedy the pro- 
visions of this article or the rules and regulations 
made under this article. 

(a) Fees. — Each applicant for a certificate shall 
deposit with the commissioner as a filing fee the 
sum of ten dollars ($10.00) at the time of applica- 
tion, and fee of one dollar ($1.00) for each motor 
vehicle added thereafter; and for annual re-regis- 
tration for the purchase of license, number plates, 
or tags, a fee of twenty-five cents (25c) for each 
motor vehicle so re-registered; and for renewal 
of certificate, a fee of twenty-five cents (25c) for 
each motor vehicle being operated under the cer- 
tificate at the time application for renewal is filed: 
Provided, that brokers and forwarders not apply- 
ing for nor holding certificates for the operation 
of motor vehicles shall deposit a filing fee of 
twenty-five dollars ($25.00) each at the time of 
application and twenty-five dollars ($25.00) per 
annum thereafter in addition to any other tax or 



[59] 



§ 2613 (fob) 



MOTOR VEHICLES 



§ 2621 (46a) 



fee provided by law. Such fees, when received by 
the commissioner, shall be paid forthwith to the 
state treasurer and credited to the highway fund 
for enforcement purposes. This section shall be 
in force from and after the ratification of this law. 

(b) Funds for Enforcement. — The highway and 
public works commission is hereby empowered, 
with the approval of the director of the budget, 
from time to time to appropriate sufficient funds 
for the use of the commissioner for the reasonable 
enforcement of this article, to be by him disbursed 
under the supervision of the director of the 
budget. 

(c) Conferences and Joint Hearings. — The com- 
missioner or his authorized representative is au- 
thorized to confer with and hold joint hearings with 
the authorities of any other state or representa- 
tives of the interstate commerce commission in 
connection with any matter arising under the Fed- 
eral Motor Carrier Act, one thousand nine hundred 
thirty-five, or in establishing jurisdiction under 
this article or the Federal Act. (1927, c. 136, s. 
18; 1937, c. 247, s. 6.) 

Editor's Note. — The 1937 amendment added subsections (a), 
(b) and (c) to this section. 

§ 2613 (bb). Inconsistent acts. 

Applied in Kelly v. Hunsucker, 211 N. C. 153, 189 S. E- 
664. 

Art. 4. Operation of Vehicles 

§ 2616. Driving regulations; frightened ani- 
mals; crossings. 

See §§ 2641(46), 2641 (49a) and the notes thereto. 

§ 2618. Speed regulations; mufflers. 

Evidence Sufficient to Establish Negligence Per Se. — Evi- 
dence that defendant drove his car into an intersection of 
highways at a speed in excess of 15 miles per hour when his 
vision of the intersecting highway was obstructed by grow- 
ing corn, and that his speed was a proximate cause of the 
accident in suit, is sufficient to overrule his motion as of 
nonsuit, speed in excess of 15 miles per hour, under the cir- 
cumstances, being in violation of this section and constitut- 
ing negligence per se. Turner v. L,ipe, 210 N. C. 627, 188 
S. E. 108. 

But Insufficient to Support Wanton Negligence.— Turner 
v. Lipe, 210 N. C. 627, 188 S. E- 108. 

§ 2618(b). Duty of driver passing school bus. 

This section applies to passing a school bus from either 
direction, from the rear or from the front. State v. Webb, 
210 N. C. 350, 186 S. E. 241. 

§ 2618(d). Standard qualifications for school bus 
drivers; speed limit. — No person shall drive or op- 
erate a school bus over the public roads of North 
Carolina while the same is occupied by children 
unless said person shall be fully trained in the op- 
eration of motor vehicles, and shall furnish to the 
superintendent of the schools of the county in 
which said bus shall be operated a certificate from 
the highway patrol of North Carolina showing that 
he has been examined by a member of the said 
highway patrol, and that he is a fit and competent 
person to operate or drive a school bus over the 
public roads of the state. 

It shall be unlawful for any person to operate or 
drive a school bus loaded with children over the 
public roads of North Carolina at a greater rate of 
speed than thirty-five miles per hour. 

Any person violating paragraph two of this sec- 
tion shall, upon conviction, be fined not more than 
fifty dollars ($50.00) or imprisoned not more than 
thirty days. (1937, c. 397, ss. 1-3.) 

[ 60 



Art. 7. The Motor Vehicle Act; Department of 
Motor Vehicles; Registration 

§ 2621(1). Definitions. 

For act amending and consolidating this article and article 
eight, see § 2621(186) et seq. 

Applied in State v. Brooks, 210 N. C. 273, 186 S. E- 237. 

Art. 8. Uniform Act Regulating Operation of Ve- 
hicles on Highways 

§ 2621(43). Definitions. 

For act amending and consolidating this article and article 
seven, see § 2621(186) et seq. 

§ 2621(44). Persons under the influence of in- 
toxicating liquor or narcotic drugs. 

Cited in State v. Creech, 210 N. C. 700, 188 S. E. 316, dis- 
senting opinion. 

§ 2621(45). Reckless driving. 

When Person Guilty of Reckless Driving. — Under this sec- 
tion, a person is guilty of reckless driving (1) if he drives 
an automobile on a public highway in this state, carelessly 
and heedlessly, in a willful or wanton disregard of the rights 
or safety of others, or (2) if he drives an automobile on a 
public highway in this state without due caution and cir- 
cumspection and at a speed or in a manner so as to en- 
danger or be likely to endanger any person or property. 
State v. Folger, 211 N. C. 695, 697, 191 S. E- 747. 

An indictment under this section may be consolidated for 
trial with an indictment under § 2618(b), which prohibits 
the passing of a standing school bus on the highway. State 
v. Webb, 210 N. C. 350, 186 S. E- 241. See § 4622. 

Sufficient Evidence to Sustain Negligence and Proximate 
Cause as a Matter of Law.— Smith v. Miller, 209 N. C. 
170, 183 S. E- 370. 

Instruction on Reckless Driving Held Reversible Error. 
-See State v. Folger, 211 N. C. 695, 697, 191 S. E. 747. 

Cited in Hancock v. Wilson, 211 N. C. 129, 189 S. E- 631. 

§ 2621(46). Speed restrictions. 

Under §§ 2616, 2618. — In accord with original. See Hin- 
shaw v. Pepper, 210 N. C. 573, 187 S. E- 786. 

Section Did Not Repeal § 2616 Providing Speed Limit in 
Traversing Bridge.— Section 2616 providing a speed limit of 
10 miles per hour in traversing a bridge, is not repealed 
by this section, since this section does not purport to cover 
the whole field of speed regulation upon the state high- 
ways, and the provisions of the former section are not re- 
pugnant to those of the latter. Kelly v. Hunsucker, 211 
N. C. 153, 189 S. E- 664, construing this section prior to 
1935 amendment. 

Sufficient Evidence to Overrule Defendant's Motion to 
Nonsuit in Prosecution for Manslaughter. — Evidence that 
the defendant was driving his car at a speed of from 50 to 
55 miles per hour, on or near the center of the highway, 
when he collided with another car, resulting in the death 
of the driver thereof, was held sufficient to overrule de- 
fendant's motion to nonsuit in a prosecution for manslaugh- 
ter, although defendant introduced evidence in sharp con- 
flict. State v. Webber, 210 N. C. 137, 185 S. E. 659. 

Driving Automobile in Excess of Forty- Five Miles Per 
Hour Is Only Prima Facie Negligence. — The driving of an 
automobile upon a highway at a speed in excess of forty- 
five miles per hour is not negligence per se or as a matter 
of law, but only prima facie evidence that the speed is un- 
lawful under the provisions of this section. State v. Web- 
ber, 210 N. C. 137, 185 S. E- 659, citing State v. Spencer, 
209 N. C. 827, 184 S. E. 835. 

Prior to the enactment of this section the operation of a 
motor driven vehicle upon the highways of the State at a 
greater rate of speed than forty -five miles per hour was 
unlawful, and therefore negligence per se, since said en- 
actment such operation is only prima facie evidence of neg- 
ligence. Exum v. Baumrind, 210 N. C. 650, 651, 188 S. E. 
200. 

Applied in Hancock v. Wilson, 211 N. C. 129, 189 S. E- 
631. 

Cited in Pittman v. Downing, 209 N. C. 219, 183 S. E- 
362; Taft v. Maryland Cas. Co., 211 N. C. 507, 191 S. E- 10. 

§ 2621 (46a). Restrictions on speed of trucks. 

Where the evidence in a prosecution for manslaughter 
is not conclusive as to whether the truck operated by the 
defendant had attached thereto a trailer or semitrailer as 
defined by § 2621(1), and all the evidence shows that the 
defendant was driving the truck between thirty and thirty- 



§ 2621 (49a) 



MOTOR VEHICLES 



§ 2621(187) 



five miles per hour, it was held error for the court to in- 
struct the jury that defendant's speed was limited to thirty 
miles per hour. State v. Brooks, 210 N. C. 273, 186 S. % 
237. 

The burden is upon the State to prove that a truck had 
a trailer attached thereto as defined by § 2621(1) in order 
to reduce the maximum lawful speed at which a vehicle 
might be lawfully operated from thirty- five miles per hour 
as prescribed for trucks without trailers, to thirty miles 
per hour. Id. 

Cited in Taft v. Maryland Cas. Co., 211 N. C. 507, 191 
S. E. 10. 

§ 2621 (49a). Signs showing safe speed and car- 
rying capacity of bridges. 

The provisions of § 2616 are not repealed by this section, 
since this section is not inconsistent with the ten-mile 
limit for traversing bridges set up by the former section. 
Kelly v. Hunsucker, 211 N. C. 153, 189 S. E- 664. 

§ 2621(51). Drive on right side of highway. 

Proximate Cause. — 

In accord with original. See Stovall v. Ragland, 211 N. 
C. 536, 190 S. E- 899. 

Burden on Plaintiff to Establish Negligence. — Where 
plaintiff's evidence leaves in speculation and conjecture the 
determinative fact of whether defendant's car was being 
driven on the wrong side of the highway at the time of the 
collision, defendant's motion to nonsuit is properly granted, 
the burden being on plaintiff to establish the negligence of 
defendant. Cheek v. Barnwell Warehouse, etc., Co., 209 
N. C. 569, 183 S. E. 729. 

Applied in Hancock v. Wilson, 211 N. C. 129, 189 S. E- 
631. 

§ 2621(53). Meeting of vehicles. 

Assumption That Vehicle Will Turn to Right. — 

In accord with original. See Hancock v. Wilson, 211 N. 
C. 129, 189 S. E. 631. 

§ 2621(54). Overtaking a vehicle. 

The violation of this section is negligence and if such 
negligence was the proximate cause of plaintiff's injuries, 
the defendant, nothing else appearing, is liable to the plain- 
tiff in this action. Stovall v. Ragland, 211 N. C. 536, 539, 
190 S. E- 899. 

Evidence Sufficient to Raise Issue of Last Clear Chance. 
—Where the evidence tended to show that plaintiff, in 
order to avoid striking a chicken standing on the hard 
surface of the highway, drove his automobile gradually to 
the left, so that the car was traveling in about the cen 
ter of the highway at the time of the accident in suit, and 
that a bus belonging to defendant was traveling in the 
same direction and hit plaintiff's car when the bus at- 
tempted to pass, it was held that conceding plaintiff was 
negligent in driving to the left without giving any sig- 
nal or ascertaining if the car could be driven to the left in 
safety (§ 2621(59)), defendant's motion to nonsuit was er- 
roneously granted, since the pleadings and evidence are 
sufficient to raise the issue of the last clear chance upon 
the evidence tending to establish defendant's negligence 
in failing to keep a safe distance between the vehicles (§ 
2621(57)), and in failing to take the precautions and give 
the signals required by this section for passing cars on 
the highway. Morris v. Seashore Transp. Co., 208 N. C. 
807, 182 S. E. 487. 

§ 2621(55). Limitations on privilege of overtak- 
ing and passing. 

Reference.— See note to § 2621(54) of this Supplement. 
Sufficient Evidence to Submit Question of Negligence to 

Jury.— Evidence that the driver of a truck, in attempting to 
pass cars going in the same direction, pulled out in the 
center of the road and hit the car which plaintiff was driv- 
ing in the opposite direction, causing damage to the car and 
injury to plaintiff, was held sufficient to be submitted to the 
jury on the question of the actionable negligence of the 
driver of the truck. Joyner v. Dail, 210 N. C. 663, 188 
S. E. 209. 

§ 2621(57). Following too closely. 

Reference.— See note to § 2621(54) of this Supplement. 

§ 2621(59). Signals on starting, stopping or 
turning. 

Reference— See note to § 2621(54) of this Supplement. 

Person Observing No Vehicles in Either Direction Is un- 
der No Obligation to Give Signal.— The plaintiff having first 
looked in both directions, and having observed no automo- 

[61 



bile or other vehicle approaching from either direction, was 
under no obligation, by virtue of this section to give any 
signal of his purpose to turn to his left and enter the drive- 
way to his home. He was therefore not negligent as a 
matter of law in failing to give a signal before he turned 
to his left and crossed the highway for the purpose of en- 
tering the driveway to his home. Stovall v. Ragland, 211 
N. C. 536, 539, 190 S. E- 899. 

§ 2621(66). Stopping on highway. 

To "park" means something more than a mere temporary 
or momentary stoppage on the road for a necessary pur- 
pose. Stallings v. Buchan Transport Co., 210 N. C. 201, 
203, 185 S. E. 643. 

Thus where the driver of a truck with a trailer stopped 
on the highway at night on the right-hand side, with lights 
burning, because two automobiles in front of him were in- 
terlocked in a wreck, and at the time of the collision the 
truck and trailer had been standing still only a fraction of 
a minute, and it remained parked for about five minutes 
thereafter, it was held that at the time of the collision the 
truck was not parked on the highway within the meaning 
of this section, and the length of time it remained still after 
the collision is immaterial to plaintiff's right to recover; 
since it was not the intention of those who drafted the 
statute to make it a violation of law for a driver of a heavy 
truck and trailer to stop on his right-hand side of the high- 
way before driving around or by two cars interlocked in 
a collision on the highway, and around which a number 
of people were working. Id. 

Section Not Violated Where Disabled Truck Is Parked 
on Shoulder of Highway.— See State v. McDonald, 211 N. 
C. 672, 676, 191 S. E. 733. 

Evidence Disclosing Contributory Negligence of Plaintiff. 
— Conceding defendant was negligent in parking the car on 
the hard surface in violation of this section, the evidence 
discloses contributory negligence of plaintiff as a matter of 
law in attempting to pass the parked car without first as- 
certaining that he could pass the car in safety. McNair 
v. Kilmer & Co., 210 N. C. 65, 185 S. E- 481. 

§ 2621(71). Duty to stop in event of accident. — 

(ib) The driver of any vehicle involved in an 
accident resulting in damage to property shall im- 
mediately stop such vehicle at the scene of such 
accident and any person violating this provision 
shall upon conviction be punished by a fine or im- 
prisonment, in the discretion of the court. 

(1937, c. 34.) 

Editor's Note. — Prior to the 1937 amendment the punish- 
ment provided for in subsection (b) was "as provided in § 
2621(100)." The rest of the section, not being affected by 
the amendment, is not set out. 

Art. 15. Motor Vehicle Law of 1937 

Part 1. General Provisions 

§ 2621(186). Certain laws amended to conform 
with provisions of article. — Chapter one hundred 
and twenty-two of the Public Laws of one thou- 
sand nine hundred and twenty-seven [§ 2621(1) et 
seq.] and chapter one hundred and forty-eight of 
the Public Laws of one thousand nine hundred 
and twenty-seven [§ 2621(43) et seq.], and all acts 
amendatory thereof, and all acts passed prior there- 
to dealing with the matter of registration and li- 
censing of motor vehicles, be, and the same are 
hereby, amended and consolidated in conformity 
with the provisions hereinafter set out in this arti- 
cle. (1937, c. 407, s. 1.) 

§ 2621(187). Definition of words and phrases. — 

The following words and phrases when used in 
this article shall, for the purpose of this article, 
have the meanings respectively prescribed to them 
in this section, except in those instances where the 
context clearly indicates a different meaning: 

(a) Business District. — The territory contiguous 
to a highway when fifty per cent or more of the 
frontage thereon for a distance of three hundred 



§ 2621(187) 



MOTOR VEHICLES 



§ 2621(187) 



feet or more is mainly occupied by dwellings or by 
dwellings and buildings in use for business. 

(b) Commissioner. — Commissioner, when herein 
referred to, shall refer to the commissioner of rev- 
enue. 

(c) Department. — Department herein used shall 
mean the motor vehicle bureau of the department 
of revenue, acting directly or through its duly au- 
thorized officers and agents. 

(d) Dealer. — Every person engaged in the busi- 
ness of buying, selling, distributing, or exchanging 
motor vehicles, trailers or semi-trailers in this 
state, having an established place of business in 
this state and being subject to the tax levied by 
section 7880(84). 

(e) Essential Parts. — All integral and body 
parts of a vehicle of any type required to be regis- 
tered hereunder, the removal, alteration or substi- 
tution of which would tend to conceal the identity 
of the vehicle or substantially alter its appearance, 
model, type, or mode of operation. 

(f) Established Place of Business. — The place 
actually occupied either continuously or at regular 
periods by a dealer or manufacturer, where his 
books and records are kept and a large share of 
his business is transacted. 

(g) Explosives. — Any chemical compound or 
mechanical mixture that is commonly used or in- 
tended for the purpose of producing an explosion 
and which contains any oxidizing and combustive 
units or other ingredients in such proportions, 
quantities, or packing that an ignition by fire, by 
friction, by concussion, by percussion, or by a 
detonator of any part of the compound or mixture 
may cause such a sudden generation of highly 
heated gases that the resultant gaseous presses are 
capable of producing destructible effects on con- 
tiguous objects or of destroying life or limb. 

(h) Farm Tractor. — Every motor vehicle de- 
signed and used primarily as a farm implement 
for drawing plows, mowing machines, and other 
implements of husbandry. 

(i) Foreign Vehicle. — Every vehicle of a type 
required to be registered hereunder brought into 
this state from another state, territory or country, 
other than in the ordinary course of business, by 
or through a manufacturer or dealer and not regis- 
tered in this state. 

(j) House Trailer. — Any trailer or semi-trailer so 
designed and equipped as to provide living and/or 
sleeping facilities and drawn by a motor vehicle. 

(k) Implement of Husbandry. — Every vehicle 
which is designed for agricultural purposes and 
used exclusively in the conduct of agricultural op- 
erations. 

(1) Intersection. — The area embraced within the 
prolongation of the lateral curb lines or, if none, 
then the lateral boundary lines of two or more 
highways which join one another at any angle 
whether or not one such highway crosses the 
other. 

(m) Local Authorities. — Every county, munici- 
pality, or other territorial district with local board 
or body having authority to adopt local police reg- 
ulations under the constitution and laws of this 
state. 

(n) Manufacturer. — Every person engaged in 
the business of manufacturing motor vehicles, 
trailers or semi-trailers. 



(o) Metal Tire. — Every tire the surface of which 
in contact with the highway is wholly or partly 
of metal or other hard, non-resilient material. 

(p) Motor Vehicle. — Every vehicle which is 
self-propelled and every vehicle which is propelled 
by electric power obtained from trolley wires but 
not operated upon rails, and every vehicle designed 
to run upon the highways which is pulled by a 
self-propelled vehicle. 

(q) Passenger Vehicles. — (1) Excursion pas- 
senger vehicles. 

Passenger vehicles kept in use for the purpose 
of transporting persons on sight-seeing or travel 
tours. 

(2) For hire passenger vehicles. 

Passenger motor vehicles engaged in the busi- 
ness of transporting passengers for compensation; 
but this classification shall not include motor ve- 
hicles of seven-passenger capacity or less operated 
by the owner where the cost of operation is shared 
by neighbor fellow workmen between their homes 
and the place of regular daily employment, when 
operated for not more than two trips each way 
per day. 

(3) Franchise bus carriers. 

Passenger motor vehicles operated under a fran- 
chise certificate issued by the utilities commis- 
sion under chapter fifty of the Public Laws of one 
thousand nine hundred and twenty-five [§ 2613 (j) 
et seq.] and amendments thereto, for operation 
on the public highways of this state between fixed 
termini or over a regular route for the transporta- 
tion of persons or property for compensation. 

(4) Motorcycle. 

Every motor vehicle having a saddle for the use 
of the rider and designed to travel on not more 
than three wheels in contact with the ground, but 
excluding a tractor. 

(5) U-Drive-It passenger vehicles. 
Passenger motor vehicles used for the purpose 

of rent or lease to be operated by the lessee. 

(6) Private passenger vehicles. 

All other passenger vehicles not included in the 
above definitions. 

(r) Property-Hauling Vehicles. — (l) Contract 
hauler vehicles. 

Motor vehicles used for the transportation of 
property for hire, but not licensed as franchise 
hauler vehicles under the provisions of chapter 
one hundred and thirty-six of the Public Laws of 
one thousand nine hundred and twenty-seven 
[§ 2613 (j) et seq.] and amendments thereto: Pro- 
vided, it shall not be construed to include the trans- 
portation of farm crops or products, including wood 
products cut and delivered from within a radius 
of twenty-five miles of market, but otherwise not 
including forest products from farms to the first 
or primary markets. 

(2) Franchise hauler vehicles. 

Every motor vehicle used for the transportation 
of property between fixed termini, or over a regu- 
lar route, with the right to make occasional trips 
off said route as provided in chapter one hundred 
and thirty-six of the Public Laws of one thousand 
nine hundred and twenty-seven [§ 2613 (j) et seq.] 
and amendments thereto: Provided, only such ve- 
hicles shall be so classified as the utilities commis- 
sion shall determine to be reasonably necessary for 
the proper handling of the business on said route, 



[62] 



§ 2621(188) 



MOTOR VEHICLES 



§ 2621(192) 



and the determination so arrived at duly certified 
by the utilities commissioner to the motor vehicle 
bureau. 

(3) Private hauler vehicles. 

All motor vehicles used for the transportation 
of property not falling within one of the above de- 
fined classifications. 

(4) Semi-Trailer. 

Every vehicle without motive power designed 
for carrying property or persons and for being 
drawn by a motor vehicle, and so constructed that 
part of its weight and/or its load rests upon or is 
carried by the pulling vehicle. 

(5) Trailers. 

Every vehicle without motive power designed 
for carrying property or persons wholly on its own 
structure and to be drawn by a motor vehicle. 
This shall include so-called pole trailers or a pair 
of wheels used primarily to balance a load, rather 
than for purposes of transportation. 

(s) Non-Resident. — Every person who is not a 
resident of this state. 

(t) Owner. — A person who holds the legal title 
of a vehicle or, in the event a vehicle is subject to 
an agreement for conditional sale or lease thereof, 
with the right of purchase upon performance of 
the conditions stated in the agreement and with 
the immediate right of possession vested in the 
original vendee or lessee; or, in the event a mort- 
gagor of a vehicle is entitled to possession, then 
such conditional vendee or lessee or mortgagor 
shall be deemed the owner for the purpose of this 
article. 

(u) Person. — Every natural person, firm, co- 
partnership, association, corporation, or govern- 
mental agency. 

(v) Pneumatic Tire. — Every tire in which com- 
pressed air is designed to support the load. 

(w) Private Road or Driveway. — Every road or 
driveway not open to the use of the public as a 
matter of right for the purpose of vehicular traffic. 

(x) Reconstructed Vehicle. — Every vehicle of a 
type required to be registered hereunder materially 
altered from its original construction by the re- 
moval, addition, or substitution of essential parts, 
new or used. 

(y) Road Tractor. — Every motor vehicle de- 
signed and used for drawing other vehicles upon 
the highway and not so constructed as to carry any 
part of the load, either independently or as a part 
of the weight of the vehicle so drawn. 

(z) Safety Zone. — The area or" space officially 
set aside within a highway for the exclusive use 
of pedestrians and which is so plainly marked or 
indicated by proper signs as to be plainly visible 
at all times while set apart as a safety zone. 

(aa) Specially Constructed Vehicles. — Every 
vehicle of a type required to be registered hereunder 
not originally constructed under a distinctive 
name, make, model, or type by a generally rec- 
ognized manufacturer of vehicles and not materi- 
ally altered from its original construction. 

(bb) Special Mobile Equipment. — Every vehicle 
not designed or used primarily for the transpor- 
tation of persons or property, but incidentally op- 
erated or moved over the highways, such as farm 
tractors, road construction or maintenance ma- 
chinery, ditch-digging apparatus, well-boring ap- 
paratus, and concrete mixers. The foregoing enu- 

[6 



meration shall be deemed partial and shall not 
operate to exclude other vehicles which are with- 
in the general terms of this section. 

(cc) Street and Highway. — The entire width 
between property lines of every way or place of 
whatever nature, when any part thereof is open 
to the use of the public as a matter of right for 
the purposes of vehicular traffic. 

(dd) Solid Tire. — Every tire of rubber or other 
resilient material which does not depend upon 
compressed air for the support of the load. 

(ee) Truck Tractor. — Every motor vehicle 
designed and used primarily for drawing other ve- 
hicles and not so constructed as to carry any load 
independent of the vehicle so drawn. 

(ff) Vehicle. — Every device in, upon, or by 
which any person or property is or may be trans- 
ported or drawn upon a highway, excepting devices 
moved by human power or used exclusively upon 
fixed rails or tracks. (1937, c. 407, s. 2.) 

Part 2. Authority and Duties of Commissioner 
and Department 

§ 2621(188). The commissioner of revenue shall 
perform the duties of vehicle commissioner. — The 

commissioner of revenue is hereby designated as 
the vehicle commissioner of this state; and he shall 
have all powers and perform such duties as are 
herein imposed upon the vehicle commissioner. 
(1937, c. 407, s. 3.) 

§ 2621(189). Administering and enforcing laws; 
rules and regulations; agents, etc., seal. — (a) The 

commissioner is hereby vested with the power 
and is charged with the duty of administering and 
enforcing the provisions of this article and of all 
laws regulating the operation of vehicles or the use 
of the highways, the enforcement or administra- 
tion of which is now or hereafter vested in the de- 
partment. 

(b) The commissioner is hereby authorized to 
adopt and enforce such rules and regulations as 
may be necessary to carry out the provisions of this 
article and any other laws the enforcement and 
administration of which are vested in the depart- 
ment. 

(c) The commissioner is authorized to designate 
and appoint such agents, field deputies, and clerks 
as may be necessary to carry out the provisions of 
this article. 

(d) The commissioner shall adopt an official seal 
for the use of the department. (1937, c. 407, s. 4.) 

§ 2621(190). Offices of department. — The ve- 
hicle commissioner shall maintain an office in 
Raleigh, North Carolina, and in such places in the 
state as he shall deem necessary to properly carry 
out the provisions of this article. (1937, c. 407, 
s. 5.) 

§ 2621(191). Commissioner to provide forms re- 
quired. — The commissioner shall provide suitable 
forms for applications, certificates of title and reg- 
istration cards, registration number plates and all 
other forms requisite for the purpose of this arti- 
cle, and shall prepay all transportation charges 
thereon. (1937, c. 407, s. 6.) 

§ 2621(192). Authority to administer oaths and 
certify copies of records. — (a) Officers and em- 
ployees of the department designated by the com- 
missioner are, for the purpose of administering the 



§ 2621(193) 



MOTOR VEHICLES 



§ 2621(199) 



motor vehicle laws, authorized to administer oaths 
and acknowledge signatures, and shall do so with- 
out fee. 

(b) The commissioner and such officers of the 
department as he may designate are hereby au- 
thorized to prepare under the seal of the de- 
partment and deliver upon request a certified copy 
of any record of the department, charging a fee of 
fifty cents (50c) for each document so authenti- 
cated, and every such certified copy shall be ad- 
missible in any proceeding in any court in like 
manner as the original thereof. (1937, c - 407 > s - 7 -) 

§ 2621(193). Records of department. — (a) All 

records of the department, other than those de- 
clared by law to be confidential for the use of the 
department, shall be open to public inspection dur- 
ing office hours. 

(b) The commissioner may destroy any registra- 
tion records of the department which have been 
maintained on file for three years which he may 
deem obsolete and of no further service in carry- 
ing out the powers and duties of the department. 
(1937, c. 407, s. 8). 

§ 2621(194). Authority to grant or refuse appli- 
cations. — The department shall examine and de- 
termine the genuineness, regularity and legality of 
every application for registration of a vehicle and 
for a certificate of title therefor, and of any other 
application lawfully made in the department, and 
may in all cases make investigation as may be 
deemed necessary or require additional information, 
and shall reject any such application if not satis- 
fied of the genuineness, regularity, or legality 
thereof or the truth of any statement contained 
therein, or for any other reason, when authorized 
by law. (1937, c. 407, s. 9.) 

§ 2621(195). Seizure of documents and plates, — 

The department is hereby authorized to take 
possession of any certificate of title, registration 
card, permit, license, or registration plate issued 
by it upon expiration, revocation, cancellation, or 
suspension thereof, or which is fictitious, or which 
has been unlawfully or erroneously issued, or 
which has been unlawfully used. (1937, c. 407, 
s. 10.) 

§ 2621(196). Distribution of synopsis of laws — 

The department may publish a synopsis or sum- 
mary of the laws of this state regulating the op- 
eration of vehicles, and deliver to any person on 
request a copy thereof without charge. (1937, c. 
407, s. 11.) 

§ 2621(197). Department may summon witnesses 
and take testimony. — (a) The commissioner and 
officers of the department designated by him shall 
have authority to summon witnesses to give testi- 
mony under oath or to give written deposition up- 
on any matter under the jurisdiction of the depart- 
ment. Such summons may require the production 
of relevant books, papers, or records. 

(b) Every such summons shall be served at least 
five days before the return date, either by personal 
service made by any person over eighteen years 
of age or by registered mail, but return acknowl- 
edgment is required to prove such latter service. 
Failure to obey such a summons so served shall 
constitute a misdemeanor. The fees for the at- 

[e 



tendance and travel of witnesses shall be the same 
for witnesses before the superior court. 

(c) The superior court shall have jurisdiction, 
upon application by the commissioner, to enforce 
all lawful orders of the commissioner under this 
section. (1937, c. 407, s. 12.) 

§ 2621(198). Giving of notice.— Whenever the 
department is authorized or required to give any 
notice under this article or other law regulating the 
operation of vehicles, unless a different method of 
giving such notice is otherwise expressly pre- 
scribed, such notice shall be given either by per- 
sonal delivery thereof to the person to be so noti- 
fied or by deposit in the United States mail of 
such notice in an envelope with postage prepaid, 
addressed to such person at his address as shown 
by the records of the department. The giving of 
notice by mail is complete upon the expiration 
of four days after such deposit of such notice. 
Proof of the giving of notice in either such man- 
ner may be made by the certificate of any officer 
or employee of the department or affidavit of any 
person over twenty-one years of age, naming the 
person to whom such notice was given and speci- 
fying the time, place, and manner of the giving 
thereof. (1937, c. 407, s. 13.) 

§ 2621(199). Police authority of department. — 
The commissioner and such officers and inspectors 
of the department as he shall designate and all 
members of the highway patrol shall have the 
power: 

(a) Of peace officers for the purpose of enforc- 
ing the provisions of this article and of any other 
law regulating the operation of vehicles or the use 
of the highways. 

(b) To make arrests upon view and without war- 
rant for any violation committed in their presence 
of any of the provisions of this article or other 
laws regulating the operation of vehicles or the use 
of the highways. 

(c) At all times to direct all traffic in conform- 
ance with law, and in the event of a fire or other 
emergency or to expedite traffic or to insure safety, 
to direct traffic as conditions may require, not- 
withstanding the provisions of law. 

(d) When on duty, upon reasonable belief that 
any vehicle is being operated in violation of any 
provision of this article or of any other law regu- 
lating the operation of vehicles to require the 
driver thereof to stop and exhibit his driver's li- 
cense and the registration card issued for the ve- 
hicle, and submit to an inspection of such vehicle, 
the registration plates and registration card there- 
on or to an inspection and test of the equipment 
of such vehicle. 

(e) To inspect any vehicle of a type required to 
be registered hereunder in any public garage or 
repair shop or in any place where such vehicles are 
held for sale or wrecking, for the purpose of locat- 
ing stolen vehicles and investigating the title and 
registration thereof. 

(f) To serve all warrants relating to the enforce- 
ment of the laws regulating the operation of ve- 
hicles or the use of the highways. 

(g) To investigate traffic accidents and secure 
testimony of witnesses or of persons involved. 

(h) To investigate reported thefts of motor ve- 
hicles, trailers and semi-trailers. (1937, c. 407, s. 
14.) 



§ 2621(200) 



MOTOR VEHICLES 



§ 2621(205) 



Part 3. Registration and Certificates of Titles of 
Motor Vehicles 

§ 2621(200). Owner to secure registration and 
certificate of title. — Every owner of a vehicle in- 
tended to be operated upon any highway of this 
state and required by this article to be registered 
shall, before the same is so operated, apply to the 
department for and obtain the registration there- 
of, the registration plates therefor, and a certificate 
of title therefor, and attach the registration plates 
to the vehicle, except when an owner is permitted 
to operate a vehicle under the registration provi- 
sions relating to manufacturers, dealers and non- 
residents contained in section 2621(229): Pro- 
vided, that nothing herein contained shall require 
the application for or the issuance of a certificate 
of title for a trailer, or semi-trailer, though, before 
operating a trailer or semi-trailer upon the high- 
ways of the state, the owner thereof must obtain 
the registration thereof and pay the registration 
fees as now provided by part seven of this article. 
(1937, c. 407, s. 15.) 

§ 2621(201). Exempt from registration.— (a) 

Any such vehicle driven or moved upon a highway 
in conformance with the provisions of this article 
relating to manufacturers, dealers, or non-resi- 
dents. 

(b) Any such vehicle which is driven or moved 
upon a highway only for the purpose of crossing 
such highway from one property to another. 

(c) Any implement of husbandry, whether of a 
type otherwise subject to registration hereunder 
or not, which is only incidentally operated or 
moved upon a highway. 

(d) Any special mobile equipment as herein de- 
fined. 

(e) No certificate of title need be obtained for 
any vehicle of a type subject to registration owned 
by the government of the United States. (1937, 
c. 407, s. 16.) 

§ 2621(202). Application for registration and 
certificates of title. — (a) Every owner of a vehicle 
subject to registration hereunder shall make ap- 
plication to the department for the registration 
thereof and issuance of a certificate of title for 
such vehicle upon the appropriate form or forms 
furnished by the department, and every such ap- 
plication shall bear the signature of the owner 
written with pen and ink, and said signature shall 
be acknowledged by the owner before a person 
authorized to administer oaths, and said applica- 
tion shall contain: 

1. The name, bona fide residence and mail ad- 
dress of the owner or business address of the 
owner if a firm, association or corporation; 

2. A description of the vehicle, including, in so 
far as the hereinafter specified data may exist 
with respect to a given vehicle, the make, model, 
type of body, the serial number of the vehicle, the 
engine and other identifying numbers of the ve- 
hicle and whether new or used, and if a new ve- 
hicle, the date of sale and actual date of delivery 
of vehicle by the manufacturer or dealer to the 
person intending to operate such vehicle; 

3. A statement of the applicant's title and of all 
liens or encumbrances upon said vehicle and the 
names and addresses of all persons having any 
interest therein and the nature of every such in- 
terest; 

N. C. Supp.— 5 [ 65 



4. Such further information as may reasonably 
be required by the department to enable it to de- 
termine whether the vehicle is lawfully entitled to 
registration and the owner entitled to a certificate 
of title. 

(b) When such application refers to a new or 
foreign vehicle purchased from a dealer, the ap- 
plication shall be accompanied by an application 
for certificate of title in the name of the dealer 
containing the description of vehicle, statement of 
dealer's title and all liens or encumbrances upon 
said vehicle, the name and address of person to 
whom sold, date of sale, actual date vehicle was 
delivered to purchaser, and such other information 
as may be required by the department. (1937, c. 
407, s. 17.) 

§ 2621(203). Application for specially con- 
structed, reconstructed, or foreign vehicle. — (a) 

In the event the vehicle to be registered is a 
specially constructed, reconstructed, or foreign ve- 
hicle, such fact shall be stated in the application, 
and with reference to every foreign vehicle which 
has been registered outside of this state, the owner 
shall surrender to the department all registration 
cards and certificates of title or other evidence of 
such foreign registration as may be in his posses- 
sion or under his control, except as provided in 
sub-division (b) hereof. 

(b) Where, in the course of interstate operation 
of a vehicle registered in another state, it is de- 
sirable to retain registration of said vehicle in such 
other state, such applicant need not surrender, but 
shall submit for inspection said evidence of such 
foreign registration, and the department in its dis- 
cretion, and upon a proper showing, shall register 
said vehicle in this state but shall not issue a 
certificate of title for such vehicle. (1937, c. 407, 
s. 18.) 

§ 2621(204). Authority for refusing registration 
or certificate of title. — The department shall re- 
fuse registration or issuance of a certificate of title 
or any transfer of registration upon any of the 
following grounds: 

(a) That the application contains any false or 
fraudulent statement or that the applicant has 
failed to furnish required information or reason- 
able additional information requested by the de- 
partment or that the applicant is not entitled to 
the issuance of a certificate of title or registration 
of the vehicle under this article; 

(b) That the vehicle is mechanically unfit or 
unsafe to be operated or moved upon the high- 
ways; 

(c) That the department has reasonable 
ground to believe that the vehicle is a stolen or 
embezzled vehicle, or that the granting of regis- 
tration or the issuance of a certificate of title would 
constitute a fraud against the rightful owner or 
other person having valid lien upon such vehicle; 

(d) That the registration of the vehicle stands 
suspended or revoked for any reason as provided 
in the motor vehicle laws of this state; 

(e) That the required fee has not been paid. 
(1937, c. 407, s. 19.) 

§ 2621(205). Examination of registration rec- 
ords and index of stolen and recovered vehicles. 

— The department, upon receiving application for 
any transfer of registration or for original regis- 
tration of a vehicle, other than a new vehicle sold 
by a North Carolina dealer, shall first check the 



§ 2621(206) 



MOTOR VEHICLES 



§ 2621(212) 



engine and serial numbers shown in the applica- 
tion against the indexes of registered motor ve- 
hicles, and against the index of stolen and recov- 
ered motor vehicles required to be maintained by 
this article. (1937, c. 407, s. 20.) 

§ 2621(206). Registration indexes, — The de- 
partment shall file each application received, and 
when satisfied as to the genuineness and regular- 
ity thereof, and that the applicant is entitled to 
register such vehicle and to the issuance of a 
certificate of title, shall register the vehicle there- 
in described and keep a record thereof in suitable 
books or on index cards as follows: 

(a) Under a distinctive registration number as- 
signed to the vehicle; 

(b) Alphabetically, under the name of the 
owner; 

(c) Under the motor number, if available; other- 
wise any other identifying number of the vehicle: 
and 

(d) In the discretion of the department, in any 
other manner it may deem advisable. (1937, c. 
407, s. 20 y 2 .) 

§ 2621(207). The department to issue certif- 
icate of title and registration card. — (a) The de- 
partment upon registering a vehicle shall issue a 
registration card and a certificate of title as sep- 
arate documents. 

(b) The registration card shall be delivered to 
the owner and shall contain upon the face there- 
of the name and address of the owner, space for 
owner's signature, the registration number as- 
signed to the vehicle, and such description of the 
vehicle as determined by the commissioner, and 
upon the reverse side a form for endorsement of 
notice to the department upon transfer of the ve- 
hicle. 

(c) Every owner, upon receipt of a registration 
card, shall write his signature thereon with pen 
and ink in the space provided. Every such regis- 
tration card shall at all times be carried in the 
vehicle to which it. refers, or shall be carried by 
the person operating or in control of such vehicle, 
who shall display the same upon demand of any 
peace officer or any officer of the department. 

(d) The certificate of title shall contain upon 
the face thereof the identical information required 
upon the face of the registration card, and in ad- 
dition thereto the date of issuance and a state- 
ment of the owner's title and of all liens and en- 
cumbrances upon the vehicle therein described, 
and whether possession is held by the owner un- 
der a lease, contract or conditional sale, or other 
like agreement. 

(e) The certificate of title shall also contain up- 
on the reverse side form of assignment of title or 
interest and warranty thereof, with space for no- 
tation of liens and encumbrances upon such ve- 
hicle at the time of a transfer. 

(f) Certificates of title upon which liens or en- 
cumbrances are shown shall be delivered or mailed 
by the department to the holder of the first lien 
or encumbrance. 

(g) Certificates of title shall bear thereon the 
seal of the department. 

(h) Certificates of title need not be renewed an- 
nually, but shall remain valid until canceled by the 
department for cause or upon a transfer of any 
interest shown therein. (1937, c. 407, s. 21.) 

§ 2621 (20'8). Release by lien holder to owner. 



— (a) A person holding a lien or encumbrance as 
shown upon a certificate of title upon a vehicle 
may release such lien or encumbrance or assign 
his interest to the owner without affecting the 
registration of said vehicle. The department, up- 
on receiving a certificate of title upon which a 
lien holder has released or assigned his interest 
to the owner or upon receipt of a certificate of 
title not so endorsed, but accompanied by a legal 
release from a lien holder of his interest in or to 
a vehicle, shall issue a new certificate of title as 
upon an application for duplicate certificate of 
title. 

(b) Any lien in favor of any person, firm or cor- 
poration which, since notice of such lien to the 
department has dissolved, ceased to do business, 
or gone out of business for any reason whatso- 
ever, and which shall remain of record in the de- 
partment as a notice of lien of such person, firm 
or corporation for a period of more than three 
years from the date of notice, shall become null 
and void and of no further force and effect as it 
relates to the issuance or transfer of title by the 
department. (1937, c. 407, s. 22.) 

§ 2621(209). Unlawful for lienor who holds 
certificate of title not to surrender same when lien 
satisfied. — It shall be unlawful and constitute a 
misdemeanor for a lienor who holds a certificate 
of title as provided in this article to refuse or fail 
to surrender such certificate of title to the person 
legally entitled thereto, when called upon by such 
person, within ten days after his lien shall have 
been paid and satisfied, and any person convicted 
under this section shall be fined not more than 
fifty dollars ($50.00) or imprisoned not more than 
thirty days. (1937, c. 407, s. 23.) 

§ 2621(210). Owner after transfer not liable 
for negligent operation, — The owner of a motor 
vehicle who has made a bona fide sale or trans- 
fer of his title or interest, and who has delivered 
possession of such vehicle and the certificate of 
title thereto properly endorsed to the purchaser or 
transferee, shall not be liable for any damages 
thereafter resulting from negligent operation of 
such vehicle by another. (1937, c. 407, s. 24.) 

§ 2621(211). Owner dismantling or wrecking ve- 
hicle to return evidence of registration. — Any 

owner dismantling or wrecking any vehicle shall 
forward to the department the certificate of title, 
registration card and/or other proof of ownership, 
and the registration plate or plates last issued for 
such vehicle. No person, firm or corporation shall 
dismantle or wreck any motor vehicle without 
first complying with the requirements of this sec- 
tion. (1937, c. 407, s. 25.) 

§ 2621(212). Sale of motor vehicles to be dis- 
mantled. — Any owner who sells a motor vehicle 
as scrap or to be dismantled or destroyed shall as- 
sign the certificate of title thereto to the purchaser, 
and shall deliver such certificate so assigned to 
the department with an application for a permit to 
dismantle such vehicle. The department shall 
thereupon issue to the purchaser a permit to dis- 
mantle the same, which shall authorize such per- 
son to possess or transport such vehicle or to 
transfer ownership thereto by endorsement upon 
such permit. A certificate of title shall not again 
be issued for such motor vehicle in the event it is 
scrapped, dismantled, or destroyed. In any case, 



[ 66 



§ 2621(213) 



MOTOR VEHICLES 



§ 2621(218) 



where the owner for any reason fails to send in 
title for a junked or dismantled vehicle, the de- 
partment shall have authority to take possession of 
such title for cancellation. (1937, c. 407, s. 26.) 

§ 2621(213). Registration plates to be fur- 
nished by the department.— (a) The department 
upon registering a vehicle shall issue to the owner 
one registration plate for a motorcycle, trailer or 
semi-trailer and two registration plates for every 
other motor vehicle. Registration plates issued 
by the department under this article shall be and 
remain the property of the state, and it shall be 
lawful for the commissioner or his duly authorized 
agents to summarily take possession of any plate 
or plates which he has reason to believe is being 
illegally used, and to keep in his possession such 
plate or plates pending investigation and legal 
disposition of the same. 

(b) Every registration plate shall have displayed 
upon it the registration number assigned to the 
vehicle for which it is issued, also the name of the 
state of North Carolina, which may be abbreviated, 
and the year number for which it is issued or the 
date of expiration thereof. 

(c) Such registration plate and the required 
numerals thereon, except the year number for 
which issued, shall be of sufficient size to be 
plainly readable from a distance of one hundred 
feet during daylight. 

(d) Registration plates issued for a motor ve- 
hicle other than a motorcycle, trailer or semi- 
trailer shall be attached thereto, one in the front 
and the other in the rear. The registration plate 
issued for a motorcycle, trailer or semi-trailer 
shall be attached to the rear thereof. 

(e) Preservation and cleaning of registration 
plates: It shall be the duty of each and every 
registered owner of a motor vehicle to keep the 
registration plates assigned to such motor vehicle 
reasonably clean and free from dust and dirt, and 
such registered owner, or any person in his em- 
ploy, or who operates such motor vehicle by his 
authority, shall, upon the request of any proper 
officer, immediately clean such registration plates 
so that the numbers thereon may be readily dis- 
tinguished, and any person who shall neglect or 
refuse to so clean a registration plate, after hav- 
ing been requested to do so, shall be guilty of a 
misdemeanor, and fined not exceeding fifty dol- 
lars ($50.00) or imprisoned not exceeding thirty 
days. 

(f) Operating with false numbers. Any per- 
son who shall wilfully, and with intent to defraud 
the state of registration fees, operate a motor ve- 
hicle with a registration plate which has been re- 
painted or altered or forged, or which was issued 
by the commissioner for a motor vehicle other 
than the one on which used, shall be guilty of a 
misdemeanor. 

(g) Alteration, disguise, or concealment of 
numbers. Any operator of a motor vehicle who 
shall wilfully and with intent to conceal the iden- 
tity of such motor vehicle or the identity of the 
registered owner thereof, mutilate, bend, twist, 
cover or cause to be covered or partially covered 
by any bumper, light, spare tire, tire rack, strap, 
or other device, or who shall paint, enamel, em- 
boss, stamp, print, perforate, or alter or add to or 
cut off any part or portion of a registration plate 
or the figures or letters thereon, or who shall 



place or deposit or cause to be placed or deposited 
any oil, grease, or other substance upon such reg- 
istration plates for the purpose of making dust 
adhere thereto, or who shall deface, disfigure, 
change, or attempt to change any letter or figure 
thereon, or who shall display a number plate in 
other than a horizontal upright position, shall be 
guilty of a misdemeanor. (1937, c. 407, s. 27.) 

§ 2621(214). Transfer of registration plates — 

(a) Registration plates issued by the department 
for vehicles privately owned and operated shall 
not be transferred from one vehicle to another, 
but shall be assigned and transferred from one 
owner to another, upon the assignment of title as 
required by this article, and shall remain on the 
vehicle for which originally issued. 

(b) Registration plates issued by the depart- 
ment for vehicles owned and operated by the 
state or any department thereof, or by any county, 
city or town, school district or other political sub- 
division of the state, shall not be assigned and 
transferred from one owner to another, but shall 
be retained by the owner to whom originally is- 
sued, and may be used by the owner on another 
vehicle: Provided, that the owner shall make ap- 
plication to the department for said transfer and 
comply with the requirements of this article rel- 
ative to certificate of title for vehicle the regis- 
tration plates are to be transferred to. 

(c) Registration plates issued by the depart- 
ment for vehicles operated for hire shall be sub- 
ject to the same transfer provision as of vehicles 
owned by the state or any department thereof as 
set forth in subsection (b) of this section. (1937, 
c. 407, s. 28.) 

§ 2621(215). Expiration of registration. — 

Every vehicle registration under this article and 
every registration card and registration plate is- 
sued hereunder shall expire at midnight on the 
thirty-first day of December of each year. (1937, 
c. 407, s. 29.) 

§ 2621(216). Application for renewal of regis- 
tration. — (a) Application for renewal of a vehicle 
registration shall be made by the owner upon 
proper application and by payment of the registra- 
tion fee for such vehicle, as provided by law. 

(b) The department may receive applications 
for renewal of registration and grant the same, 
and issue new registration cards and plates at any 
time prior to expiration of registration, but no 
person shall display upon a vehicle the new regis- 
tration plates prior to December first. (1937, c. 
407, s. 30.) 

§ 2621(217). Notice of change of address or 
name. — (a) Whenever any person, after making 
application for or obtaining the registration of a 
vehicle or a certificate of title, shall move from 
the address named in the application or shown 
upon a registration card or certificate of title, such 
person shall within ten days thereafter notify the 
department in writing of his old and new ad- 
dresses. 

(b) Whenever the name of any person who has 
made application for or obtained the registration 
of a vehicle or a certificate of title is thereafter 
changed by marriage or otherwise, such person 
shall within ten days notify the department of 
such former and new name. (1937, c. 407, s. 31.) 

§ 2621(218). Replacement of lost or damaged 



[67] 



§ 2621 (219) 



MOTOR VEHICLES 



§ 2621(222) 



■certificates, cards and plates. — (a) In the event 
any registration card or registration plate is lost, 
mutilated, or becomes illegible, the owner or legal 
representative of the owner of the vehicle for 
which the same was issued, as shown by the rec- 
ords of the department, shall immediately make 
application for and may obtain a duplicate or a 
substitute or a new registration under a new reg- 
istration number, as determined to be most ad- 
visable by the department, upon the applicant 
furnishing under oath information satisfactory to 
the department and payment of required fee. 

(b) When a dealer acquires a motor vehicle 
which has been previously licensed, he should ad- 
vise the party from whom he acquires the vehicle 
as to the provisions of the law which require that 
party to report to the motor vehicle bureau the 
sale or disposal of the vehicle. If the dealer 
wishes to have the license transferred to his name 
"he may do so, but this is optional with him. How- 
ever, should the license plate or plates be lost or 
destroyed while the vehicle is in the possession of 
the dealer, no replacement may be issued unless 
and until license and title has been transferred to 
the dealer. Nor shall any subsequent owner se- 
cure replacement plates until application for 
transfer of title and license has been made. 

(c) In the event any certificate of title is lost, 
mutilated, or becomes illegible, the owner or legal 
representative of the owner of the vehicle for 
which the same was 1 issued, as shown by the rec- 
ords of the department, shall immediately make 
application for and may obtain a duplicate upon 
the applicant furnishing under oath information 
satisfactory to the department and payment of 
required fee. Upon issuance of any duplicate 
certificate of title the previous certificate last is- 
sued shall be void. (1937, c. 407, s. 32.) 

§ 2621(219). Department authorized to assign 
new engine number. — The owner of a motor ve- 
hicle upon which the engine number or serial num- 
ber has become illegible or has been removed or 
obliterated shall immediately make application to 
the department for a new engine or serial num- 
ber for such motor vehicle. The department, 
when satisfied that the applicant is the lawful 
owner of the vehicle referred to in such applica- 
tion is hereby authorized to assign a new engine 
or serial number thereto, and shall require that 
such number, together with the name of this 
state, or a symbol indicating this state, be stamped 
upon the engine, or in the event such number is 
a serial number, then upon such portion of the 
motor vehicle as shall be designated by the de- 
partment. (1937, c. 407, s. 33.) 

§ 2621(220). Department to be notified when 
another engine is installed. — (a) Whenever a mo- 
tor vehicle registered hereunder is altered by the 
installation of another engine in place of an en- 
gine, the number of which is shown in the regis- 
tration records, the owner of such motor vehicle 
shall immediately give notice to the department 
in writing on a form prepared by it, which shall 
state the number of the former engine and the 
number of the newly installed engine, the regis- 
tration number of the motor vehicle, the name of 
the owner and any other information which the 
department may require. Whenever another en- 
gine has been substituted as provided in this sec- 
tion, and the notice given as required hereunder, 



the department shall insert the number of the 
newly installed engine upon the registration card 
and certificate of title issued for such motor ve- 
hicle. 

(b) Whenever a new engine or serial number 
has been assigned to and stamped upon a motor 
vehicle as provided in section 2621(219), or when- 
ever a new engine has been installed as provided 
in this section, the department shall require the 
owner to surrender to the department the regis- 
tration card and certificate of title previously is- 
sued for said vehicle. The department shall also 
require the owner to make application for a du- 
plicate registration card and a duplicate certificate 
of title showing the new motor or serial number 
thereon, and upon receipt of such application and 
fee, as for any other duplicate title, the depart- 
ment shall issue to said owner a duplicate regis- 
tration and a duplicate certificate of title showing 
thereon the new number in place of the original 
number. (1937, c. 407, s. 34.) 

§ 2621(221). Altering or forging certificate of 
title a felony. — Any person who shall alter with 
fraudulent intent any certificate of title or regis- 
tration card issued by the department, or forge or 
counterfeit any certificate of title or registration 
card purporting to have been issued by the de- 
partment under the provisions of this article, or 
who shall alter or falsify with fraudulent intent 
or forge any assignment thereof, or who shall 
hold or use any such certificate, registration card 
or assignment knowing the same to have been al- 
tered, forged or falsified, shall be guilty of a fel- 
ony and upon conviction thereof shall be pun- 
ished in the discretion of the court. (1937, c. 407, 
s. 35.) 

Part 4. Transfer of Title or Interest 

§ 2621(222). Transfer by owner.— (a) When- 
ever the owner of a registered vehicle transfers 
or assigns his title or interest thereto, he shall en- 
dorse upon the reverse side of the registration 
card issued for such vehicle the name and address 
of the transferee and the date of transfer, and 
shall immediately forward such card to the de- 
partment. 

(b) The owner of any vehicle registered under 
the foregoing provisions of this article, transfer- 
ring or assigning his title or interest thereto, shall 
also endorse an assignment and warranty of title 
in form approved by the department upon the re- 
verse side of the certificate of title or execute an 
assignment and warranty of title of such vehicle 
and a statement of all liens or encumbrances 
thereon, which statement shall be verified under 
oath by the owner, who shall deliver the certifi- 
cate of title to the purchaser or transferee at the 
time of delivering the vehicle, except that where 
a deed of trust, mortgage, conditional sale or title 
retaining contract is obtained from purchaser or 
transferee in payment of purchase price or other- 
wise, the lien holder shall forward such certificate 
of title papers to the department within fifteen 
days, together with necessary fees, or deliver such 
papers to the purchaser at the time of delivering 
the vehicle, as he may elect, but in either event 
the penalty provided in section 2621(224) shall 
apply if application for transfer is not made with- 
in fifteen days. (1937, c. 407, s. 36.) 



[68] 



§ 2621(223) 



MOTOR VEHICLES 



§ 2621(229) 



§ 2621(223). New owner to secure transfer of 
registration and new certificate of title. — The 

transferee within fifteen days after the purchase 
shall apply to the department for a transfer of 
registration of the vehicle and shall present the 
certificate of title endorsed and assigned as here- 
inbefore provided to the department, and make 
application for and obtain a new certificate of ti- 
tle for such vehicle except as otherwise permitted 
in sections 2621(225) and 2621(226). (1937, c. 
407, s. 37.) 

§ 2621(224). Penalty for failure to make appli- 
cation for transfer within the time specified by 
law. — It is the intent and purpose of this article 
that every new owner or purchaser of a vehicle 
previously registered shall make application for 
transfer of title and registration within fifteen 
days after acquiring same, or see that such appli- 
cation is sent in by the lien holder with proper 
fees, and responsibility for such transfer shall rest 
on the purchaser. Any person, firm or corporation 
failing to do so shall pay a penalty of two dollars 
($2.00) in addition to the fees otherwise provided 
in this article. It is further provided that any 
dealer or owner who shall knowingly make any 
false statement in any application required by this 
department as to the date a vehicle was sold or 
acquired shall be guilty of a misdemeanor, and 
upon conviction shall be fined not more than fifty 
dollars ($50.00) or imprisoned not more than 
thirty days. All moneys collected under this sec- 
tion shall go to the state highway fund. (1937, 
c. 407, s. 38.) 

§ 2621(225). When transferee is a dealer. — 
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 deal- 
er's number plate such transferee shall not be re- 
quired to register such vehicle nor forward the 
certificate of title to the department as provided 
in section 2621(223), but such transferee, upon 
transferring his title or interest to another person, 
shall give notice of such transfer to the depart- 
ment and shall execute and acknowledge an as- 
signment and warranty of title in form approved 
by the department, and deliver the same to the 
person to whom such transfer is made at the same 
time the vehicle is delivered, except as provided 
in section 2621(222), sub-section (b). (1937, c. 
407, s. 39.) 

§ 2621(226). Title lost or unlawfully detained. 

— Whenever the applicant for the registration of 
a vehicle or a new certificate of title thereto is un- 
able to present a certificate of title thereto by rea- 
son of the same being lost or unlawfully 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, 
registration plate or plates and certificates of title 
to the person entitled thereto, upon payment of 
proper fee for duplicate title and/or replacement. 
(1937, c. 407, s. 40.) 

§ 2621(227). Transfer by operation of law— 



(a) Whenever the title or interest of an owner in 
or to a vehicle shall pass to another by operation 
of law, as upon order in bankruptcy, execution 
sale, repossession upon default in performing the 
terms of a lease or executory sales contract, or 
otherwise than by voluntary transfer, the trans- 
feree shall secure a transfer of registration to him- 
self and a new certificate of title upon proper ap- 
plication, payment of the fees provided by law,, 
and presentation of the last certificate of title, if 
available and such instruments or documents of 
authority or certified copies thereof as may be 
sufficient or required by law to evidence or effect 
a transfer of interest in or to chattels in such 
cases: Provided, however, transfers of registra- 
tion shall only be made as provided for in section 
2621(214), sub-sections (a), (b) and (c). 

(b) In the event of transfer as upon inheritance, 
devise or bequest, the department shall, upon re 
ceipt of a certified copy of a will, letters of ad- 
ministration 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 part of her year's 
support, transfer both title and license as other- 
wise provided for transfers. However, if no ad- 
ministrator has qualified or the clerk of the supe- 
rior court refuses to issue a certificate, the de- 
partment may upon affidavit showing satisfactory 
reasons therefor effect such transfer, but the new 
title so issued shall not affect the validity nor be 
in prejudice of any creditor's lien. 

(c) Mechanic's or Storage Lien. — In any case 
where a vehicle is sold under a mechanic's or stor- 
age lien, the department shall be given a thirty- 
day notice as provided in section 2621(264). 
(1937, c. 407, s. 41.) 

§ 2621(228). When department to transfer reg- 
istration and issue new certificate. — (a) The de- 
partment, upon receipt of a properly endorsed cer- 
tificate of title and application for transfer of reg- 
istration, accompanied by the required fee, shall 
transfer the registration thereof under its registra- 
tion number to the new owner, and shall issue a 
new registration card and certificate of title as up- 
on an original registration. 

(b) The department shall retain and appropri- 
ately file every application for certificate, of title 
upon which certificate of title was issued and 
every surrendered certificate of title, such file to 
be. so maintained as to permit the tracing of title 
of the vehicle designated therein. "(1937, c. 407, s. 
42.) 

Part 5. Issuance of Special Plates 

§ 2621(229). 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 such vehicle, may 
obtain from the department, upon application 
therefor upon the proper official forms and pay- 
ment of the fees required by law, and attach to 
each such vehicle two number plates, which plates 
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 indicat- 
ing that such plate or plates are issued to a dealer, 



[69] 



§ 2621(230) 



MOTOR VEHICLES 



§ 2621(232) 



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 shall obtain and have in their possession 
a certificate of title issued by the department to 
such manufacturer or dealer of each vehicle, 
owned and operated upon the highways by such 
manufacturer or dealer, except that a certificate 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; except that any dealer or any employee of 
any dealer may operate any motor vehicle, trailer 
or semi-trailer, the property of the dealer, for the 
purpose of furthering the business interest of the 
dealer in the sale, demonstration and servicing of 
motor vehicles, trailers and semi-trailers, of col- 
lecting accounts, contacting prospective customers 
and generally carrying on routine business neces- 
sary for conducting a general motor vehicle sales 
business: Provided, that no use shall be made of 
dealers' demonstration plates on vehicles operated 
in any other business dealers may be engaged in: 
Provided further, that dealers may allow the op- 
eration of motor vehicles owned by dealers and 
displaying dealer's demonstration plates in the 
personal use of persons other than those employed 
in the dealer's business: Provided further, that 
said persons shall, at all times while operating a 
motor vehicle under the provisions of this section, 
have in their possession a certificate on such form 
as approved by the commissioner from the dealer, 
which shall be valid for not more than forty-eight 
hours: Provided further, that motor vehicles, 
trailers and semi-trailers sold by dealers may be 
operated for a period not exceeding ten days from 
the date of sale by the purchaser thereof with 
dealer's demonstration plates, provided the pur- 
chasers have in their possession receipts from the 
dealers upon which the dealer has certified that 
the necessary amount of money to pay for titles 
and licenses has been paid by the purchasers to 
the dealers to be forwarded to the motor vehicle 
bureau, either direct or through one of its branch 
offices, on such form as approved by the commis- 
sioner. 

(c) No manufacturer of or dealer in motor ve- 
hicles, trailers or semi-trailers shall cause or per- 
mit any such vehicle owned by such person to be 
operated or moved upon a public highway with- 
out there being displayed upon such vehicle a 
number plate or plates issued to such person, ei- 
ther under section 2621(213) or under this sec- 
tion. 

(d) No manufacturer of or dealer in motor ve- 
hicles, trailers or semi-trailers shall cause or per- 
mit 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. 

(e) Transfer of Dealer Registration. — No 
change in the name of a firm, partnership or cor- 
poration, nor the taking in of a new partner, nor 
the withdrawal of one or more of the firm, shall 
be considered a new business; but if any one or 
more of the partners remain in the firm, or if there 
is change in ownership of less than a majority of 



the stock, if a corporation, the business shall be 
regarded as continuing and the dealers' plates 
originally issued may continue to be used. (1937, 
c. 407, s. 43.) 

§ 2621(230). National guard plates.— The com- 
missioner of revenue shall cause to be made each 
year a sufficient number of automobile license 
plates to furnish each officer of the North Caro- 
lina National Guard with a set thereof, said li- 
cense plates to be in the same form and character 
as other license plates now or hereafter authorized 
by law to be used upon private passenger vehicles 
registered in this state, except that such license 
plates shall bear on the face thereof the following 
words, "National Guard." The said license plates 
shall be issued only to officers of the North Caro- 
lina National Guard, and for which license plates 
the commissioner of revenue shall collect fees in 
an amount equal to the fees collected for the li- 
censing and registering of private vehicles. The 
adjutant general of North Carolina shall furnish 
to the commissioner of revenue each year, prior 
to the date that licenses are issued, a list of the 
officers of the North Carolina National Guard, 
which said list shall contain the rank of each of- 
ficer listed in the order of his seniority in the serv- 
ice, and the said license plates shall be numbered, 
beginning with the number two hundred and one 
and in numerical sequence thereafter up to and 
including the number five hundred, according to 
seniority, the senior officer being issued the li- 
cense bearing the numerals two hundred and one. 
Upon transfer of the ownership of a private pas- 
senger vehicle upon which there is a license plate 
bearing the words national guard, said plates shall 
be removed and the authority to use the same 
shall thereby be canceled; however, upon applica- 
tion to the commissioner of revenue, he shall re- 
issue said plates to the officer of the national 
guard to whom the same were originally issued, 
and upon said re-issue the commissioner of rev- 
enue shall collect fees in an amount equal to the 
fees collected for the original licensing and reg- 
istering of said private passenger vehicle as is 
now or may be prescribed by law. (1937, c. 407, 
s. 44.) 

§ 2621(231). Official license plates,— Official li- 
cense plates issued as a matter of courtesy to state 
officials shall be subject to the same transfer pro- 
visions as provided in section 2621(230). (1937, 
c. 407, s. 45.) 

§ 2621(232). Manufacturer to give notice of 
sale or transfer. — Every manufacturer or dealer, 
upon transferring a motor vehicle, trailer or semi- 
trailer, whether by sale, lease or otherwise, to any 
person other than the manufacturer or dealer 
shall, on or before the tenth of each month, give 
written report of all such transfers made during 
the preceding calendar month to the department 
upon the official form provided by the depart- 
ment. Every such report shall contain the date 
of such transfer, the names and addresses of the 
transferer and transferee and such description of 
the vehicle as may be called for in such official 
form. Every manufacturer or dealer shall keep a 
record of all vehicles received or sold containing 
such information regarding same as the depart- 
ment may require. (1937, c. 407, s. 46.) 



[70] 



§ 2621(233) 



MOTOR VEHICLES 



§ 2621(237) 



Part 6. Vehicles of Non-Residents of State, etc. 

§ 2621(233). Registration by non-residents. — 

(a) Non-residents of this state, except as other- 
wise provided in this article, will be exempt from 
the provisions of this article as to the registration 
of motor vehicles for the same time and to the 
same extent as like exemptions are granted resi- 
dents of this state under laws of another state, 
district or territory: Provided, that they shall 
have complied with the provisions of the law of 
the state, district or territory of their residence 
relative to the registration and equipment of their 
motor vehicles, and shall conspicuously display 
the registration plates as required thereby, and 
have in their possession the registration certifi- 
cates issued for such motor vehicles, and that 
nothing herein contained shall be construed to 
permit a bona fide resident of this state to use any 
registration plate or plates from a foreign state, 
district or territor}^ under the provisions of this 
section. The commissioner shall determine what 
exemptions the non-resident vehicle operators of 
the several states, districts or territories, are enti- 
tled to under the provisions of this section, and 
ordain and publish rules and regulations for mak- 
ing effective the provisions of this section, which 
rules and regulations shall be observed and en- 
forced by all the officers of this state whose du- 
ties require the enforcement of the automobile 
registration laws, and any violations of such rules 
and regulations shall constitute a misdemeanor. 

(b) Motor vehicles duly registered in a state or 
territory which are not allowed exemptions by the 
commissioner, as provided for in the preceding 
paragraph, desiring to make occasional trips into 
or through the state of North Carolina, may be 
permitted 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 trip licenses upon forms and 
under rules and regulations to be adopted by the 
commissioner, good for use for a period of thirty 
days upon the payment of a fee in compensation 
for said privilege equivalent to one-tenth of the 
annual fee which would be chargeable against said 
vehicle if regularly licensed in this state: Pro- 
vided, 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 under the reciprocity provisions provided by 
law: Provided further, that nothing herein con- 
tained 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 licensed by own- 
ers resident in this state. 

(c) Every non-resident, including any foreign 
corporation carrying on business within this state 
and owning and operating in such business any 
motor vehicle, trailer or semi-trailer within this 
state, shall be required to register each such ve- 
hicle and pay the same fees therefor as is required 
with reference to like vehicles owned by residents 
of this state. (1937, c. 407, s. 47.) 

§ 2621(234). Vehicles owned by state, munici- 
palities or orphanages, etc. — The department, up- 
on proper proof being filed with it that any mo- 
tor vehicle for which registration is herein re- 



thereof, or by any county, township, city or town, 
or by any board of education, or by any orphan- 
age, shall collect one dollar for the registration of 
such motor vehicles, but shall not collect any fee 
for application for certificate of title in the name 
of the state or any department thereof, or by any 
county, township, city or town, or by any board 
of education or orphanage: Provided, that the 
term "owned" shall be construed to mean that 
such motor vehicle is the actual property of the 
state or some department thereof, or of the 
county, township, city or town, or of the board of 
education, and no motor vehicle which is the prop- 
erty of any officer or employee of any department 
named herein shall be construed as being "owned" 
by such department. (1937, c. 407, s. 48.) 

Part 7. Title and Registration Fees 

§ 2621(235). Schedule of fees.— There shall be 
paid to the department for the issuance of certifi- 
cates of title, transfer of registration and replace- 
ment of registration plates fees according to the 
following schedules: 

(a) Each application for certificate of title.. $ .50 

(b) Each application for duplicate certificate 

of title 50 

(c) Each application of repossessor for cer- 

tificate of title 50 

(d) Each transfer of registration 1.00 

(e) Each set of replacement registration 

plates 1.00 

(1937, c. 407, S. 49.) 

§ 2621(236). Penalty for engaging in a "for 
hire" business without proper license plates. — Any 

person, firm or corporation engaged in the busi- 
ness of transporting persons or property for com- 
pensation, except as otherwise provided in this 
article, shall, before engaging in such business, 
pay the license fees prescribed by this article and 
secure the license plates provided for vehicles op- 
erated for hire. Any person, firm or corporation 
operating vehicles for hire without having paid 
the tax prescribed or using private plates on such 
vehicles shall be liable for an additional tax of 
twenty-five dollars ($25.00) for each vehicle in ad- 
dition to the normal fees provided in this article. 
(1937, c. 407, s. 50.) 

§ 2621(237). Passenger vehicle registration fees. 

— There shall be paid to the department annually, 
as of the first day of January, for the registration 
and licensing of ,passenger vehicles, fees according 
to the following classifications and schedules: 

(a) 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 extent 
that such amount exceeds the license tax of 
ninety cents per hundred pounds: Provided fur- 
ther, that franchise bus carriers operated between 
point or points within this state and point or 
points without this state shall be required to ac- 
count as compensation for the use of the high- 
ways of this state and the special privileges ex- 
tended such carriers by this state in computing 
the six per cent tax, only on that proportion of 



quired is owned by the state or any department I the gross revenue, earned both within and with- 

[71] 



§ 2621(238) 



MOTOR VEHICLES 



§ 2621(238) 



out this state, which corresponds to the propor- 
tion of mileage in this state as compared 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 ve- 
hicle. 

(b) U-Drive-It Passenger Vehicles. — U-drive- 
it passenger vehicles shall pay the following tax: 
Motorcycles: 1-passenger capacity $12.00' 

2-passenger capacity 15.00 

3-passenger capacity 18.00 

Automobiles: $1.90 per hundred pounds weight of 
each vehicle. 

(c) For Hire Passenger Vehicles. — For hire 
passenger vehicles shall be taxed at the rate of 
$1.90 per hundred pounds of weight. 

(d) Excursion Passenger Vehicles. — Excursion 
passenger vehicles shall be taxed at the rate of 
$8.00 per passenger capacity, with a minimum 
charge of $25.00, but such vehicles operating un- 
der a certificate as a restricted common carrier 
under chapter one hundred thirty-six of the Pub- 
lic Laws of one thousand nine hundred twenty- 
seven [§ 2613 (j) et seq.], and amendments there- 
to, shall also be liable to the gross revenue six 
per cent tax to the extent it exceeds the tax here- 
in levied under the same provisions provided for 
franchise bus carriers. 

(e) Private Passenger Vehicles. — Private pas- 
senger vehicles shall be taxed at thirty-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 vehicles shall be less than $7.00. 

(f ) Private Passenger Motorcycles. — Private 
passenger motorcycles shall pay for each motor- 
cycle $5.00, and for each side car $5.00. 

(g) Manufacturers and Motor Vehicle Dealers. 
— Manufacturers and dealers in motor vehicles 
for demonstration tags shall pay as a registration 
fee and for one set of plates $25.00, and for each 
additional set of plates $1.00. 

(h) Driveaway Companies. — Any person, firm 
or corporation engaged in the business of driving 
new motor vehicles from the place of manufac- 
ture to the place of sale in this state for compen- 
sation shall pay as a registration fee and for one 
set of plates one hundred dollars ($100.00) and 
for each additional set of plates five dollars 
($5.00). (1937, c. 407, s. 51.) 

§ 2621(238). Property hauling vehicles. — (a) 

Determination of Weight. — For the purpose of li- 
censing, the weight of the several classes of motor 
vehicles used for transportation of property shall 
be the gross weight and load, to be determined 
by the manufacturer's gross weight capacity as 
shown in an authorized national publication, such 
as "commercial car journal" or the statistical is- 
sue of "automotive industries," all such weights 
subject to verification by the commissioner or his 
authorized deputy, and if no such gross weight 
on any vehicle is available in such publication, 
then the gross weight shall be determined by the 
commissioner or his authorized agent: Provided, 
that any determination of weight shall be made 
only in units of one thousand pounds or major 
fraction thereof, weights of over five hundred 
pounds being counted as one thousand and 
weights of five hundred pounds or less being dis- 



regarded. Semi-trailers licensed for use in con- 
nection with a truck or truck-tractor shall in no 
case be licensed for less gross weight capacity 
than the truck or truck-tractor with which it is 
to be operated. 

(b) There shall be paid to the department an- 
nually, as of the first day of January, for the reg- 
istration and licensing of trucks, truck-tractors, 
trailers and semi-trailers, fees according to the 
following classifications and schedules: 

Schedule of Weights and Rates 

Rate per hundred pounds gross weight: 

Private Contract Franchise 
Hauler Hauler Hauler 
(Deposit) 
Gross weight not over 

4,500 pounds $0.30 $0.75 $0.60 

4,501 pounds to 8,500 in- 
clusive 40 .75 .60 

8,501 pounds to 12,500 

pounds inclusive 50 1.00 .60 

12,501 pounds to 16,500 

inclusive 70 1.15 .60 

Over 16,500 pounds 80 1.40 .60 

(c) The minimum rate for any vehicle licensed 
under this section shall be twelve dollars ($12.00), 
except that the license fee for a trailer having not 
more than two wheels with a gross weight of ve- 
hicle and load not exceeding fifteen hundred 
(1500) pounds and towed by a passenger car 
shall be two dollars ($2.00) for any part of the 
license year for which said license is issued, and 
the license fee for a two-wheel trailer the gross 
weight for vehicle and load of more than fifteen 
hundred (1500) pounds but not more than twenty- 
five hundred (2500) pounds and towed by a pas- 
senger car shall be ten dollars ($10.00) for the 
entire year, subject to the provision for quarterly 
license as provided for other vehicles: Provided, 
however, that any such trailers operated for hire 
shall be taxed at the same rate as contract hauler 
vehicles. 

(d) Rates on trucks, trailers and semi-trailers 
wholly or partially equipped with solid tires shall 
be double the above schedule. 

(e) Franchise Haulers. — Franchise haulers shall 
pay an annual license tax as per the above sched- 
ule of rates for each vehicle unit, and in addition 
thereto six per cent of the gross revenue derived 
from such operation, except on vehicles licensed 
for inter-state routes and used exclusively for in- 
ter-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 re- 
duced by the commissioner to fifty per cent of 
the above schedule of rates as to deposit only: 
Provided, said additional six percent shall not be 
collectible unless and until and only to the extent 
that such amount exceeds the license tax or de- 
posit per the above schedule: Provided further, 
that franchise haulers operating between point or 
points within this state and point or points with- 
out this state shall be required to account as com- 
pensation for the use of the highway of this state 
and the special privileges extended such carriers 
by this state in computing the six per cent tax 
only on that proportion of the gross revenue 
earned both within and without this state which 
corresponds to the proportion of the mileage in 



[72] 



§ 2621(239) 



MOTOR VEHICLES 



§ 2621(244) 



this state as compared to the total mileage, but 
in no event shall the tax paid by such franchise 
hauler be less than the license tax or deposit 
shown on the above schedule, except where a 
franchise is hereafter issued by the utilities com- 
mission for service over a route within the state 
which is not now served by any franchise hauler 
the six per cent gross revenue tax may be re- 
duced to four per cent for the first two years only. 

(f) Non-resident motor vehicle carriers which 
do not operate in intrastate commerce in this 
state, and the title to whose vehicles are not re- 
quired to be registered under the provisions of 
this article, shall be taxed for the use of the roads 
in this state and shall pay the same fees therefor 
as are required with reference to like vehicles 
owned by residents of this state: Provided, that 
if any such fees as applied to non-residents shall 
at any time become inoperative, such carriers 
shall be taxed for the use of the roads of this 
state as franchise haulers as provided above: 
Provided further, that this provision shall not 
prevent the extension to vehicles of other states 
the benefits of the reciprocity provisions provided 
by law. 

(g) Contract haulers under the definitions of 
this article who receive and operate under a cer- 
tificate or permit or other authority from the utili- 
ties commissioner as restricted common carriers 
under the provisions of chapter one hundred thirty- 
six of the Public Laws of one thousand nine hun- 
dred twenty-seven [§ 2613 (j) et seq.], and amend- 
ments thereto, shall, in addition to the rate of tax 
for contract carriers provided above, be subject 
to the gross six per cent tax to the extent that it 
exceeds the rate for contract haulers to be levied 
and collected in the same manner provided for 
franchise haulers, and the tax in the schedule 
provided for contract haulers shall be deemed a 
deposit only. (1937, c. 407, s. 52.) 

§ 2621(239). Method of computing gross reve- 
nue of franchise bus carriers and haulers. — In 

computing the gross revenue of franchise bus 
carriers and franchise haulers, revenue derived 
from the transportation of United States mail or 
other United States government services shall not 
be included. All revenue earned both within and 
without this state from the transportation of per- 
sons or property, except as herein provided, col- 
lected by franchise bus carriers and franchise 
haulers, whether on fixed schedule routes or by 
special trips or by auxiliary vehicles not licensed 
as franchise haulers, whether owned by the 
franchise hauler or hired from another for the 
transportation of persons or property within the 
limits of the designated franchise route shall be 
included in the gross revenue upon which said 
tax is based. (1937, c. 407, s. 53.) 

§ 2621(240). Due date of franchise tax.— The 
six per cent additional tax on franchise bus car- 
riers and franchise haulers shall become due and 
payable on or before the twentieth day of the 
month following the month in which it accrues. 
(1937, c. 407, s. 54.) 

§ 2621(241). Records and reports required of 
franchise carriers. — (a) Every franchise bus car- 
rier and franchise hauler shall keep a record of all 
business transacted and all revenue received on 
such forms as may be prescribed by or satisfac- 

[7 



tory to the commissioner of revenue, and such 
records shall be preserved for a period of three 
years, and shall at all times during the business 
hours of the day be subject to inspection by the 
commissioner of revenue or his deputies or such 
other agents as may be duly authorized by the 
commissioner. Any operator of such a franchise 
line failing to comply with or violating any of the 
provisions of this section shall be guilty of a mis- 
demeanor and upon conviction thereof shall be 
fined or imprisoned in the discretion of the court. 

(b) All franchise bus carriers and franchise 
haulers shall, on or before the twentieth day of 
each month, make a report to the department of 
gross revenue earned and gross mileage operated 
during the month previous, in such manner as the 
department may require and on such forms as 
the department shall furnish. 

(c) It shall be the duty of the commissioner of 
revenue, by competent auditors, to have the books 
and records of every franchise bus carrier and 
franchise hauler examined at least once each year 
to determine if such operators are keeping com- 
plete records as provided by this section of this 
article, and to determine if correct reports have 
been made to the state department of revenue 
covering the total amount of tax liability of such 
operators. 

(d) If any franchise bus carrier or franchise 
hauler shall wilfully fail, neglect, or refuse to keep 
such records or to make such reports as required, 
and within the time provided in this article, the 
commissioner of revenue shall immediately in- 
form himself as best he may as to all matters and 
things required to be set forth in such records 
and reports, and from such information as he may 
be able to obtain, determine and fix the amount 
of the tax due the state from such delinquent op- 
erator for the period covering the delinquency, 
adding to the tax so determined and as a part 
thereof an amount equal to five per cent (5%) of 
the tax, to be collected and paid. The said com- 
missioner shall proceed immediately to collect 
the tax including the additional five per cent 
(5%). (1937, c. 407, s. 55.) 

§ 2621(242). Revocation of franchise registra- 
tion. — The failure of any franchise bus carrier or 
any franchise hauler to pay any tax levied under 
this article, and/or to make reports as is required, 
shall constitute cause for revocation of registra- 
tion and franchise, and the commissioner is here- 
by authorized to seize the registration plates of 
any such delinquent carrier and require the cessa- 
tion of the operation of such vehicles. (1937, c. 
407, s. 56.) 

§ 2621(243). Bond or deposit required.— The 
commissioner, before issuing any registration 
plates to a franchise bus carrier or a franchise 
hauler, shall either satisfy himself of the financial 
responsibility of such carrier or require a bond 
or deposit in such amount as he may deem nec- 
essary to insure the collection of the tax imposed 
by this section. (1937, c. 407, s. 57.) 

§ 2621(244). Partial payments.— In the pur- 
chase of licenses, where the gross amount of the 
license to any one owner amounts to more than 
four hundred dollars ($400.00), half of such pay- 
ment may be deferred until April first in any 
calendar year upon the execution to the commis- 

] 



§ 2621(245) 



MOTOR VEHICLES 



§ 2621(252) 



sioner of a draft upon any bank or trust com- 
pany upon forms to be provided by the commis- 
sioner in an amount equivalent to one-half of 
such tax, plus a carrying charge of two per cent 
(2%): Provided, that any person using any tag 
so purchased after the first day of April in any 
such year, without having first provided for the 
payment 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 to his duly authorized agents and/or 
the state highway patrol, to the end that this pro- 
vision may be enforced. (1937, c. 407, s. 58.) 

§ 2621(245). Quarterly payments. — Licenses is- 
sued on or after April first of each year and be- 
fore July first for all vehicles, except franchise 
haulers and two-wheel trailers under one thou- 
sand five hundred pounds weight pulled by pas- 
senger cars, shall be three-fourths of the annual 
fee. Licenses issued on or after July first and 
before October first, except two-wheel trailers 
under one thousand five hundred pounds weight 
pulled by passenger cars, shall be one-half the 
annual fee. Licenses issued on or after October 
first, except on two-wheel trailers under one thou- 
sand five hundred pounds weight pulled by pas- 
senger cars, shall be one-fourth of the annual 
fee. (1937, c. 407, s. 59.) 

§ 2621(246). Overloading. — The commissioner, 
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 gross weight capacity 
provided for such load; but such calculation shall 
be made only in units of one thousand pounds or 
major fraction thereof, excessive weights of five 
hundred pounds or less being disregarded and 
weights of more than five hundred pounds and 
not more than one thousand pounds being counted 
as one thousand. It is the intent of this section 
that every owner of a motor vehicle shall procure 
license in advance to cover any overload which 
may be carried. Any owner failing to do so, and 
whose vehicle shall be found in operation on the 
highways carrying an overload in excess of one 
ton over the weight for which such vehicle is li- 
censed, shall pay in addition to the normal tax 
levied in this article an additional tax of three 
dollars ($3.00) per each thousand pounds in ex- 
cess of the licensed weight of such vehicle. 
(1937, c. 407, s. 60.) 

§ 2621(247). Taxes compensatory. — (a) All 

taxes levied under the provisions of this article 
are intended as compensatory taxes for the use 
and privileges of the public highways of this state, 
and shall be paid by the commissioner to the state 
treasurer, to be credited by him to the state high- 
way fund; and no county or municipality 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 ($1.00) per year upon 
any such vehicle resident therein. 

(b) No additional franchise tax, license tax, 
or other fee shall be imposed by the state against 
any franchise motor vehicle carrier taxed under 
this article nor shall any county, city or town im- 
pose a franchise tax or other fee upon them. 



(c) In addition to the appropriation carried in 
the Appropriations Act there shall be appropri- 
ated to the motor vehicle bureau the additional 
sum of fifteen thousand dollars ($15,000.00) from 
the state highway fund: Provided, that such ad- 
ditional sum shall be made available only in the 
event that the regular appropriation is insufficient 
and it shall be determined by the director of the 
budget that such additional amount is necessary 
to carry out the provisions of this article. (1937, 
c. 407, s. 61.) 

§ 2621(248). Tax lien. — In the distribution of 
assets in case of receivership or insolvency of the 
owner against whom the tax herein provided is 
levied and in the order of payment thereof, the 
state shall have priority over all other debts or 
claims except prior recorded liens or liens given 
by statute an express priority. (1937, c. 407, s. 
62.) 

§ 2621(249). Collection by duress. — Whenever 
any tax imposed by this article shall be in de- 
fault for a period of ten days, it shall be the duty 
of the commissioner 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 execu- 
tion, and the said sheriff is hereby authorized and 
directed to levy upon any property in said county 
owned by said delinquent 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 sher- 
iff shall be allowed the fees now prescribed by 
law for sales under execution, and the cost in 
such cases shall be paid by the delinquent tax- 
payer or out of the proceeds of the said property, 
and upon the filing of said certificate with the 
sheriff, in the event the delinquent taxpayer shall 
be the operator of any franchise bus carrier or 
franchise hauler vehicle, the franchise certificate 
issued to such operator shall become null and 
void and shall be canceled by the utilities com- 
missioner, and it shall be unlawful for any such 
franchise bus carrier or the operator of any fran- 
chise hauler vehicle to continue the operation un- 
der said franchise. (1937, c. 407, s. 63.) 

§ 2621(250). Vehicles destroyed by fire or colli- 
sion. — Upon satisfactory proof to the commis- 
sioner that any motor vehicle, duly licensed, has 
been completely destroyed by fire or collision, the 
owner of such vehicle may be allowed on the pur- 
chase of a new license for another vehicle a credit 
equivalent to the unexpired proportion of the cost 
of the original license, dating from the first day 
of the next month after the date of such destruc- 
tion. (1937, c. 407, s. 64.) 

§ 2621(251). Vehicles to be marked. — All mo- 
tor vehicles licensed as franchise bus carriers, 
franchise hauler vehicles and contract hauler ve- 
hicles, shall have printed on the side thereof in 
letters not less than three inches in height the 
name and home address of the owner, or such 
other identification as the utilities commissioner 
may approve. (1937, c. 407, s. 65.) 

Part 8. Anti-Theft and Enforcement Provisions. 

§ 2621(252). Report of stolen and recovered 

motor vehicles. — Every sheriff, chief of police, or 



[74] 



§ 2621(253) 



MOTOR VEHICLES 



§ 2621(261) 



peace officer upon receiving reliable information 
that any vehicle registered hereunder has been 
stolen shall immediately report such theft to the 
department. Any said officer upon receiving in- 
formation that any vehicle, which he has pre- 
viously reported as stolen, has been recovered, 
shall immediately report the fact of such recov- 
ery to the department. (1937, c. 407, s. 66.) 

§ 2621(253). Reports by owners of stolen and 
recovered vehicles. — The owner, or person hav- 
ing a lien or encumbrance upon a registered ve- 
hicle which has been stolen or embezzled, may 
notify the department of such theft or embezzle- 
ment, but in the event of an embezzlement may 
make such report only after having procured the 
issuance of a warrant for the arrest of the person 
charged with such embezzlement. Every owner 
or other person who has given any such notice 
must notify the department of the recovery of 
such vehicle. (1937, c. 407, s. 67.) 

§ 2621(254). Action by department on report of 
stolen or embezzled vehicles. — (a) The depart- 
ment, upon receiving a report of a stolen or em- 
bezzled vehicle as hereinbefore provided, shall 
file and appropriately index the same and shall 
immediately suspend the registration of the ve- 
hicle so reported, and shall not transfer the regis- 
tration of the same until such time as it is noti- 
fied in writing that such vehicle has been recov- 
ered. 

(b) The department shall at least once each 
month compile and maintain at its headquarters 
office a list of all vehicles which have been stolen 
or embezzled or recovered as reported to it dur- 
ing the preceding month, and such lists shall be 
open to inspection by any peace officer or other 
persons interested in any such vehicle. (1937, c. 
407, s. 68.) 

§ 2621(255). Unlawful taking of a vehicle — 

Any person who drives a vehicle, not his own, 
without the consent of the owner thereof, and 
with intent to temporarily deprive said owner of 
his possession of such vehicle, without intent to 
steal the same, is guilty of a misdemeanor. The 
consent of the owner of a vehicle to its taking or 
driving shall not in any case be presumed or im- 
plied because of such owner's consent on a pre- 
vious occasion to the taking or driving of such 
vehicle by the same or a different person. Any 
person who assists in, or is a party or accessory 
to or an accomplice in any such unauthorized tak- 
ing or driving, is guilty of a misdemeanor. (1937, 
c. 407, s. 69.) 

§ 2621(256). Receiving or transferring stolen 
vehicles. — Any person who, with intent to procure 
or pass title to a vehicle which he knows or has 
reason to believe has been stolen or unlawfully 
taken, receives or transfers possession of the 
same from or to another, or who has in his pos- 
session any vehicle which he knows or has rea- 
son to believe has been stolen or unlawfully taken, 
and who is not an officer of the law engaged at 
the time in the performance of his duty as such 
officer, is guilty of a felony. (1937, c. 407, s. 70.) 

§ 2621(257). Injuring or tampering with ve- 
hicle. — (a) Any person who either individually 
or in association with one or more other persons 

[7 



wilfully injures or tampers with any vehicles or 
brakes or removes any part or parts of or from a 
vehicle without the consent of the owner is guilty 
of a misdemeanor. 

(b) Any person who, with intent to steal, com- 
mit any malicious mischief, injury or other crime, 
climbs into or upon a vehicle, whether it is in 
motion or at rest, or with like intent attempts to 
manipulate any of the levers, starting mechanism, 
brakes, or other mechanism or device of a ve- 
hicle while the same is at rest and unattended or 
with like intent sets in motion any vehicle while 
the same is at rest and unattended, is guilty of a 
misdemeanor. (1937, c. 407, s. 71.) 

§ 2621(258). Vehicles without manufacturer's 
numbers. — Any person who knowingly buys, re- 
ceives, disposes of, sells, offers for sale, or has in 
his possession any motor vehicle, or engine re- 
moved from a motor vehicle, from which the 
manufacturer's serial or engine number or other 
distinguishing number or identification mark or 
number placed thereon under assignment from 
the department has been removed, defaced, cov- 
ered, altered, or destroyed for the purpose of con- 
cealing or misrepresenting the identity of said 
motor vehicle or engine is guilty of a misde- 
meanor. (1937, c. 407, s. 72.) 

§ 2621(259). Altering or changing engine or 
other numbers. — No person shall with fraudulent 
intent deface, destroy, or alter the manufacturer's 
serial or engine number or other distinguishing 
number or identification mark of a motor vehicle, 
nor shall any person place or stamp any serial, 
engine, or other number or mark upon a motor 
vehicle, except one assigned thereto by the de- 
partment. Any violation of this provision is a 
misdemeanor. (1937, c. 407, s. 73.) 

§ 2621(260). When registration shall be re- 
scinded. — (a) The department shall rescind and 
cancel the registration of any vehicle which the 
department shall determine is unsafe or unfit to 
be operated or is not equipped as required by law. 

(b) The department shall rescind and cancel 
the registration of any vehicle whenever the per- 
son to whom the registration card or registration 
number plates therefor have been issued shall 
make or permit to be made any unlawful use of 
the said card or plates or permit the use thereof 
by a person not entitled thereto. 

(c) The department shall rescind and cancel 
the license of any dealer to whom such license 
has been issued when such dealer allows his reg- 
istration number plates to be used for other than 
demonstration purposes except as provided by 
section 2621(229), fails to carry out the provisions 
of section 2621(229) and section 2621(232), or is 
convicted of a felony. (1937, c. 407, s. 74.) 

§ 2621(261). Violation of registration provisions. 

— It shall be unlawful for any person to commit 
any of the following acts: 

(a) To operate or for the owner thereof know- 
ingly to permit the operation upon a highway of 
any motor vehicle, trailer, or semi-trailer which 
is not registered or for which a certificate of title 
has not been issued, or which does not have at- 
tached thereto and displayed thereon the regis- 
tration number plate or plates assigned thereto 
by the department for the current registration 
5] 



§ 2621(262) 



MOTOR VEHICLES 



§ 2621(266) 



year, subject to the exemption mentioned in sec- 
tion 2621(229). 

(b) To display or cause or permit to be dis- 
played or to have in possession any registration 
card, certificate of title or registration number 
plate knowing the same to be fictitious or to have 
been canceled, revoked, suspended or altered. 

(c) The giving, lending, or borrowing of a li- 
cense plate for the purpose of using same on 
some motor vehicle other than that for which is- 
sued shall make the giver, lender, or borrower 
guilty of a misdemeanor, and upon conviction he 
shall be fined not more than fifty dollars ($50.00), 
or imprisoned not more than thirty days. Where 
license plate is found being improperly used, such 
plate or plates shall be revoked or canceled, and 
new license plates must be purchased before fur- 
ther operation of the motor vehicles. 

(d) To fail or refuse to surrender to the de- 
partment, upon demand, any title certificate reg- 
istration card or registration number plate which 
has been suspended, canceled or revoked as in 
this article provided. 

(e) To use a false or fictitious name or address 
in any application for the registration of any ve- 
hicle or for a certificate of title or for any renewal 
or duplicate thereof, or knowingly to make a 
false statement or knowingly to conceal a mate- 
rial fact or otherwise commit a fraud in any such 
application. (1937, c. 407, s. 75.) 

§ 2621(262). Making false affidavit perjury. — 

Any person who shall knowingly make any false 
affidavit or shall knowingly swear or affirm 
falsely to any matter or thing required by the 
terms of this article to be sworn or affirmed to 
shall be guilty of perjury, and upon conviction 
shall be punishable by a fine and imprisonment as 
other persons committing perjury are punishable. 
(1937, c. 407, s. 76.) 

§ 2621(263). Licenses protected. — No person, 
partnership, association or corporation shall main- 
tain an office or place of business in which or 
through which persons desiring transportation for 
themselves or their baggage are brought into con- 
tact by advertisement or otherwise with persons 
owning or operating motor vehicles and willing 
to transport other persons, or baggage, for com- 
pensation, or on a division of expense basis, un- 
less the owner or operator of such motor vehicles 
furnishing the transportation has qualified under 
the tax provisions of this article for the class of 
service he holds himself out to perform. (1937, 
c. 407, s. 77.) 

§ 2621(264). Duty of officer; manner of en- 
forcement. — (a) For the purpose of enforcing the 
provisions of this article, it is hereby made the 
duty of every police officer, every marshal, deputy 
marshal, or watchman of any incorporated city or 
village, and every sheriff, deputy sheriff, and all 
other lawful officers of any county, and every con- 
stable of any township, to arrest within the limits 
of their jurisdiction any person known personally 
to any such officer, or upon the sworn information 
of a creditable witness, to have violated any. of 
the provisions of this chapter, and to immediately 
bring such offender before any justice of the peace 
or officer having jurisdiction, and any such person 
so arrested shall have the right of immediate trial, 
and all other rights given to any person arrested 

[7 



for having committed a misdemeanor. Every 
officer herein named who shall neglect or refuse 
to carry out the duties imposed by this chapter 
shall be liable on his official bond for such neglect 
or refusal as provided by law in like cases. 

(b) It shall be the duty of all sheriffs, police 
officers, deputy sheriffs, deputy police officers, and 
all other officers within the state to co-operate 
with and render all assistance in their power to 
the officers herein provided for, and nothing in 
this article shall be construed as relieving said 
sheriffs, police officers, deputy sheriffs, deputy 
police officers, and other officers of the duties im- 
posed on them by chapter fifty-five (§ 2598 et 
seq.) of the Consolidated Statutes. 

(c) It shall also be the duty of every sheriff of 
every county of the state and of every police or 
peace officer of the state to make immediate re- 
port to the commissioner of all motor vehicles re- 
ported to him as abandoned or that are seized by 
him for being used for illegal transportation of 
intoxicating liquors or other unlawful purposes, 
and no motor vehicle shall be sold by any sheriff, 
police or peace officer, or by any person, firm or 
corporation claiming a mechanic's or storage lien, 
or under judicial proceedings, until notice shall 
have been given the commissioner at least thirty 
days before the date of such sale. (1937, c. 407. 
s. 78.) 

Part 9. The Size, Weight, Construction and 
Equipment of Vehicles 

§ 2621(265). Scope and effect of regulations in 
this title.; — It shall be unlawful and constitute a 
misdemeanor for any person to drive or move or 
for the owner to cause or knowingly permit to be 
driven or moved on any highway any vehicle or 
vehicles of a size or weight exceeding the limita- 
tions stated in this title, or any vehicle or vehicles 
which are not so constructed or equipped as re- 
quired in this title, or the rules and regulations of 
the commission adopted pursuant thereto and the 
maximum size and weight of vehicles herein 
specified shall be lawful throughout this state, and 
local authorities shall have no power or authority 
to alter said limitations except as express author- 
ity may be granted in this article. (1937, c. 407, 
s. 79.) 

§ 2621(266). Size of vehicles and loads. — (a) 

The total outside width of any vehicle or the load 
thereon shall not exceed ninety-six inches, except 
as otherwise provided in this section. 

(b) No passenger-type vehicle shall be operated 
on any highway with any load carried thereon ex- 
tending beyond the line of the fenders on the left 
side of such vehicle nor extending more than six 
inches beyond the line of the fenders on the right 
side thereof. 

(c) No vehicle unladen or with load, shall ex- 
ceed a height of twelve feet, six inches. 

(d) No vehicle shall exceed a length of thirty- 
five feet extreme over-all dimension, inclusive of 
front and rear bumpers. A truck-tractor and semi- 
trailer shall be regarded as two vehicles for the 
purpose of determining lawful length and license 
taxes. 

(e) No combination of vehicles coupled together 
shall consist of more than two units and no such 
combination of vehicles shall exceed a total length 
of forty-five feet exclusive of front and rear bump- 
ers, subject to the following exceptions: Said 



§ 2621(267) 



MOTOR VEHICLES 



§ 2621(270) 



length limitation shall not apply to vehicles oper- 
ated in the daytime when transporting poles, pipe, 
machinery or other objects of a structural nature 
which cannot readily be dismembered, nor to such 
vehicles transporting such objects operated at 
night-time by a public utility when required for 
emergency repair of public service facilities or 
properties, but in respect to such night transpor- 
tation every such vehicle and the load thereon shall 
be equipped with a sufficient number of clearance 
lamps on both sides and marker lamps upon the 
extreme ends of said projecting load to clearly 
mark the dimensions of such load: Provided, 
that the state highway and public works commis- 
sion shall have authority to designate any high- 
ways upon the state system as light-traffic roads 
when, in the opinion of the commission, such 
roads are inadequate to carry and will be in- 
juriously affected by the maximum load, size, and/ 
or width of trucks or busses using such roads as 
herein provided for, and all such roads so desig- 
nated shall be conspicuously posted as light- 
traffic roads and the maximum load, size and/or 
width authorized shall be displayed on proper 
signs erected thereon. The operation of any ve- 
hicle whose gross load, size - and/or width exceed 
the maximum shown on such signs over the roads 
thus posted shall constitute a misdemeanor: Pro- 
vided further, that no standard concrete highway, 
or other highway built of material of equivalent 
durability, and not less than eighteen feet in 
width, shall be designated as a light-traffic road: 
Provided further, that the limitations placed on 
any road shall not be less than eighty per cent 
(80%) of the standard weight, unless there shall 
be available an alternate improved route of not 
more than twenty per cent (20%) increase in the 
distance. 

(f) The load upon any vehicle operated alone, 
or the load upon the front vehicle of a combina- 
tion of vehicles, shall not extend more than three 
feet beyond the front wheels of such vehicle or 
the front bumper of such vehicle, if it is equipped 
with such a bumper. 

(g) No vehicle shall be driven or moved on any 
highway unless such vehicle is so constructed or 
loaded as to prevent any of its load from dropping, 
sifting, leaking or otherwise escaping therefrom, 
except that sand may be dropped for the purpose 
of securing traction, or water or other substance 
may be sprinkled on a roadway in cleaning or 
maintaining such roadway. (1937, c. 407, s. 80.) 

§ 2621(267). Flag or light at end of load. — 

Whenever the load on any vehicle shall extend 
more than four feet beyond the rear of the bed 
or body thereof, there shall be displayed at the 
end of such load, in such position as to be clearly 
visible at all times from the rear of such load, a 
red flag not less than twelve inches both in length 
and width, except that between one-half hour after 
sunset and one-half hour before sunrise there shall 
be displayed at the end of any such load a red 
light plainly visible under normal atmospheric 
conditions at least two hundred feet from the rear 
of such vehicle. (1937, c. 407, s. 81.) 

§ 2621(268). Weight of vehicles and load.— No 

vehicle or combination of vehicles shall be moved 
or operated on any highway or bridge when the 
gross weight thereof exceeds the limits specified 
below: 



(a) When the wheel is equipped with high- 
pressure pneumatic, solid rubber or cushion tire, 
eight thousand pounds. 

(b) When the wheel is equipped with low-pres- 
sure pneumatic tire, nine thousand pounds. 

(c) The gross weight on any one axle of the 
vehicle when the wheels attached to said axle are 
equipped with high-pressure solid rubber or cush- 
ion tires, sixteen thousand pounds. 

(d) When the wheels attached to said axle are 
equipped with low-pressure pneumatic tires, eight- 
een thousand pounds. 

(e) For the purposes of this section an axle load 
shall be defined as the total load on all wheels 
whose centers are included within two parallel 
transverse vertical planes not more than forty 
inches apart. 

(f) For the purposes of this section every 
pneumatic tire designed for use and used when 
inflated with air to less than one hundred pounds 
pressure shall be deemed a low-pressure pneu- 
matic tire, and every pneumatic tire inflated to 
one hundred pounds pressure or more shall be 
deemed a high-pressure pneumatic tire. 

(g) No vehicle shall be operated on any high- 
way the weight of which, resting on the surface 
of such highway, exceeds six hundred pounds up- 
on any inch of tire roller or other support. 

(h) Subject to the foregoing limitations, the 
gross weight of any vehicle having two axles shall 
not exceed twenty thousand pounds. 

(i) Subject to the foregoing limitations, the 
gross weight of any vehicle or combination of ve- 
hicles having three or more axles shall not exceed 
forty thousand pounds. For the purpose of de- 
termining gross weight, no axle shall be consid- 
ered unless the wheels thereof are equipped with 
adequate brakes. (1937, c. 407, s. 82.) 

§ 2621(269). Peace officer may weigh vehicle 
and require removal of excess load. — ■ The state 
highway commission may, in their discretion, up- 
on application in writing and good cause being 
shown therefor, issue a special permit in writing 
authorizing the applicant for seasonal operations 
to operate or move a vehicle of a size or weight 
exceeding a maximum specified in this article up- 
on any highway under the jurisdiction and for 
the maintenance of which the body granting the 
permit is responsible. Every such permit shall 
be carried in the vehicle to which it refers and 
shall be open to inspection by any peace officer; 
and it shall be a misdemeanor for any person to 
violate any of the terms or conditions of such 
special permit: Provided, the authorities in any 
incorporated city or town may grant permits in 
writing and for good cause shown, authorizing the 
applicant to move a vehicle over the streets of 
such city or town, the size or width exceeding the 
maximum expressed in this article. (1937, c. 407, 
s. 83.) 

§ 2621(270). When authorities may restrict 
right to use highways. — The state highway com- 
mission or local authorities may prohibit the op- 
eration of vehicles upon or impose restrictions as 
to the weight thereof, for a total period not to ex- 
ceed ninety days in any one calendar year, when 
operated upon any highway under the jurisdiction 
of and for the maintenance of which the body 
adopting the ordinance is responsible, whenever 
any said highway by reason of deterioration, rain, 



§ 2621(271) 



MOTOR VEHICLES 



§ 2621(276) 



snow or other climatic conditions will be damaged 
unless the use of vehicles thereon is prohibited or 
the permissible weights thereof reduced. The lo- 
cal authority enacting any such ordinance shall 
erect, or cause to be erected and maintained, signs 
designing the provisions of the ordinance at each 
end of that portion of any highway to which the 
ordinance is applicable, and the ordinance shall 
not be effective until or unless such signs are 
erected and maintained. (1937, c. 407, s. 84.) 

§ 2621(271). Restrictions as to tire equipment. 

— (a) Every solid rubber tire on a vehicle moved 
on any highway shall have rubber on its entire 
traction surface at least one and a half inches 
thick above the edge of the flange of the entire 
periphery. 

(b) No tire on a vehicle moved on a highway 
shall have on its periphery any block, stud, flange, 
cleat or spike or any other protuberance of any 
material other than rubber which projects beyond 
the tread of the traction surface of the tire, ex- 
cept that it shall be permissible to use farm ma- 
chinery with tires having) protuberances which 
will not injure the highway and except, also, that it 
shall be permissible to use tire chains of reason- 
able proportions upon any vehicle when required 
for safety because of snow, ice or other conditions 
tending to cause a vehicle to slide or skid. 

(c) The state highway commission or local au- 
thorities in their respective jurisdictions may, in 
their discretion, issue special permits authorizing 
the operation upon a highway of traction engines 
or tractors having movable tracks with transverse 
corrugation upon the periphery of such movable 
tracks or farm tractors or other farm machinery. 
(1937, c. 407, s. 85.) 

§ 2621(272). Trailers and towed vehicles. — 

(a) No motor vehicle shall be driven upon any 
highway drawing or having attached thereto more 
than one trailer or semi-trailer. 

(b) No trailer or semi-trailer shall be operated 
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 unless 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 equipment shall at 
all times be kept in good condition. (1937, c. 407, 
s. 86.) 

§ 2621(273). Brakes. — (a) Every motor vehicle 
when operated upon a highway shall be equipped 
with brakes adequate to control the movement of 
and to stop such vehicle or vehicles, and such 
brakes shall be maintained in good working order 
and shall conform to regulations provided in this 
section. 

(b) No person having control or charge of a 
motor vehicle shall allow such vehicle to stand 
on any highway unattended without first effectively 
setting the hand brake thereon, stopping the mo- 
tor and turning the front wheels into the curb 
or side of the highway. 

(c) On a dry, hard, approximately level stretch 
of highway free from loose material, the service 
(foot) brake shall be capable of stopping the mo- 
tor vehicle at a speed of twenty miles per hour 
within a distance of twenty-five feet with four 
wheel brakes or forty-five feet with two wheel 
brakes. The hand brake shall be capable of stop- 
ping the vehicle under like conditions of this sec- 



tion within a distance of not more than seventy- 
five feet. 

(d) Motor trucks and tractor-trucks with semi- 
trailers attached shall be capable of stopping on a 
dry, hard, approximately level highway free from 
loose material at a speed of twenty miles per hour 
within the following distances: thirty feet with 
both hand and service brake applied simultaneously 
and fifty feet when either is applied separately, 
except that vehicles maintained and operated 
permanently for the transportation of property 
and which were registered in this or any other 
state or district prior to August, nineteen hundred 
and twenty-nine, shall be capable of stopping on 
a dry, hard, approximately level highway free from 
loose material at a speed of twenty miles per hour 
within a distance of fifty feet with both hand and 
service brake applied simultaneously, and within 
a distance of seventy-five feet when either ap- 
plied separately. 

(e) Every semi-trailer, or trailer, or separate 
vehicle, attached by a draw-bar or coupling to a 
towing vehicle, and having a gross weight of two 
tons, and all house trailers of one thousand pounds 
gross weight or more, shall be equipped with 
brakes controlled or operated by the driver of 
the towing vehicle, which shall conform to the 
specifications set forth in sub-section (d) of this 
section and shall be of a type approved by the 
commissioner. (1937, c. 407, s. 87.) 

§ 2621(274). Horns and warning devices. — (a) 

Every motor vehicle when operated upon a high- 
way shall be equipped with a horn in good work- 
ing order capable of emitting sound audible un- 
der normal conditions from a distance of not less 
than two hundred feet, and it shall be unlawful, 
except as otherwise provided in this section, for 
any vehicle to be equipped with or for any person 
to use upon a vehicle any siren, compression or 
spark plug whistle or for any person at any time 
to use a horn otherwise than as a reasonable 
warning or to make any unnecessary or unreason- 
able loud or harsh sound by means of a horn or 
other warning device. All such horns and warning 
devices shall be maintained in good working order 
and shall conform to regulation not inconsistent 
with this section to be promulgated by the com- 
missioner. 

(b) Every police and fire department and fire 
patrol vehicle and every ambulance used for emer- 
gency calls shall be equipped with a bell, siren 
or exhaust whistle of a type approved by the com- 
missioner. (1937, c. 407, s. 88.) 



(275). Mirrors. — No person shall drive 
a motor vehicle on a highway which motor ve- 
hicle is so constructed or loaded as to prevent the 
driver from obtaining a view of the highway to 
the rear by looking backward from the driver's 
position, unless such vehicle is equipped with a 
mirror so located as to reflect to the driver a view 
of the highway for a distance of at least two hun- 
dred feet to the rear of such vehicle, of a type to 
be approved by the commissioner. (1937, c. 407, 
s. 89.) 

§ 2621(276). Windshields must be unobstructed. 

— (a) It shall be unlawful for any person to drive 
any vehicle upon a highway with any sign, poster 
or other non-transparent material upon the front 
windshield, side wings, side or rear window of 



[ 78 



§ 2621(277) 



MOTOR VEHICLES 



§ 2621(280) 



such motor vehicle other than a certificate or other 
paper required to be so displayed by law. 

(b) Every permanent windshield on a motor 
vehicle shall be equipped with a device for clean- 
ing snow, rain, moisture or other matter from 
the windshield directly in front of the operator, 
which device shall be so constructed as to be con- 
trolled or operated by the operator of the vehicle. 
The device required by this sub-section shall be 
of a type approved by the commissioner. (1937, 
c. 407, s. 90.) 

§ 2621(277). Prevention of noise, smoke, etc., 
muffler cut-outs regulated. — (a) No person shall 
drive a motor vehicle on a highway unless such 
motor vehicle is equipped with a muffler in good 
working order and in constant operation to pre- 
vent excessive or unusual noise, annoying smoke 
and smoke screens. 

(b) It shall be unlawful to use a "muffler cut- 
out" on any motor vehicle upon a highway. 
(1937, c. 407, s. 91.) 

§ 2621(278). Required lighting equipment of 
vehicles. — (a) When vehicles must be equipped: 
Every vehicle upon a highway within this state 
during the period from a half hour after sunset 
to a half hour before sunrise, and at any other 
time when there is not sufficient light to render 
clearly discernible any person on the highway at 
a distance of two hundred feet ahead, shall be 
equipped with lighted front and rear lamps as in 
this section respectively required for different 
classes of vehicles, and subject to exemption with 
reference to lights on parked vehicles as declared 
in section 2621(283). 

(b) Head Lamps on Motor Vehicles: Every 
motor vehicle other than a motorcycle, road-roller, 
road machinery, or farm tractor shall be equipped 
with two head lamps, no more and no less, at the 
front of and on opposite sides of the motor vehicle, 
which head lamps shall comply with the require- 
ments and limitations set forth in section 2621- 
(280) or 2621(281). 

(c) Head Lamps on Motorcycles: Every mo- 
torcycle shall be equipped with at least one and 
not more than two head lamps which shall com- 
ply with the requirements and limitations set forth 
in section 2621(280) or 2621(281). 

(d) Rear Lamps: Every motor vehicle and 
every trailer or semi-trailer which is being drawn 
at the end of a train of vehicles shall carry at the 
rear a lamp of a type which has been approved by 
the commissioner and which exhibits a red light 
plainly visible under normal atmospheric condi- 
tions from a distance of five hundred feet to the 
rear of such vehicle, and so constructed and placed 
that the number plate carried on the rear of such 
vehicle shall under like conditions be so illumi- 
nated by a white light as to be read from a dis- 
tance of fifty feet to the rear of such vehicle, and 
every trailer or semi-trailer shall carry at the rear, 
in addition to a rear lamp as above specified, a 
red reflector of a type which has been approved by 
the commissioner and which is so designed, lo- 
cated as to a height and maintained as to be visible 
for at least five hundred feet when opposed by a 
motor vehicle displaying lawful undimmed head- 
lights at night on an unlighted highway. Such 
reflector shall be placed at the extreme end of the 
load. 

(e) Clearance Lamps: Every motor vehicle 



having a width at any part in excess of eighty 
inches shall carry two clearance lamps on the left 
side of such vehicle, one located at the front and 
displaying an amber light visible under normal 
atmospheric conditions from a distance of five 
hundred feet to the front of the vehicle, and the 
other located at the rear of the vehicle and dis- 
playing a red light visible under like conditions 
from a distance of five hundred feet to the rear of 
the vehicle. 

(f) Lamps on Bicycles: Every bicycle shall be 
equipped with a lighted lamp on the front there- 
of, visible under normal atmospheric conditions 
from a distance of at least three hundred feet in 
front of such bicycle, and shall also be equipped 
with a reflex mirror or lamp on the rear, exhibit- 
ing a red light visible under like conditions from 
a distance of at least two hundred feet to the rear 
of such bicycle, when used at night. 

(g) Lights on Other Vehicles: All vehicles 
not heretofore in this section required to be 
equipped with specified lighted lamps shall carry 
on the left side one or more lighted lamps or lan- 
terns projecting a white light, visible under nor- 
mal atmospheric conditions from a distance of not 
less than five hundred feet to the front of such ve- 
hicle and visible under like conditions from a dis- 
tance of not less than five hundred feet to the 
rear of such vehicle, or in lieu of said lights shall 
be equipped with reflectors of a type which is ap- 
proved by the commissioner. (1937, c. 407, s. 92.) 

§ 2621(279). Additional permissible light on 
vehicle. — (a) Spot Lamps: Any motor vehicle 
may be equipped with not to exceed two spot 
lamps, except that a motorcycle shall not be 
equipped with more than one spot lamp, and every 
lighted spot lamp shall be so aimed and used upon 
approaching another vehicle that no part of the 
beam will be directed to the left of the center of 
the highway nor more than one hundred feet 
ahead of the vehicle. No spot lamps shall be used 
on the rear of any vehicle. 

(b) Auxiliary Driving Lamps: Any motor ve- 
hicle may be equipped with not to exceed two 
auxiliary driving lamps mounted on the front, and 
every such auxiliary driving lamp or lamps shall 
meet the requirements and limitations set forth in 
section 2621(280). 

(c) Restrictions on iLamps: Any device, other 
than head lamps, spot lamps, or auxiliary driving 
lamps, which projects a beam of light of an in- 
tensity greater than twenty-five candle power, 
shall be so directed that no part of the beam will 
strike the level of the surface on which the ve- 
hicle stands at a distance of more than fifty feet 
from the vehicle. (1937, c. 407, s. 93.) 

§ 2621(280). Requirements as to head lamps 
and auxiliary driving lamps. — (a) The head lamps 
of motor vehicles shall be so constructed, ar- 
ranged, and adjusted that, except as provided in 
sub-section (c) of this section, they will at all 
times mentioned in section 2621(278), and under 
normal atmospheric conditions and on a level 
road, produce a driving light sufficient to render 
clearly discernible a person two hundred feet 
ahead, but shall not project a glaring or dazzling 
light to persons in front of such head lamp. 

(b) Head lamps shall be deemed to comply with 
the foregoing provisions prohibiting glaring and 
dazzling lights if none of the main bright portion 



[79] 



§ 2621(281) 



MOTOR VEHICLES 



§ 2621(285) 



of the head lamp beams rises above a horizontal 
plane passing through the lamp centers parallel 
to the level road upon which the loaded vehicle 
stands, and in no case higher than forty-two 
inches, seventy-five feet ahead of the vehicle. 

(c) Whenever a motor vehicle is being operated 
upon a highway, or portion thereof, which is suf- 
ficiently lighted to reveal a person on the highway 
at a distance of two hundred feet ahead of the ve- 
hicle, it shall be permissible to dim the head 
lamps or to tilt the beams downward or to sub- 
stitute therefor the light from an auxiliary driv- 
ing lamp or pair of such lamps, subject to the 
restrictions as to tilted beams and auxiliary driv- 
ing lamps set forth in this sub-section. 

(d) Whenever a motor vehicle meets another 
vehicle on any highway it shall be permissible to 
tilt the beams of the head lamps downward or to 
substitute therefor the light from an auxiliary 
driving lamp or pair of such lamps subject to the 
requirement that the tilted head lamps or auxiliary 
lamp or lamps shall give sufficient illumination 
under normal atmospheric conditions and on a 
level road to render clearly discernible a person 
seventy-five feet ahead, but shall not project a 
glaring or dazzling light to persons in front of the 
vehicle: Provided, that at all times required in 
section 2621(278) at least two lights shall be dis- 
played on the front of and on opposite sides of 
every motor vehicle other than a motorcycle, road- 
roller, road machinery, or farm tractor. 

(e) No city or town shall enact an ordinance in 
conflict with this section. (1937, c. 407, s. 94.) 

§ 2621(281). Acetylene lights. — Motor vehicles 
may be equipped with two acetylene head lamps 
of approximately equal candle power when 
equipped with clear plane glass fronts, bright six- 
inch spherical mirrors, and standard acetylene five- 
eighths foot burners not more and not less and 
which do not project a glaring or dazzling light 
into the eyes of approaching drivers. (1937, c. 
407, s. 95.) 

§ 2621(282). Enforcement of provisions, — 

(a) The commissioner is authorized to designate, 
furnish instructions to and to supervise official 
stations for adjusting head lamps and auxiliary 
driving lamps to conform with the provisions of 
section 2621(278). When head lamps and auxil- 
iary driving lamps have been adjusted in con- 
formity with the instructions issued by the com- 
missioner, a certificate of adjustment shall be is- 
sued to the driver of the motor vehicle on forms 
issued in duplicate by the commissioner and 
showing date of issue, registration number of the 
motor vehicle, owner's name, make of vehicle and 
official designation of the adjusting station. 

(b) The driver of any motor vehicle equipped 
with approved head lamps, auxiliary driving 
lamps, rear lamps or signal lamps, who is arrested 
upon a charge that such lamps are improperly 
adjusted or are equipped with bulbs of a candle 
power not approved for use therewith, shall be 
allowed forty-eight hours within which to bring 
such lamps into conformance with the require- 
ments of this article. It shall be a defense to any 
such charge that the person arrested produce in 
court or submit to the prosecuting attorney a cer- 
tificate from an official adjusting station showing 
that within forty-eight hours after such arrest 



such lamps have been made to conform with the 
requirements of this article. (1937, c. 407, s. 96.) 

§ 2621(283). Lights on parked vehicles. — 

Whenever a vehicle is parked or stopped upon a 
highway, whether attended or unattended during 
the times mentioned in section 2621(278), there 
shall be displayed upon such vehicle one or more 
lamps projecting a white light visible under nor- 
mal atmospheric conditions from a distance of 
five hundred feet to the front of such vehicle, and 
projecting a red light visible under like condi- 
tions from a distance of five hundred feet to the 
rear, except that local authorities may provide by 
ordinance that no lights need be displayed upon 
any such vehicle when parked in accordance with 
local ordinances upon a highway where there is 
sufficient light to reveal any person within a dis- 
tance of two hundred feet upon such highway. 
(1937, c. 407, s. 97.) 

§ 2621(284). Safely glass.— (a) It shall be un- 
lawful to operate knowingly, on any public high- 
way or street in this state, any motor vehicle 
which is registered in the state of North Carolina 
and which shall have been manufactured or as- 
sembled on or after January first, one thousand 
nine hundred and thirty-six, unless such motor 
vehicle be equipped with safety glass wherever 
glass is used in doors, windows, windshields, wings 
or partitions; or for a dealer to sell a motor ve- 
hicle manufactured or assembled on or after Jan- 
uary first, one thousand nine hundred and thirty- 
six, for operation upon the said highways, or 
streets unless it be so equipped. The provisions 
of this article shall not apply to any motor ve- 
hicle if such motor vehicle shall have been reg- 
istered previously in another state by the owner- 
while the owner was a bona fide resident of said 
other state. 

(b) The term "safety glass" as used in this 
article shall be construed as meaning glass so 
treated or combined with other materials as to 
reduce, in comparison with ordinary sheet glass 
or plate glass, the likelihood of injury to persons 
by glass when the glass is cracked or broken. 

(c) The revenue department shall approve and 
maintain a list of the approved types of glass, con- 
forming to the specifications and requirements for 
safety glass as set forth in this article, and in ac- 
cordance with standards recognized by the United 
States bureau of standards, and shall not issue a 
license for or relicense any motor vehicle subject 
to the provisions of this article unless such motor 
vehicle be equipped as herein provided with such 
approved type of glass. 

(d) The owner of any motor vehicle which is 
operated knowingly or any dealer who sells a 
motor vehicle in violation of the provisions of this 
article shall be deemed guilty of a misdemeanor, 
and upon conviction thereof shall be fined not 
more than twenty-five dollars or be imprisoned 
not more than thirty days, or both, in the discre- 
tion of the court. (1937, c. 407, s. 98.) 

§ 2621(285). Smoke screens.— (a) It shall be 
unlawful for any person or persons to drive, op- 
erate, equip or be in the possession of any auto- 
mobile or other motor vehicle containing, or in 
any manner provided with, a mechanical machine 
or device designed, used or capable of being used 
for the purpose of discharging, creating or caus- 
ing, in any manner, to be discharged or emitted 



[ 80 



§ 2621(286) 



MOTOR VEHICLES 



§ 2621(290) 



either from itself or from the automobile or other 
motor vehicle to which attached, any unusual 
amount of smoke, gas or other substance not nec- 
essary to the actual propulsion, care and keep of 
said vehicle, and the possession by any person or 
persons of any such devise, whether the same is 
attached to any such motor vehicle, or detached 
therefrom, shall be prima facie evidence of the 
guilt of such person or persons of a violation of 
this section. 

(b) Any person or persons violating the pro- 
visions of this section shall be guilty of a felony, 
and upon conviction shall be imprisoned in the 
state's prison for a period of not less than one 
year or not more than ten years, in the discretion 
of the court. (1937, c. 407, s. 99.) 

Part 10. Operation of Vehicles and Rules of 
the Road 

§ 2621(286). Persons under the influence of in- 
toxicating liquor or narcotic drugs. — It shall be 
unlawful and punishable, as provided in section 
2621(325), for any person, whether licensed or 
not, who is a habitual user of narcotic drugs or 
any person who is under the influence of intox- 
icating liquor or narcotic drugs, to drive any ve- 
hicle upon the highways within this state. (1937, 
c. 407, s. 101.) 

§ 2621(287). Reckless driving. — Any person 
who drives any vehicle upon a highway carelessly 
and heedlessly in wilful or wanton disregard of 
the rights or safety of others, or without due 
caution and circumspection and at a speed or in 
a manner so as to endanger or be likely to en- 
danger any person or property, shall be guilty of 
reckless driving, and upon conviction shall be pun- 
ished as provided in section 2621(326). (1937, c. 
407, s. 102.) 

§ 2621(288). Speed restrictions. — (a) No per- 
son shall drive a vehicle on a highway at a speed 
greater than is reasonable and prudent under the 
conditions then existing. 

(b) Where no special hazard exists the follow- 
ing speeds shall be lawful, but any speed in ex- 
cess of said limits shall be prima facie evidence 
that the speed is not reasonable or prudent and 
that it is unlawful: 

1. Twenty miles per hour in any business dis- 
trict; 

2. Twenty-five miles per hour in any residence 
district; 

3. Thirty-five miles per hour for motor vehicles 
designed, equipped for, or engaged in transport- 
ing property, and thirty miles per hour for such 
vehicle to which a trailer is attached; 

4. Forty-five miles per hour under other con- 
ditions. 

(c) The fact that the speed of a vehicle is lower 
than the foregoing prima facie limits shall not re- 
lieve the driver from the duty to decrease speed 
when approaching and crossing an intersection, 
when approaching and going around a curve, 
when approaching a hill crest, when traveling up- 
on any narrow or winding roadway, or when spe- 
cial hazard exists with respect to pedestrians or 
other traffic or by reason of weather or highway 
conditions, and speed shall be decreased as may 
be necessary to avoid colliding with any person, 
vehicle, or other conveyance on or entering the 
highway in compliance with legal requirements 

N. C. Supp.— 6 [81 



and the duty of all persons to use due care. It 
shall be unlawful to violate any provision of this 
section, and upon conviction shall be punished as 
provided in section 2621(326). 

(d) Whenever the state highway and public 
works commission shall determine upon the basis 
of an engineering and traffic investigation that any 
prima facie speed hereinbefore set forth is greater 
than is reasonable or safe under the conditions 
found to exist at any intersection or other place or 
upon any part of a highway, said commission shall 
determine and declare a reasonable and safe prima 
facie speed limit thereat which shall be effective 
when appropriate signs giving notice thereof are 
erected at such intersection or other place or part 
of the highway. 

(e) The foregoing provisions of this section 
shall not be construed to relieve the plaintiff in 
any civil action from the burden of proving neg- 
ligence upon the part of the defendant as the 
proximate cause of an accident. 

(f) Whenever local authorities within their 
respective jurisdictions determine, upon the basis 
of an engineering and traffic investigation that 
the prima facie speed permitted under this article 
at any intersection is greater than is reasonable 
or safe under the conditions found to exist at such 
intersection, such local authority shall determine 
and declare a reasonable and safe prima facie 
speed limit thereat, which shall be effective when 
appropriate signs giving notice thereof are 
erected at such intersection or upon the approaches 
thereto. 

(g) Local authorities in their respective juris- 
dictions may, in their discretion, authorize by 
ordinance higher prima facie speeds than those 
stated in sub-section (b) herein upon through 
highways or upon highways or portions thereof 
where there are no intersections or between widely 
spaced intersections: Provided, signs are erected 
giving notice of the authorized speed, but local au- 
thorities shall not have authority to modify or 
alter the basic rules set forth in sub-section (a) 
herein, or in any event to authorize by ordinance 
a speed in excess of forty-five miles per hour. 

(h) No person shall drive a motor vehicle at 
such a slow speed as to impede or block the nor- 
mal and reasonable movement of traffic, except 
when reduced speed is necessary for safe opera- 
tion or in compliance with law. Police officers are 
hereby authorized to enforce this provision by di- 
rections to drivers, and in the event of apparent 
wilful disobedience to this provision and refusal 
to comply with direction of an officer in accord- 
ance herewith, the continued slow operation by a 
driver shall be a misdemeanor. (1937, c. 407, s. 
103.) 

§ 2621(289). Railroad warning signals must be 
obeyed. — Whenever any person driving a vehicle 
approaches a highway and interurban or steam 
railway grade crossing, and a clearly visible and 
positive signal gives warning of the immediate ap- 
proach of a railway train or car, it shall be unlaw- 
ful for the driver of the vehicle to fail to bring the 
vehicle to a complete stop before traversing such 
grade crossing. (1937, c. 407, s. 104.) 

§ 2621(290). Vehicles must stop at certain 
railway grade crossings. — The road governing 
body (whether state or county) is hereby auth- 
orized to designate grade crossings of steam or 



§ 2621(291) 



MOTOR VEHICLES 



§ 2621(299) 



interurban railways by state and county highways, 
at which vehicles are required to stop, respectively, 
and such railways are required to erect signs 
thereat notifying drivers of vehicles upon any 
such highway to come to a complete stop before 
crossing such railway tracks, and whenever any 
such crossing is so designated and sign-posted it 
shall be unlawful for the driver of any vehicle to 
fail to stop within fifty feet, but not closer than 
ten feet, from such railway tracks before traversing 
such crossing. That no failure so to stop, how- 
ever, shall be considered contributory negligence 
per se in any action against the railroad or inter- 
urban company for injury to person or property; 
but the facts relating to such failure to stop may 
be considered with the other facts in the case in 
determining whether the plaintiff was guilty of 
contributory negligence: Provided, that all 
school trucks and passenger busses be required to 
come to a complete stop at all railroad crossings. 
(1937, c. 407, s. 105.) 

§ 2621(291). Special speed limitation on bridges. 

— It shall be unlawful to drive any vehicle upon 
any public bridge, causeway or viaduct at a speed 
which is greater than the maximum speed which 
can with safety to such structure be maintained 
thereon, when such structure is sign-posted as 
provided in this section. 

The state highway commission, upon request 
from any local authorities, shall, or upon its own 
initiative may conduct an investigation of any 
public bridge, causeway or viaduct, and if it shall 
thereupon find that such structure cannot with 
safety to itself withstand vehicles traveling at the 
speed otherwise permissible under this article, the 
commissioner shall determine and declare the 
maximum speed of vehicles which such structure 
can withstand, and shall cause or permit suitable 
signs stating such maximum speed to be erected 
and maintained at a distance of one hundred feet 
beyond each end of such structure. The findings 
and determination of the commission shall be con- 
clusive evidence of the maximum speed which 
can with safety to any such structure be main- 
tained thereon. (1937, c. 407, s. 106.) 

§ 2621(292). When speed limit not applicable. 

— The speed limitations set forth in this article 
shall not apply to vehicles when operated with 
due regard for safety under the direction of the 
police in the chase or apprehension of violators 
of the law or of persons charged with or sus- 
pected of any such violation, nor to fire depart- 
ment or fire patrol vehicles when traveling in re- 
sponse to a fire alarm, nor to public or private 
ambulances when traveling in emergencies. This 
exemption shall not, however, protect the driver 
of any such vehicle from the consequence of a 
reckless disregard of the safety of others. (1937, 
c. 407, s. 107.) 

§ 2621(293). Drive on right side of highway. 

— Upon all highways of sufficient width, except 
upon one-way streets, the driver of a vehicle shall 
drive the same upon the right half of the highway, 
and shall drive a slow-moving vehicle as closely 
as possible to the right-hand edge or curb of such 
highway, unless it is impracticable to travel on 
such side of the highway and except when over- 
taking and passing another vehicle subject to the 
limitations applicable in overtaking and passing, 



set forth in sections 2621(296) and 2621(297). 
(1937, c. 407, s. 108.) 

§ 2621(294). Keep to the right in crossing in- 
tersections or railroads. — In crossing an intersec- 
tion of highways or the intersection of a highway 
by a railroad right-of-way, the driver of a vehicle 
shall at all times cause such vehicle' to travel on 
the right half of the highway unless such right 
side is obstructed or impassable. (1937, c. 407, s. 
109.) 

§ 2621(295). Meeting of vehicles. — Drivers of 
vehicles proceeding in opposite directions shall 
pass each other to the right, each giving to the 
other at least one-half of the main-traveled por- 
tion of the roadway as nearly as possible. (1937, 
c. 407, s. 110.) 

§ 2621(296). Overtaking a vehicle. — (a) The 

driver of any such vehicle overtaking another ve- 
hicle proceeding in the same direction shall pass 
at least two feet to the left thereof, and shall not 
again drive to the right side of the highway until 
safely clear of such overtaken vehicle. 

(b) The driver of an overtaking motor vehicle 
not within a business or residence district, as here- 
in defined, shall give audible warning with his 
horn or other warning device before passing or 
attempting to pass a vehicle proceeding in the 
same direction. (1937, c. 407, s. 111.) 

§ 2621(297). Limitations on privilege of over- 
taking and passing. — (a) The driver of a vehicle 
shall not drive to the left side of the center of a 
highway, in overtaking and passing another ve- 
hicle proceeding in the same direction, unless such 
left side is clearly visible and is free of oncoming 
traffic for a sufficient distance ahead to permit 
such overtaking and passing to be made in safety. 

(b) The driver of a vehicle shall not overtake 
and pass another vehicle proceeding in the same 
direction upon the crest of a grade or upon a curve 
in the highway where the driver's view along the 
highway is obstructed within a distance of five 
hundred feet. 

(c) The driver of a vehicle shall not overtake 
and pass any other vehicle proceeding in the same 
direction at any steam or electric railway cross- 
ing nor at any intersection of highway unless per- 
mitted so to do by a traffic or police officer. 

(d) The driver of a vehicle shall not drive to 
the left side of the center line of a highway upon 
the crest of a grade or upon a curve in the high- 
way where such center line has been placed upon 
such highway by the state highway commission, 
and is visible. (1937, c. 407, s. 112.) 

§ 2621(298). Driver to give way to overtaking 
vehicle. — The driver of a vehicle upon a highway 
about to be overtaken and passed by another ve- 
hicle approaching from the rear, shall give way 
to the right in favor of the overtaking vehicle on 
suitable and audible signal being given by the 
driver of the overtaking vehicle, and shall not in- 
crease the speed of his vehicle until completely 
passed by the overtaking vehicle. (1937, c. 407, 
s. 113.) 

§ 2621(299). Following too closely.— (a) The 
driver of a motor vehicle shall not follow an- 
other vehicle more closely than is reasonable and 
prudent, with regard for the safety of others and 
due regard to the speed of such vehicles and the 
traffic upon and condition of the highway. 



[82] 



§ 2621(300) 



MOTOR VEHICLES 



§ 2621(305) 



(b) The driver of any motor truck, when 
traveling upon a highway outside of a business or 
residence district, shall not follow another motor 
truck within one hundred feet, but this shall not 
be construed to prevent one motor truck over- 
taking and passing another. (1937, c. 407, s. 114.) 

§ 2621(300). Turning at intersection. — (a) Ex- 
cept as otherwise provided in this section, the 
driver of a vehicle intending to turn to the right 
at an intersection shall approach such intersection 
in the lane for traffic nearest to the right-hand side 
of the highway,, and in turning shall keep as 
closely as practicable to the right-hand curb or 
edge of the highway, and when intending to turn 
to the left shall approach such intersection in the 
lane for the traffic to the right of and nearest to 
the center of the highway, and in turning shall 
pass beyond the center of the intersection, pass- 
ing as closely as practicable to the right thereof 
before turning such vehicle to the left. 

(b) For the purpose of this section, the center 
of the intersection shall mean the meeting point 
of the medial lines of the highways intersecting 
one another. 

(c) Local authorities in their respective juris- 
diction may modify the foregoing method of 
turning at intersections by clearly indicating by 
buttons, markers or other directions signs within 
an intersection the course to be followed by ve- 
hicles turning thereat, and it shall be unlawful for 
any driver to fail to turn in a manner as so di- 
rected when such direction signs are authorized 
by local authorities. (1937, c. 407, s. 115.) 

§ 2621(301). Signals on starting, stopping or 
turning. — (a) The driver of any vehicle upon a 
highway before starting, stopping or turning from 
a direct line shall first see that such movement 
can be made in safety, and if any pedestrian may 
be affected by such movement shall give a clearly 
audible signal by sounding the horn, and when- 
ever the operation of any other vehicle may be 
affected by such movement, shall give a signal as 
required in this section, plainly visible to the driver 
of such other vehicle, of the intention to make such 
movement. 

(b) The signal herein required shall be given by 
means of the hand and arm in the manner herein 
specified, "or by any approved mechanical or 
electrical signal device, except that when a ve- 
hicle is so constructed or loaded as to prevent the 
hand and arm signal from being visible, both to 
the front and rear, the signal shall be given by a 
device of a type which has been approved by the 
department." 

Whenever the signal is given the driver shall 
indicate his intention to start, stop, or turn by ex- 
tending the hand and arm from and beyond the 
left side of the vehicle as hereinafter set forth. 

Left turn — hand and arm horizontal, forefinger 
pointing. 

Right turn — hand and arm pointed upward. 

Stop — hand and arm pointed downward. 

All signals to be given from left side of vehicle 
during last fifty feet traveled. (1937, c. 407, s. 116.) 

§ 2621(302). Right-of-way.— (a) When two ve- 
hicles approach or enter an intersection and/or 
junction at approximately the same time, the driver 
of the vehicle on the left shall yield the right-of- 



way to the vehicle on the right except as otherwise 
provided in section 2621(303). 

(b) The driver of a vehicle approaching, but not 
having entered an intersection and/or junction, 
shall yield the right-of-way to a vehicle within 
such intersection and turning therein to> the left 
across the line of travel of such first mentioned 
vehicle: Provided, the driver of the vehicle turn- 
ing left has given a plainly visible signal of inten- 
tion to turn as required in section 2621(301). 

(c) The driver of any vehicle upon a highway 
within a business or residence district shall yield 
the right-of-way to a pedestrian crossing such 
highway within any clearly marked cross-walk, or 
any regular pedestrian crossing included in the 
prolongation of the lateral boundary lines of the 
adjacent sidewalk at the end of a block, except 
at intersections where the movement of traffic is 
being regulated by traffic officers or traffic direc- 
tion devices. (1937, c. 407, s. 117.) 

§ 2621(303). Exceptions to the right-of-way rule. 

— -(a) The driver of a vehicle entering a public 
highway from a private road or drive shall yield 
the right-of-way to all vehicles approaching on 
such public highway. 

(b) The driver of a vehicle upon a highway 
shall yield the right-of-way to police and fire de- 
partment vehicles and public and private ambu- 
lances when the latter are operated upon official 
business and the drivers thereof sound audible 
signal by bell, siren or exhaust whistle. This pro- 
vision shall not operate to relieve the driver of a 
police or fire department vehicle or public or pri- 
vate ambulance from the duty to drive with due 
regard for the safety of all persons using the high- 
way, nor shall it protect the driver of any such 
vehicle from the consequence of any arbitrary ex- 
ercise of such right-of-way. (1937, c. 407, s. 118.) 

§ 2621(304). What to do on approach of police 
or fire department vehicles. — (a) Upon the ap- 
proach of any police or fire department vehicle 
giving audible signal by bell, siren or exhaust 
whistle, the driver of every other vehicle shall im- 
mediately drive the same to a position as near as 
possible and parallel to the right-hand edge or 
curb, clear of any intersection of highways, and 
shall stop and remain in such position unless other- 
wise directed by a police or traffic officer until 
the police or fire department vehicle shall have 
passed. 

(b) It shall be unlawful for the driver of any 
vehicle other than one on official business to fol- 
low any fire apparatus traveling in response to a 
fire alarm closer than one block or to drive into 
or park such vehicle within one block where fire 
apparatus has stopped in answer to a fire alarm. 
(1937, c. 407, s. 119.) 

§ 2621(305). Vehicles must stop at certain 
through highways. — (a) The state highway com- 
mission, with reference to state highways and local 
authorities, with reference to highways under their 
jurisdiction, are hereby authorized to designate 
main traveled or through highways by erecting at 
the entrance thereto from intersecting highways 
signs notifying drivers of vehicles to come to full 
stop before entering or crossing such designated 
highway, and whenever any such signs have been 
so erected it shall be unlawful for the driver of 



83 



§ 2621(306) 



MOTOR VEHICLES 



§ 2621(312) 



any vehicle to fail to stop in obedience thereto. 
That no failure so to stop, however, shall be con- 
sidered contributory negligence per se in any action 
at law for injury to person or property; but the 
facts relating to such failure to stop may be con- 
sidered with the other facts in the case in deter- 
mining whether the plaintiff in such action was 
guilty of contributory negligence. 

(b) No person operating any motor vehicle upon 
any path, private or public road shall cross or at- 
tempt to cross, enter upon, or attempt to enter 
upon any hard surface or improved highway inter- 
secting the said path or road without first coming 
to a full stop: Provided, that this shall not apply 
to any road entering upon or crossing such hard 
surfaced or improved highway unless the road gov- 
erning authority (whether state or county) con- 
trolling such highway shall erect on such road, at 
a point one hundred or more feet from the point 
of entrance into said highway, a signboard not less 
than four feet from ground on the right side of the 
road, twenty-four inches by twenty-four inches 
outside measurements, which shall be painted of 
yellow background with word "Stop" in black let- 
ters eight inches high, to insure warning of the 
proximity of the crossing and notice to stop said 
motor vehicle. 

(c) This article shall not interfere with the regu- 
lations prescribed by towns and cities. 

(d) No failure to so stop shall be considered 
contributory negligence per se in any action for 
injury to person or property; but the facts relating 
to such failure to stop may be considered with 
other facts in determining negligence. 

(e) Any person violating the provisions of this 
article shall be guilty of a misdemeanor, and upon 
conviction shall be fined not more than ten dollars 
or imprisoned not more than ten days. (1937, c. 
407, s. 120.) 

§ 2621(306). Passing street cars.— (a) The driver 

of a vehicle shall not overtake and pass upon the 
left any street car proceeding in the same direc- 
tion, whether actually in motion or temporarily at 
rest, when a travelable portion of the highway 
exists to the right of such street car. 

(b) The driver of a vehicle overtaking any rail- 
way, interurban or street car stopped or about to 
stop for the purpose of receiving or discharging 
any passenger, shall bring such vehicle to a full 
stop not closer than ten feet to the nearest exit 
of such street car and remain standing until any 
such passenger has boarded such car or reached 
the adjacent sidewalk, except that where a safety 
zone has been established, then a vehicle may be 
driven past any such railway, interurban or street 
car at a speed not greater than ten miles per hour 
and with due caution for the safety of pedestrians. 
(1937, c. 407, s. 121.) 

§ 2621(307). Driving through safety zone pro- 
hibited. — The driver of a vehicle shall not at any 
time drive through or over a safety zone as defined 
in part one of this article. (1937, c. 407, s. 122.) 

§ 2621(308). Stopping on highway.— (a) No per- 
son shall park or leave standing any vehicle, 
whether attended or unattended, upon the paved 
or improved or main traveled portion of any high- 
way, outside of a business or residence district, 
when it is practicable to park or leave such ve- 



hicle standing off of the paved or improved or 
main traveled portion of such highway: Provided, 
in no event shall any person park or leave stand- 
ing any vehicle, whether attended or unattended, 
upon any highway unless a clear and unobstructed 
width of not less than fifteen feet upon the main 
traveled portion of said highway opposite such 
standing vehicle shall be left for free passage of 
other vehicles thereon, nor unless a clear view of 
such vehicle may be obtained from a distance of 
two hundred feet in both directions upon such 
highway: Provided further, that in no event shall 
any person park or leave standing any vehicle, 
whether attended or unattended, upon any high- 
way bridge: Provided further, that in the event 
that a truck, trailer or semi-trailer be disabled up- 
on the highway that the driver of such vehicle 
shall display, not less than two hundred feet in 
the front or rear of such vehicle, a warning signal; 
that during the hours from sunup to sundown a 
red flag shall be displayed, and after sundown red 
flares or lanterns. These warning signals shall 
be displayed as long as such vehicle is disabled 
upon the highways. 

(b) Whenever any peace officer shall find a ve- 
hicle standing upon a highway in violation of the 
provisions of this section, he is hereby authorized 
to move such vehicle or require the driver or per- 
son in charge of such vehicle to move such vehicle 
to a position permitted under this section. 

(c) The provisions of this section shall not ap- 
ply to the driver of any vehicle which is disabled 
while on the paved or improved or main traveled 
portion of a highway in such manner and to such 
extent that it is impossible to avoid stopping and 
temporarily leaving such vehicle in such position. 
(1937, c. 407, s. 123.) 

§ 2621(309). Parking in front of fire hydrant, 
fire station or private driveway. — No person shall 
park a vehicle or permit it to stand, whether at- 
tended or unattended, upon a highway in front of 
a private driveway or within fifteen feet in either 
direction of a fire hydrant or the entrance to a fire 
station, nor within twenty-five feet from the inter- 
section of curb lines or if none, then within fifteen 
feet of the intersection of property lines at an in- 
tersection of highways. (1937, c. 407, s. 124.) 

§ 2621(310). Motor vehicle left unattended; 
brakes to be set and engine stopped. — No person 
having control or charge of a motor vehicle shall 
allow such vehicle to stand on any highway unat- 
tended without first effectively setting the brakes 
thereon and stopping the motor of said vehicle, 
and, when standing upon any grade, without turn- 
ing the front wheels of such vehicle to the curb or 
side of the highway. (1937, c. 407, s. 125.) 

§ 2621(311). Driving on mountain highways. — 

The driver of a motor vehicle traversing defiles, 
canyons or mountain highways shall hold such 
motor vehicle under control and as near the right- 
hand side of the highway as reasonably possible, 
and upon approaching any curve where the view 
is obstructed within a distance of two hundred feet 
along the highway, shall give audible warning with 
a horn or other warning device. (1937, c. 407, s. 
126.) 

§ 2621(312). Coasting prohibited.— The driver of 

a motor vehicle when traveling upon a down grade 



[ 84 



§ 2621(313) 



MOTOR VEHICLES 



§ 2621(315) 



upon any highway shall not coast with the gears 
of such vehicle in neutral. (1937, c. 407, s. 127.) 

§ 2621(313). Duty to stop in event of accident. 

— (a) The driver of any vehicle involved in an ac- 
cident resulting in injury or death to any person 
shall immediately stop such vehicle at the scene 
of such accident, and any person violating this 
provision shall upon conviction be punished by a 
fine or imprisonment in the discretion of the court. 

(b) The driver of any vehicle involved in an ac- 
cident resulting in damage to property shall im- 
mediately stop such vehicle at the scene of such 
accident, and any person violating this provision 
shall upon conviction be punished as provided in 
section 2621(327). 

(c) The driver of any vehicle involved in any 
accident resulting in injury or death to any per- 
son or damage to property shall also give his 
name, address, operator's or chauffeur's license 
number and the registration number of his vehicle 
to the person struck or the driver or occupants of 
any vehicle collided with, and shall render to any 
person injured in such accident reasonable assist- 
ance, including the carrying of such person to a 
physician or surgeon for medical or surgical treat- 
ment if it is apparent that such treatment is neces- 
sary or is requested by the injured person, and it 
shall be unlawful for any person to violate this 
provision, and shall be punishable as provided in 
section 2621(327). 

(d) The driver of any vehicle involved in any 
accident resulting in injuries or death to any per- 
son, or property damage to an apparent extent of 
ten dollars ($10.00) or more, shall, within twenty- 
four hours, file or cause to be filed a report of such 
accident with the department, except that when 
such accident occurs within a city such report shall 
be made within twenty-four hours to the police 
department of such city. Every police department 
shall forward on the fifth day of each month every 
such report received during the previous calendar 
month, or a copy thereof, so filed with it to the 
main office of the department. All accident reports 
shall be made on forms approved by the depart- 
ment. With respect to any such accident involv- 
ing a collision between any common carrier and 
another vehicle, such common carrier shall also 
make a report of the accident to the department, 
such report to be filed on or before the tenth day 
of the month following the accident. 

(e) Where a person required to report an acci- 
dent by the preceding subsection is physically in- 
capable of making such report, and there is an- 
other occupant in the vehicle at the time of the 
accident, such occupant shall make the report. 

The department may require drivers, or com- 
mon carriers involved in accidents, to file supple- 
mental reports, and may require witnesses of acci- 
dents to render reports to it upon forms furnished 
by it whenever the original report is insufficient in 
the opinion of the department. 

All accident reports together with all supple- 
mental reports above mentioned shall be without 
prejudice and shall be for the use of the depart- 
ment, and shall not be used in any manner what- 
soever as evidence, or for any other purpose in 
any trial, civil or criminal, arising out of such ac- 
cident: Provided, however, that all reports made 
by state, city or county police shall be subject to 



inspection by members of the general public at all 
reasonable times. The department shall be re- 
quired to furnish, upon demand of any court, a 
properly executed certificate stating that a specific 
accident report has or has not been filed with the 
department solely to prove a compliance with this 
section. 

(f) The department shall prepare and shall upon 
request supply to police, coroners, sheriffs and 
other suitable agencies, or individuals, forms for 
accident reports calling for sufficiently detailed in- 
formation to disclose with reference to a highway 
accident the cause, conditions then existing, and 
the persons and vehicles involved. 

The department shall receive accident reports 
required to be made by this section and may tabu- 
late and analyze such reports and publish annually, 
or at more frequent intervals, statistical informa- 
tion based thereon as to the number, cause and 
location of highway accidents. 

Based upon its findings after such analysis, the 
department may conduct further necessary detailed 
research to more fully determine the cause and 
control of highway accidents. It may further 
conduct experimental field tests within areas of the 
state from time to time to prove the practicability 
of various ideas advanced in traffic control and ac- 
cident prevention. 

(g) Every person holding the office of coroner 
in this state shall, on the tenth day of each month, 
report to the department the death of any person 
during the preceding calendar month as the result 
of an accident involving a motor vehicle and the 
circumstances of such accident. (1937, c. 407, s. 
128.) 

§ 2621(314). Vehicles transporting explosives. — 

Any person operating any vehicle transporting any 
explosive as a cargo or part of a cargo upon a 
highway shall at all times comply with the provi- 
sions of this section. 

(a) Said vehicle shall be marked or placarded on 
each side and the rear with the word "Explosives" 
in letters not less than eight inches high, or there 
shall be displayed on the rear of such vehicle a red 
flag not less than twenty-four inches square 
marked with the word "Danger" in white letters 
six inches high. 

(b) Every said vehicle shall be equipped with 
not less than two fire extinguishers, filled and 
ready for immediate use, and placed at a conven- 
ient point on the vehicle so used. 

(c) The commissioner is hereby authorized and 
directed to promulgate such additional regulations 
governing the transportation of explosives and 
other dangerous articles by vehicles upon the high- 
ways as he shall deem advisable for the protection 
of the public. (1937, c. 407, s. 129.) 

§ 2621(315). Drivers of state, county and city 
vehicles subject to provisions of this article. — The 

provisions of this article applicable to> the drivers 
of vehicles upon the highways shall apply to the 
drivers of all vehicles owned or operated by this 
state or any political sub-divisions thereof, or of 
any city, town or district, except persons, teams, 
motor vehicles and other equipment while actually 
engaged in work on the surface of the road, but 
not when traveling to or from such work. (1937, 
c. 407, s. 130.) 



§ 2621(316) 



MOTOR VEHICLES 



§ 2621(334) 



§ 2621(316). Powers of local authorities. — Local 
authorities, except as expressly authorized by sec- 
tion 2621(288) (g) and section 2621(305), shall 
have no power or authority to alter any speed limi- 
tations declared in this article or to enact or en- 
force any rule or regulations contrary to the pro- 
visions of this article, except that local authorities 
shall have power to provide by ordinances for the 
regulation of traffic by means of traffic or sema- 
phores or other signaling devices on any portion 
of the highway where traffic is heavy or continuous 
and may prohibit other than one-way traffic upon 
certain highways, and may regulate the use of the 
highways by processions or assemblages and ex- 
cept that local authorities shall have the power to 
regulate the speed of vehicles on highways in pub- 
lic parks, but signs shall be erected giving notices 
of such special limits and regulations. (1937, c. 
407, s. 131.) 

§ 2621(317). This article not to interfere with 
rights of owners of real property with reference 
thereto. — Nothing in this article shall be construed 
to prevent the owner of real property used by the 
public for purposes of vehicular travel by permis- 
sion of the owner, and not as matter of right from 
prohibiting such use nor from requiring other or 
different or additional conditions than those speci- 
fied in this article or otherwise regulating such use 
as may seem best to such owner. (1937, c. 407, s. 
132.) 

Part 11. Pedestrians' Rights and Duties 

§ 2621(318). Pedestrians subject to traffic con- 
trol signals. — Pedestrians shall be subject to traffic 
control signals at intersections as heretofore de- 
clared in this article, but at all other places pedes- 
trians shall be accorded the privileges and shall be 
subject to the restrictions stated in this article. 
(1937, c. 407, s. 133.) 

§ 2621(319). Pedestrians' right-of-way at cross- 
walks. — (a) Where traffic control signals are not 
in place or in operation the driver of a vehicle shall 
yield the right-of-way, slowing down or stopping 
if need be to so yield, to a pedestrian crossing the 
roadway within any marked cross-walk or within 
any unmarked cross-walk at an intersection, except 
as otherwise provided in this article. 

(b) Whenever any vehicle is stopped at a 
marked cross-walk or at any unmarked cross-walk 
at an intersection to permit a pedestrian to cross 
the roadway, the driver of any other vehicle ap- 
proaching from the rear shall not overtake and 
pass such stopped vehicle. (1937, c. 407, s. 134.) 

§ 2621(320). Crossing at other than cross-walks. 

— (a) Every pedestrian crossing a roadway at any 
point other than within a marked cross-walk or 
within an unmarked cross-walk at an intersection 
shall yield the right-of-way to all vehicles upon 
the roadway. 

(b) Any pedestrian crossing a roadway at a 
point where a pedestrian tunnel or overhead pedes- 
trian crossing has been provided shall yield the 
right-of-way to all vehicles upon the roadway. 

(c) Between adjacent intersections at which 
traffic control signals are in operation pedestrians 
shall not cross at any place except in a marked 
cross-walk. 

(d) It shall be unlawful for pedestrians to walk 



along the traveled portion of any highway except 
on the extreme left-hand side thereof, and such 
pedestrians shall yield the right-of-way to ap- 
proaching traffic. 

(e) Notwithstanding the provisions of this sec- 
tion, every driver of a vehicle shall exercise due 
care to avoid colliding with any pedestrian upon 
any roadway, and shall give warning by sounding 
the horn when necessary, and shall exercise proper 
precaution upon observing any child or any con- 
fused or incapacitated person upon a roadway. 
(1937, c. 407, s. 135.) 

§ 2621(321). Pedestrians soliciting rides. — No 
person shall stand in the travel portion of the high- 
way for the purpose of soliciting a ride from the 
driver of any private vehicle. (1937, c. 407, s. 136.) 

Part 12. Penalties 
§ 2621(322). Penalty for misdemeanor. — (a) It 

shall be unlawful and constitute a misdemeanor for 
any person to violate any of the provisions of this 
article unless such violation is by this article or 
other law of this state declared to be a felony. 

(b) Unless another penalty is in this article or 
by the laws of this state provided, every person 
convicted of a misdemeanor for the violation of 
any provision of this article shall be punished by 
a fine of not more than one hundred dollars 
($100.00) or by imprisonment in the county or 
municipal jail for not more than sixty days, or by 
both such fine and imprisonment: Provided, that 
upon conviction for the following offenses — operat- 
ing motor vehicles without displaying registration 
number plates issued therefor; permitting or mak- 
ing any unlawful use of registration number plates, 
or permitting the use of registration by a person 
not entitled thereto, and violation of sections 
2621(266)-2621(268), 262l(27l)-262l(283), 2621- 
(289)-262l(29l), 262l(293)-262l(295), 2621(297)- 
2621(304), 2621(306)-2621(310), 2621(312) — the 
punishment therefor shall be a fine not to exceed 
fifty dollars ($50.00) and not less than ten dollars 
($10.00), or imprisonment not to exceed thirty 
days for each offense. (1937, c. 407, s. 137.) 

§ 2621(323). Penalty for felony. — Any person 
who shall be convicted of a violation of any of the 
provisions of this article herein or by the laws of 
this state declared to constitute a felony shall, un- 
less a different penalty is prescribed herein or by 
the laws of this state, be punished by imprison- 
ment in the state prison for a term not less than 
one year nor more than five years, or by a fine of 
not less than five hundred dollars nor more than 
five thousand dollars, or by both fine and impris- 
onment. (1937, c. 407, s. 138.) 

§ 2621(324). Penalty for bad check. — When any 
person, firm, or corporation shall tender any un- 
certified check for payment of any tax or fees 
found to be due by him under the provisions of 
this article, and such check shall have been re- 
turned to the commissioner unpaid on account of 
insufficient funds of the drawer of said check in the 
bank upon which same is drawn, then in that event 
an additional tax shall be imposed equal to ten per 
cent of the fees due, and in no case shall the in- 
crease of said tax, because of said failure, be less 
than one dollar ($1.00), and the said additional tax 
shall not be waived or diminished by the commis- 
sioner. (1937, c. 407, s. 139.) 



[86] 



§ 2621(325) 



MOTOR VEHICLES 



§ 2621(332) 



§ 2621(325). Penalty for driving while under the 
influence of intoxicating liquor or narcotic drugs. 

— Every person who is convicted of violation of 
section 2621(286), relating to habitual users of 
narcotic drugs or driving while under the influence 
of intoxicating liquor or narcotic drugs, shall be 
punished by imprisonment in the county or mu- 
nicipal jail for not less than thirty days nor more 
than one year, or by fine of not less than fifty dol- 
lars ($50.00) nor more than one thousand dollars 
($1,000.00), or by both such fine and imprison- 
ment. On a second or subsequent conviction for 
the same offense he shall be punished by impris- 
onment for not more than two years or fined not 
more than one thousand dollars ($1,000.00), or by 
both fine and imprisonment, in the discretion of 
the court. (1937, c. 407, s. 140.) 

§ 2621(326). Penalty for reckless driving. — 

Every person convicted of reckless driving under 
section 2621(287) shall be punished by imprison- 
ment in the county or municipal jail for a period 
of not more than six months, or by fine of not 
more than five hundred dollars ($500.00), or by 
both such fine and imprisonment, and on a second 
or subsequent conviction of such offense shall be 
punished by imprisonment for not more than one 
year or by a fine of not less than fifty dollars nor 
more than one thousand dollars ($1,000.00), or by 
both such fine and imprisonment. (1937, c. 407, 
s. 141.) 

§ 2621(327). Penalty for failure to stop in event 
of accident involving injury or death to a person. — 

Every person convicted of wilfully violating sec- 
tion 2621(313), relative to the duties to stop in the 
event of accidents, except as otherwise provided, 
involving injury or death to a person, shall be pun- 
ished by imprisonment for not less than one nor 
more than five years, or in the state prison for not 
less than one nor more than five years, or by fine 
of not less than five hundred dollars or by both 
such fine and imprisonment. The commissioner 
shall revoke the operator's or chauffeur's license of 
the person so convicted. In no case shall the court 
have power to suspend judgment upon payment of 
costs. (1937, c. 407, s. 142.) 

§ 2621(328). Duties and powers of law enforce- 
ment officers. — It shall be the duty of the law en- 
forcement officers of the state and of each county, 
city, or other municipality to see that the pro- 
visions of this article are enforced within their re- 
spective jurisdictions, and any such officer shall 
have the power to arrest on sight or upon warrant 
any person found violating the provisions of this 
article. Such officers within their respective juris- 
dictions shall have the power to stop any motor 
vehicle upon the highways of the state for the pur- 
pose of determining whether the same is being 
operated in violation of any of the provisions of 
this article. (1937, c. 407, s. 143.) 

§ 2621(329). Unconstitutionality or invalidity.— 

If any clause, sentence, paragraph, or part of this 
article shall for any reason be adjudged by any 
court of competent jurisdiction to be invalid, such 
judgment shall not affect, impair, or invalidate the 
remainder of this article, but shall be confined in 
its operation to the clause, sentence, paragraph, or 
part thereof directly involved in the controversy 
in which such judgment shall have been rendered. 



No caption of any section or set of sections shall 
in any way affect the interpretation of this article 
or any part thereof. (1937, c. 407, s. 144.) 

§ 2621(330). Effective date. — This article shall 

be in full force and effect from and after its ratifi- 
cation, except that existing tax levies shall con- 
tinue in effect until January first, one thousand nine 
hundred and thirty-eight, and on and after that 
date the modifications of existing rates provided 
for in part seven of this article shall supersede such 
existing rates. (1937, c. 407, s. 146.) 

Art. 16. Sales of Used Motor Vehicles Brought 
into State 

§ 2621(331). Dealers required to register vehicles 
with department of revenue and furnish bond. — 

Every dealer in used, or second-hand, motor ve- 
hicles who is a non-resident of the state of North 
Carolina or who does not have a permanent place 
of business in this State, and every person, firm or 
corporation who bring any used, or second-hand, 
motor vehicles into the state of North Carolina for 
the purpose of sale or re-sale, except as a trade-in 
on a new motor vehicle or another used car, shall, 
before offering the same for sale within ten days 
from the date of entry of said motor vehicle into 
the limits of the state of North Carolina, register 
such motor vehicle with the department of revenue 
on a form to be provided by said department and 
under such rules and regulations as may be pro- 
mulgated by said department from time to time, 
and shall, before said used or second-hand car is 
offered for sale, or sold, execute a bond with two 
good sufficient sureties, or with a surety company 
duly authorized to do business in the state of 
North Carolina as a surety or sureties thereon, 
payable to the state of North Carolina, for the use 
and benefit of the purchaser and his vendees, con- 
ditioned to pay all loss, damages and expenses that 
may be sustained by the purchaser, and/or vendees, 
that may be occasioned by reason of the failure 
of the title of such vendor or by reason of any 
fraudulent misrepresentations or breaches of war- 
ranty as to freedom from liens, quality, condition, 
use or value of the motor vehicle being sold. Said 
bond shall be in the full amount of the sale price 
of each of such motor vehicles, but in no event to 
exceed the sum of one thousand ($1,000.00) dollars 
for any one motor vehicle, and shall be filed with 
the department of revenue of the state of North 
Carolina by the vendor and be approved by it as 
to amount, form and as to the solvency of the 
surety or sureties, and for which service by said 
department, in registering said vehicle, the vendor 
shall pay the regular registration fee charged for 
the registration of motor vehicles and in addition 
thereto a fee of ten ($10.00) dollars for each bond 
so filed and approved, which sums shall be paid 
into the state treasury to the credit of the general 
fund and expended as provided by law. (1937, c. 
62, s. 1.) 

§ 2621(332). Titles to all used cars to be fur- 
nished upon delivery. — Every person, firm or cor- 
poration, upon the sale and delivery of any used 
or second-hand motor vehicle, shall, at the time of 
the delivery of said vehicle, deliver to the vendee 
a certificate of title issued to the vendor by the 
North Carolina state department of revenue, duly 



[87] 



§ 2621(333) 



MUNICIPAL CORPORATIONS 



§ 2720 



endorsed in order that the vendee may obtain a 
title therefor. (1937, c. 62, s. 2.) 

§ 2621(333). Non-compliance defeats right of ac- 
tion; violations a misdemeanor. — No action, nor 
right of action to recover any such motor vehicle, 
nor any part of the selling price thereof shall be 
maintained in the courts of this state by any such 
dealer or vendor, his successors or assigns, in any 
case wherein such vendor or dealer shall have 
failed to comply with the terms and provisions of 
this article, and, in addition thereto, such vendor 
or dealer, upon conviction for the violation of any 
of the provisions of this article, shall be deemed 
guilty of a misdemeanor and shall be punished by 
s fine of not less than one hundred ($100.00) dol- 
lars and not more than five hundred ($500.00) dol- 
lars, or by imprisonment for not less than thirty 
days, or more than six months, or by both such 
fine and imprisonment. (1937, c. 62, s. 3.) 

§ 2621(334). "Dealers" and "vendors," defined. 

— The terms "dealers" and "vendors" herein used 
shall be construed to include every individual, part- 
nership, corporation or trust whose business, in 
whole or in part, is that of selling used motor ve- 
hicles not taken in exchange for vehicles sold in 
this state, and likewise shall be construed to include 
every agent, representative, or consignee of any 
such dealer as denned above as fully as if same 
had been herein expressly set out, except that no 
agent, representative or consignee of such dealer 
or vendor shall be required to make and file the 
said bond if such dealer or vendor for whom such 
agent, representative or consignee acts fully com- 
plies in each instance with the provisions of this 
article. (1937, c. 62, s. 4.) 



CHAPTER 56 

MUNICIPAL CORPORATIONS 

SUBCHAPTER I. REGULATIONS 

INDEPENDENT OF ACT 

OF 1917 

Art. 1. General Powers 
§ 2623. Corporate powers. 

As to reconveyance of property donated for specific pur- 
pose, see § 1291(b). 

Art. 2. Municipal Officers 
Part. 3. Constable and Policeman 
§ 2642. Policemen execute criminal process. 

A policeman has the authority under general statute to 
deputize a citizen to aid him in serving a warrant for breach 
of the peace, a policeman being given the same authority, 
within the town limits, in making arrests as a sheriff. 
Tomlinson v. Norwood, 208 N. C. 716, 182 S. E. 659. See 
§§ 4379 and 4547. 

Art. 5. Municipal Taxation 
§ 2677. Commissioners may levy taxes. 

Tax on Firm Outside City. — 

In accord with original. See State v. Bridgers, 211 N. 
C. 235, 189 S. F- 869. 

Art. 9. Local Improvements 
§ 2707. What petition shall contain. 

Applied in High Point v. Clark, 211 N. C. 607, 191 S. F- 
318. 



§ 2710. Assessments levied. 

Where Charges for Water and Gas Connections Did Not 
Constitute a Preferred Claim. — Charges for water and gas 
connections, incurred during the lifetime of a life tenant 
and unpaid at his death, do not constitute a preferred 
claim against his estate as taxes assessed on the estate 
prior to his death, since in no event would such charges 
stand upon a higher plane than assessments for permanent 
improvements. Rigsbee v. Brogden, 209 N. C. 510, 184 
S. F- 24. 

§ 2711. Amount of assessment ascertained. 

Applied in High Point v. Clark, 211 N. C. 607, 191 S. 
318. 

§ 2713. Hearing and confirmation; assessment 
lien. 

Priority of Lien. — 

In accord with paragraph in original. See Winston- 
Salem v. Powell Paving Co., 7 F. Supp. 424. 

The lien is an incumbrance within the meaning of the 
warranty clause against incumbrances. Winston- Salem v. 
Powell Paving Co., 7 F. Supp. 424, 427, citing Coble v. 
Dick, 194 N. C. 732, 140 S. F. 745. 

Intention to Give Ad Valorem Tax Liens Preference over 
Other Liens. — A comparison of § 7987, and this section in- 
dicates the intention of the Legislature to give the ad 
valorem tax liens preference over any other liens, whether 
the same shall have attached prior or subsequent to the 
1st day of June of the taxable year. Winston- Salem v. 
Powell Paving Co., 7 F. Supp. 424, 427. 

And both sections should be construed in such way as 
to effectuate the intention of the Legislature. Id. 

Thus the lien for street assessment, while superior to 
all other liens, whether existent or otherwise, does not de- 
feat the right of the municipality or county to collect the 
annual ad valorem general taxes accruing on the same 
property. Id. 

§ 2714. Appeal to the superior court. 

Cited in High Point v. Clark, 211 N. C. 607, 191 S. E- 
318. 

§ 2717(b). Extension of time for payment of 
special assessments. — At any time or times prior 
to July the first, one thousand nine hundred and 
thirty-eight, the governing body of any city or 
town may adopt a resolution granting an exten- 
sion of the time for the payment of any instal- 
ment or instalments of any special assessment, in- 
cluding accrued interest thereon and costs ac- 
crued in any action to foreclose under the lien 
thereon, by arranging such instalment or instal- 
ments, interest and costs into a new series of ten 
equal instalments so that one of said instalments 
shall fall due on the first Monday in October 
after the expiration of one year after adoption of 
the aforesaid resolution and one of said instal- 
ments on the first Monday in October of each 
year thereafter. 

(1937, c. 172.) 

Editor's Note.— The 1937 amendment substituted "thirty- 
eight" for "thirty- six" formerly appearing near the beginning 
of the first sentence. The rest of the section, not being 
affected by the amendment, is not set out. 

For amendatory act applicable only to town of Carrboro, 
see Public Laws 1937, c. 195. 

§ 2718. Assessments in case of tenant for life 
or years. 

Since street and sidewalk assessments constitute a lien 
against the property not collectible out of other proper- 
ties belonging to the owner, and since by this section a 
life tenant is not liable for the whole assessment, being 
entitled to have it proportioned under § 2720, upon the death 
of a life tenant such assessments made prior to his death 
do not constitute a preference against his estate under the 
third class of priority. Rigsbee v. Brogden, 209 N. C. 510, 
184 S. F- 24. See § 93 and note. 



§ 2720. Lien of party making payment. 

See § 2718 of this Supplement and note thereto. 



[88] 



§ 2744(a) 



MUNICIPAL CORPORATIONS 



§ 2959 



Art. 11. Regulation of Buildings 

§ 2744(a). County electrical inspectors. — The 

county commissioners of each county may in 
their discretion designate and appoint an elec- 
trical inspector whose duty it shall be to inspect 
the installation of all wiring and other electrical 
installations in buildings located in any town of 
one thousand population or less and/or those 
buildings located outside of the corporate limits 
of all cities and towns and not otherwise in- 
cluded in this article, and to issue a certificate of 
inspection where such installations fully meet the 
requirements for such installations as set forth 
in this article, or such additional requirements as 
the board of county commissioners may prescribe. 
Nothing contained in this article shall be con- 
strued as prohibiting said board of county com- 
missioners designating as county inspector any 
person who also has or may be designated as 
electrical inspector in any city or town located 
within said county, or from prohibiting two or 
more counties from designating the same inspec- 
tor to perform the duties herein mentioned for 
such two or more counties. The county commis- 
sioners shall also fix the fees to be charged by 
such county inspector, which fees shall be paid 
by the owner of the properties so inspected. 
(1937, c. 57.) 

Art. 11(A). Recreation Systems and 
Playgrounds 

§ 2776(b). Power to dedicate property already 
owned; power to acquire property. 

Municipal corporations are given authority by this sec- 
tion and §§ 2795 and 2787(12), to establish parks and play- 
grounds necessary to the maintenance of the health of their 
inhabitants, and an ordinance of a populous industrial city 
which provides for the issuance of bonds to establish and 
maintain parks and playgrounds for the children of the 
city was held a valid exercise of its police power under 
legislative authority for the promotion of the public health, 
safety, and morals. Atkins v. Durham, 210 N. C. 295, 186 
S. E. 330. 

Art. 11(C). Zoning Regulations 
§ 2776(x). Board of adjustment. 

Where Action of Beard Does Not Constitute Res Judicata 
upon Second Application. — The approval by the Board of 
Adjustment of a denial of a permit to erect a filling sta- 
tion on certain land does not constitute res judicata upon a 
second application made therefor three years after the first 
application upon substantial change of the traffic conditions. 
In re Application of Broughton Estate, 210 N. C. 62, 185 
S. E. 434. 

SUBCHAPTER II. MUNICIPAL CORPO- 
RATION ACT OF 1917 

Art. 15. Powers of Municipal Corporations 

Part 1. General Powers Enumerated 

§ 2787. Corporate powers. 

Reference. — See note to § 2776(b) of this Supplement. 

Ordinance Requiring Taxicab Operators to Secure Lia- 
bility Insurance Does Not Violate Constitution. — An ordi- 
nance requiring operators of taxicabs or other motor ve- 
hicles for hire to secure liability insurance or enter into 
bond with personal or corporate surety is a valid exercise 
oi the police power and expressly authorized by this sec- 
tion and does not violate the Fourteenth Amendment of the 
Federal Constitution, the operation of vehicles for gain be- 
ing a special and extraordinary use of the city's streets, 
which it has the power to condition by ordinance uniform 
upon all coming within the classification. Watkins v. Ise- 
ley, 209 N. C. 256, 183 S'. E- 365, citing Packard v. Ban- 
ton, 264 U. S. 140, 68 E. Ed. 596, 44 S. Ct. 257. 



Part 2. Power to Acquire Property 
§ 2791. Acquisition by purchase. 

Section Authorizes Paving of Dedicated Streets Outside 
City Limits. — This section gives a city the right to acquire 
streets "within or outside the city," and to "exercise the 
management and control of the streets," etc. The lan- 
guage is broad enough to give a city authority to pave 
streets outside the city that were dedicated to the city, 
there being no necessity to purchase same. High Point v. 
Clark, 211 N. C. 607, 612, 191 S. E. 318. 

Part. 5. Protection of Public Health 

§ 2795. Ordinances for protection of health; 
contracts for medical treatment and hospitaliza- 
tion of poor. 

See note to § 2776(b) of this Supplement. 

In accordance with the provisions of the last paragraph 
of this section the commissioners of a city proposed to 
enter into a contract with a public hospital providing for 
the payment by the city of the sum of $10,000 a year for 
thirty years, in consideration of the agreement of the hos- 
pital to give medical care and hospitalization to the indigent 
sick and afflicted poor of the city, and to levy a tax to raise 
revenue sufficient to meet such payments. It was held that 
the proposed tax was for a necessary municipal expense, and 
the approval of the qualified voters of the city was not a 
prerequisite to the validity of the tax. Martin v. Raleigh, 
208 N. C. 369, 180 S. E. 786. 

Part 8. Water and Lights 
§ 2808. Fix and enforce rates. 

See note to § 2959 of this Supplement. 

Art. 16. Exercise of Powers by 
Governing Body 

Part 5. Control of Public Utilities 

§ 2835(a). Profit on certain sales of electricity 
by one municipality to another. — Where any mu- 
nicipality within the state purchases electric cur- 
rent from a private utility and resells said cur- 
rent to any other municipality or municipalities 
over the lines which are owned by the municipal- 
ity or municipalities purchasing from the first 
municipality, the municipality which purchases 
said current from a private utility shall not charge 
the municipality or municipalities purchasing 
from it more than ten per cent (10%) over and 
above what is paid by the first municipality to the 
private utility. (1937, c. 444.) 

SUBCHAPTER III. MUNICIPAL 
FINANCE ACT 

Art. 26. Permanent Financing 

§ 2943. Sworn statement of indebtedness. 

Reference.— See note to § 2959 of this Supplement. 

§ 2947. Ordinance requiring popular vote. 

Where Vote of Qualified Electors Not Necessary. — Where 
an ordinance for the issuance of bonds to establish and main- 
tain playgrounds for children contained a provision which 
afforded the prescribed time for filing a petition under this 
section, and no petition was filed during such time, it was 
held that irrespective of such provision a vote of the quali- 
fied electors was not necessary, the bonds being a necessary 
expense within the meaning of Art. VII, § 7 of the Con- 
stitution. Atkins v. Durham, 210 N. C. 295, 186 S. E- 330. 

§ 2959. Taxes levied for payment of bonds. 

Net Revenue Derived from Revenue Producing Enterprise 
Should Be Applied to Bonds. — It is clear from a reading 
of this section that the Legislature intended that, where 
bonds were issued to enable a municipality to carry on a 
revenue producing enterprise, the net revenue derived from 
such enterprise should be applied to the payment of the 
interest and principal of such bonds. George v. Asheville, 
80 F. (2d) 50, 53, 103 A. I,. R. 568. 

After iPaying Operation and Maintenance Expenses.— 



89 



§ 2959(6) 



NEGOTIABLE INSTRUMENTS 



§ 3026 



Where a waterworks system produces revenue, it is a rev- 
enue-producing enterprise; and, if net revenues are derived 
from it, after paying all expenses of operating, managing, 
maintaining, repairing, enlarging, and extending such sys- 
tem, this section requires that they be applied to the pay- 
ment of the principal and interest due on the bonds issued 
"for such enterprise." George v. Asheville, 80 F. (2d) 50, 
54, 103 A. L. R. 568. 

The requirement that net revenues after paying the ex- 
penses of operation shall be applied on bonds does not mean 
that the discretionary control of waterworks vested in the 
city authorities by § 2808 is in any wise limited. Id. 

Without Regard as to Time Bonds Are Issued.— There is 
nothing in this section which limits the application of the 
net revenue of a revenue-producing enterprise to bonds 
thereafter issued and there is no reason why the section 
should be so interpreted. The language of the section pro- 
vides in the broadest possible terms that the net revenue 
from such an enterprise shall be applied on the principal 
and interest of bonds "issued for such enterprise," without 
limitation as to when such bonds may have been issued. 
George v. Asheville, 80 F. (2d) 50, 55, 103 A. L. R. 568. 

Where Bonds Share Alike. — As this section clearly in- 
tended that such net revenues should be applied on the 
principal and interest of all bonds which were issued for the 
system, where the sewer system is an integral and essential 
part of the waterworks system and with it constitutes one 
revenue-producing enterprise, we think that sewer bonds 
should share along with waterworks bonds in the net rev- 
enues of the waterworks system. George v. Asheville, 80 
F. (2d) 50, 54, 103 A. L. R. 568. 

A revenue- producing enterprise is manifestly one which 
produces revenue, not necessarily one which produces profit 
or net revenue. George v. Asheville, 80 F. (2d) 50, 54, 103 
A. Iy. R. 568. 

Injunction to Restrain Diversion of Gross Revenues. — As 
net revenues can be effectively diverted in advance of their 
ascertainment by diversion of gross revenues, injunction 
should be granted to restrain the diversion of gross reve- 
nues, if it appears that net revenues are in danger of be- 
ing diverted in this way. However, care should be taken 
so as not to trench upon the discretion of the municipal 
authorities in the management of the water and sewer sys- 
tem. George v. Asheville, 80 F. (2d) 50, 57, 103 A. I,. R. 
568. 

If net revenue remains after payment of operating ex- 
penses such funds are thereafter held in trust to be applied 
as the statute directs, and any threatened diversion or mis- 
application should be enjoined. Id. 

Bonds Not a Charge upon the Taxing Power of City. — As 
bonds in aid of the ordinary revenue- producing enterprises of 
a city, i. e., enterprises for furnishing water, gas, electric 
light, or power, were exempted from the debt limitation of 
§ 2943, this shows that it was thought that, while the credit 
of the municipality would be pledged for bonds of this char- 
acter, they would not be a charge upon the taxing power 
of the city but would be taken care of by the revenues of 
the enterprises for which they were issued. George v. Ashe- 
ville, 80 F. (2d) 50, 54, 103 A. I,. R. 568. 

Art. 26A. Validation of Bonds 

§ 2959(6). 1937 bond validating act.— This sec- 
tion may be cited as the "1937 Bond Validating 
Act." 

The term "municipality" wherever used or re- 
ferred to in this section shall mean any city, 
town, county, or sanitary district in this state. 

All bonds heretofore issued for the purpose of 
financing or aiding in the financing of any work, 
undertaking, or project by any municipality to 
which any loan or grant has heretofore been made 
by the United States of America, through the 
federal emergency administrator of public works, 
for the purpose of financing or aiding in the fi- 
nancing of such work, undertaking, or project, 
including all proceedings for the authorization and 
issuance of such bonds and the sale, execution, 
and delivery thereof, are hereby validated, ratified, 
approved, and confirmed, notwithstanding any 
want of power of such municipality or governing 
body or commission, or officer thereof, of author- 
ity to issue such bonds, or sell, execute, or deliver 
the same, and notwithstanding any defects or 



irregularities in such proceedings or in such sale, 
execution, or delivery; and such bonds are and 
shall be binding, legal, and enforceable obliga- 
tions of such municipality: Provided, this sec- 
tion shall only have the effect of validating those 
bonds (1) which have at the time of the ratifi- 
cation of this section been sold to the United 
States of America or some of its agencies; or (2) 
sold with the approval of the local government 
commission. This section snail not apply to 
pending litigation. (1937, c. 428.) 

Art. 27A. Emergency Municipal Bond Act 

§ 2965(11). Application and construction of arti- 
cle. 

Editor's Note.— Section 13 of the Acts of 1935, c. 426, pro- 
vides that, "Nothing in this act shall be construed as re- 
pealing any general, special, or local law in conflict with 
this act." 

This section is merely precautionary in that it ex- 
presses the legislative intent that all local laws shall re- 
main in full force and effect except in cases where bonds 
are issued under this act to secure a loan from the Fed- 
eral Government for a necessary expense. Burt v. Biscoe, 
209 N. C. 70, 74, 183 S. E- 1. 

Vote Not Necessary to Issuance of Bonds for Sewerage 
Purposes. — As the intent of this article is to expedite the 
issuance of bonds for projects constituting necessary munic- 
ipal or county expenses for which the Federal Government 
offers a loan or grant by dispensing with a vote, notwith- 
standing the restrictions of any general, special, or private 
act, it was held that a vote was not necessary to the issu- 
ance of bonds for sewerage purposes by a municipality re- 
stricted by special statute. Burt v. Biscoe, 209 N. C. 70, 
183 S. F- 1. 

Art. 30. Municipal Fiscal Agency Act 
§ 2969 (k). Payment of fees to bank. 

Editor's Note. — For act applicable only to Buncombe county, 
see Public Laws 1937, c. 320. 

SUBCHAPTER IV. FISCAL CONTROL ACT 
AND COLLECTION OF TAXES 

Art. 32, Fiscal Control Act 

§ 2969 (o). Terms in county fiscal control act 
made applicable to cities and towns. 

Applied in Standard Inv. Co. v. Snow Hill, 78 F. (2d) 33. 



CHAPTER 58 

NEGOTIABLE INSTRUMENTS 
Art. 1. General Provisions 
§ 2976. Definitions. 

Cited in Pickett v. Fulford, 211 N. C. 160, 189 S. F- 488. 

Art. 2. Form and Interpretation 
§ 3003. Effect of forged signature. 

Where the clerk of the superior court executed a check 
to the person named in a court order, and the brother of 
the payee of the check, by fraudulently representing him- 
self to be the payee, took the check to plaintiff and en- 
dorsed it in plaintiff's presence by forging the name of his 
brother, whereupon plaintiff endorsed the check by writ- 
ing "O. K." and signing his name, plaintiff is not entitled 
to recover the amount of the check from the clerk indi- 
vidually or in his official capacity, plaintiff's negligence in 
endorsing the check without attempting to ascertain the 
identity of the person representing himself to be the payee 
barring any right to recover. Keel v. Wynne, 210 N. C. 
426, 187 S. F. 571. 

Art. 4. Negotiation 
§ 3026. Presumption as to time of indorsement. 

Cited in Mansfield v. Wade, 208 N. C. 790, 182 S. F. 475. 



[90] 



§ 3030 



OFFICERS AND PUBLIC OFFICERS 



§ 3208 



§ 3030. Effect of transfer without indorsement. 

Where Assignee Is Not Holder in Due Course of a Col- 
lateral Note.— Where a note is assigned as collateral se- 
curity for another note, and the assignee holds the collat- 
eral note without procuring the endorsement of the as- 
signor until after the collateral note is past due, the as- 
signee is not a holder in due course of the collateral note, 
and takes same subject to all equities existing in favor of 
the maker of the collateral note as against the payee who 
assigned same. Hare v. Hare, 208 N. C. 442, 181 S. F- 
246. 

Art. 5. Rights of Holder 
§ 3033. What constitutes holder in due course. 

Town as Holder in Due Course of Bonds.— Where a bank 
pledged certain bonds to secure the deposit of a town, the 
town acquired the bonds for value as security for a pre- 
existing indebtedness which is sufficient to constitute it a 
holder in due course within the meaning of this section. 
Standard Inv. Co. v. Snow Hill, 78 F. (2d) 33. 

Holder of Note Obtaining Same by Indorsement after 
Maturity Is Not Holder in Due Course.— Mansfield v. Wade, 
208 N. C. 790, 182 S. F- 475. 

§ 3037. What constitutes notice of defect. 

Applied in Standard Inv. Co. v. Snow Hill, 78 F. (2d) 33. 

§ 3038. Rights of holder in due course. 

Stated in Standard Inv. Co. v. Snow Hill, 78 F. (2d) 33. 
Cited in Mansfield v. Wade, 208 N. C. 790, 182 S. E. 475. 

§ 3039. When subject to original defenses. 

Holder of Note after Maturity Takes Subject to Equities. 

—Where the holder of a negotiable note obtained same by 
endorsement after maturity, he takes same subject to eq- 
uities, and the maker of the note may establish as against 
such holder that the note was paid before it was endorsed 
to and acquired by the holder. Mansfield v. Wade, 208 N. 
C. 790, 182 S. F- 475. 

Purchaser after Maturity Takes Free of Agreement of 
Third Person to Pay Note. — A purchaser for value after 
maturity takes the note free from an agreement by a third 
person to pay the note when such third person was never a 
purchaser or holder of the note and the purchaser has no 
knowledge of such agreement between the maker and the 
third person. Pickett v. Fulford, 211 N. C. 160, 189 S. F- 
488. 

§ 3040. Who deemed holder in due course. 

The burden rests upon the holder, when the title of a 
prior holder is shown to be defective, to show lack of 
knowledge of the defect. Standard Inv. Co. v. Snow Hill, 
78 F. (2d) 33, 37. 

Cited in Mansfield v. Wade, 208 N. C. 790, 182 S. F- 475; 
Pickett v. Fulford, 211 N. C. 160, 189 S. F. 488. 

Art. 8. Notice of Dishonor 
§ 3092. Who affected by waiver. 

Endorser Is a "Party" to the Note. — An extension of 
time for payment of a note will not discharge an endorser 
when the note provides on its face that extension of time 
for payment is waived by all parties to the note, the en- 
dorser being a "party" to the note. Vannoy v. Stafford, 
209 N. C. 748, 184 S. F- 482. 



which may be owned or held for collection by 
such corporation: Provided, it shall be unlawful 
for any notary public to take the acknowledg- 
ment of an instrument executed by or to a bank 
or other corporation of which he is a stockholder, 
director, officer, or employee, where such notary 
is individually a party to such instrument, or to 
protest any negotiable instrument owned or held 
for collection by such corporation, where such no- 
tary is individually a party to such instrument. 
(1937, c. 183.) 



CHAPTER 60 

NUISANCES AGAINST PUBLIC MORALS 
§ 3180. What are nuisances under this chapter. 

Cited, in dissenting opinion, in Newman v. Watkins, 208 
N. C. 675, 182 S. F. 453. 



CHAPTER 59 

NOTARIES 



§ 3175(a). Notaries public, who are stockhol- 
ders, etc., permitted to take acknowledgments, ad- 
minister oaths, etc. — It shall be lawful for any 
notary public who is a stockholder, director, of- 
ficer or employee of a bank or other corporation 
to take the acknowledgment of any party to any 
written instrument executed to or by such cor- 
poration, or to administer an oath to any other 
stockholder, director, officer, employee or agent 
of such corporation, or to protest for non-accept- 
ance or non-payment bills of exchange, drafts, 
checks, notes and other negotiable instruments 

[91 



CHAPTER 62 

OFFICERS AND PUBLIC OFFICERS 
Art. 1. General Provisions 

§ 3202(1). Receiving compensation of subordi- 
nates for appointment or retention; removal. — 

Any official or employee of this state or any po- 
litical subdivision thereof, in whose office or under 
whose supervision are employed one or more 
subordinate officials or employees who shall, di- 
rectly or indirectly, receive or demand, for him- 
self or another, any part of the compensation of 
any such subordinate, as the price of appointment 
or retention of such .subordinate, shall be guilty 
of a misdemeanor: Provided, that this section 
shall not apply in cases in which an official or em- 
ployee is given an allowance for the conduct of 
his office from which he is to compensate 
himself and his subordinates in such manner as he 
sees fit. Any person convicted of violating this 
section, in addition to the criminal penalties, shall 
be subject to removal from office. The procedure 
for removal shall be the same as that provided 
for removal of certain local officials from office 
by sections three thousand two hundred and 
eight and three thousand two hundred and twelve, 
inclusive, of the Consolidated Statutes of North 
Carolina. (1937, c. 32, ss. 1, 2.) 

§ 3207(a). Identification cards for field agents 
or deputies of state departments. — Every field 
agent or deputy of the various state departments 
who is authorized to collect money, audit books, 
inspect premises of individual or business firms 
and/or any other field work pertaining to the de- 
partment which he represents, shall be furnished 
with an identification card signed by the head of 
the department represented by him, certifying 
that the said field agent or deputy has authority to 
represent the department, and such identification 
card shall carry a photographic likeness of said 
representative. (1937, c. 236.) 



Art. 2. Removal of Unfit Officers 

§ 3208. Officers subject to removal; for what of- 
fenses. 

As to removal for receiving compensation of subordi- 
nates, see § 3202(1). 



3213 



PARTNERSHIP 



§ 3262 



CHAPTER 63 

PARTITION 
Art. 1. Partition of Real Property 
§ 3213. Partition is a special proceeding. 

Tenant in Common Entitled to Partition.— Ordinarily, a 
tenant in common in realty or personalty is entitled to par- 
tition of the property. Chadwick v. Blades, 210 N. C. 609, 
188 S. E. 198. 

§ 3215. Petition by cotenant. 

I. IN GENERAL. 
Tenants in common may make a valid agreement, either 
at the time of the creation of the tenancy or afterwards, 
whereby the right to partition is modified or limited, pro- 
vided the waiver of the right to partition is not for an 
unreasonable length of time. Chadwick v. Blades, 210 N. 
C. 609, 188 S. E. 198. See also, 15 N. C. Law Rev., No, 
3, p. 279. 

§ 3219. Commissioners appointed. 

Confirmation and Approval by Two Appraisers Held Er- 
ror. — Testator's children selected three appraisers in accord- 
ance with the will, but prior to final report one of the ap- 
praisers died, whereupon the court ordered the two sur- 
viving appraisers to complete the appraisal and file re- 
port, which report was later approved by the court. It 
was held that under the terms of the will and under this 
section, it is necessary that three appraisers act in the 
matter, and the superior court should have appointed a 
third appraiser, and the confirmation and approval of the 
report based upon the findings of but two appraisers is 
reversible error. Sharpe v. Sharpe, 210 N. C. 92, 185 S. 
E. 634. 

§ 3225. Partition where shareowners unknown 
or title disputed; allotment of several shares of 
two or more tenants as one parcel in common. — 

If two or more tenants in common, or joint 
tenants, by petition or answer, request it, the com- 
missioners may, by order of the court, allot their 
several shares to them in common, as one parcel, 
provided such division shall not be injurious or 
detrimental to any co-tenant or joint tenant. (Rev., 
ss. 2491, 2511; Code, s. 1894; 1868-9, c. 122, s. 3; 
1887, c. 284, ss. 2, 4; 1937, c. 98.) 

Editor's Note. — The 1937 amendment added the above 
provision at the end of this section. The rest of the sec- 
tion, not being affected by the amendment, is not set out. 

While the primary purpose of the partition proceeding is 
to allot to each of the former cotenants his share of the 
property in severalty, this amendment by no means militates 
against such purpose but makes it possible for some of the 
former cotenants, who find it economically desirable, to have 
their several shares allotted to them as one parcel so that 
they may again hold as cotenants that parcel of land. 15 
N. C. Law Rev., No. 4, p. 355. 

§ 3228. Report of commissioners; contents; fil- 
ing. 

Under this section, two commissioners can make the re- 
port, but the parties whose rights are to be effected have 
the right to have three disinterested parties appointed un- 
der the will or statute, so that the three can consider the 
questions involved. Sharpe v. Sharpe, 210 N. C. 92, 98, 
185 S. E- 634. 

Art. 2. Partition Sales of Real Property 
§ 3233. Sale in lieu of partition. 

Under this section the burden is on the party seeking sale 
for partition to show necessity therefor, and where sale for 
partition is decreed by the court without hearing evidence 
or finding facts to show the right to sell, the cause will be 
remanded. Wolfe v. Galloway, 211 N. C. 361, 190 S. E- 213. 

§ 3243. Report of sale; filing; confirmation 
and impeachment. — Such officer or person shali 
file his report of sale, giving full particulars there- 
of, within ten days after the sale, in the office of 
the clerk of the superior court, and if no excep- 
tion thereto is filed within ten days, the same 
shall be confirmed. Any party, after the con- 



firmation, shall be allowed to impeach the pro- 
ceedings and decrees for mistake, fraud or collu- 
sion, by petition in the cause: Provided, inno- 
cent purchasers for full value and without notice 
shall not be affected thereby. (Rev., s. 2513; 
Code, s. 1906; 1899, c. 161; 1868-9, c. 122, s. 15; 
1937, c. 71.) 

Editor's Note. — The 1937 amendment reduces the time for 
filing exceptions from twenty to ten days. The proceed- 
ings are thus speeded up, and it is now possible for the 
partition sale to be confirmed within 20 days after it is 
held instead of 30 days as formerly required. 15 N. C. Law 
Rev., No. 4, p. 355. 

Art. 4. Partition of Personal Property 
§ 3253. Personal property may be partitioned; 
commissioners appointed. 

Quoted in Chadwick v. Blades, 210 N. C. 609, 188 S. E- 
198. 

§ 3255. Sale of personal property on partition; 
report of officer. 

Cited in Chadwick v. Blades, 210 N. C. 609, 188 S. E- 198. 



CHAPTER 64 

PARTNERSHIP 
Art. 1. Limited Partnership 

§ 3258. Purposes for which formed. — Limited 
partnership for the transaction of any mercan- 
tile, manufacturing or mechanical business within 
the state may be formed by two or more persons, 
upon the terms and with the rights and powers 
and subject to the conditions and liabilities in this 
chapter; but its provisions shall not be construed 
to authorize any such partnership for the con- 
ducting of a banking or insurance business, other 
than writing or soliciting insurance. A general 
partnership may be converted into a limited part- 
nership in the manner and for the purposes pro- 
vided in this article. (Rev., s. 2521; Code, s. 3088; 
1860-1, c. 28; 1937, c. 308, s. 1.) 

Editor's Note. — The 1937 amendment added the provision 
as to conversion of general into limited partnership. 

§ 3259. General and special partners; liability. 

— Such partnerships may consist of one or more 
persons, who are general partners, and are jointly 
and severally responsible as partners are now by 
law, and of one or more persons, who contribute 
in actual cash payments a specific sum, or prop- 
erty at its fair value, as capital to the common 
stock, who are called special partners, and who 
are not liable for the debts of the partnership be- 
yond the funds so contributed to the capital. 
(Rev., s. 2522; Code, s. 3089; 1860-1, c. 28, s. 2; 
1937, c. 308, s. 2.) 

Editor's Note. — The words "or property at its fair value," 
were inserted by the 1937 amendment. 

§ 3262, Affidavit as to cash payment. — At the 

time the certificate is ordered to be registered an 
affidavit of one or more of the general partners 
shall be made before the officer taking such ac- 
knowledgment, stating that the sums specified in 
the certificate to have been contributed by each 
of the special partners to the common stock have 
been actually in good faith paid in cash or prop- 
erty at its fair value, and the affidavit so made 
shall be registered with the original certificate. 
(Rev., s. 2525; Code, s. 3093; 1860-1, c. 28, s. 6; 
1937, c. 308, s. 3.) 

Editor's Note.— The words "or property at its fair value," 
were inserted in this section by the 1937 amendment. 



[92] 



§ 3309 



PROBATE AND REGISTRATION 



§ 3311(1) 



CHAPTER 65 

PROBATE AND REGISTRATION 
Art. 1. Probate 

§ 3303. Proof of attested writing. — 

Provided, that no instrument required or per- 
mitted by law to be registered shall be proved, 
probated or ordered to be registered upon the 
oath and examination of a subscribing witness 
who is also the grantee named in said instrument, 
and the registration of any instrument which has 
been proven and admitted to probate upon the 
oath and examination of a subscribing witness 
who is the grantee in said instrument shall be 
void: Provided further, that nothing herein shall 
invalidate the registration of any instrument reg- 
istered prior to the ninth day of April, A.D. 
one thousand nine hundred and thirty-five. (Re^., 
s. 997; 1899, c. 235, s. 12; 1935, c. 168; 1937, c. 7.) 

Editor's Note.— As the 1937 amendment made changes 
only in the provisos of this section, the first sentence is not 
set out here. The amendment omitted the prohibition of 
registration of an instrument if the witness attesting its 
execution is the agent or servant of the grantee. This is 
proper since the interest, if any, of such a witness would 
seem to be rather remote. It also omitted a former proviso 
applying the section to agricultural liens. This omission 
is quite logical since the statute is applicable to all instru- 
ments "required or permitted by law to be registered," and 
agricultural liens fall within such a category. 15 N. C. 
Law Rev., No. 4, p. 337. 

Art. 2. Registration 

§ 3308. Probate and registration sufficient with- 
out livery. 

Evidence Supporting Judgment for Recovery of Land.— 

Evidence showing good record title in plaintiff, without any 
record evidence of title in defendant, held to support judg- 
ment for plaintiff for recovery of land. Knowles v. Wal- 
lace, 210 N. C. 603, 188 S. E. 195. 

§ 3309. Conveyances, contracts to convey, and 
leases of land. 

I. IN GENERAL. 
Quoted in Tucker v. Almond, 209 N. C. 333, 183 S. E- 
407. 

V. NOTICE. 

No Notice Will Supply Want of Registration.— 

In accord with original. See Knowles v. Wallace, 210 
N. C. 603, 188 S. E. 195. 

§ 3311. Deeds of trust and mortgages, real and 
personal. 

I. IN GENERAL. 

The courts of this state have adopted a strict policy in 
regard to notice and registration in order to encourage im- 
mediate and proper recording. 15 N. C. Law Rev., No. 2, 
p. 166. 

This section is a substitute for possession by the mort- 
gagee. If the mortgagee as such takes possession of the 
mortgaged property,, it renders registration unnecessary. 
Possession, in such circumstances, will render the mortgage 
as good as it would be if registered. Coggin v. Hartford 
Acci., etc., Co., 9 F. Supp. 785, 788, citing Cowan v. Dale, 
189 N. C. 684, 128 S. E- 155. 

If possession is to be substituted for registration under 
this section, it seems that the possession should be by vir- 
tue of the mortgage. Coggin v. Hartford Acci., etc., Co., 
9 F. Supp. 785, 788. 

In the instant case, the record shows very clearly that 
possession of the property was not taken in the capacity of 
mortgagee. The defendant obtained possession by promising 
the contractor a preference when letting the contract for 
completion. The motive of the bankrupt, to the knowledge 
of surety, was to perpetuate a fraud on his creditors. The 
transaction is void and cannot supply the place of regis- 
tration. Id. 

Valid Mortgage Not Constituting a Preference.— The mort- 
gage was executed for a valuable consideration years be- 
fore the filing of petition in bankruptcy, through inad- 
vertence and without fraud, it was not recorded until within 
four months from the filing of petition, but no lien having 



attached, and no proof of insolvency of bankrupt at time of 
recording mortgage, the mortgage is valid and does not con- 
stitute a preference. In re Finley, 6 F. Supp. 105, 106. 

No Inference of Fraud Where Contracts of Road Con- 
tractor Were Not Recorded.— In Hartford Acci., etc., Co. 
v. Coggin, 78 F. (2d) 471, 476, it was held that no infer- 
ence of fraud could fairly be drawn from the failure to re- 
cord application contracts of road contractor containing 
chattel mortgage provisions, especially in view of the pub- 
licity and general knowledge that attends public works. 

II. REGISTRATION AS BETWEEN PARTIES. 
Between the Parties — Valid without Registration.— 

In accord with original. See In re Finley, 6 F. Supp. 105. 

IV. RIGHTS OF PERSONS PROTECTED. 
General Creditors Not Protected.— 

In accord with original. See In re Finley, 6 F. Supp. 105, 
106. 

Where Right of Surety Is Superior to That of Trustee in 
Bankruptcy. — Where no creditor has secured a lien upon the 
property of a road contractor prior to bankruptcy, the trans- 
fer of possession of the property to the surety-mortgagee 
before bankruptcy had the same effect under the North 
Carolina law as if the mortgage had been recorded. Cowan 
v. Dale, 189 N. C. 684, 128 S. E. 155. It follows that the 
right of the surety to the property transferred is superior 
to the claim of the trustee in bankruptcy. Hartford Acci., 
etc., Co. v. Coggin, 78 F. (2d) 471, 476. 

Applications of Road Contractor Not Valid as against 
Trustee without Registration. — Applications of road contractor 
in so far as they profess to convey property, are chattel 
mortgages and are not valid as against the trustee with- 
out registration. Coggin v. Hartford Acci., etc., Co., 9 
F. Supp. 785, 787, citing Commercial Cas. Ins. Co. v. Wil- 
liams, 37 F. (2d) 326. 

Chattel Mortgage Good against Purchasers and Creditors 
Only from Registration.— Under this section a chattel mort- 
gage is good against bona fide purchasers for value and 
against creditors only from registration. A general cred- 
itor must yield to the lien of the mortgage from the mo- 
ment of its registration, unless the lien can be successfully 
assailed as a fraudulent conveyance. Coggin v. Hartford 
Acci., etc., Co., 9 F. S'upp. 785, 787. 

Before a creditor can defeat the lien of the mortgage 
properly registered he must acquire a prior lien by way of 
judgment, as against land, and by levying an execution 
against personal property. Id. 

Application contracts containing a conveyance whereby a 
road contractor as of the date thereof assigns, transfers, 
and conveys to the surety, all his right, title, and interest 
in the tools, plant, equipment, and materials that he may 
then or thereafter have upon the work, authorizing and 
empowering the surety and its agents to enter upon and 
take possession thereof, are chattel mortgages within the 
meaning of this recordation statute. Hartford Acci., etc., 
Co. v. Coggin, 78 F. (2d) 471, 474. 

§ 3311(1). Blank or master forms of mortgages, 
etc., embodiment by reference in instruments 
later filed. 

The scheme authorized by this section has obvious advan- 
tages and disadvantages. The advantages lie in the short- 
ening of the later instruments. There will be some sav- 
ing in recordation fees to persons and corporations giving 
or taking numerous deeds, deeds of trust, and mortgages, 
especially documents of a bulky character, such as some 
corporate mortgages. The disadvantages are that persons 
concerned with the subsequent documents will be obliged to 
examine the record of the master form in order to be sure 
what the provisions of the documents are. Furthermore, if 
single provisions as distinguished from all the provisions of 
the master form may be incorporated by reference to the 
master form, the device is dangerous. 13 N. C. Law Rev., 
No. 4, p. 395. 

It is hard to see why the section authorizes specifically a 
master form for mortgages and deeds of trust, but does not 
mention deeds. Deeds are included in the words "other in- 
strument conveying an interest in — real and/or personal 
property," but so are mortgages. The intent to include 
deeds is made clear, however, by the specific mention of 
them among the instruments which may incorporate the 
provisions of the master form. 13 N. C. Law Rev., No. 4, 
p 396. 

Conditional sales are doubtless covered by the statute, 
both because in North Carolina they are "mortgages" and 
because they are instruments "conveying an interest in, or 
creating a lien on," personal property. Various other secu- 
rity devices, such as trust receipts are included for similar 
reasons. So also . bills of sale are obviously instruments 
"conveying an interest in" personal property. Id. 



[93] 



§ 3315 



REGULATION OF INTOXICATING LIQUORS 



§ 3379 



§ 3315. Deeds of gift. 

Unregistered Deed Void Regardless of Fraud. — Where a 
deed appearing on its face to be a deed of gift is not reg- 
istered in two years from its execution as required by this 
section, it is void, and may be set aside in an action by 
creditors of the grantor regardless of whether it was exe- 
cuted in defraud of creditors. Reeves v. Miller, 209 N. C. 
362, 183 S. E- 294. 

Applied in Allen v. Allen, 209 N. C. 744, 184 S. E. 485. 

§ 3319(b). Copies of deeds made by alien prop- 
erty custodian may be registered; admissible in 
evidence. — Any copy of a deed made, or purport- 
ing to be made, by the United States alien prop- 
erty custodian duly certified pursuant to Title 
twenty-eight, section six hundred sixty-one of 
United States Code by the department of jus- 
tice of the United States, with its official seal im- 
pressed thereon, when the said certified copy re- 
veals the fact that the execution of the original 
was acknowledged by the alien property custodian 
before a notary public of the District of Colum- 
bia, and that the official seal of the alien property 
custodian by recital was. affixed or impressed on 
the original, and further reveals it to have been 
approved, as to form, by general counsel, and the 
copy also shows that the original was signed and 
approved by the acting chief, division of trusts, 
and was witnessed by two witnesses, shall, when 
presented to the register of deeds of any county 
wherein the land described therein purports to be 
situate, be recorded by the register of deeds of 
such county without other or further proof of the 
execution and/or delivery of the original thereof, 
and the same when so recorded shall be indexed 
and cross-indexed by the register of deeds as are 
deeds made by individuals upon the payment of the 
usual and lawful fees for the registration thereof. 

The record of all such recorded copies of such 
instruments shall be received in evidence in all 
the courts of this state and the courts of the 
United States in the trial of any cause pending 
therein, the same as though and with like effect 
as if the original thereof had been probated and 
recorded as required by the law of North Caro- 
lina, and the record in the office of register of 
deeds of such recorded copy of such an instru- 
ment shall be presumptive evidence that the orig- 
inal of said copy was executed and delivered to 
the vendee, or vendees therein named, and that 
the original thereof has been lost or unintention- 
ally destroyed without registration, and in the ab- 
sence of legal proof to the contrary said so regis- 
tered copy shall be conclusive evidence that the 
United States alien property custodian conveyed 
the lands and premises described in said registered 
copy to the vendees therein named, as said copy 
reveals, and title to such land shall pass by such 
recorded instrument. (1937, c. 5, ss. 1, 2.) 

Art. 4. Curative Statutes; Acknowledgments; 
Probates; Registration 

§ 3366 (j5). Acknowledgments of notary hold- 
ing another office. — In every case where deeds 
or other instruments have been acknowledged 
before a notary public, when the notary public 
at the time was also holding some other office, 
and the deed or other instrument has been duly 
probated and recorded, such acknowledgment 
taken by such notary public is hereby declared to 
be sufficient and valid: Provided, this section 



shall not affect vested rights or pending litiga- 
tion. (1935, c. 133; 1937, c. 284.) 

Editor's Note. — The 1937 amendment re-enacted this sec- 
tion without change. 

§ 3366(j6). Acknowledgment and private ex- 
amination of married woman taken by officer who 
was grantor. — In all cases where a deed or deeds 
of mortgages or other conveyances of land dated 
prior to the first (1st) day of January, one thou- 
sand nine hundred and twenty-six (1926), pur- 
porting to convey lands have been registered in 
the office of the register of deeds of the county 
where the lands conveyed in said deeds are lo- 
cated prior to said first (1st) day of January, one 
thousand nine hundred and twenty-six (1926), 
and the acknowledgments or proof of execution 
of such deed or deeds and the private examina- 
tion of any married woman who is a grantor in 
such deed or deeds have been taken as to some 
of the grantors, and the private examination of 
any married woman grantor in such deed has 
been taken by an officer who was himself one of 
the grantors named in such deed or deeds, such 
defective execution, acknowledgment, proof of 
execution and the private examination of such 
married woman, evidenced by the certificate 
thereof on such deed and the registration thereof 
as above described and set forth, shall be and the 
same are hereby declared to be in all respects 
valid, and such deed or deeds or other convey- 
ances of land are declared to be in all respects 
duly executed, probated and recorded to the same 
effect as if such officer taking such proof or ac- 
knowledgment of execution or taking the private 
examination of such married woman and certify- 
ing thereto upon such deed or deeds had not been 
named as grantor therein and had not been inter- 
ested therein in any way whatsoever: Provided 
this section shall not apply to pending litigation. 
(1937, c. 91.) 



CHAPTER 66 

PROHIBITION AND REGULATION OF 
INTOXICATING LIQUORS 

Art. 4. Search and Seizure Law 
§ 3379. Keeping liquor for sale; evidence. 

Constitutionality. — 

In accord with first paragraph in original. See State v. 
Langley, 209 N. C. 178, 183 S. E- 526. 

This statute is still in force in all the counties of the 
state, unaffected by ch. 493, Public Laws of 1935, § 3411(38) 
et seq., the act of 1935 not being in conflict therewith. State 
v. Iyangley, 209 N. C. 178, 183 S. E- 526. 

It is not repealed as to New Hanover County by ch. 418, 
Public Laws of 1935. State v. Tate, 210 N. C. 168, 185 S. 
E. 665. 

The general prohibition law of the State was not repealed 
by ch. 493, Public Laws of 1935, § 3411(38) et seq., as _ to 
counties not named in the latter act, its provisions applying 
by express provision only to the counties therein named, and 
it is unlawful to possess intoxicating liquor for the purpose 
of sale in any counties of the State not named in the act 
of 1935. State v. Jones, 209 N. C. 49, 182 S. E>. 699. 

Possession of More than Gallon Is Prima Facie Evidence 
of Possession for Purpose of Sale.— The possession of more 
than one gallon of intoxicating liquor is prima facie evi- 
dence of possession for the purpose of sale under this sec- 
tion, and is sufficient to take the case to the jury on the 
issue. State v. Tate, 210' N. C. 168, 185 S. £.665. 

But evidence establishing defendant's possession of more 
than a gallon of intoxicating liquor, without other incrimi- 
nating evidence, is insufficient to support a directed verdict 
of guilty of possession of intoxicating liquor for the pur- 



[ 94 



§ 3380 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(64) 



State 



Ellis, 210 N. C. 



pose of sale under this section. 
166, 185 S. E. 663. 
Sufficient Evidence to Submit Question of Possession to 

Jury.— Evidence that officers found a funnel, a number of 
containers, and glasses smelling of whiskey, in different 
places on defendant's premises, is held sufficient to be sub- 
mitted to the jury in a prosecution on a charge of having 
possession of intoxicating liquor for the purpose of sale, al- 
though the amount of whiskey discovered was insufficient 
to invoke the presumption under the subdivision (2) of this 
section. State v. Rhodes, 210 N. C. 473, 187 S. E. 553. 

Allegation That Whiskey Did Not Contain A. B. C. Stamp 
Regarded as Surplusage.— In an indictment sufficiently 
charging possession of liquor for the purpose of sale under 
this section an additional allegation that the whiskey did 
not bear the stamp of the A. B. C. Board of the county 
is an allegation of a nonessential fact, and will be regarded 
as surplusage. State v. Atkinson, 210 N. C. 661, 188 S. E. 73. 

§ 3380. Search and seizure upon complaint and 
warrant. 

For article discussing limits to search and seizure, see 
15 N. C. Law Rev., No. 3, p. 229. See also, 15 N. C. Law 
Rev., No. 2, p. 101. 

Art. 6. Seizure and Forfeiture of Property 
§ 3398. Duty of sheriff to seize distilleries. 

For article discussing the limits to search and seizure, see 
15 N. C. Law Rev., No. 3, p. 229. 

§ 3401. Fee for seizure. 

Editor's Note.— Public Laws 1937, c. 442, provides that the 
provisions of this section shall not apply to Anson county. 

Art. 8. National Liquor Law, Conformation of 
State Law 

§ 3411(a). Definitions. 

When Provisions Do Not Apply.— If a majority of the qual- 
ified voters of the counties named in § 3411(38) vote in favor 
of the sale of intoxicating liquors, then the provisions of this 
and the following sections, known as the Turlington Act, 
shall not apply to such counties. State v. Langley, 209 N 
C. 178, 182, 183 S. E. 526. 

Cited in Hill v. Board of County Com'rs, 209 N. C. 4, 182 
S. E. 709; Sprunt v. Hewlett, 208 N. C. 695, 182 S. E- 655- 
Inscoe v. Boone, 208 N. C. 698, 182 S'. E- 926; State v El- 
lis, 210 N. C. 166, 185 S. E- 663. 

§ 3411(f). Seizure of liquor or conveyance; ar- 
rests; sale of property. 

For article discussing the limits to search and seizure, see 
15 N. C. Law Rev., No. 3, p. 229. 

Meaning of "Absolute Personal Knowledge."— Under this 
section an officer "discovers any person in the act" and has 
"absolute personal knowledge" (1) when he sees the liq- 
uor; (2) when he has absolute personal knowledge . . . 
acquired through the senses of seeing, hearing, smelling, 
tasting or touching. 15 N. C. Law Rev., No. 2, p. 131, cit- 
ing State v. Godette, 188 N. C. 497, 125 S. E. 24. 

§ 341 l(j). Possession prima facie evidence of 
keeping for sale. 

Provisions Repealed in New Hanover County.— The provi- 
sions of this section, making the possession of intoxicating 
liquor lawful m certain instances, is repealed in New Han- 
over County by ch. 418, Public Laws of 1935. State v. Tate 
210 N. C. 168, 185 S. E. 665. 

Section Limited to Private Dwelling Used Exclusively as 
a Dwelling— The provision of this section that a person may 
legally possess intoxicating liquor in his dwelling for his 
personal consumption is limited by its terms to a private 
dwelling occupied and used exclusively as a dwelling, and a 
person may not lawfully possess intoxicating liquor in a 
building or structure used and operated by such person as a 
filling station and dwelling combined when the parts of the 
structure used for the respective purposes are connected. 
State v. Hardy, 209 N. C. 83, 182 S. E- 831. 

§ 3411 (x). Rewards for seizure of still. 

Editor's Note.-Public Laws 1937, c. 442, provides that the 
provisions of this section shall not apply to Anson county. 

Art. 9. Legalization of Sale of Beverage with 

Not More than 3,2% Alcoholic Content 
§i§ 3411(dd)-3411(mm): Repealed, so far as in 

[ 95 



conflict, by Public Laws 1937, c. 127, s. 527, codi- 
fied as § 3411(119). 

Art. 10. Beverage Control Act of 1933 
§ 3411(13). County license to sell at retail. 

Editor's Note.— For act applicable only to Poplar Branch 
township in Currituck county, see Public Laws 1937, c. 390. 

Art. 11. Manufacture and Sale of Light 
Domestic Wines 

§ 3411(30). Growers of crops may make, sell 
and transport wines; sale in original packages; 
wines not manufactured in state. — 

Provided, however, that any person, firm or 
corporation licensed in North Carolina to sell 
wines under this law shall have authority to im- 
port and sell wines not manufactured within the 
state, and which are not otherwise prohibited to 
be sold under the laws of the United States. 
(1935, c. 393, s. 2; 1937, c. 325.) 

Editor's Note.— The 1937 amendment directed that the 
above proviso be added at the end of this section. The 
rest of the section, not being affected by the amendment, 
is not set out here. 

Art. 12. Advertising of Alcoholic Beverages 

§ 3411 (37)a. Advertising of intoxicating liquors 
prohibited. — It shall be unlawful for any person, 
firm, or corporation to display, or permit to be 
displayed, upon any billboard, sign-board, or any 
other similar advertising medium, any advertise- 
ment of any alcoholic beverages or any spiritu- 
ous liqours as defined in chapter forty-nine of the 
Public Laws of one thousand nine hundred thirty- 
seven [§ 3411(65) et seq.], or any acts amenda- 
tory thereof, in North Carolina. Any person, 
firm, or corporation violating the provisions of 
this section shall be guilty of a misdemeanor and 
shall, upon conviction, be fined or imprisoned, in 
the discretion of the court. (1937, c. 398.) 
See § 3411(81). 

Art. 13. Exemption of Certain Counties from 
Provisions of Article 8 

§i§ 3411 (38) -3411 (64): Repealed, except as re- 
ferred to, by Public Laws 1937, c. 49, s. 27, codi- 
fied as § 3411(91). 

Editor's Note. — For act exempting town of Windsor in 
Bertie county from Turlington Act, see Public Laws 1937, 
c. 310. 

For act constituting county commissioners of Halifax 
County the board of alcoholic control of said county, see 
Public Laws 1937, c. 302. 

For temporary act providing salary for chairman of board 
of Franklin county, see Public Laws 1937, c. 250, s. 1. 

The following cases, arising under, the former law are 
placed here for the convenience of the practitioner. 

General Prohibition Law Not Repealed as to Counties Not 
Named. — The general prohibition law of the state was not 
repealed by this and the following sections as to counties 
not named. It is unlawful to possess intoxicating liquor for 
the purpose of sale in any counties of the state not named. 
State v. Jones, 209 N. C. 49, 182 S. E. 699. 

The contention that former section 3411(49) repealed all the 
laws of this State making it unlawful for any person to 
have intoxicating liquor in his possession for the purpose 
of sale, not only as to the counties named in the act, but 
also as to all other counties in this State, manifestly could 
not be sustained. State v. Jones, 209 N. C. 49, 50, 182 S. 
E. 699. 

Section 3379 Not Repealed, Amended or Modified.— There 
is no provision in this and the following sections expressly 
or by implication repealing, amending, or modifying section 
3379, which is not a part of or included within the provi- 
sions of the Turlington Act, section 3411(a) et seq. State 
v. Langley, 209 N. C. 178, 182, 183 S. E. 526. 

Injunction to Restrain Election under Chapter Denied. — 
Plaintiffs sought to enjoin the holding of an election under 



§ 3411(65) 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(68) 



this section and the following sections, contending that 
the statute under which the proposed election was to be 
held was unconstitutional. Held: Plaintiffs were not enti- 
tled to the injunctive relief sought, since if taxes should be 
levied to meet the expense of putting the statute into opera- 
tion, plaintiffs have an adequate remedy at law, and since 
plaintiffs have an adequate remedy against alleged uncon- 
stitutional discriminations of the statute by violating the 
statute and pleading its unconstitutionality as a defense, 
and plaintiffs not being entitled to injunctive relief in the ab- 
sence of a showing of direct injury or an invasion of their 
property rights resulting in irreparable injury. Newman v. 
Watkins, 208 N. C. 675, 182 S. E. 453, followed in Inscoe 
v. Boone, 208 N. C. 698, 182 S. E. 926; Hill v. Board of 
County Com'rs, 209 N. C. 4, 182 S. E- 709. 

Cited in S'prunt v. Hewlett, 208 N. C. 695, 182 S. E. 655; 
Lucas v. Midgette, 208 N. C. 699, 182 S. E- 328; 13 N. C. 
Eaw Rev., No. 4, p. 389. 

Art. 14. Manufacture, Sale and Control of 
Alcoholic Beverages 

§ 3411(65). Purposes of article. — The purpose 
and intent of this article is to establish a system 
of control of the sale of certain alcoholic bever- 
ages in North Carolina, and to provide the ad- 
ministrative features of the same, in such a manner 
as to insure, as far as possible, the proper admin- 
istration of the sale of certain alcoholic beverages 
under a uniform system throughout the state. 
(1937, c. 49, s. 1.) 

§ 3411(66). State board of alcoholic control 
created; membership; compensation. — A state 
board of alcoholic control is hereby created, to 
consist of a chairman and two associate members. 
The members of said board shall be men well 
known for their character and ability and busi- 
ness acumen and success. The chairman of said 
board shall devote his whole time to his official 
duties and shall receive a salary of six thousand 
($6,000.00) dollars per annum, payable monthly, 
together with necessary traveling expenses, to be 
limited, however, in the same manner as limita- 
tions for the expenses of associate members as 
hereinafter set forth, and the two associate mem- 
bers of said board shall receive for the time actu- 
ally engaged in their official duties, twenty-five 
($25.00) dollars per day, with travel expense, as 
follows: When their private automobiles are 
used they shall be paid therefor, at the rate of 
five cents per mile traveled from their homes, to 
and from the place of meeting, or elsewhere, on 
official business, and if railroad or bus travel is 
used, then the actual amount thereof, and their 
per diem and travel expense as herein allowed, 
shall be paid to them monthly upon the certifi- 
cate and approval of the chairman of said com- 
mission. All sums authorized to be paid under 
the provisions of this section are hereby appro- 
priated and shall be paid by the state treasurer 
out of any fund of the state of North Carolina not 
otherwise appropriated, after being duly audited 
and approved by said state auditor. (1937, c. 49, 
s. 2, c. 411.) 

§ 3411(67). Members of board appointed by 
governor; terms of office. — The members of said 
state board shall be appointed by the governor, 
and the first appointees shall serve as follows: 

The chairman shall serve for a period of three 
years from the date of his appointment and one 
associate member shall serve for a period of two 
years from the date of his appointment and the 
other associate member shall serve for a period 
of one year from the date of his appointment, and 



the subsequent appointments of all of the mem- 
bers of the said board shall be for a term of three 
years from the date of each appointment. (1937, 
c. 49, s. 3.) 

§ 3411(68). Powers and authority of board. — 

Said state board of alcoholic control shall have 
power and authority as follows, to wit: 

(a) To see that all the laws relating to the sale 
and control of alcoholic beverages are observed 
and performed. 

(b) To audit and examine the accounts, records, 
books and papers relating to the operation of 
county stores herein provided for, or to have the 
same audited. 

(c) To approve or disapprove the prices at 
which the several county stores may sell alcoholic 
beverages and it shall be the duty of said board 
to require the store or stores in the several coun- 
ties coming under the provisions of this article to 
fix and maintain uniform prices and to require 
sales to be made at such prices as shall promote 
temperate use of such beverages and as may fa- 
cilitate policing. 

(d) To remove any member, or members, of 
county boards whenever in the opinion of the 
state board, such member, or members, of the 
county board, or boards, may be unfit to serve 
thereon. 

(e) To test any and all alcoholic beverages 
which may be sold, or proposed to be sold to the 
county stores, and to install and operate such ap- 
paratus, laboratories, or other means or instru- 
mentalities, and employ to operate the same such 
experts, technicians, employees and laborers, as 
may be necessary to operate the same, in accord- 
ance with the opinion of the said board, or may, 
if they deem advisable, cause such tests to be 
made otherwise. In lieu of establishing and op- 
erating laboratories as above directed, the board 
may, with the approval of the governor and the 
commissioner of agriculture, arrange with the 
state chemist to furnish such information and ad- 
vice, and to perform such analyses and other lab- 
oratory services as the board may consider neces- 
sary. 

(f) To supervise purchasing by the county 
boards when said state board is of the opinion 
that it is advisable for it to exercise such power 
in order to carry into effect the purpose and in- 
tent of this article, with full power to disapprove 
any such purchase and at all times shall have the 
right to inspect all invoices, papers, books and 
records in the county stores or boards relating to 
purchases. 

(g) To exercise the power to approve or disap- 
prove in its discretion all regulations adopted by 
the several county stores for the operation of said 
stores and the enforcement of alcoholic beverage 
control laws which may be in violation of the 
terms or spirit of this article. 

(h) To require that a sufficient amount shall be 
so allocated as to insure adequate enforcement 
and the amount shall, in no instance, be less than 
five per cent, nor more than ten per cent of the 
net profits arising from the sale of alcoholic bev- 
erages. 

(i) To remove in case of violation of the terms 
or spirit of this article, officers employed, elected 
or appointed in the several counties where county 
stores may be operated. 



[ 96 



§ 3411(69) 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(70) 



(j) To approve or disapprove, in its discretion, 
the opening of county stores, except each county 
that may be entitled to operate stores for the sale 
of alcoholic beverages shall be entitled to operate 
at least one store for such purpose, at the county 
seat therein, or at such other place as may be se- 
lected by the said county board, provided that in 
the location of control stores in any county in 
which a majority of the votes have been cast for 
liquor control stores due consideration shall be 
given to communities or towns in which a ma- 
jority of the votes were cast against control, but 
nothing herein contained shall be construed so 
as to abridge any of the provisions elsewhere 
contained relative to the opening, closing or lo- 
cating such stores. As to all additional stores in 
each of said counties the same shall not be opened 
until and unless the opening of the same and the 
place of location thereof shall first be approved 
by the said state board, which at any time may 
withdraw its approval of the operation of any ad- 
ditional county store when the said store is not 
operated efficiently and in accordance with the 
alcoholic beverage control laws and all valid 
regulations prescribed therefor, or whenever, in 
the opinion of the said state board, the operation 
of any county store shall be inimical to the mor- 
als or welfare of the community in which it is 
operated or for such other cause, or causes, as 
may appear to said state board sufficient to war- 
rant the closing of any county store. 

(k) To require the use of a uniform accounting 
system in the operation of all county stores here- 
under and to provide in said system for the keep- 
ing therein and the record of all such informa- 
tion as may, in the opinion of the said state board, 
be necessary or useful in its auditing of the af- 
fairs of the said county stores, as well as in the 
study of such problems and subjects as may be 
studied by said state board in the performance of 
its duties. 

(1) To grant, to refuse to grant, or to revoke, 
permits for any person, firm or corporation to do 
business in North Carolina in selling alcoholic 
beverages to or for the use of any county store 
and to provide and to require that such informa- 
tion be furnished by such person, firm or corpo- 
ration as a condition precedent to the granting of 
such permit, or permits, and to require the furnish- 
ing of such data and information as it may desire 
during the life of such permit, or permits, and for 
the purpose of determining whether such permit, 
or permits, shall be continued, revoked or re- 
granted after expiration dates. No permit, how- 
ever, shall be granted by said state board, to any 
person, firm or corporation when the said state 
board has reason sufficient unto itself to believe 
that such person, firm or corporation has fur- 
nished to it any false or inaccurate information 
or is not fully, frankly and honestly cooperating 
with the said state board and the several county 
boards in the observance and performance of all 
alcoholic beverage laws which may now or here- 
after be in force in this state, or whenever the 
said board shall be of opinion that such permit 
ought not to be granted or continued for any 
cause. 

(m) The said state board shall have all other 
powers which may be reasonably implied from the 
granting of express powers herein named, to- 



gether with such other powers as may be inci- 
dental to, or convenient for, the carrying out and 
performance of the powers and duties herein 
given to said board. 

(n) To permit the establishment of warehouses 
for the storage of alcoholic beverages within the 
state, the storage of alcoholic beverages in ware- 
houses already established, and to prescribe rules 
and regulations for the storage of such beverages 
and the withdrawal of the same therefrom. Such 
warehousing or bailment of alcoholic beverages as 
may be made hereunder shall be for the conven- 
ience of delivery to alcoholic boards of control au- 
thorized to purchase the same and shall be under 
the strict supervision and subject to all of the 
rules and regulations of the state board of con- 
trol relating thereto. (1937, c. 49, s. 4, cc. 237, 
411.) 

Editor's Note. — This section would seem to authorize the 
making of necessary rules and regulations to carry out 
the provisions of the act. 15 N. C. I,aw Rev., No. 4, p. 
323. 

Under this section the state board is given power to grant, 
deny or revoke permits for the sale of alcoholic beverages 
to county liquor stores. This seems to be a very flexible 
provision to secure an honest co-operation by those who 
sell alcoholic beverages with the state board and the sev- 
eral county boards. There are no provisions for notice or 
hearing or appeal and it is likely that no such provisions 
are needed in view of the fact that state agencies are en- 
gaged in the purchase of goods and may do so on their own 
terms. 15 N. C. Law Rev., No. 4, p. 328. 

§ 3411(69). Removal of member by governor; 
vacancy appointments. — The governor shall at all 
times have full power and authority to remove any 
and all members of the said state board, upon no- 
tice to such member or members, in his discre- 
tion, for any cause that appears to him to be suffi- 
cient, and to reappoint his successor or succes- 
sors to the removed members, observing, however, 
the terms of office of each of them, as herein set 
forth, and whenever a vacancy shall occur for any 
cause then the appointment to fill such vacancy 
shall be for the unexpired portion of the term of 
the predecessor of each appointee. (1937, c. 
49, s. 5.) 

§ 3411(70). County boards of alcoholic control. 
— In each county which may be hereafter per- 
mitted to engage in the sale of alcoholic bever- 
ages, there is hereby created a county board of 
alcoholic control, to consist of a chairman and 
two other members. The members of said board 
shall be well known for their character, ability 
and business acumen. The members of said 
board shall be selected in each respective county 
in a joint meeting of the board of county com- 
missioners, the county board of health and the 
county board of education, and each member 
present shall have only one vote, notwithstanding 
the fact that there may be instances in which 
some members are members of another board. 

The terms of office of the members of said 
county boards shall be as follows: The chairman, 
who shall be so designated by the appointing 
boards, shall serve for his first term a period of 
three years and one member shall serve for his 
first term a period of two years and the other 
member shall serve for a period of one year, all 
terms beginning with the date of their appoint- 
ment and after the said term shall have expired 
their successors in office shall serve for a period 
of three years and shall be appointed in the same 
manner as herein provided in this section. 



N. C. Supp.— 7 



[97] 



§ 3411(71) 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(73) 



In those counties, however, in which boards of 
control have been appointed under the provisions 
of chapters four hundred eighteen and four hun- 
dred ninety-three of the Public Laws of one thou- 
sand nine hundred thirty-five [§ 3411(38) et seq.], 
respectively, the respective boards of control so 
appointed shall constitute the board of control of 
the county for the full term, and at the expiration 
of such term their successors shall be appointed 
in the manner herein provided for the appoint- 
ment of members of county boards of control. 

The terms of the members of the said respec- 
tive boards of control heretofore appointed shall 
expire on June thirtieth, one thousand nine hun- 
dred thirty-nine, at which time new boards shall 
be selected in the same manner and for the same 
terms as set forth in this section. 

Any member of any of the county boards here- 
in above referred to in this section may be re- 
moved at any time by such composite board con- 
sisting of the board of county commissioners, the 
board of education and the board of health, when- 
ever such composite board may find by a major- 
ity vote of its entire membership such member 
or members unfit to serve thereon, each member 
having only one vote as above provided for the 
selection of such members of county boards. In 
the event any member of the county board shall 
be removed hereunder, his successor shall be se- 
lected to serve out the time for which such mem- 
ber was originally selected. 

From and after the ratification of this article, 
the said county boards of control so appointed 
under chapters four hundred eighteen and four 
hundred ninety-three of the Public Laws of one 
thousand nine hundred thirty-five shall operate 
liquor stores now being operated under the terms, 
provisions, restrictions, regulations and require- 
ments of this article; Provided, that the board of 
control for Wilson county under chapter four 
hundred ninety-three of the Public Laws of one 
thousand nine hundred thirty-five is authorized 
and empowered to operate the liquor stores at 
Southern Pines and at Pinehurst in Moore county 
under the provisions of said chapter four hundred 
ninety-three of the Public' Laws of one thousand 
nine hundred thirty-five for thirty days after the 
ratification of this article; and thereafter the 
county board of alcoholic control created by the 
terms of this article and elected for the county 
of Moore shall likewise be authorized and em- 
powered after said thirty days from the ratifica- 
tion of this article, to operate said liquor stores 
at Southern Pines and at Pinehurst in Moore 
county under the terms, provisions, restrictions, 
regulations and requirements of this article. 
Upon the establishment and operation of said liq- 
uor stores at Southern Pines and at Pinehurst, 
the said county board of alcoholic control of 
Moore county is authorized and empowered to 
purchase, receive or exchange from the said Wil- 
son county board and the said Wilson county 
board is authorized and empowered to sell, ex- 
change and deliver to said Moore county board, 
at Southern Pines or at Pinehurst, any of the liq- 
uors or alcoholic beverages owned by said Wil- 
son county board, for such prices and upon such 
terms of sale and purchase and subject to such 
conditions as may be mutually agreed upon by 
said two boards. 

[ 98 



Upon the death or resignation of the chairman 
or any other member of the county board of al- 
coholic control, whether selected under the pro- 
visions of this article or under the provisions of 
chapter four hundred and eighteen or chapter 
four hundred and ninety-three of the Public Laws 
of one thousand nine hundred and thirty-five, fol- 
lowing the expiration of the term of office for 
which said chairman or member has been ap- 
pointed, elected or selected, his successor to fill 
out such unexpired term shall be selected at a 
joint meeting of the board of county commis- 
sioners, the county board of health and the county 
board of education, which joint meeting shall be 
held within ten (10) days after such resignation 
or death, which meeting shall be called by the 
chairman or some other member of the county 
board of alcoholic control, by giving notice to 
each member of the time and place of holding 
such meeting. (1937, c. 49, s. 6, cc. 411, 431.) 

Editor's Note. — For act constituting county commissioners 
of Halifax county, the county board of alcoholic control of 
said county, see Public Laws 1937, c. 302. 

For alcoholic beverage control act applicable to Windsor 
in Bertie county, see Public L,aws 1937, c. 310. 

§ 3411(71). Compensation for members of 
county boards. — The salaries of the members of 
the said county board shall be fixed by the joint 
meeting of the several boards that appoint them 
and shall be fixed with the view to securing the 
very best members available, with due regard to 
the fact that such salaries shall be adequate com- 
pensation, but shall not be large enough to make 
said positions unduly attractive or the objects of 
political aspirations. (1937, c. 49, s. 7.) 

Editor's Note. — For temporary act providing salary for 
chairman of board of Franklin county, see Public Laws 
1937, c. 250, s. 1. 

§ 3411(72). Persons disqualified for member- 
ship on boards. — No person shall be appointed a 
member of either the state board or of any county 
board or employed thereby who shall be a stock- 
holder in any brewery or the owner of any inter- 
est therein in any manner whatsoever, or interested 
therein directly or indirectly, or who is like- 
wise interested in any distillery or other enter- 
prise that produces, mixes, bottles or sells alco- 
holic beverages, or who is related to any person 
likewise interested or associated in business with 
any person likewise interested and neither of said 
boards shall employ any person who is interested 
in, directly or indirectly, or related to, any per- 
son interested in any firm, person or corporation 
permitted to sell alcoholic beverages in this state. 
(1937, c. 49, s. 8, c. 411.) 

§ 3411(73). Bonds required of members of 
county boards. — The several members of the 
county board shall give bond for the faithful per- 
formance of their duties, in the penal sum of five 
thousand ($5,000.00) dollars, and the said bond 
shall be payable to the state of North Carolina 
and to the county in which said board performs 
its duties, with some corporate surety, which 
surety shall be satisfactory to, and approved by, 
the county attorney of said county, and the chair- 
man of the state board, and shall be deposited 
with the chairman of the state board. The state 
board for and on behalf of the state of North Car- 
olina, and the county named in said bond, shall 
each be secured therein to the full amount of the 



§ 3411(74) 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(74) 



penalty thereof and the recovery or payment of 
any sums due thereunder to either shall not di- 
minish or affect the right of the other obligee in 
said bond to recover the full amount of the said 
penalties thereof, and the giving and the approval 
of such bond shall be a part of the qualification 
of said members and no member shall be entitled 
to exercise any of the functions or powers inci- 
dent to his appointment until and unless the said 
bond shall have been given and approved as here- 
in provided. (1937, c. 49, s. 9.) 

§ 3411(74). Powers and duties of county boards. 

— The said county boards shall each have the fol- 
lowing powers and duties: 

(a) Control and jurisdiction over the importa- 
tion, sale and distribution of alcoholic beverages 
within its respective county. 

(b) Power to buy and to have in its possession 
and to sell alcoholic beverages within its county. 

(c) Power and authority to adopt rules and 
regulations governing the operation of stores 
within its county and relating to the carrying out 
of the provisions and purposes of this article. 

(d) To prescribe and regulate and direct the 
duties and services of all employees of said county 
board. 

(e) To fix the hours for the opening and clos- 
ing of stores operated by it. No store, however, 
shall be permitted to remain open between the 
hours of nine o'clock p. m. and nine o'clock a. m. 

(f) To require any county stores to close on 
such days as it may designate, but all stores in 
any county operating under the provisions of this 
article shall remain closed on Sundays, election 
days, New Year's Day, Fourth of July, Labor 
Day, Armistice Day, Thanksgiving and Christ- 
mas Day. 

(g) To import, transport, receive, purchase, 
sell and deliver and have in its possession for sale 
for present and future delivery alcoholic beverages. 

(h) To purchase or lease property, furnish and 
equip buildings, rooms and accommodations as 
and when required for the storage and sale of al- 
coholic beverages and for distribution to all 
county stores within said county. 

(i) To borrow money, guarantee the payment 
thereof and the interest thereon, in such manner 
as may be required or permitted by law, and to 
issue, sign, endorse and accept checks, promis- 
sory notes, bills of exchange and other negotiable 
instruments and to do all such other and neces- 
sary things as may be required or may be con- 
venient in the conduct of liquor stores in its 
county. 

(j) To investigate and aid in the prosecution 
of violations of this article and other liquor laws, 
by whatever name called, and to seize alcoholic 
beverages in said county sold, kept, imported or 
transported illegally and to apply for confiscation 
thereof and to cooperate in the prosecution of of- 
fenders in any court in said county. 

(k) To regulate and to prescribe rules and regu- 
lations that may be necessary or feasible for the 
obtaining of purity in all alcoholic beverages, in- 
cluding true statements of contents and the proper 
labeling thereof. 

(1) To fix and maintain the prices of all alco- 
holic beverages sold by liquor stores in said 



county and to prescribe to whom the same may 
be sold. 

The provisions of this article shall not apply to 
ethyl alcohol intended for use and/or used for the 
following purposes: 

For scientific, chemical, mechanical, industrial, 
medicinal and culinary purposes. 

For use by those authorized to procure the 
same tax free, as provided by the act of congress 
and regulations promulgated thereunder. 

In the manufacture of denatured alcohol pro- 
duced and used as provided by the acts of con- 
gress and regulations promulgated thereunder. 

In the manufacture of patented, patent, propri- 
etary, medicinal, pharmaceutical, antiseptic, toilet, 
scientific, chemical, mechanical, and industrial 
preparations or products unfit for beverage pur- 
poses. 

In the manufacture of flavoring extracts and 
syrups unfit for beverage purposes. 

(m) To exercise the power to buy, purchase 
and sell and to fix the prices at which all alco- 
holic beverages may be purchased from it, but 
nothing herein contained shall give said board 
the power to purchase or sell or deal in alcoholic 
beverages which contain less than five per centum 
of alcohol by weight. 

(n) To locate stores in its county and to pro- 
vide for the management thereof and to appoint 
and employ at least one person for each store 
conducted by it, who shall be known as "man- 
ager" thereof. The duty of such manager shall 
be to conduct the said store under directions of 
the county board and to carry out the law ap- 
plying thereto, and such manager shall give bond 
for the faithful performance of his duties in such 
sum as may be fixed by said county board, with 
sufficient corporate surety and said surety, or 
sureties thereon, shall be approved by the said 
county board as a part of the qualifications of 
such manager for his appointment, and the said 
county board shall have the right to sue on said 
bond and to recover for all failures on the part 
of said manager faithfully to perform his duties 
as such manager, to the extent of any loss occa- 
sioned by such manager on his part, but as 
against the surety, or sureties, thereon, such ag- 
gregate recovery, or recoveries, shall not exceed 
the penalty of said bond. 

(o) To expend for law enforcement a sum not 
less than five per cent nor more than ten per cent 
of the total profits to be determined by quarterly 
audits and in the expenditure of said funds shall 
employ one or more persons to be appointed by 
and directly responsible to the respective county 
boards. The persons so appointed shall, after 
taking the oath prescribed by law for the peace 
officers, have the same powers and authorities 
within their respective counties as other peace 
officers. 

(p) To discontinue the operation of any store 
in its county whenever it shall appear to said 
board that the operation thereof is not sufficiently 
profitable to justify a continuance of its operation, 
or when, in its opinion, the operation of any store 
inimical or hurtful to the morals or welfare of the 
community in which it is operated, or when said 
county board may be directed to close any store 
by the state board; provided, that the liquor 
stores at Southern Pines and at Pinehurst in 
99 ] 



§ 3411(75) 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(78) 



Moore county, shall be continued under the pro- 
visions of this article, but no other stores shall be 
established or operated in Moore county unless 
and until an election may be had in said county 
under the provisions of this article and a major- 
ity of the votes cast at such election shall have 
been "for county liquor control stores." An elec- 
tion in Moore county upon the question of the 
establishment or operation of liquor stores under 
the provisions of this article may be called only 
after three years from the ratification of this ar- 
ticle. 

All the powers and duties herein conferred upon 
county boards, or required of them, shall be sub- 
ject to the powers herein conferred upon the state 
board and whenever or wherever herein the state 
board has been given power to approve or disap- 
prove anything in respect to county stores or 
county boards, then no power on the part of the 
county boards and no act of any county board 
shall be exercisable or valid until and unless the 
same has been approved by the state board. 
(1937, c. 49, s. 10, cc. 411, 431.) 

§ 3411(75). No sales except during hours fixed 
by county boards; sales to minors, habitual 
drunkards, etc.; discretion of managers and em- 
ployees; list of persons convicted of drunkenness, 
etc.; unlawful to buy for person prohibited. — No 
alcoholic beverage shall be sold knowingly by 
any county store or the manager thereof or any 
employee therein at any time other than within 
the opening and closing hours for said store, as 
fixed in the manner herein provided, and other- 
wise as prescribed by the said county board. No 
alcoholic beverage shall be sold knowingly to any 
minor, or to any person who has been convicted 
of public drunkenness or of driving any motor 
vehicle while under the influence of intoxicating 
liquors, or has been convicted of any crime 
wherein the court or judge shall find as a fact 
that such person committed said crime or aided 
and abetted in the commission thereof as a re- 
sult of the influence of intoxicating liquors 
(within one year of any such conviction), or to 
any person known to be an habitual drunkard or 
who has within one year been confined in the in- 
ebriate ward of any state institution. The man- 
ager and employees of and in any county store 
may, in their discretion, refuse to sell alcoholic 
beverage to any individual applicant, and such 
power and the duty to exercise the same shall 
vest in and apply to such manager and employ- 
ees, regardless of the failure of the county boards 
to make any regulations providing for the same, 
and in their discretion may refuse to sell more 
than four quarts at any one time in any one day 
to any person. 

The various clerks of the superior court and 
of any inferior courts in counties coming under 
the provisions of this article shall furnish to the 
chairman of the control board of their county a 
list of all persons convicted of public drunken- 
ness or convicted of driving an automobile while 
intoxicated; and the state motor vehicle depart- 
ment shall furnish to the chairmen of all the con- 
trol boards in this state a list of all persons whose 
driving licenses have been revoked for driving an 
automobile while intoxicated, or for the illegal 
use of whiskey. 

It shall be unlawful for any person to buy any 



alcoholic beverage if he be within the class pro- 
hibited from purchasing same as set out in this 
section, and it shall further be unlawful for any 
person to buy any alcoholic beverage for any per- 
son who may be prohibited from purchasing for 
himself under any of the provisions of this ar- 
ticle. (1937, c. 49, s. 11, c. 411.) 

§ 3411(76). Drinking upon premises prohib- 
ited; stores closed on Sundays, election days, etc. 

— No alcoholic beverage shall be drunk upon the 
premises of any county store or warehouse, or 
room or building occupied or used by any county 
board or any of its employees for the purpose of 
performing their duties in respect to alcoholic 
beverages, and such county boards, managers and 
employees shall not permit alcoholic beverages to 
be drunk upon said premises and all county 
stores shall be closed on Sundays and election 
days, and such other days as the state board may 
designate. (1937, c. 49, s. 12.) 

§ 3411(77). Possession illegal if taxes not paid; 
punishment and forfeiture for violations; posses- 
sion in container without proper stamp, prima 
facie evidence. — It shall be unlawful for any firm, 
person or corporation to have in his or its pos- 
session any alcoholic beverages as defined herein 
upon which the taxes imposed by the laws of con- 
gress of the United States or by the laws of this 
state, have not been paid and any person con- 
victed of the violation of this section shall be 
guilty of a misdemeanor and fined or imprisoned 
in the discretion of the court and the alcoholic 
beverage shall be seized and forfeited, together 
with any vehicle, vessel, aeroplane or other equip- 
ment used in the transportation and to carry the 
said alcoholic beverages, and the procedure 
pointed out in section six of chapter one of the 
Public Laws of one thousand nine hundred 
twenty-three [§ 3411(f)] for the seizure, arrest, 
confiscation and sale of such vehicle, vessel, aero- 
plane or other means of transportation shall be 
used and the provisions of said section six of 
chapter one of the public Laws of one thousand 
nine hundred twenty-three are hereby declared 
to be in full force and effect in any of the coun- 
ties of the state which shall operate under the 
provisions of this article, and the possession of 
such alcoholic beverages in a container which 
does not bear either a revenue stamp of the fed- 
eral government or a stamp of any of the county 
boards of the state of North Carolina shall con- 
stitute prima facie evidence of the violation of 
this section. (1937, c. 49, s. 13.) 

§ 3411(78). Transportation, not in excess of 
one gallon, authorized; transportation in course 
of delivery to stores. — It shall not be unlawful 
for any person to transport a quantity of alco- 
holic beverages not in excess of one gallon from 
a county in North Carolina coming under the 
provisions of this article to or through another 
county in North Carolina not coming under the 
provisions of this article: Provided, said alco- 
holic beverages are not being transported for the 
purposes of sale, and provided further that the 
cap or seal on the container or containers of said 
alcoholic beverages has not been opened or 
broken. Nothing contained in this article shall 
be construed to prevent the transportation through 
any county not coming under the provisions of 



[ 100 



§ 3411(79) 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(87) 



this article, of alcoholic beverages in actual 
course of delivery to any alcoholic beverage con- 
trol board established in any county coming un- 
der the provisions of this article. (1937, c. 49, 
s. 14.) 

§ 3411(79). Possession for sale and sales of 
illicit liquors; sales of liquors purchased from 
stores. — The possession for sale, or sales, of il- 
licit liquors, or the sale of any liquors purchased 
from the county stores, is hereby prohibited and 
a violation of this section shall constitute a crime 
and shall be punishable by fine or imprisonment, 
or both, in the discretion of the court. (1937, c. 
49, s. 15.) 

§ 3411(80). Drinking or offering drinks on 
premises of stores, and public roads or streets; 
drunkenness, etc., at athletic contests or other 
public places. — It shall be unlawful for any per- 
son to drink alcoholic beverages or to offer a 
drink to another person, or persons, whether ac- 
cepted or not, at the place where the same is pur- 
chased from the county store, or the premises 
thereof, or upon any premises used or occupied 
by county boards for the purpose of carrying out 
the provisions of this article, or on any public 
road or street, and it shall be unlawful for any 
person or persons to be or become intoxicated or 
to make any public display of any intoxicating 
beverages at any athletic contest or other public 
place in North Carolina. The violation of this 
section shall constitute a misdemeanor and shall 
be punishable by a fine of not exceeding fifty 
($50.00) dollars or imprisoned for not more than 
thirty days in the discretion of the court. (1937, 
c. 49, s. 16, c. 411.) 

§ 3411(81). Advertising alcoholic beverages pro- 
hibited. — It shall be unlawful for any county 
store to advertise anywhere, or by any means or 
method, alcoholic beverages which it has for sale 
and shall not advertise or post its prices, other 
than in the store, or stores, which it operates, and 
in such stores it shall only state the brands or 
kinds of beverages and the price of each kind and 
such price list shall only be posted for public 
view in said store. 

It shall be unlawful for any person, firm or 
corporation to erect or set up, or permit to be set 
up, any sign or bill-board, or other device, con- 
taining any advertisement of alcoholic beverages 
as defined herein on his premises, and if the same 
shall be set up by any other person, then such 
owner or lessee of such premises shall not permit 
the same to remain thereon. (1937, c. 49, s. 17.) 

See § 3411(37)a. 

§ 3411(82). Advertising by radio broadcasts 
prohibited. — No firm, person or corporation in 
this state shall broadcast, or permit to be broad- 
cast, any statement, speech, or any other message 
by whatsoever name called, over any radio broad- 
casting system doing business in this state, when 
such advertising matter tends to advertise alco- 
holic beverages as defined herein and the broad- 
cast thereof originates in this state. (1937, c. 
49, s. 18.) 

§ 3411(83). Additional regulations as to adver- 
tising. — The several county boards by and with 
the consent and approval of the state board, shall 
have power to make such other rules and regula- 



tions as will prevent and tend to prevent adver- 
tisement of alcoholic beverages otherwise than is 
expressly prohibited herein and to publish such 
rules and regulations and to take effective meas- 
ures to enforce the same. (1937, c. 49, s. 19.) 

§ 3411(84). Salaries and expenses paid from 
proceeds of sales. — All salaries and expenses in- 
curred under the provisions of this article except 
those provided for in section 3411(66) shall be 
paid out of the proceeds of the sales of the alco- 
holic beverages referred to in this article. All 
salaries and expenses of county boards and their 
employees shall be paid out of the receipts for 
their sales as operating expenses. (1937, c. 49, 
s. 20.) 

§ 3411(85). Net profits to be paid into general 
fund of the various counties. — After deducting the 
amount required to be expended for enforcement 
as herein provided and retaining sufficient and 
proper working capital, the amount to be deter- 
mined by the board, and except as hereinbefore 
provided in chapters four hundred ninety-three 
and four hundred eighteen of the Public Laws of 
one thousand nine hundred thirty-five [§ 3411(38) 
et seq.], the entire net profits derived from any 
stores shall be paid quarterly to the general fund 
of each respective county wherein county stores 
are operated. (1937, c. 49, s. 21, c. 411.) 

Editor's Note. — For act applicable only to Franklin county, 
see Public Laws 1937, c. 250, s. 2. 

Public Iyaws 1937, c. 269, directed that this section be 
amended by adding at the end the following: "The board 
of county commissioners of Brunswick county may in their 
discretion divide the net profits, derived from the operation 
of any stores, with the municipalities located in said county 
on any basis said commissioners may deem proper." 

§ 3411(86). Transportation into state; and 
purchases, other than from stores, prohibited. — 

It shall be unlawful for any person, firm, or cor- 
poration, to purchase in, or to bring in this state, 
any alcoholic beverage from any source, except 
from a county store operated in accordance with 
this article, except a person may purchase legally 
outside of this state and bring into the same for 
his own personal use not more than one gallon 
of such alcoholic beverage. A violation of this 
section shall constitute a misdemeanor, punish- 
able by fine or imprisonment, or both, in the dis- 
cretion of the court. (1937, c. 49, s. 22.) 

§ 3411(87). Violations by member or employee 
of boards, cause for removal and punishable as 
misdemeanor. — A violation of any of the provi- 
sions of this article by any person, firm or corpo- 
ration, and the violation of any provision of this 
article, or any regulation adopted by any county 
board or by the state board, by any member of 
the state board, or any member of any county 
board, or any employee of either of said boards, 
shall constitute a misdemeanor, punishable by 
fine or imprisonment, or both, in the discretion 
of the court, and in addition thereto shall consti- 
tute sufficient cause for the removal of such per- 
son from either of said boards, or from his em- 
ployment under either of said boards and in ad- 
dition to the powers of the state board to remove 
any of its employees or any member of any 
county board and the power of any county board 
to remove any of its employees from such em- 
ployment, the court in which the said conviction 
is had shall have the power upon such conviction 



101 ] 



§ 3411(88) 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(90) 



and as a part of its judgment thereon to remove 
such person from either of said boards or from 
the employment of either. (1937, c. 49, s. 23.) 

§ 3411(88). "Alcoholic beverages," defined. — 

The term "alcoholic beverages," as used in this 
article, is hereby denned to be and to mean al- 
coholic beverages of any and all kinds which shall 
contain more than twenty-four per centum by 
volume and this article is not intended to apply 
to or regulate the possession, sale, manufacture 
or transportation of beer, wines or ales contain- 
ing a lower alcoholic content than above specified 
and whenever the term alcoholic beverage is 
used in this article it shall be construed as de- 
fined in this section. (1937, c. 49, s. 24, c. 411.) 

§ 3411(89). County elections as to liquor con- 
trol stores; application of Turlington Act; time 
of elections. — No county liquor store shall be es- 
tablished, maintained or operated in this state, in 
any county thereof, until and unless there shall 
have been held in such county an election, under 
the same rules and regulations which apply to 
elections for members of the general assembly, 
and at said election there shall be submitted to 
the qualified voters of such county the question 
of setting up and operating in such county a liq- 
uor store, or stores, as herein provided, and those 
favoring the setting up and operation of liquor 
stores in such county shall mark in the voting 
square to the left of the words, "for county liq- 
uor control stores" printed on the ballot, and 
those opposed to setting up and operating liquor 
stores in such county shall mark in the voting 
square to the left of the words, "against county 
liquor control stores," printed on the same ballot, 
and if a majority of the votes cast in such elec- 
tion shall be for county liquor stores, then a liq- 
uor store, or liquor stores, may be set up and op- 
erated in such county as herein provided, and if 
a majority of the votes cast at said election shall 
be against county liquor stores, then no liquor 
stores shall be set up or operated in said county 
under the provisions of this article. 

Such election shall be called in such county by 
the board of elections of such county only upon 
the written request of the board of county com- 
missioners therein, or upon a petition to said 
board of elections signed by at least fifteen per 
centum of the registered voters in said county 
that voted in the last election for governor. In 
calling for such special liquor election the county 
board of elections shall give at least twenty days 
public notice of same prior to the opening of the 
registration books, and the registration books 
shall remain open for the same period of time be- 
fore such special liquor election as is required by 
law for them to remain open for a regular elec- 
tion. A new registration of voters for such spe- 
cial liquor election is not required and all quali- 
fied electors who are properly registered prior to 
the registration for the special election, as well as 
those electors who register in said special liquor 
election, shall be entitled to vote in said election. 

If any county while operating any such control 
store under the provisions of chapter four hun- 
dred ninety-three or four hundred eighteen of the 
Public Laws of one thousand nine hundred thirty- 
five [§ 3411(38) et seq.] or under the terms of 
this article shall hereafter under the provisions of 



this article hold an election and at such election 
a majority of the votes shall be cast "against 
county liquor control stores," then the county con- 
trol board in such county shall within three (3) 
months from the canvassing of such vote and the 
declaration of the result thereof, close said stores 
and shall thereafter cease to operate the same. 
During this period of time, the county control 
board shall dispose of all alcoholic beverages on 
hand, all fixtures and all other property in the 
hands and under the control of the county con- 
trol board and convert the same into money and 
shall, after making a true and faithful accounting, 
turn all money in its hands over to the general 
fund of the county. Thereafter, chapter one of 
the Public Laws of one thousand nine hundred 
twenty-three [§ 3411(a) et seq.], being commonly 
known as the Turlington Act, shall be in full 
force and effect in such county, until and unless 
another election is held under the provisions of 
this article, in which a majority of the votes shall 
be cast "for county liquor control stores," except 
modified by this article or acts amendatory here- 
of. 

No election under this section shall be held on 
the day of any biennial election for county offi- 
cers, or within sixty days of such an election, and 
the date of such elections under this section shall 
be fixed by the board of elections of the county 
wherein the same is held. 

No other election shall be called and held in 
any of the counties in the state under the provi- 
sions of this article within three years from the 
holding of the last election under this article. In 
any county in which an election was held either 
under the provisions of chapter four hundred 
ninety-three or chapter four hundred eighteen of 
the Public Laws of one thousand nine hundred 
thirty-five, an ' election may be called under the 
provisions of this article, provided no such elec- 
tion shall be called within three years of the hold- 
ing of the last election. (1937, c. 49, s. 25, c. 
431.) 

§ 3411(90). Elections in counties now operat- 
ing stores, not required for continued operation; 
Pinehurst and Southern Pine stores transferred 
to Moore county board. — Nothing herein con- 
tained shall be so construed as to require coun- 
ties in which liquor stores have been established 
under chapter four hundred eighteen or four hun- 
dred ninety-three of the Public Laws of one thou- 
sand nine hundred thirty-five [§ 3411(38) et seq.] 
to have any further election in order to enable 
such counties to establish liquor stores, and as to 
such counties in which liquor stores are now be- 
ing operated under chapters four hundred eight- 
een or four hundred ninety-three of the Public 
Laws of one thousand nine hundred thirty-five, 
such stores shall from the ratification of this ar- 
ticle be operated under the terms of this article; 
Provided, that in Moore county the liquor stores 
heretofore established and now being operated 
under the provisions of said chapter four hun- 
dred ninety-three of the Public Laws of one 
thousand nine hundred thirty-five, at Southern 
Pines and at Pinehurst by the Wilson county al- 
coholic beverage control board, created by the 
provisions of said chapter four hundred ninety- 
three of the Public Laws of one thousand nine 
hundred thirty-five, shall continue to be operated 



[ 102 



§ 3411(91) 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(95) 



for thirty days after the ratification of this article ; the character and number of packages or con- 



and shall thereafter be operated under the provi- 
sions of this article by the county board of al- 
coholic control of Moore county under the pro- 
visions of this article without requiring an elec- 
tion on said question to be held in Moore county 
under the provisions of this article. (1937, c. 49, 
s. 26.) 

§ 3411(91). Laws repealed. — Chapters four hun- 
dred eighteen and four hundred ninety-three of 
the Public Laws of one thousand nine hundred 
thirty-five [§ 3411(38) et seq.] be and the same 
are hereby repealed, except as referred to in this 
article, and all other laws and clauses of laws in 
conflict herewith to the extent of such conflict 
are hereby repealed. (1937, c. 49, s. 27.) 

Art. 15. Beverage Control Act of 1937 

§ 3411(92). Title.— This article shall be known 
as the Beverage Control Act of one thousand 
nine hundred and thirty-seven. (1937, c. 127, s. 
500.) 

§ 3411(93). Definitions. — The term "beverages" 
as used in this article shall include: 

(a) Beer, lager beer, ale, porter, and other 
brewed or fermented beverages containing one- 
half of one per cent (1%) of alcohol by volume, 
but not more than five per cent (5%) of alcohol 
by weight as authorized by the laws of the United 
States of America. 

(b) Unfortified wines, as used in this article, 
shall mean wines of an alcoholic content pro- 
duced only by natural fermentation or by the ad- 
dition of pure cane, beet, or dextrose sugar and 
having an alcoholic content of not less than five 
(5%) per centum and not more than fourteen 
(14%) per centum of absolute alcohol, the per 
centum of alcohol to be reckoned by volume. 

(c) Fortified wines shall mean any other wine 
or alcoholic beverage made by fermentation from 
grapes, fruits and berries and fortified by the ad- 
dition of brandy or alcohol thereto, and having 
an alcoholic content of not less than fourteen 
(14%) per centum and not more than twenty- 
four (24%) per centum of absolute alcohol, reck- 
oned by volume. 

The term "person" used in this article shall 
mean any individual, firm, partnership, associa- 
tion, corporation, or other groups 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, for a 
consideration. (1937, c. 127, s. 501, c. 249, s. 6.) 

§ 3411(94). Regulations.— The beverages enu- 
merated in section 3411(93) may be manufac- 
tured, transported, or sold in this state in the 
manner and under the regulations hereinafter set 
out. (1937, c. 127, s. 502.) 

§ 3411(95). Transportation. — The beverages 
enumerated in section 3411(93) may be trans- 
ported into, out of or between points in this 
state by railroad companies, express companies or 
by steamboat companies engaged in public serv- 
ice as common carriers and having regularly es- 



tainers, 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 common carrier 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 beverages enumerated in section 3411(93) 
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 person intending to make such use of the 
highways of the state shall as a prerequisite 
thereto register such intention with the commis- 
sioner of revenue in advance of such transporta- 
tion, with notice of the kind and character of 
such products to be transported and the license 
and motor number of each motor vehicle intended 
to be used in such transportation. Upon the fil- 
ing of such information, together with an agree- 
ment to comply with the provisions of this article, 
the commissioner of revenue shall without charge 
therefor issue a numbered certificate to such 
owner or operator for each motor vehicle intended 
to be used for such transportation, which num- 
bered certificate shall be prominently displayed on 
the motor vehicle used in transporting the prod- 
ucts named in section 3411(93). Every person 
transporting such products over any of the pub- 
lic 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 address of the per- 
son from whom he has received such beverages, 
the character and contents of containers, the num- 
ber 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 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 violation of 
this article. Every person engaged in transport- 
ing such beverages over the public highways of 
this state shall keep accurate records of the char- 
acter and volume of such shipments, the char- 
acter 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(93) by in- 
dividuals for their own use is permitted without 
restriction or regulation. The provisions of this 
section as to transportation of beverages enu- 
merated in section 3411(93) by motor vehicles 
over the public highways of this state shall in like 



tablished schedules of service, upon condition manner apply to the owner or operator of any 
that such companies shall keep accurate records boat using the waters of this state for such trans- 
of the character and volume of such shipments, portation, and all of the provisions of this section, 

[103] 



§ 3411(96) 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(101) 



with respect to permit for such transportation 
and reports to the commissioner of revenue by the 
operators of motor vehicles on public highways, 
shall in like manner apply to the owner or oper- 
ator of any boat using the waters of this state. 
(1937, c. 127, s. 503.) 

§ 3411(96). Manufacture. — The brewing or 
manufacture of beverages for sale enumerated in 
section 3411(93) shall be permitted in this state 
upon the payment of an annual license tax to the 
commissioner of revenue in the sum of five hun- 
dred dollars ($500.00) for a period ending on the 
next succeeding thirtieth day of April and annu- 
ally thereafter. Persons licensed under this sec- 
tion may sell such beverages in barrels, bottles, 
or other closed containers only to persons li- 
censed under the provisions of this article for re- 
sale, 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 man- 
ufacture of beverages for sale enumerated in sec- 
tion 3411(93) are hereby permitted and allowed: 
Provided, that any person engaged in the busi- 
ness of manufacturing in this state the wines de- 
scribed in section 3411(93) (b) shall be required 
to pay an annual license tax of two hundred fifty 
dollars ($250.00). Nothing in this article shall be 
construed to impose any tax upon any resident 
citizen of this state who makes native wine for the 
use of himself, his family and guests from fruits, 
grapes and berries cultivated or grown wild up- 
on his own land. (1937, c. 127, s. 504, c. 249, 
s. 7.) 

§ 3411(97). Bottler's license. — Any person who 
shall engage in the business of receiving ship- 
ments of the beverages enumerated in section 
3411(93) (a), in barrels or other containers, and 
bottling the same for sale to others for resale, 
shall pay an annual license tax of two hundred 
fifty dollars ($250.00) ; and any person who shall 
engage in the business of bottling the beverages 
described in section 3411(93) (b) or (c), or both, 
shall pay an annual license tax of two hundred 
fifty dollars ($250.00): Provided, however, that 
any person engaged in the business of bottling 
the beverages described in section 3411(93) (a) 
and also the beverages described in section 3411- 
(93) (b) and (c), or either, shall pay an annual 
license tax of four hundred dollars ($400.00). No 
other license tax shall be levied upon the busi- 
nesses taxed in this section, but licensees under 
this section shall be liable for the payment of the 
taxes imposed by section 3411(109) in the manner 
therein set forth. (1937, c. 127, s. 505, c. 249, 
s. 8.) 

§ 3411(98). Wholesaler's license. — License to 
sell at wholesale, which shall authorize licensees 
to sell beverages described in section 3411(93) 
(a) in barrels, bottles, or other containers, in 
quantities of not less than one case or container 
to a customer, shall be issued as a state-wide li- 
cense by the commissioner of revenue. The an- 
nual license under this section shall be one hun- 
dred and fifty dollars ($150.00) and shall expire 
on the next succeeding thirtieth day of April. 
The license issued under this section shall be rev- 
ocable at any time by the commissioner of rev- 
enue for failure to comply with any of the condi- 
tions of this article with respect to the character 



of records required to be kept, reports to be made 
or payment of other taxes hereinafter set out. 

Licensees to sell at wholesale the beverages de- 
scribed in section 3411(93) (b) and (c), or either 
shall pay an annual license tax of one hundred 
fifty dollars ($150.00): Provided, that a licensee 
to sell at wholesale the beverages described in 
section 3411(93) (a) and the beverages described 
in section 3411(93) (b) and (c), or either, shall 
pay an annual license tax of two hundred fifty 
dollars ($250.00). 

If any wholesaler maintains more than one place 
of business or storage warehouse from which or- 
ders are received or beverages are distributed a 
separate license shall be paid for each separate 
place of business or warehouse. 

The owner or operator of every distributing 
warehouse selling, distributing or supplying to re- 
tail stores beverages enumerated in section 3411- 
(93) shall be deemed wholesale distributors with- 
in the meaning of this article, and shall be liable 
for the tax imposed in this section, and shall com- 
ply with the conditions imposed in this article 
upon wholesale distributors of beverages with re- 
spect to payment of taxes levied in this article and 
bond for the payment of such taxes. (1937, c. 
127, s. 506, c. 249, s. 9.) 

§ 3411(99). Sales on railroad trains. — The sale 
of beverages enumerated in section 3411(93) 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 dollars ($100.00) 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 rev- 
enue on or before the tenth day of each calendar 
month covering sales for the previous month and 
payment of the tax on such sales at the rate of 
tax levied in this article. (1937, c. 127, s. 507.) 

§ 3411(100). Salesman'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 rep- 
resent, and no other license tax shall be levied 
under this section. (1937, c. 127, s. 508.) 

§ 3411(101). Character of license. — License is- 
sued under authority of section 3411(93) (a) 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 licensee to sell at retail bev- 
erages for consumption on the premises desig- 
nated in the license, and to sell the beverages in 



[ 104 ] 



§ 3411(101)a 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(104) 



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 appli- 
cant for license is entitled to a "premises" license 
under the terms of this article, and outside of mu- 
nicipalities such determination shall be by the 
board of commissioners of the county. (1937, c. 
127, s. 509.) 

§ 3411(101)a. Retail license issued for sale of 
wines. — License issued under authority of section 
3411(93) (b) and (c) shall be of two kinds: 

"On premises" licenses shall be issued to bona 
fide hotels, cafeterias, cafes and restaurants, and 
shall authorize the licensees to sell at retail for 
consumption on the premises designated in the li- 
cense: Provided, no such license shall be issued 
except to hotels, cafeterias, cafes and restaurants 
where prepared food is customarily sold, and to 
such only as are licensed under the provisions of 
section 7880(58), and which, at the time of the ap- 
plication for such license, have been given a grade 
A rating by the state department of health. 

2. "Off premises" licenses shall authorize the 
licensee to sell said beverages at retail for con- 
sumption off the premises designated in the li- 
cense, and all such sales shall be made in the im- 
mediate container in which the beverage was 
purchased by the licensee, and every such con- 
tainer shall have the tax stamp displayed thereon, 
as provided in section 3411(109). (1937, c. 249, 
s. 10.) 

§ 3411(102). Amount of retail license tax.— The 
license tax to sell at retail under section 3411(93) 
(a) for municipalities shall be: 

(1) For "on premises" license, fifteen dollars 
($15.00). 

(2) For "off premises" license, ten dollars 
($10.00). 

The license tax to sell at retail under section 
3411(93) (b) or (c), or both, 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 (10%) of 
the base tax, such increase to apply progressively 
for each additional license issued to one person. 
(1937, c. 127, s. 510, c. 249, s. 11.) 

§ 3411(103). Who may sell at retail. — Every 
person making application for license to sell at 
retail beverages enumerated in section 3411(93), 
if the place where such sale is to be made is with- 
in 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. 

(l l A) That state, county, or city shall not is- 
sue license under this article to any person, firm, 



or corporation who has not been a bona fide resi- 
dent of North Carolina for one year. 

That no resident of the state shall obtain a li- 
cense under this article 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 con- 
victed shall be imprisoned not more than thirty 
days, nor fined more than two hundred dollars 
($200.00). 

(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 up- 
on which the business licensed is to be carried on. 

(4) That the applicant intends to carry on the 
business authorized by the license or himself 
or under his immediate supervision and direction. 

(5) A statement that the applicant is a citizen 
and 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 convicted of a felony involving moral 
turpitude or adjudged guilty of violating the pro- 
hibition laws, either state or federal, within the 
last two years prior to the filing of the applica- 
tion. The application must be verified by the af- 
fidavit of the petitioner made before a notary 
public or other person duly authorized by law to 
administer oath. If it appear from the state- 
ment of applicant or otherwise that such appli- 
cant 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 com- 
pletion of sentence, such license shall not be 
granted, and it shall afterwards appear that any 
false statement is knowingly made in any part 
of said application and license received thereon, 
the license of the applicant shall be revoked and 
the applicant subjected to the penalty provided 
by law for misdemeanors. Before any such li- 
cense shall be issued, the governing body of the 
municipality shall be satisfied that statements re- 
quired by sub-sections (1), (2), (3), (4), and 
(5) of this section are true. (1937, c. 127, s. 511.) 

§ 3411(104). County license to sell at retail. — 

License to sell at retail shall be issued by the 
board of commissioners of the county, and ap- 
plication for such license shall be made in the 
same manner and contain the same information 
set out in the preceding section with respect to 
municipal license. If the application is for li- 
cense to sell within a municipality, the application 
must also show that license has been granted the 
applicant by the governing board of such mu- 
nicipality. The granting of a license by the gov- 
erning board of a municipality shall determine 
the right of an applicant to receive a county li- 
cense upon compliance with the conditions of this 
article. 

If the application is for license to sell outside 
of a municipality within the county, the appli- 
cation shall also show the distance to the near- 
est church or public or private school from the 
place at which the applicant purposes to sell at 
retail. No license shall he granted to sell within 



[105] 



§ 3411(105) 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(100) 



three hundred 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 unin- 
corporated towns and villages having police pro- 
tection. 

The clerk of the board of commissioners of each 
county shall make prompt report to the commis- 
sioner of revenue of each license granted by the 
board of commissioners of such county. The 
county license fee shall be fixed at twenty-five 
dollars ($25.00) for the sale of beverages de- 
scribed in section 3411(93) (a), and twenty-five 
dollars ($25.00) for the sale of beverages de- 
scribed in section 3411(93) (b) and (c), and the 
same shall be placed in the county treasury, for 
the use of the county. (1937, c 127, s. 512, c. 249, 
s. 12.) 

§ 3411(105). Issuance of license mandatory; 
sales during religious services. — It shall be man- 
datory that the governing body of a municipal- 
ity or county issue license to any person applying 
for the same when such person shall have com- 
plied with the requirements of this article: Pro- 
vided, no person shall dispense beverages herein 
authorized to be sold within fifty feet of a church 
building in an incorporated city or town, or in 
a city or town having police protection, whether 
incorporated or not, while religious services are 
being held in such church, or within three hun- 
dred feet of a church building outside the incor- 
porate limits of a city or town while church serv- 
ices are in progress. (1937, c. 127, s. 513.) 

§ 3411(106). Revocation of license.— If any li- 
censee violates any of the provisions of this arti- 
cle 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 govern- 
ing 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 here- 
in 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 commissioner 
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 revo- 
cation of said license. (1937, c. 127, s. 514.) 

§ 3411(107). State license. — Every person who 
intends to engage in the business of retail sale 
of the beverages enumerated in section 3411(93) 
(a) shall also apply for and procure a state license 
from the commissioner of revenue. 

For the first license issued to each licensee five 
dollars ($5.00), and for each additional license is- 



sued 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) annu- 
ally, for the third license six dollars ($6.00) annu- 
ally, and an additional fifty cents (50c) per annum 
for each additional license issued to such person. 
(1937, c. 127, s. 515.) 

§ 3411(108). State license to sell wine at retail. 

— Every person who intends to engage in the 
business of selling wines as defined in section 
3411(93) (b) and (c) shall procure a state license 
for such business, which license shall in all cases 
be issued under the same restrictions, rules and 
regulations as set out in this article for the issu- 
ance of license for the sale of beverages described 
in section 3411(93) (a), and for which license the 
following schedule of taxes is hereby levied: 

(1) For "on premises" license, fifty dollars 
($50.00). 

(2) For "off premises" license, five dollars 
($5.00). 

Such retail license shall authorize the sale of 
the beverages described in this section only on 
the premises described in the license; and if the 
same person operates more than one place at 
which said beverages are sold at retail, he shall 
obtain a license for each such place and pay there- 
for the license tax provided in this section. 

If the license issued to any person by any mu- 
nicipality or county to sell the beverages referred 
to in this article shall be revoked by the proper 
officers of such municipality or county, or by any 
court, it shall be the duty of the commissioner of 
revenue to revoke the state license of such licen- 
see; and in such event the licensee shall not be 
entitled to a refund of any part of the license tax 
paid. 

It shall be unlawful for any wholesale licensee 
to make any sale or delivery of the beverages de- 
scribed in section 3411(93) (b) or (c) to any per- 
son except persons who have been licensed to sell 
such beverages at retail, as prescribed in this arti- 
cle. 

It shall be unlawful for any retail licensee to 
purchase any of the beverages described in sec- 
tion 3411(93) (b) or (c) from any person except 
wholesale licensees maintaining a place of busi- 
ness within this state and duly licensed under the 
provisions of this article. (1937, c. 127, s. 516, c. 
249, s, 13.) 

§ 3411(109). Additional tax.— In addition to the 
license taxes herein levied, a tax is hereby levied 
upon the sale of the beverages enumerated in sec- 
tion 3411(93) (a) of three dollars ($3.00) per bar- 
rel of thirty-one gallons, or the equivalent of such 
tax in containers of more or less than thirty-one 
gallons, and in bottles or other containers of not 
more than twelve ounces per bottle, a tax of one 
cent (lc) per bottle. 

In addition to the license taxes herein levied, 
a tax is hereby levied upon the sale of beverages 
described in section 3411(93) (b) of ten cents 
(10c) per gallon, and in section 3411(93) (c) a 
tax of thirty cents (30c) per gallon. 

The taxes levied under this section shall be paid 
through the use of wine revenue stamps, as here- 
inafter provided, by affixing stamps of proper de- 
nominations to the bottle or container in which 
or from which said wines are normally sold at 



[106] 



§ 3411(110) 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(112) 



retail. The stamps shall be affixed by the manu- 
facturer, winery, bottler, wholesaler or distribu- 
tor in such a manner that their removal will re- 
quire continued application of water or steam. 
The commissioner of revenue shall design, issue, 
sell, and distribute such stamps, of such denomi- 
nations as are customary in the trade and as may 
be necessary, and shall require of every manufac- 
turer, winery, bottler, wholesaler, and distributor 
that such stamps be purchased and affixed to each 
and every bottle or container of wine sold within 
this state. Stamps shall be sold by the commis- 
sioner at a discount of five per cent (5%) as com- 
pensation to the manufacturer, winery, bottler, 
wholesaler, or distributor for affixing stamps to 
containers. Stamps for container of more or less 
than one gallon shall be proportioned to the tax 
levied in this section upon the several classes of 
wine defined in section 3411(93) (b) and (c), re- 
spectively, but the stamp on any single package 
shall not be less than one cent (lc). 

It shall be unlawful for any dealer, either 
wholesale or retail, to have exposed for sale or in 
his possession, either in storage or on display, any 
wines taxable under this article without having 
attached to each bottle or other container the 
proper stamp indicating the payment of the tax 
herein levied, and in addition to other penalties 
for violation of this provision it shall be lawful for 
the department of revenue through any of its au- 
thorized agents, to confiscate any stock on hand, 
on display, or in storage, of any dealer who has 
not complied with the provisions of this section. 
The taxes levied in this section are in addition to 
the taxes levied in Schedule E [§ 7880(156)a et 
seq.] of this act. (1937, c. 127, s. 517, c. 249, 
s. 14.) 

§ 3411(110). Tax payable by wholesale distribu- 
tors. — 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 before 
the tenth day of each month for all beverages sold 
within the preceding month. As a condition pre- 
cedent to the granting of license by the commis- 
sioner of revenue to any wholesale distributor or 
bottler of beverages under this article, the com- 
missioner 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 ade- 
quate to cover the tax liability of each such whole- 
sale distributor or bottler, proportioned to the 
volume of business of each such wholesale dis- 
tributor or bottler, but in no event to be less than 
one thousand dollars ($1,000.00) or to deposit 
federal, state, county, or municipal bonds in re- 
quired amounts, such county or municipal bonds 
to be approved by the commissioner of revenue. 
The commissioner of revenue may grant such ex- 
tension of time for compliance with this condition 
as may be found to be reasonable. (1937, c. 127, 
s. 518.) 

§ 341 1(1 10) a. Non-resident manufacturers and 
wholesale dealers to be licensed. — From and after 
April thirtieth, one thousand nine hundred thirty- 
seven, every non-resident desiring to engage in 
the business of making sales of the beverages de- 



scribed in section 3411(93) to wholesale dealers 
licensed under the provisions of this article, shall 
first apply to the commissioner of revenue for a 
permit so to do. The commissioner of revenue 
may require of every such applicant that a bond 
in a sum not to exceed two thousand doliars 
($2,000.00) be executed by such applicant and de- 
posited with the commissioner, conditioned upon 
the faithful compliance by such applicant with the 
provisions of this article, and particularly that 
such applicant shall not make sales of any of the 
beverages described in section 3411(93) to any 
person in this state except a duly licensed whole- 
sale dealer. Upon the payment of a license tax 
of one hundred fifty dollars ($150.00), if the com- 
missioner is satisfied that said applicant is a bona 
fide manufacturer or distributor of the beverages 
defined in section 3411(93), he shall then issue a 
permit to such applicant which shall bear a serial 
number. Every holder of such non-resident per- 
mit and license shall thereafter put the number 
of such permit on every invoice for any quantity 
of beverages sold by such licensee to any whole- 
sale dealer in North Carolina. Upon the failure 
of any such licensee to comply with all the pro- 
visions of this article the commissioner of reve- 
nue may revoke such permit or license. 

Any resident manufacturer licensed under sec- 
tion 3411(96) shall not be required to post the 
bond required by this section. (1937, c. 249, s. 15.) 

§ 3411(111). 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(93) 
shall not be a valid license for such sale at retail 
until such person shall have filed with the com- 
missioner of revenue a bond in a surety company 
licensed by the insurance department to do busi- 
ness in this state in such sum as the commis- 
sioner 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 dollars 
($1,000.00). 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(93) only from wholesale distributors or bot- 
tlers licensed by the commissioner of revenue un- 
der this article who pay the tax under section 
3411(109) 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 reve- 
nue, by the purchase or sale of any of the bev- 
erages enumerated in section 3411(93) from any 
one other than a licensed wholesale distributor 
or bottler under this article shall automatically 
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 any such 
contract or agreement shall be guilty of a misde- 
meanor. (1937, c. 127, s. 519, c. 249, s. 16.) 

§ 3411(112). Tax on spirituous liquors. — In ad- 
dition to other taxes levied in this article, and in 
lieu of taxes levied in Schedule E of this act [§ 
7880(156)a et seq.] on the sale of spirituous liq- 
uors, there is hereby levied a tax of seven (7%) 
per cent on the retail price of distilled liquors of 



[107] 



§ 3411(113) 



REGULATION OF INTOXICATING LIQUORS 



§ 3411(121) 



every kind that may be sold in this state, includ- 
ing liquors sold in county liquor stores. The 
taxes levied in this section shall be payable 
monthly, at the same time and in the same man- 
ner as taxes levied in Schedule E of this act, and 
the liability for such tax shall be subject to all 
the rules, regulations and penalties provided in 
Schedule E and in other sections of this act for 
the payment of taxes. One-fourteenth of the 
taxes collected under this section are intended to 
pay the necessary expenses of the state alcohol 
control board, if such board shall be set up by act 
of this general assembly, and for other necessary 
expenses in connection with the enforcement of 
such laws as may be enacted by this general as- 
sembly for the sale of alcoholic liquors and to 
meet such appropriations there is hereby appro- 
priated and made available for the purposes 
above set forth one-fourteenth of the amount of 
taxes collected under this section, such sum to be 
allocated for such purpose by the director of the 
budget upon request of the state alcohol control 
board and expended and accounted for as other 
state funds, and the director of the budget is 
hereby given authority to estimate the revenues 
to be received under this section, to the end that 
a sufficient sum shall be made available for the 
purpose of defraying the expenses of the state 
alcohol control board until sufficient revenues 
have been collected as provided hereunder for 
said purposes: Provided, this section shall have 
no effect until and unless there is a state alcohol 
control board set up by the passage of an act of 
the present general assembly providing for county 
option control of liquor. 

Spirituous liquors, as referred to in this section, 
shall be deemed to include any alcoholic beverages 
containing an alcoholic content of more than 
twenty-four per cent (24%) by volume. (1937, 
C. 127, s. 519^, c. 249, ss. 17, 18^.) 

§ 3411(113). 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 taxable 
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 also 
require regular or special reports to be made by 
every such person, at such times and in such form 
as the commissioner may require. (1937, c. 127, 
s. 520.) 

§ 3411(114). No license for sales upon school 
property. — No license shall be issued for the sale 
of beverages enumerated in section 3411(93) up- 
on the campus or property of any public or pri- 
vate school or college in this state. (1937, c. 
127, s. 521.) 

§ 3411(115). 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. (1937, c. 127, 
s. 522.) 



§ 3411(116). 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 assem- 
bly known as the Revenue Act in administering 
taxes levied in Schedule B [§ 7880(30) et seq.] of 
said Act. (1937, c. 127, s. 523.) 

§ 3411(117). Appropriation for administration. 

— For the efficient administration of this article 
an appropriation is hereby made for the use of 
the department of revenue in addition to the ap- 
propriation in the Appropriation Bill of a sum 
equal to three per cent (3%) of the total revenue 
collections under this article to be expended un- 
der allotments made by the budget bureau of 
such part of 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 pro- 
viding materials, supplies, and other expenses 
needful to be incurred prior to the beginning of 
the next fiscal year, July first, one thousand nine 
hundred thirty-seven, the budget bureau may 
make such advance allotment from such estimate 
of revenue yield as it may find proper for the con- 
venient and efficient administration of this article. 
(1937, c. 127, s. 524.) 

§ 3411(118). Violation made misdemeanor; 
revocation of permits; forfeiture of license. — 

Whosoever violates any of the provisions of this 
article, or any of the rules and regulations pro- 
mulgated pursuant thereto, shall be guilty of a 
misdemeanor, and upon conviction thereof be 
punished by a fine or by imprisonment, or by both 
fine and imprisonment, in the discretion of the 
court. If any licensee is convicted of the viola- 
tion of the provisions of this article, or any of 
the rules and regulations promulgated pursuant 
thereto, the court shall immediately declare his 
permit revoked, and notify the county commis- 
sioners accordingly, and no permit shall there- 
after 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 permitted by law, shall, 
upon conviction thereof, forfeit his license in ad- 
dition to any punishment imposed by law for such 
offense. (1937, c. 127, s. 525.) 

§ 3411(119). Conflicting laws repealed. — All 

laws and clauses of laws in conflict with this ar- 
ticle, and including the provisions of Senate Bill 
three hundred sixty-seven, ratified on the fifth 
day of April, one thousand nine hundred thirty- 
three [§§ 3411(dd)-3411(mm)], if any such are in 
conflict, are hereby repealed. (1937, c. 127, s. 527.) 

§ 3411(120). Effective date.— All taxes levied 
in this article shall be in effect from and after 
April thirtieth, one thousand nine hundred thirty- 
seven. (1937, c. 127, s. 528.) 

Art. 16. Manufacture, etc., of Wines 

§ 3411(121). Manufacture, sale, transportation 
and importation of wines legalized; adoption of 



r los] 



§ 3449 



ROADS AND HIGHWAYS 



§ 3769 



federal regulations. — The manufacture, sale, trans- 
portation and importation in North Carolina of 
wines as defined in and licensed to be sold by 
sub-sections (b) and (c) of section 3411(93), and 
all acts supplementary thereof, are hereby in all 
respects legalized subject to the terms, conditions 
and regulations as set forth in sections 3411(92)- 
3411 (120), and all acts supplementary to and 
amendatory thereof. The "Standards of Identity 
for Wine" and the regulations relating to ''Label- 
ing and Advertising of Wine" promulgated by 
the Federal Alcohol Administration of the United 
States Treasury Department, and known respec- 
tively as Regulation Number Four, Article II, 
and Regulation Number Four, Articles III and 
VI, are hereby adopted by North Carolina, and 
incorporated and made a part of this section. 
(1937, c. 335.) 



CHAPTER 67 

RAILROADS AND OTHER CARRIERS 
Art. 5. Powers and Liabilities 

§ 3449. Obstructing highways; defective cross- 
ings; failure to repair after notice misdemeanor. 

Cited in Cashatt v. Brown, 211 N. C. 367, 190 S. F- 480. 

Art. 9. Railroad Police 

§ 3483. Railway conductors and station agents 
declared special police. 

For article discussing arrest without a warrant, see IS 
N. C. Law Rev., No. 2, p. 101. 

Art. 13. Pipe Line Companies 

§ 3542(d). Right of eminent domain conferred 
upon pipe line companies; other rights. — Any pipe 
line company transporting or conveying natural 
gas, gasoline, crude oil, or other fluid substances 
by pipe line for the public for compensation, and 
incorporated under the laws of the state of North 
Carolina, may exercise the right of eminent do- 
main under the provisions of chapter thirty-three 
of the Consolidated Statutes of North Carolina 
and acts amendatory thereof (§ 1705 et seq.), and 
for the purpose of constructing and maintaining 
its pipe lines and other works shall have all the 
rights and powers given railroads and other cor- 
porations by chapters thirty-two and sixty-seven 
of the Consolidated Statutes of North Carolina 
of one thousand nine hundred and nineteen and 
acts amendatory thereof (§§ 1695 et seq. and 3412 
et seq.), provided the pipe lines of such companies 
transporting or conveying natural gas. gasoline, 
crude oil, or other fluid substances shall originate 
within this state. Nothing herein shall prohibit 
any such pipe line company granted the right of 
eminent domain under the laws of this state from 
extending its pipe lines from within this state into 
another state for the purpose of transporting 
natural gas into this state, nor to prohibit any 
such pipe line company from conveying or trans- 
porting natural gas, gasoline, crude oil, or other 
fluid substances from within this state into an- 
other state. All such pipe lines companies shall 
be deemed public service companies and shall be 
subject to the laws of this state regulating such 
corporations. (1937, c. 280.) 

Editor's Note.— Both chapters 108 and 280 of the Public 
I,aws 1937, apply only to pipe lines originating in North 
Carolina. Chapter 108 amends § 1706. The legislature fore- 
saw a possible holding invalidating the restriction of the 



act to pipe lines "originating in North Carolina," and spec- 
ified in chapter 108 that such a holding should not invali- 
date the provision or clause containing the words, but 
merely remove the restriction. No such provision was made 
in chapter 280. These two chapters, neither referring to 
the other, covering the same subject in diverse fashion, in- 
troduce needless complexity into the law, and illustrate 
again the need for a more effective agency to draft and co- 
ordinate legislation. 15 N. C. Law Rev., No. 4, p. 364. 



CHAPTER 68 

REGISTER OF DEEDS 
Art. 1. The Office 

§ 3543(1). Four-year term for registers of 
deeds; counties excepted. — At the general elec- 
tion for the year one thousand nine hundred and 
thirty-six and quadrennially thereafter there shall 
be elected in each county of this state by the 
qualified voters thereof a register of deeds, who 
shall serve for a term of four years from the first 
Monday in December after his election and until 
his successor is elected and qualified: Provided, 
however, that this section shall not apply to Alle- 
ghany, Alexander, Ashe, Avery, Beaufort, Bladen, 
Clay, Davidson, Halifax, Harnett, Haywood, 
Hyde, Iredell, Jackson, Johnston, Macon, Mitchell, 
Orange, Rowan, Swain, Transylvania, Vance, 
Washington, Yadkin, Cherokee, Dare, Lincoln, 
and Moore counties. (1935, cc. 362, 392, 462; 
1937, c. 271.) 

Editor's Note. — The 1937 amendment struck out Stanly 
from the list of counties excepted from the operation of this 
section. 

§ 3545. Bond required. 

What Amounts to Breach of Bond. — Failure of the regis- 
ter of deeds to register written instruments properly pre- 
sented or failure to properly index and cross-index them 
is a breach of the bond required by this section. Bank 
of Spruce Pine v. McKinney, 209 N. C. 668, 184 S. F- 506. 

Art. 2. The Duties 
§ 3553. Registration of instruments. 

Indexing and Cross- Indexing Is Essential to Proper Reg- 
istration. — The indexing and cross -indexing of deeds or other 
instruments in writing filed with a register of deeds for 
registration, as required by this section, is essential to their 
proper registration. Bank of Spruce Pine v. McKinney, 209 
N. C. 668, 672, 184 S'. F. 506. 

§ 3555. Liability for failure to register. 

Failure to Properly Index and Cross- Index Is a Breach of 
Bond. — The failure of the register of deeds to register in- 
struments properly presented or his failure to properly in- 
dex and cross -index them is a breach of his statutory bond, 
§ 3545, for which he and the surety on his bond are liable 
to the person injured by such breach under this section. 
Bank of Spruce Pine v. McKinney, 209 N. C. 668, 184 S. 
F- 506. 



CHAPTER 70 

ROADS AND HIGHWAYS 

Art. 9. Construction and Maintenance; of Roads 
and Bridges 

Part 2. Bonds and Taxes for Roads and Bridges 
in the State 

§ 3767. Erection and maintenance of roads and 
bridges; county-line bridges. 

Cited in Carteret County v. Sovereign Camp, W. O. W., 
78 F. (2d) 337. 

§ 3769. Special tax to provide for bonds. 

A sufficient reason for not requiring the issuance of exe- 
cution on a judgment on county road and bridge bonds as a 



[ 109 



§ 3838(b) 



ROADS AND HIGHWAYS 



§ 3846 (bb) 



prerequisite to an application for mandamus is that the law 
under which the bonds in judgment were issued requires 
the county commissioners to levy a tax for their payment. 
Carteret County v. Sovereign Camp, W. O. W., 78 F. (2d) 
337, 338. 

It would be unreasonable to require a bondholder to levy 
execution upon property alleged to belong to the county, 
when the law under which the bonds were issued provides 
a simple method of payment if the officers of the county 
will but perform their plain duty under the law. Id. 

Art. 13. Cartways, Church Roads, and the Like 
§ 3838(b). Neighborhood public roads. 

Persons living along a highway which had been taken 
over by the State Highway Commission, and subsequently 
abandoned by it, are "interested citizens" within the mean- 
ing of this section, and may maintain a proceeding to have 
the road established as a "neighborhood public road." 
Grady v. Grady, 209 N. C. 749, 184 S. E. 512. 

Art. 15. State Highway System (1921) 

Part 1. In General 

§ 3846(a). General purpose of law; control, re- 
pair and maintenance of highways. 

See note under § 7748(b). 

Part lA. A Change of Systems 

§ 3846 (e7). No court action but by local road 
authorities. 

Cited in Reed v. State Highway, etc., Comm., 209 N. C. 
648, 184 S. E- 513. 

Part 2. State Highway Commission 

§ 3846 (j) Powers of commission. — i 
(q) The state highway and public works com- 
mission shall have authority to designate and ap- 
propriately mark certain highways of the state 
as truck routes, and any truck of a gross weight 
in excess of three tons for each axle operating on 
any highway in the state not designated by the 
state highway and Public Works Commission as 
a truck route shall at no time exceed a speed 
limit of twenty miles per hour. Any person vio- 
lating the provisions of this section shall be guilty 
of a misdemeanor. 

(r) The state highway and public works com- 
mission shall have authority, under the power of 
eminent domain and under the same procedure 
as provided for the acquirement of rights-of-way, 
to acquire title in fee simple to parcels of land for 
the purpose of exchanging the same for other 
real property to be used for the establishment of 
rights-of-way or for the widening of existing 
right-of-way or the clearing of obstructions that, 
in the opinion of the commission, constitute dan- 
gerous hazards at intersections. Real property 
may be acquired for such purposes only when 
the owner of the property needed by the com- 
mission has agreed in writing to accept the prop- 
erty so acquired in exchange for that to be used 
by the commission, and when, in the opinion of 
the commission, an economy in the expenditure 
of public funds and the improvement and con- 
venience and safety of the highway can be af- 
fected thereby. (1921, 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; 1935, c. 213, s. 1, c. 301; 
1937, c. 297, s. 2.) 

See note under § 7748(b). As to authorizing use of county 
prisoners on roads not within state systems, see § 1364(1). 

Editor's Note. — The 1937 amendment added subsections (q) 
and (r) to this section. The rest of the section, not being 
affected by the amendment, is not set out here. 

Public Laws 1937, c. 246, also amended this section by 
adding a subsection (q), as follows: "Wherever there ex- 

[1 



ists two highways of the state system of approximately 
equivalent construction, convenience and distance between 
two or more points, the state highway and public works 
commission shall have authority, when in the opinion of the 
.commission the public interest is served thereby, to desig- 
nate one of said roads for heavy or truck-line traffic be- 
tween said points, and to prohibit the use of the other or 
parallel road by heavy or truck-line traffic thereon; and in 
such instances the roads selected for heavy or truck-line 
traffic shall be so designated by signs conspicuously posted 
thereon, and the roads upon which heavy or truck-line traf- 
fic is prohibited shall likewise be so designated by signs 
conspicuously posted thereon showing the maximum load 
authorized for said roads. The operation of any vehicle 
whose gross load exceeds the maximum load shown on such 
signs over the road thus posted shall constitute a misde- 
meanor: Provided, that nothing herein shall prohibit a 
truck or other motor vehicle whose gross load exceeds that 
prescribed for the light traffic roads from using said light 
traffic road when the destination of said truck is located 
solely upon said light traffic road: Provided further, that 
nothing herein shall prohibit passenger or other light traffic 
vehicles from using any road or roads so designated for 
heavy or truck-line traffic." 

Under Brown v. United States, 263 U. S. 78, 44 S. Ct. 
92, 68 L. Ed. 171, and Dohany v. Rogers, 281 U. S. 362, 50 
S. Ct. 299, 74 I.. E- 904, 68 A. L. R. 434, it is likely that the 
taking of property for exchange purposes under the provi- 
sions of subsection (r) would be held to be for a public use. 
15 N. C. Law Rev., No. 4, p. 365. 

Part 3. Construction, Maintenance, and Repair of 

Highways 

§ 3846 (bb). Acquirement of land and deposits 
of materials; condemnation proceedings. — 

The state highway and public works commis- 
sion shall have the same authority and under the 
same provisions of law hereinbefore provided for 
construction of state highways for the acquire- 
ment of all rights of way and easements necessary 
to comply with the rules and regulations of the 
United States government for the construction of 
federal parkways in the state of North Carolina. 
The acquirement of a total of one hundred and 
twenty-five acres per mile of said parkways, in- 
cluding roadwa}' and recreational and scenic 
areas on either side thereof, shall be deemed a 
reasonable area for said purpose. That the right 
of way acquired or appropriated may, at the op- 
tion of the commission, be a fee simple title, and 
the nature and extent of the right of way and 
easements so acquired or appropriated shall be 
designated upon a map showing the location 
across each county, and, when adopted by the 
commission, shall be filed with the register of 
deeds in each county, and, upon the filing of said 
map, such title shall vest in the state highway and 
public works commission. The said commission 
is hereby authorized to convey such title so ac- 
quired to the United States government, or its 
appropriate agency, free and clear of all claims for 
compensation. All compensation contracted to be 
paid or legally assessed shall be a valid claim 
against the state highway and public works com- 
mission, payable out of the construction fund of 
said commission. (1921, c. 2, s. 22; 1923, c. 160, s. 
6; 1931, c. 145, s. 23; 1935, c. 2; 1937, c. 42.) 

Editor's Note.— The 1937 amendment inserted the second 
sentence of the above paragraph. As the rest of the section 
was not affected by the amendment it is not set out in this 
Supplement. 

The amendatory act ratified the acquirement of areas for 
Blue Ridge Parkway, prohibited cutting of timber from 
areas under consideration and provided compensation for 
temporary restraint. 

Right to Just Compensation Where Evidence Is Insuffi- 
cient to Show Taking Was for Private Purpose. — Where 
there was no evidence upon the record showing that the 
taking over of a road as part of the county system was 
for a private purpose sufficient to raise an issue of fact, 

10 1 



§ 3846 (zz) 



SALARIES AND FEES 



§ 3857(a) 



plaintiff is remitted to his rights under this section for the 
recovery of just compensation. Reed v. State Highway, 
etc., Coram, 209 N. C. 648, 184 S'. E. 513. 

Applied in Calhoun v. State Highway, etc., Comm, 208 
N. C. 424, 181 S. E. 271. 

Art. 18. State Highway Patrol 
§ 3846 (zz). Oath of office; bond. 

See § 323(b). 

§ 3846(mmm). Number of state highway patrol 
increased; subordinate officers; salaries. — The 

state highway patrol, created and existing by vir- 
tue of chapter two hundred and eighteen of the 
Public Laws of one thousand nine hundred and 
twenty-nine, as amended [§§ 3846 (yy) -3846(111)] 
shall consist of one person to be designated as 
major, and such additional subordinate officers 
and men as the commissioner of revenue, with the 
approval of the governor and advisory budget 
commission, shali direct. The captain [major], 
other officers, and members of the state highway 
patrol shall be paid such salary as may be estab- 
lished and fixed under the provisions of chapter 
two hundred seventy-seven, Public Laws of one 
thousand nine hundred and thirty-one, and chap- 
ter forty-six of the Public Laws of one thousand 
nine hundred and thirty-three, codified as sec- 
tions 7521(k) et seq. (1935, c. 324, s. 1; 1937, 
c. 313, s. 1.) 

§ 3846(mmm)l. Compliance with federal ap- 
propriation statute authorized. — In order that the 
state of North Carolina may receive the benefit 
of the appropriation provided in Senate Bill num- 
ber one hundred and five, introduced in the 
United States 'Senate, January sixth, one thousand 
nine hundred and thirty-seven, which authorizes 
the secretary of agriculture to make available for 
expenditure funds for the establishment and 
maintenance of the state highway patrols in the 
various states of the United States, the commis- 
sioner of revenue, with the consent and ap- 
proval of the governor and the council of state, 
is hereby authorized to accept and comply with 
the provisions of said act, if and when in the dis- 
cretion of the governor and council of state it be- 
comes necessary and proper to do so, in order 
that the state of North Carolina may receive such 
benefits as therein provided. (1937, c. 313, s. 2.) 

Editor's Note. — Prior to the 1937 amendment the patrol 
was limited to 121 persons, and the captain was the rank- 
ing officer. While not specified in the amendment, it seems 
that "major" should be substituted for "captain" in the 
second sentence of this section. 

§ 3846 (ooo). Additional duties and authority 
of patrol; constituted peace officers; arrest power; 
jurisdiction. 

For article discussing arrest without a warrant, see IS 
N. C. Law Rev., No. 2, p. 101. 

Art. 19. Management of County Roads Vested in 
State Highway Commission 
§ 3846(1). County roads managed by state 
highway commission; trustees of road districts 
holding over; county commissioners. 

Cited in Grady v. Grady, 209 N. C. 749, 184 S. E. 512. 

§ 3846(7). Petition by county commissioners 
to change or abandon roads or build new roads. 

Under this section the county commissioners petitioned 
that certain roads in the county be taken over as a part of 
the county system. Plaintiff, owner of part of the land 
involved, obtained a temporary injunction prohibiting the 
taking over of the road, claiming the taking was for a 
private and not a public purpose. The court found that 

[11 



the taking was for a public purpose, and dismissed the ac- 
tion, it appearing from the pleadings that the proposed 
road would give four families access to the county- seat and 
that the road would constitute a part of a through scenic 
highway. Reed v. State Highway, etc., Comm., 209 N. C. 
648, 184 S. E. 513. 

In taking over a road as a part of the highway system, 
the scenic value of such road and its necessity as a part 
of the system of scenic highways for the public may be 
considered in determining whether taking over the road is 
for a public or private purpose. Id. 



CHAPTER 71 

SALARIES AND FEES 
Art. 2. Legislative Department 

§ 3857(a). Compensation of employees of the 
general assembly; mileage. — The principal clerk 
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 seven dollars per day 
during the session of the general assembly, and 
mileage at the rate of ten cents per mile from 
their homes to Raleigh and return. The secre- 
tary to the speaker of the house of representatives, 
the secretary to the lieutenant-governor, the 
clerks to the finance and appropriation com- 
mittees of both houses, the sergeant-at-arms, the 
assistants to the engrossing clerks, the assistant 
clerks to the principal clerks and the assistant 
sergeant-at-arms of the general assembly, and the 
assistants appointed by the secretary of state to 
supervise the enrollment of bills and resolutions, 
the reading clerks of the general assembly, shall 
receive the sum of six dollars per day, and 
mileage at the rate of ten 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, except as hereinabove provided, shall each 
receive five dollars per day during the session of 
the general assembly, and mileage at the rate of 
ten cents per mile from their homes to Raleigh 
and return. The chief page of the house of rep- 
resentatives and the senate shall receive four dol- 
lars per day during the session of the general as- 
sembly and mileage at the rate of five cents a mile 
from their homes to Raleigh and return. All 
other pages authorized by either of the two 
houses shall receive three dollars per day during 
the session of the general assembly and mileage 
at the rate of five cents a mile from their homes 
to Raleigh and return. All laborers of the first- 
class authorized by law or the rules of either the 
house of representatives or the senate shall re- 
ceive three dollars and one-half 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 three 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. 1; 1933, c. 6, s. 1; 1937, cc 1, 
272.) 

Editor's Note.— The first 1937 amendment added the clerks 
to the committees on appropriations and finance to the list 
named in the second sentence. It also inserted the words 
"except as herein above provided" in the third sentence. 
The second 1937 amendment repealed the 1933 amendment 
and re-enacted the 1929 amendment, except as to pay of 
such clerks, which was raised to $6.00 per day, and pay of 
ordinary pages which was raised from $2.50 to $3.00 per day. 

1] 



§ 3872 



SALARIES AND FEES 



§ 3908 



Art. 3. Executive Department 

§ 3872. Department of agriculture. — The salary 
of the commissioner of agriculture shall be five 
thousand dollars per annum, to be paid monthly 
out of the receipts of the agricultural department. 
(Rev., s. 2749; 1901, c. 479, s. 4; 1905, c. 529; 1907, 
c. 887, s. 1; 1913, c. 58; 1921, c. 35, s. 1; 1933, c. 
282, s. 5; 1935, c. 293; 1937, c. 415.) 

Editor's Note.— The 1937 amendment increased the salary 
by five hundred dollars. 

§ 3874. Department of insurance. — The com- 
pensation of the insurance commissioner shall be 
six thousand ($6,000.00) dollars per annum, pay- 
able monthly. 

(1937, c. 342.) 

Editor's Note.— Prior to the 1937 amendment the salary of 
the commission as specified in the first sentence was $4,500 
per annum. The rest of the section, not being affected by 
the amendment, is not set out here. 

§ 3877. Adjutant-general.— The salary of the 
adjutant-general shall be five thousand dollars 
per annum. The adjutant-general shall reside at 
the state capital during his term of office. (Rev., 
s. 2750; Code, ss. 3275, 3730; 1899, c. 390, ss. 2, 3; 
1879, c. 240, s. 10; 1883, c. 283, s. 2; 1907, c. 803, s. 
1; 1911, c. 110, s. 1; 1915, c. 118; Ex. Sess. 1921.. 
c. 53; 1933, o. 282, s. 6; 1935, c. 293; 1937, c. 415.) 

Editor's Note. — The 1937 amendment increased the salary 
by five hundred dollars. 

Art. 4. Judicial Department 

§ 3884(a). Salaries of resigned or retired jus- 
tices of supreme court and judges of superior 
courts. — Every justice of the supreme court and 
judge of the superior court who has heretofore 
resigned or retired from office at the end of his 
term, or who shall hereafter resign or retire at ex- 
piration of his term, who has attained the age 
of sixty-five (65) years at the date of his resigna- 
tion or retirement, and who has served for fif- 
teen (15) years on the supreme court or on the 
superior court, or on the supreme and superior 
courts combined or twelve consecutive years on 
the supreme court, or who, having served one full 
term on either the supreme or superior court, and 
while still in active service thereon, shall have be- 
come totally disabled through accident or disease 
to carry on the duties of said office; or who by 
reason of such accident, without fault on his part, 
shall suffer such physical impairment as not to be 
able to efficiently perform the duties of his office 
and who retires at the end of his term, shall re- 
ceive for life two-thirds (2/3) of the annual sal- 
ary from time to time received by the justices of 
the supreme court or judges of superior court, 
respectively, payable monthly; provided, that any 
such justice or judge, who has or shall have 
served as such for twenty-five years or longer 
(whether continuously or not), and whose seven- 
tieth birthday shall occur within six months next 
succeeding his resignation or retirement, shall be 
entitled to all of the benefits of this section from 
and after the date of his resignation or retirement, 
and shall also be subject to the other provisions of 
this section. The provisions herein as to the 
amount of life-time pay shall relate back to and 
become effective as of the fourth day of March, 
one thousand nine hundred and twenty-one, and 
the state treasurer is authorized and directed to 
pay on the warrant of the state auditor the sal- 
ary of any justice or judge as affected by such 



provisions, less any amount heretofore paid. 
(1921, c. 125, s. 1; Ex. Sess. 1921, c. 20, ss. 1, 2; 
1927, c. 133, s. 201; 1935, cc. 233, 400; 1937, c. 199, 
s. 1.) 

Editor's Note. — The 1937 amendment, inserting the provi- 
sion as to disability through accident or disease provides: 
"The provisions of this amendatory act shall apply without 
regard to the age of the judge or justice affected." 

Art. 5. Solicitors, Jurors, and Witnesses 

§ 3890(a) Appropriation for expenses. — 

Each solicitor shall receive, in addition to the 
salary named in section three thousand eight 
hundred and ninety of the Consolidated Statutes 
of North Carolina, the sum of five hundred 
($500.00) dollars per annum, which will cover 
all of his expenses while engaged in duties con- 
nected with his office. Said sum shall be paid in 
equal monthly installments out of the state 
treasury upon warrant duly drawn thereon. (1923, 
c. 157, s. 2; 1933, c. 78, s. 2; 1937, c. 348.) 

Editor's Note. — This section,, first inserted by the act of 
1923 and providing $750 for expenses, was repealed in 1933. 
The present section was codified from the 1937 act. 

§ 3893. Fees and mileage of witnesses. 

Editor's Note.— Public Laws 1937, c. 240, provides that Pub- 
lic Iyaws 1933, c. 40, amending this section by adding the 
proviso abolishing witness fees for officers on salaries, shall 
not apply to Iredell county. 

Art. 7. County Officers 

§ 3904(j). Certain counties not subject to sec- 
tions 3904(c) -3904 (i). — Sections 3904(c) -3904(i) 
shall not apply to the counties of: Cabarrus, 
Chowan, Cleveland, Columbus, Franklin, Ire- 
dell, Lincoln, Martin, Mecklenburg, Montgomery, 
Moore, New Hanover, Pitt, Richmond, Robeson, 
Rockingham, Surry, Union, Jackson, Swain, Bun- 
combe, Rowan, Orange, Avery, Wayne, Nash, 
Wilson, Bladen, Cumberland, Ashe, Edgecombe, 
Tyrrell, Person, Duplin, Vance, Davie, Guilford, 
Onslow, Washington, Alleghany, Haywood, 
Davidson, Burke, Stokes, Franklin, Catawba, Le- 
noir, Jones, Pamlico, Caldwell, Caswell. Pro- 
vided that section 3904(c) shall apply to Iredell 
county. (1935, c. 379, s. 8, c. 494; 1937, cc. 148, 
149, 290.) 

Editor's Note. — The 1937 amendments struck out Bertie 
and Yancey from the list of counties in this section, and 
added the proviso as to Iredell county. 

§ 3907. Local modification as to fees of regis- 
ters of deeds. — 

In Montgomery county the register of deeds 
shall receive, in addition to all other fees now 
allowed by law for recording instruments au- 
thorized to be registered, the sum of ten cents 
each per name in excess of four, for cross-index- 
ing such names which appear on all instruments 
presented in his office and recorded therein. 
(1937, c. 137.) 

Editor's Note.— The 1937 amendment added the above pro- 
vision to this section. The rest of the section, not being af- 
fected by the amendment, is not set out here. 

§ 3908. Sheriffs. 

New Trial Awarded Where Number of Prisoners Conveyed 

Is Not Shown.— Where, in an action by a sheriff to recover 
compensation for transportation of prisoners under this sec- 
tion, it does not appear from the facts agreed how many 
prisoners were conveyed to jails in other counties by the 
sheriff or how many miles such prisoners were conveyed, 
a new trial will be awarded in order that the facts nec- 
essary to a determination of the question may be found 
and a proper adjudication made thereon. Patterson v. 
Swain County, 208 N. C. 453, 181 S. E. 329. 



[112] 



§ 3909 



UNIFORM PRINCIPAL AND INCOME ACT 



§ 4035(2) 



§ 3909. Local modifications as to fees of 
sheriffs. — 

The sheriff of Wayne county shall receive the 
following fees, in addition to other fees allowed 
by law, for services of the following processes: 

For arrest fee for state warrant $ 2.00 

For arrest fees for capias 2.00 

Fees for claim and delivery 3.00 

Fees for ejectment proceedings 2.00 

Fees for service of executions on civil 

judgments 2.00 

(1937, c. 254.) 

Editor's Note. — The 1937 amendment added the above 
paragraph at the end of this section. The rest of the sec- 
tion, not being affected by the amendment, is not set out 
here. 

Art. 8. Township Officers 
§ 3923. Justice of the peace. 

Editor's Note. — For schedule of fees in Wake and War- 
ren counties, see Public laws 1937, chapters 136 and 187, 
respectively. 



CHAPTER 71A 

SECURITIES LAW 

§ 3924 (aa). Administration of Capital Issues 
Law transferred to secretary of state. — All of the 

authority, rights, powers, duties and functions 
heretofore vested in the utilities commission and 
the utilities commissioner by virtue of chapter 
one hundred forty-nine, Public Laws one thou- 
sand nine hundred twenty-seven, and amendments 
thereto [§§ 3924(a)-3924(z)], relating to the sales 
of ''stocks, bonds and other securities," known as 
the "Capital Issues Law," are hereby transferred 
to the secretary of state of the State of North 
Carolina, who shall thenceforth perform all the 
functions with relation to the subjects dealt with 
in said chapter one hundred forty-nine, Public 
Laws one thousand nine hundred twenty-seven, 
and amendments thereto, in such a manner as pre- 
scribed in said acts, and with as full authority as 
if the said secretary of state had been originally 
and specifically named therein. (1937, c. 194.) 



CHAPTER 72 

SHERIFF 
Art. 3. Duties of Sheriff 

§ 3936. Execute process; penalty for false re- 
turn. 

Where Sheriff's Motion for Non-Suit iProperly Granted.— 

Plaintiffs instituted action against the sheriff and bondsman 
for damages caused by alleged false return of summons. 
The sheriff's return was regular upon its face, but each 
plaintiff testified that service was not made on him, but 
did not testify as to whether service was made on the 
other plaintiff, and there was no evidence corroborating 
plaintiffs' testimony. It was held that defendants' motion 
for judgment as of non-suit was properly granted. Pen- 
ley v. Rader, 208 N. C. 702, 182 S. E. 337. 



CHAPTER 73 

STATUTORY CONSTRUCTION 

§ 3947(a). No public-local or private act may 
amend or repeal public law unless latter is re- 
ferred to in caption. 

The citation to this section should read: (1929, c. 250, 
s. 1.) 

N. C. Supp.— 8 



CHAPTER 78 

TRUSTEES 
Art. 1. Investment and Deposit of Trust Funds 
§ 4018. Certain investments deemed cash. 

Conceding that a bank breached its duty as trustee in 
failing to sell certain stock for reinvestment under this 
section, its wrongful act will not relieve the estate of the 
statutory liability to the prejudice of depositors and cred- 
itors of the bank, who had no notice of the terms of the 
trust, and were entitled to regard the statutory liability 
as additional security, and notice to the bank not being 
notice to the depositors and other creditors, since the fact 
of the establishment of the trust did not appear upon the 
books of the bank. Hood v. North Carolina Bank, etc., 
Co., 209 N. C. 367, 184 &'. E. 51. 

§ 4018(a). Investment of trust funds in county 
bonds. 

Cited, in dissenting opinion, in Hood v. North Carolina 
Bank, etc., Co., 209 N. C. 367, 184 S. E. 51. 

§ 4018(b). Investment in building, savings and 
loan associations. — 

Provided further, that such funds may be in- 
vested in stock of any federal savings and loan 
association organized under the laws of the United 
States, upon approval of an officer of the Home 
Loan Bank at Winston-Salem, or such other gov- 
ernmental agency as may hereafter have super- 
vision of such associations. (1933, c. 549, s. 1; 
1937, c. 14.) 

Editor's Note.— The 1937 amendment added the above pro- 
viso at the end of this section. The rest of the section, not 
being affected by the amendment, is not set out. 

§ 4018(c). Investment in registered securities. 

As to effect of section, see 13 N. C. law Rev., No. 4, 
p. 386. 



CHAPTER 78A 

UNIFORM PRINCIPAL AND INCOME ACT 

§ 4035(1). Definitions. — "Principal" as used in 
this chapter means any realty or personalty which 
has been so set aside or limited by the owner 
thereof or a person thereto legally empowered that 
it and any substitutions for it are eventually to be 
conveyed, delivered or paid to a person, while the 
return therefrom or use thereof or any part of 
such return or use is in the meantime to be taken 
or received by or held for accumulation for the 
same or other person; 

"Income" as used in this chapter means the re- 
turn derived from principal; 

"Tenant" as used in this chapter means the per- 
son to whom income is presently or currently pay- 
able, or for whom it is accumulated or who is en- 
titled to the beneficial use of the principal presently 
and for a time prior to its distribution; 

"Remainderman" as used in this chapter means 
the person ultimately entitled to the principal, 
whether named or designated by the terms of the 
transaction by which the principal was established 
or determined by operation of law; 

"Trustee" as used in this chapter includes the 
original trustee of any trust to which the principal 
may be subject and also any succeeding or added 
trustee. (1937, c. 190, s. 1.) 

§ 4035(2). Application of the chapter; powers of 
settlor. — This chapter shall govern the ascertain- 
ment of income and principal, and the apportion- 
ment of receipts and expenses between tenants and 
113 ] 



§ 4035(3) 



UNIFORM PRINCIPAL AND INCOME ACT 



§ 4085(5) 



remaindermen, in all cases where a principal has 
been established with, or, unless otherwise stated 
hereinafter, without the interposition of a trust; 
except that in the establishment of the principal 
provision may be made touching all matters cov- 
ered by this chapter, and the person establishing 
the principal may himself direct the manner of as- 
certainment of income and principal and the ap- 
portionment of receipts and expenses or grant dis- 
cretion to the trustee or other person to do so, and 
such provision and direction, where not otherwise 
contrary to law, shall control notwithstanding this 
chapter. (1937, c. 190, § 2.) 

§ 4035(3). Income and principal; disposition. — 

(1) All receipts of money or other property paid 
or delivered as rent of realty or hire of personalty 
or dividends on corporate shares payable other 
than in shares of the corporation itself, or interest 
on money loaned, or interest on or the rental or 
use value of property wrongfully withheld or 
tortiously damaged, or otherwise in return for the 
use of principal, shall be deemed income unless 
otherwise expressly provided in this chapter. 

(2) All receipts of money or other property paid 
or delivered as the consideration for the sale or 
other transfer, not a leasing or letting, or property 
forming a part of the principal, or as a repayment 
of loans, or in liquidation of the assets of a cor- 
poration, or as the proceeds of property taken on 
eminent domain proceedings where separate awards 
to tenant and remainderman are not made, or as 
proceeds of insurance upon property forming a 
part of the principal except where such insurance 
has been issued for the benefit of either tenant or 
remainderman alone, or otherwise as a refund or 
replacement or change in form of principal, shall 
be deemed principal unless otherwise expressly 
provided in this chapter. Any profit or loss re- 
sulting upon any change in form of principal shall 
inure to or fall upon principal. 

(3) All income after payment of expenses prop- 
erly chargeable to it shall be paid and delivered to 
the tenant or retained by him if already in his 
possession or held for accumulation where legally 
so directed by the terms of the transaction by 
which the principal was established, while the 
principal shall be held for ultimate distribution as 
determined by the terms of the transaction by 
which it was established or by law. (1937, c. 190, 
s. 3.) 

§ 4035(4). Apportionment of income. — When- 
ever a tenant shall have the right to income from 
periodic payments, which shall include rent, inter- 
est on loans and annuities, but shall not include 
dividends on corporate shares, and such right shall 
cease and determine by death or in any other man- 
ner at a time other than the date when such 
periodic payments should be paid, he or his per- 
sonal representative shall be entitled to that por- 
tion of any such income next payable which 
amounts to the same percentage thereof as the 
time elapsed from the last due date of such periodic 
payments to and including the day of the determi- 
nation of his right is of the total period during 
which such income would normally accrue. The 
remaining income shall be paid to the person next 
entitled to income by the terms of the transaction 
by which the principal was established. But no 
action shall be brought by the trustee or tenant to 

[1 



recover such apportioned income or any portion 
thereof until after the day on which it would have 
become due to the tenant but for the determination 
of the right of the tenant entitled thereto. The 
provisions of this section shall apply whether an 
ultimate remainderman is specifically named or 
not. Likewise when the right of the first tenant 
accrues at a time other than the payment dates of 
such periodic payments, he shall only receive that 
portion of such income which amounts to the same 
percentage thereof as the time during which he 
has been so entitled is of the total period during 
which such income would normally accrue; the 
balance shall be a part of the principal. (1937, c. 
190, s. 4.) 

§ 4035(5). Corporate dividends and share rights. 

— (1) All dividends on shares of a corporation 
forming a part of the principal which are payable 
in the shares of the corporation shall be deemed 
principal. Subject to the provisions of this sec- 
tion, all dividends payable otherwise than in the 
shares of the corporation itself, including ordinary 
and extraordinary dividends and dividends payable 
in shares or other securities or obligations of cor- 
porations, other than the declaring corporation, 
shall be deemed income. Where the trustee shall 
have the option of receiving a dividend, either in 
cash or in the shares of the declaring corporation, 
it shall be considered as a cash dividend and 
deemed income, irrespective of the choice made by 
the trustee. 

(2) All rights to subscribe to the shares or other 
securities or obligations of a corporation accruing 
on account of the ownership of shares or other 
securities in such corporation, and the proceeds of 
any sale of such rights, shall be deemed principal. 
All rights to subscribe to the shares or other se- 
curities or obligations of a corporation accruing 
on account of the ownership of shares or other 
securities in another corporation, and the proceeds 
of any sale of such rights, shall be deemed income. 

(3) Where the assets of a corporation are liqui- 
dated, amounts paid upon corporate shares as cash 
dividends declared before such liquidation oc- 
curred or as arrears of preferred or guaranteed 
dividends shall be deemed income; all other 
amounts paid upon corporate shares on disburse- 
ments of the corporate assets to the stockholders 
shall be deemed principal. All disbursements of 
corporate assets to the stockholders, whenever 
made, which are designated by the corporation as 
a return of capital or division of corporate prop- 
erty shall be deemed principal. 

(4) Where a corporation succeeds another by 
merger, consolidation or reorganization or other- 
wise acquires its assets, and the corporate shares 
of the succeeding corporation are issued to the 
shareholders of the original corporation in like 
proportion to, or in substitution for, their shares 
of the original corporation, the two corporations 
shall be considered a single corporation in applying 
the provisions of this section. But two corpora- 
tions shall not be considered a single corporation 
under this section merely because one owns cor- 
porate shares of or otherwise controls or directs 
the other. 

(5) In applying this section the date when a 
dividend accrues to the person who is entitled to it 
shall be held to be the date specified by the cor- 

14] 



§ 4035(6) 



UNIFORM PRINCIPAL AND INCOME ACT 



§ 4035(11) 



poration as the one on which the stockholders en- 
titled thereto are determined, or in default thereof 
the date of declaration of the dividend. (1937, c. 
190, s. 5.) 

§ 4035(6). Premium and discount bonds. — 

Where any part of the principal consists of bonds 
or other obligations for the payment of money, 
they shall be deemed principal at their inventory 
value or in default thereof at their market value at 
the time the principal was established, or at their 
cost where purchased later, regardless of their par 
or maturity value; and upon their respective ma- 
turities or upon their sale any loss or gain realized 
thereon shall fall upon or inure to the principal. 
(1937, c. 190, s. 6.) 

§ 4035(7). Principal used in business. — (l) 

Whenever a trustee or a tenant is authorized by 
the terms of the transaction by which the prin- 
cipal was established, or by law, to use any part 
of the principal in the continuance of a business 
which the original owner of the property com- 
prising the principal had been carrying on, the net 
profits of such business attributable to such prin- 
cipal shall be deemed income. 

(2) Where such business consists of buying and 
selling property, the net profits for any period 
shall be ascertained by deducting from the gross 
returns during and the inventory value of the prop- 
erty at the end of such period, the expenses during 
and the inventory value of the property at the 
beginning of such period. 

(3) Where such business does not consist of 
buying and selling property, the net income shall 
be computed in accordance with the customary 
practice of such business, but not in such way as 
to decrease the principal. 

(4) Any increase in the value of the principal 
used in such business shall be deemed principal, 
and all losses in any one calendar year, after the 
income from such business for that year has been 
exhausted, shall fall upon principal. (1937, c. 190, 
s. 7.) 

§ 4035(8). Principal comprising animals. — 

Where any part of the principal consists of animals 
employed in business, the provisions of section 
4035(7) shall apply; and in other cases where the 
animals are held as a part of the principal, partly 
or wholly because of the offspring or increase 
which they are expected to produce, all offspring 
or increase shall be deemed principal to the extent 
necessary to maintain the original number of such 
animals and the remainder shall be deemed in- 
come; and in all other cases such offspring or in- 
crease shall be deemed income. (1937, c. 190, s. 8.) 

§ 4035(9). Disposition of natural resources. — 

Where any part of the principal consists of prop- 
erty in lands from which may be taken timber, 
minerals, oils, gas or other natural resources, and 
the trustee or tenant is authorized by law or by 
the terms of the transaction by which the principal 
was established to sell, lease or otherwise develop 
such natural resources, and no provision is made 
for the disposition of the net proceeds thereof after 
the payment of expenses and carrying charges on 
such property, such proceeds, if received as rent 
on a lease, shall be deemed income, but if received 
as consideration, whether as royalties or otherwise, 
for the permanent severance of such natural re- 

[1 



sources from the lands, shall be deemed principal 
to be invested to produce income. Nothing in this 
section shall be construed to abrogate or extend 
any right which may otherwise have accrued by 
law to a tenant to develop or work such natural 
resources for his own benefit. (1937, c. 190, s. 9.) 

§ 4035(10). Principal subject to depletion. — 

Where any part of the principal consists of prop- 
erty subject to depletion, such as leaseholds, pat- 
ents, copyrights and royalty rights, and the trustee 
or tenant in possession is not under a duty to 
change the form of the investment of the principal, 
the full amount of rents, royalties or return from 
the property shall be income to the tenant; but 
where the trustee or tenant is under a duty, aris- 
ing either by law or by the terms of the transac- 
tion by which the principal was established, to 
change the form of the investment, either at once 
or as soon as it may be done without loss, then the 
return from such property not in excess of five per 
centum per annum of its fair inventory value, or 
in default thereof its market value at the time the 
principal was established, or at its cost where pur- 
chased later, shall be deemed income and the re- 
mainder principal. (1937, c. 190, s. 10.) 

§ 4035(11). Unproductive estate. — (1) Where 
any part of a principal in the possession of a trustee 
consists of realty or personalty which for more 
than a year, and until disposed of as hereinafter 
stated, has not produced an average net income of 
at least one per centum per annum of its fair in- 
ventory value, or in default thereof its market 
value at the time the principal was established, or 
of its cost where purchased later, and the trustee 
is under a duty to change the form of the invest- 
ment as soon as it may be done without sacrifice 
of value and such change is delayed, but is made 
before the principal is finally distributed, then the 
tenant, or in case of his death his personal repre- 
sentative, shall be entitled to share in the net pro- 
ceeds received from the property as delayed in- 
come to the extent hereinafter stated. 

(2) Such income shall be the difference between 
the net proceeds received from the property and 
the amount which, had it been placed at simple in- 
terest at the rate of five per centum per annum 
for the period during which the change was de- 
layed, would have produced the net proceeds at 
the time of change, but in no event shall such in- 
come be more than the amount by which the net 
proceeds exceed the fair inventory value of the 
property or in default thereof its market value at 
the time the principal was established or its cost 
where purchased later. The net proceeds shall 
consist of the gross proceeds received from the 
property, less any expenses incurred in disposing 
of it and less all carrying charges which have been 
paid out of principal during the period while it has 
been unproductive. 

(3) The change shall be taken to have been de- 
layed from the time when the duty to make it first 
arose, which shall be presumed, in the absence of 
evidence to the contrary, to be one year after the 
trustee first received the property if then unpro- 
ductive, otherwise one year after it became unpro- 
ductive. 

(4) If the tenant has received any income from 
the property or has had any beneficial use thereof 
during the period while the change has been de- 

15] 



§ 4035(12) 



WIDOWS 



§ 4103 



fayed, his share of the delayed income shall be re- 
duced by the amount of such income received or 
the value of the use had. 

(5) In the case of successive tenants the delayed 
income shall be divided among them or their repre- 
sentatives according to the length of the period for 
which each was entitled to income. (1937, c. 190, 
s. 11.) 

§ 4035(12). Expenses; trust estates. — (1) All or- 
dinary expenses incurred in connection with the 
trust estate or with its administration and manage- 
ment, including regularly recurring taxes assessed 
against any portion of the principal, water rates, 
premiums on insurance taken upon the estates of 
both tenant and remainderman, interest on mort- 
gages on the principal, ordinary repairs, trustees' 
compensation except commissions computed on 
principal, compensation of assistants, and court 
costs and attorneys' and other fees on regular ac- 
countings, shall be paid out of income. But such 
expenses where incurred in disposing of, or as 
carrying charges on, unproductive estate as de- 
fined in section 4035(11), shall be paid out of prin- 
cipal, subject to the provisions of sub-section two 
of section 4035(11). 

(2) All other expenses, including trustee's com- 
missions computed upon principal, cost of invest- 
ing or reinvesting principal, attorneys' fees and 
other costs incurred in maintaining or defending 
any action to protect the trust or the property or 
assure the title thereof, unless due to the fault or 
cause of the tenant, and cost of, or assessments 
for, improvements to property forming part of the 
principal, shall be paid out of principal. Any tax 
levied by any authority, federal, state or foreign, 
upon profit or gain defined as principal under, the 
terms of sub-section two of section 4035(3) shall 
be paid out of principal, notwithstanding said tax 
may be denominated a tax upon income by the 
taxing authority. 

(3) Expenses paid out of income according to 
sub-section one which represent regularly recur- 
ring charges shall be considered to have accrued 
from day to day, and shall be apportioned on that 
basis whenever the right of the tenant begins or 
ends at some date other than the payment date of 
the expenses. Where the expenses to be paid out 
of income are of unusual amount, the trustee may 
distribute them throughout an entire year or part 
thereof, or throughout a series of years. After 
such distribution, where the right of the tenant 
ends during the period, the expenses shall be ap- 
portioned between tenant and remainderman on the 
basis of such distribution. 

(4) Where the costs of, or special taxes or as- 
sessments for, an improvement representing an ad- 
dition of value to property held by the trustee as 
part of principal are paid out of principal, as pro- 
vided in sub-section two, the trustee shall reserve 
out of income and add to the principal each year 
a sum equal to the cost of the improvement di- 
vided by the number of years of the reasonably 
expected duration of the improvement. (1937, c. 
190, s. 12.) 

§ 4035(13). Expenses; non-trust estates. — (1) 

The provisions of section 4035(12), so far as ap- 
plicable and excepting those dealing with costs of, 
or special taxes, or assessments for, improvements 
to property, shall govern the apportionment of ex- 



penses between tenants and remaindermen where 
no trust has been created, subject, however, to any 
legal agreement of the parties or any specific di- 
rection of the taxing or other statutes; but where 
either tenant or remainderman has incurred an ex- 
pense for the benefit of his own estate, and with- 
out the consent or agreement of the other, he shall 
pay such expense in full. 

(2) Subject to the exceptions stated in sub-sec- 
tion one the cost of, or special taxes or assessments 
for, an improvement representing an addition of 
value to property forming part of the principal 
shall be paid by the tenant, where such improve- 
ment cannot reasonably be expected to outlast the 
estate of the tenant. In all other cases a portion 
thereof only shall be paid by the tenant, while the 
remainder shall be paid by the remainderman. 
Such portion shall be ascertained by taking that 
percentage of the total which is found by dividing 
the present value of the tenant's estate by the 
present value of an estate of the same form as 
that of the tenant, except that it is limited for a 
period corresponding to the reasonably expected 
duration of the improvement. The computation of 
present values of the estates shall be made on the 
expectancy basis set forth in the "American Ex- 
perience Tables of Mortality," and no other evi- 
dence of duration or expectancy shall be con- 
sidered. (1937, c. 190, s. 13.) 

§ 4035(14). Uniformity of interpretation. — This 
chapter shall be so interpreted and construed as to 
effectuate its general purpose to make uniform the 
law of those states which enact it. (1937, c. 190, 
s. 14.) 

§ 4035(15). Title of chapter.— This chapter may 
be cited as the Uniform Principal and Income Act. 
(1937, c. 190, s. 15.) 



CHAPTER 80 

WIDOWS 
Art. 2. Dower 

§ 4101. Dower not affected by conveyance of 
husband; exception. 

Wife Not Joining in Execution of Deeds of Trust Ac- 
quires No Dower Right. — Where a debt secured by a pur- 
chase money deed of trust was divided, and two deeds of 
trust were substituted for the original deed of trust, which 
was canceled, and the wife of the grantee did not join in 
executing any of the deeds of trust, she acquired no dower 
right in the land, the original debt for the purchase money 
not having been extinguished. Case v. Fitzsimons, 209 N. 
C. 783, 184 S. E- 818. 

§ 4103. Conveyance of home site without wife's 
signature. — 

Provided further, that all married women under 
the age of twenty-one shall have the same privilege 
to renounce their dower rights in and to the home 
site as is now conferred upon married women 
twenty-one years and over, and the deed or other 
conveyances thereof made by the owner of a home 
site with the voluntary signature and assent of his 
wife, signified on her private examination accord- 
ing to law, even though the wife be under twenty- 
one years of age, shall be valid and immediately 
pass possession and title thereto as though said 
married women were twenty-one years or over: 
Provided further, that all conveyances of a home 
site, as denned in this section, heretofore made 



[116] 



§ 4103(b) 



WILLS 



§ 4159(a) 



by the owner thereof, with the voluntary signature 
and assent of his wife, signified on her private ex- 
amination according to law, shall be valid and pass 
the title and possession thereto as of the date 
thereof, even though the wife of said owner was 
under twenty-one years of age at the time of such 
signature and assent. (1919, c. 123; 1937, c. 69.) 

Editor's Note.— The 1937 amendment directed that the 
above provisos be added at the end of this section. The 
rest of the section, not being affected by the amendment, 
is not set out. 

In Coker v. Virginia-Carolina Joint-Stock Land Bank, 208 N. 
C. 41, 178 S. E- 863, it was held that § 4103(b) had no ap- 
plication where a minor's wife joined in a mortgage placed 
by her husband upon his home site, and declared void the 
mortgage upon its disaffirmance by the wife within three 
years after she attained her majority. In order to obviate 
such a result in the future, the amendment was passed to 
make valid and binding the properly executed renunciation 
of her dower rights in her husband's home site by a mar- 
ried woman under the age of 21. This amendment is log- 
ical and will tend further to stabilize real estate titles. 
15 N. C. Law Rev., No. 4, pp. 354, 355. 

§ 4103(b). Renouncement of dower. 

See 13 N. C. Law Rev., No. 4, p. 375, for an analysis 
of this section, where it was stated that P. L. 1923, ch. 
67, § 2, which was amended by this section, was itself 
an amendment to § 2180. 

Art. 4. Year's Allowance 

Part 1. Nature of Allowance 

§ 4109. Amount allowed. — Except in cases in 
which a large allowance is hereinafter provided 
for, the value of a year's allowance shall be five 
hundred dollars, and one hundred fifty dollars in 
addition thereto for every member of the family 
besides the widow. (Rev., s. 3092; Code, s. 2118; 
1868-9, c. 93, s. 10; 1937, c. 225.) 

Editor's Note. — The 1937 amendment increased the amounts 
provided for in this section from three to five hundred 
dollars, and from one to one hundred fifty dollars, respec- 
tively. 



CHAPTER 81 

WILLS 
Art. 1. Execution of Will 
§ 4131. Formal execution. 

Applied in In re Will of Roediger, 209 N. C. 470, 184 S. 
E- 74. 

Cited in Reynolds v. Reynolds, 208 N. C. 578, 182 S. E- 
341. 

Art. 2. Revocation of Will 

§ 4133. Revocation by writing or by cancella- 
tion or destruction. 

Interlineations and Annotations Held Insufficient to Show 
Revocation. — Where testator, in his own handwriting, makes 
certain interlineations and annotations upon his nuncupative 
will and marks through certain words and it appears that 
such alterations are insufficient to constitute a holographic 
will and were made with the intent of altering the will at 
some future date, but that such alterations were not made 
with the intent to revoke the nuncupative will in whole or 
in part, such interlineations and annotations are insufficient 
to show a revocation of the nuncupative will, intent to re- 
voke being essential to revocation by defacement or oblit- 
eration of the will by testator under this section. In re 
Will of Roediger, 209 N. C. 470, 184 S. E. 74. 

Art. 3A. Depository for Wills 

§ 4138(a). Depositories in offices of clerks of 
superior court where living persons may file wills. 

— The clerk of the superior court in each county 
of North Carolina shall be required to keep a re- 
ceptacle or depository in which any person who 



desires to do so may file his or her will for safe 
keeping; and the clerk shall make a charge of fifty 
cents (50c) for the filing of such will, and shall, 
upon written request of the testator, or the duly 
authorized agent or attorney for the testator, per- 
mit said will or testament to be withdrawn from 
said depository or receptacle at any time prior to 
the death of the testator: Provided, that the con- 
tents of said will shall not be made public or open 
to the inspection of any one other than the testa- 
tor or his duly authorized agent until such time 
as the said will shall be offered for probate. 

This section shall not apply to Guilford county. 
(1937, c. 435.) 

Editor's Note. — This section, which makes it possible for 
a testator during his lifetime to file his will for safekeep- 
ing with the probate judge, represents a rather progressive 
step in the law of wills. If taken advantage of by tes- 
tators, it may prevent the loss or fraudulent destruction 
of many validly executed wills, and may tend to prevent 
the offer of forged wills for probate and contests of wills 
upon the grounds of fraud, undue influence, and mental 
incapacity. Similar statutes have been enacted in several 
states in this country. 15 N. C. I,aw Rev., No. 4, p. 353. 

Art. 4. Probate of Will 
§ 4145. Probate conclusive until vacated. 

Title of Innocent Purchasers Not Affected by Judgment 
Setting Aside Will. — Where the devisees named in a will, 
which has been duly probated in common form, sell and dis- 
pose of part of the lands devised to innocent purchasers 
for value without notice, and thereafter caveat proceedings 
are instituted and the will set aside, the heirs at law, by 
operation of the judgment setting aside the will, become 
tenants in common in the lands not disposed of, but the 
title conveyed by the devisees named in the paper writing 
to purchasers for value without notice, or knowledge of 
facts from which a purpose to file caveat proceedings -could 
be intimated, is not affected, the probate in common form 
being conclusive evidence of the validity of the will until it 
is attacked by caveat proceedings duly instituted. White- 
hurst v. Hinton, 209 N. C. 392, 184 S. E- 66. 

When Devisees Entitled to Rents and Profits until Pro- 
bate Set Aside. — Where there is no evidence tending to 
show that at any time prior to the institution of the caveat 
proceeding, the defendants, or their ancestors, had any 
knowledge or intimation that the plaintiffs would attack 
the validity of the will and there is no evidence tending 
to show that any of the devisees in said will procured its 
execution by undue or fraudulent influence, hence the de- 
fendants and their ancestors were entitled to the rents and 
profits of the lands devised to them until the probate was 
set aside and the will adjudged void. Whitehurst v. Hin- 
ton, 209 N. C. 392, 404, 184 S. E. 66. 

Art. 5. Caveat to Will 
§ 4158. When and by whom caveat filed. 

Good Faith Claimants Protected until Probate Attacked. 

— All persons who claim in good faith under a will which 
has been duly probated in common form as provided by 
statute are protected by its provisions, until the probate 
is attacked by a caveat proceeding instituted as provided 
by this section. Whitehurst v. Hinton, 209 N. C. 392, 403, 
184 S. E. 66. 
Persons Having Pecuniary Interest May Caveat. — 
Delete the citation of In re Will of Davis in the para- 
graph under this catchline and substitute in lieu thereof; 
182 N. Y. 472. 

Applied in In re Will of Roediger, 209 N. C. 470, 184 S. 
E. 74. 

§ 4159. Bond given and cause transferred to 
trial docket. 

The probate of a will in solemn form is a proceeding in 
rem, and the issue raised by the caveat must be tried by a 
jury and the propounder and caveator may not waive trial 
by jury and submit the issue to the court under an agreed 
statement of facts. In re Will of Roediger, 209 N. C. 470, 
184 S. E. 74. 

§ 4159(a). Prosecution bond required in actions 
to contest wills. — When any action is instituted to 



[117] 



§ 4161 



CRIMES AND PUNISHMENTS 



§ 4226 



contest a will the clerk of the superior court will 
require the prosecution bond required in other 
civil actions: Provided, however, that provisions 
for bringing suit in forma pauperis shall also apply 
to the provisions of this section. (1937, c. 383.) 

Editor's Note. — The purpose of this section is not entirely- 
clear. The usual method of contesting a will is to file a 
caveat, either at the time the will is presented for pro- 
bate, or within seven years thereafter. This is said to 
be neither a civil action nor a special proceeding, but is 
in the nature of a proceeding in rem, in which the pro- 
pounder has the burden of establishing the formal execu- 
tion of the will, and the caveators the burden of showing 
that it is not a valid will. It may be the purpose of the 
statute to require the propounder to give bond, when a 
caveat is filed, so as to have the costs secured by both 
parties. 15 N. C. Law Rev., No. 4, p. 352. 

§ 4161. Caveat suspends proceedings under will. 

The filing of a caveat suspends further proceedings in 

the administration of the estate, but does not deprive the 
executor or executrix of the right to the possession of the 
assets of the estate. Elledge v. Hawkins, 208 N. C. 757. 
182 S. E- 468. 

Art. 6. Construction of Will 
§ 4162. Devise presumed to be in fee. 

Section Does Not Apply to Devise to Trustee. — Where 
a devise created no interest in certain lands in favor of tes- 
tatrix' husband, but devised the lands to him in an ac- 
tive trust for the purpose of carrying out the wishes of 
her father for the care of his widow, this section has no 
application to the devise to the husband as trustee in an 
active trust with direction for the vesting of the lands in 
her heirs upon the termination of the trust. Stephens v. 
Clark, 211 N. C. 84, 189 S. E- 191. 

Devise Creating a Life Estate. — In Alexander v. Alexan- 
der, 210 N. C. 281, 186 S. E. 319, it was held that the de- 
vise created an estate limited at most to the life of the 
widow, and did not convey to the widow a fee simple, not- 
withstanding the provisions of this section and notwith- 
standing the rule that a gift of an estate to a person gen- 
erally or indefinitely with power of disposition ordinarily 
carries the fee, since it is apparent from the words of the 
devise that testator did not intend to confer the fee simple. 

Applied in Morris v. Waggoner, 209 N. C. 183, 183 S. E- 
353. 

§ 4166. Lapsed and void devises pass under re- 
siduary clause. 

This section should not be construed with § 4168. Nei- 
ther section is ambiguous and they are not interrelated. 
Beach v. Gladstone, 207 N. C. 876, 877, 178 S. E- 546. 

Legacy Not Lapsed by Fact That Legatee Predeceased 
Testator.— In Beach v. Gladstone, 207 N. C. 876, 178 S. E- 
546, a judgment that a legacy did not lapse by reason of 
fact that legatee predeceased testator is affirmed, it ap- 
pearing that legatee would have been distributee of testa- 
tor had she survived him. 



CHAPTER 82 

CRIMES AND PUNISHMENTS 
SUBCHAPTER I. GENERAL PROVISIONS 
Art. 1. Felonies and Misdemeanors 
§ 4171. Felonies and misdemeanors defined. 

Indictment Must Use Word "Feloniously." — 

In accord with original. See State v. Callett, 211 N. 
C. 563, 191 S. E- 27. 

Art. 2. Principals and Accessories 

§ 4175. Accessories before the fact; trial and 
punishment. 

Sufficient Evidence to Submit Question to Jury. — Evi- 
dence tending to show that defendant knew of and par- 
ticipated in the plans or preparations made for the killing 
of deceased, that defendant procured a coat for the killer 
and furnished an automobile as a means of flight after 
the murder had been committed is held sufficient to be 



submitted to the jury on an indictment drawn under this 
section. State v. Williams, 208 N. C. 707, 182 S. E. 131. 

Applied in State v. Holland, 211 N. C. 284, 189 S. E- 761. 

Cited in State v. Hampton, 210 N. C. 283, 186 S. E- 251; 

In re Malicord, 211 N. C. 684, 191 S. E. 730. 

SUBCHAPTER IV. OFFENSES AGAINST 
THE PERSON 

Art. 7. Homicide 

§ 4200. Murder in the first and second degree 
defined; punishment. 

II. MURDER IN GENERAL. 

Applied in State v. Hodgin, 210 N. C. 371, 186 S. E. 495. 
Cited in State v. Home, 209 N. C. 725, 184 S. E. 470. 

IV. MURDER IN THE SECOND DEGREE. 

A killing with a deadly weapon raises the presumption 

that the homicide was murder in the second degree, and if 

the State seeks a conviction of murder in the first degree 
it has the burden of proving beyond a reasonable doubt 
that the homicide was committed with deliberation and 
premeditation. State v. Perry, 209 N. C. 604, 184 S. E. 
545. 

V. PLEADING AND PRACTICE. 

Remedy for Alternative Indictment Held to Be by Mo- 
tion for Bill of Particulars. — After the return of a verdict 
of guilty of murder in the first degree, defendant moved 
in arrest of judgment for that the indictment was alterna- 
tive, indefinite, and uncertain. It was held that although 
the indictment was alternative, either charge constituted 
murder in the first degree under this section, informing 
defendant of the crime charged, and defendant's remedy, 
if he desired greater certainty, was by motion for a bill 
of particulars under § 4613. State v. Puckett, 211 N. C. 
66, 189 S. E- 183. 

Where Jury May Be Instructed to Return First Degree 
Verdict or Not Guilty. — It is only in cases where all of the 
evidence tends to show that the homicide was committed by 
means of poison, lying in wait, imprisonment, starving, 
torture, or in the perpetration or attempt to perpetrate a 
felony, that the trial judge can instruct the jury that they 
must return a verdict of murder in the first degree or not 
guilty. State v. Perry, 209 N. C. 604, 605, 184 S. E. 545. 

Where all the evidence is to the effect that a murder 
was committed in the perpetration of a robbery, it is not 
error for the court to limit the jury to a verdict of guilty 
of murder in the first degree or not guilty under this sec- 
tion. State v. Gosnell, 208 N. C. 401, 181 S. E. 323. 

§ 4201. Punishment for manslaughter. 

Section Does Not Constitute Involuntary Manslaughter 
a Misdemeanor. — The amendment to this section by ch. 
249, Public Laws of 1933, which added a proviso that in 
cases of involuntary manslaughter the defendant shall be 
punishable by fine or imprisonment, or both, in the dis- 
cretion of the court, does not constitute involuntary man- 
slaughter a misdemeanor instead of a felony, the effect 
of the proviso being to mitigate punishment in cases of 
involuntary manslaughter, and not to set up involuntary 
manslaughter as a separate offense. State v. Dunn, 208 
N. C. 333, 180 S. E- 708. 

Thus the Superior Court has jurisdiction of a prose- 
cution under the statute although the fatal accident oc- 
curred within the territorial jurisdiction of a city court 
having exclusive original jurisdiction of misdemeanors. 
State v. Leonard, 208 N. C. 346, 180 S. E- 710. 

Art. 8. Rape and Kindred Offenses 
§ 4204. Punishment for rape. 

Applied in State v. Jackson, 211 N. C. 202, 189 S. E- 510. 

§ 4209. Obtaining carnal knowledge of virtuous 
girls between twelve and sixteen years old. 

Cited in State v. Cain, 209 N. C. 275, 183 S. E. 300. 

Art. 11. Kidnapping and Abduction 
§ 4221. Punishment for kidnapping. 

Applied in State v. Beasley, 208 N. C. 318, 180 S. E- 598 

Art. 12. Abortion and Kindred Offenses 
§ 4226. Using drugs or instruments to destroy 
unborn child. 

Evidence of Disease Facilitating Abortion Properly Ex- 



[118] 



§ 4232 



CRIMES AND PUNISHMENTS 



§ 4284 



eluded. — In a prosecution under this and the following 
section, evidence offered by the defendant tending to show 
that the deceased was suffering from a disease which 
facilitated the abortion was not relevant to the issue in- 
volving the defendant's guilt as charged in the indictment. 
There was no error in the exclusion of such evidence. 
State v. Evans, 211 N. C. 458, 459, 190 S. E. 724. 

Admission of evidence that woman took an anaesthetic 
was not prejudicial. State v. Evans, 211 N. C. 458, 459, 190 
S. E- 724. 

SUBCHAPTER V. OFFENSES AGAINST 

THE HABITATION AND OTHER 

BUILDINGS 

Art. 14. Burglary and Other House-Breakings 

§ 4232. First and second degree burglary. 

Sufficient Evidence to Submit Question of First Degree 
Burglary to Jury. — Evidence that the house was broken 
into by forcing the door open, that the time was late at 
night, and that the prosecuting witness and his wife were 
asleep in the room entered, together with evidence that 
tracks in the freshly fallen snow were followed and led to 
defendant's room in another house in a distant part of the 
city, where defendant was apprehended, is held sufficient 
to be submitted to the jury on the question of defendant's 
guilt of burglary in the first degree. State v. Oakley, 
210 N. C. 206, 186 S. E. 244. 

Applied in State v. Robertson, 210 N. C. 266, 186 S. E. 
247; State v. Walls, 211 N. C. 487, 191 S. E- 232. 

§ 4233. Punishment for burglary. 

Quoted in State v. Oakley, 210 N. C. 206, 186 S. E. 244. 

§ 4236. Preparation to commit burglary or other 
house-breakings. 

A sentence of not less than twenty-five nor more than 
thirty years upon a plea of guilty of possession of weap- 
ons and implements for house breaking, in violation of this 
section is within the discretion of the court conferred by 
the statute, and is not objectionable as a cruel and unusual 
punishment within the meaning of Art. I, sec. 14, of the 
Constitution of North Carolina. State v. Cain, 209 N. 
C. 275, 183 S. E- 300. 

§ 4237. Breaking into or entering railroad cars. 

Cited in State v. Hendricks, 207 N. C. 873, 178 S. E. 557. 

Art. 15. Arson and Other Burnings 

§ 4245(a). Willful and malicious burning of per- 
sonal property. 

Evidence that defendant's car was driven away from de- 
fendant's house shortly before defendant's personal property 
therein was destroyed by fire, and that the car had been 
driven to the house several times during the days preced- 
ing the fire, and that the occupants of the car were heard 
in the house, is held insufficient, in the absence of evi- 
dence that defendant was one of the occupants of the car, 
to resist defendant's motions for judgment as of non- 
suit in a prosecution under this section, although there 
was ample evidence that the fire was of incendiary origin 
and destroyed personal property of defendant which had 
been insured by him. State v. Simms, 208 N. C. 459, 181 
S. E- 269. 

§ 4246. Attempting to burn dwelling-houses and 
certain other buildings. 

Cited in State v. Hampton, 210 N. C. 283, 186 S. E- 251. 

SUBCHAPTER VI. OFFENSES AGAINST 
PROPERTY 

Art. 16. Larceny 

§ 4250. Receiving stolen goods. 

This section makes guilty knowledge one of the essential 
elements of the offense of receiving stolen goods. This 
knowledge may be actual, or it may be implied when the 
circumstances under which the goods were received are 
sufficient to lead the party charged to believe they were 
stolen. State v. Stathos, 208 N. C. 456, 181 S'. E- 273. 

It is necessary to establish either actual or implied knowl- 
edge on the part of the person charged of the facts that 
the goods were stolen. The question involved is whether 
the person charged had knowledge of the fact that the gur.ds 

[1 



had been stolen at the time he received them, and not 
whether a reasonably prudent man in the transaction of his 
business would have gained such knowledge under the cir- 
cumstances. Id. 

The test is as to the knowledge, actual or implied, of the 
defendant, and not what some other person would have be- 
lieved from the facts attending the receipt of the goods. Id. 

Applied in State v. Whitley, 208 N. C. 661, 182 S. E- 338; 
State v. Camby, 209 N. C. 50, 182 S. E- 715. 

Cited in State v. Ray, 209 N. C. 772, 184 S. E- 836. 

§ 4251. Larceny of property, or the receiving of 
stolen goods, not exceeding twenty dollars in value. 

Knowledge that the goods were stolen at the time of re- 
ceiving them is an essential element of the offense of re- 
ceiving stolen goods, and although guilty knowledge may be 
inferred from incriminating circumstances, a charge that 
such knowledge might be actual or implied, without speci- 
fying that it would have to exist at the time of the re- 
ceiving, is erroneous. State v. Spaulding, 211 N. C. 63, 188 
S. E. 647. 

§ 4265(a). Destruction or taking of soft drink 
bottles. — It shall be unlawful for any person, firm 
or corporation, or any employee thereof, to mali- 
ciously take up, carry away, destroy or in any way 
dispose of bottles or other property belonging to 
any bottler, bottling company, person, firm or cor- 
poration engaged in the business of bottling and/or 
distributing in bottles or other closed containers 
soda water, coca-cola, pepsi-cola, cheri-wine, chero- 
cola, ginger ale, grape and other fruit juices or 
imitations thereof, carbonated or malted beverages 
and like preparations commonly known as soft 
drinks. Any person violating any of 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. (1937, c. 322, ss. 1, 2.) 

Art. 17 A. Robbery with Firearms 
§ 4267(a). Made a felony. 

Where an indictment charged defendants with robbery 
with firearms from the companion of the person they were 
formerly charged with killing, the two offenses having been 
committed at the same time, and evidence of guilt of one 
of the offenses is substantially the same as the evidence 
of guilt of the other, a special verdict holding plea of 
former jeopardy bad supports the court's determination of 
the plea of former conviction against defendants, the charges 
being for separate offenses committed against different 
persons. State v. Dills, 210 N. C. 178, 185 S. E. 677, dis- 
tinguishing State v. Clemmons, 207 N. C. 276, 176 S. E. 
760. 

Art. 18. Embezzlement 

§ 4268. Embezzlement of property received by 
virtue of office or employment. 

Fraudulent intent is a necessary element of the statutory 
offense of embezzlement and the State must prove such 
intent beyond a reasonable doubt, but direct proof is not 
necessary, it being sufficient if facts and circumstances are 
shown from which it may be reasonably inferred. State 
v. McLean, 209 N. C. 38, 182 S. E- 700. 

Meaning of Fraudulent Intent. — Fraudulent intent within 
the meaning of this section is the intent to willfully or 
corruptly use or misapply the property of another for pur- 
poses other than that for which it is held, and evidence 
tending to show that defendant, without authorization, ap- 
plied funds of his employer to his own use, although de- 
fendant testified that he used the funds to pay a debt due 
him by his employer, is sufficient to be submitted to the 
jury on the question of fraudulent intent. State v. Mc- 
Lean, 209 N. C. 38, 182 S. E- 700. 

Art. 19. False Pretenses and Cheats 

§ 4284. Obtaining entertainment at hotels and 
boarding-houses without paying therefor. 

Editor's Note.— By Public Laws 1937, c. 168, the appli- 
cation of Public Laws 1929, c. 103, as amended, was ex- 
tended to Lee county. 

19] 



§ 4311(a) 



CRIMES AND PUNISHMENTS 



§ 4428 



SUBCHAPTER VII. CRIMINAL TRESPASS 

Art. 22. Trespasses to Land and Fixtures 
§ 4311(a). Starting fires within five hundred feet 
of areas under protection of state forest service. 

■ — It shall 'be unlawful for any person, firm or cor- 
poration to start or cause to be started any fire or 
ignite any material in any of the areas of wood- 
lands under the protection of the state forest serv- 
ice or within five hundred feet of any such pro- 
tected area, between the first day of April and the 
fifteenth day of June, inclusive, or between the 
fifteenth day of October and the first day of 
December, inclusive, in any year, without first ob- 
taining from the state forester or one of his duly 
authorized agents a permit to set out fire or ignite 
any material in such above mentioned protected 
areas; that no charge shall be made for the grant- 
ing of said permits. This section shall not apply 
to any fires started or caused to be started within 
five hundred feet of a dwelling house. Any per- 
son, firm or corporation violating this section shall 
be guilty of a misdemeanor, and shall be fined or 
imprisoned in the discretion of the court. (1937, 
c. 207.) 

SUBCHAPTER VIII. OFFENSES AGAINST 
PUBLIC MORALITY AND DECENCY 

Art. 24. Offenses against Public Morality and 
Decency 

§ 4336. Crime against nature. 

Applied in State v. Callett, 211 N. C. 563, 191 S. E- 27. 

§ 4339. Seduction. 

Testimony of Woman Must Be Corroborated as to Each 
Element.— 

In accord with original. See State v. Forbes, 210 N. C. 
567, 187 S. E. 760. 
Insufficient Evidence to Show Promise of Marriage. — In 

prosecution for seduction, the only evidence in support of 
the testimony of prosecutrix on the essential element of 
promise of marriage was the testimony of a witness that 
prosecutrix had told the witness that she and defendant 
were going to be married, and the further testimony that 
she had seen prosecutrix and defendant together over a 
certain period. No other witness testified that prosecutrix 
and defendant had been seen together. This is not suffi- 
cient to constitute proof of the promise of marriage by facts 
and circumstances independent of the testimony of prose- 
cutrix, and defendant's motion to nonsuit should have been 
granted. State v. Forbes, 210 N. C. 567, 187 S. E. 760. 

Burden of Proof on State.— In order to convict, the bur- 
den of proof is upon the State to show beyond a reasonable 
doubt that the seduction was accomplished under and by 
means of the promise of marriage, and that the prosecutrix 
was at that time an innocent and virtuous woman. It 
must affirmatively appear that the inducing promise pre- 
ceded the intercourse, and that the promise was absolute 
and not conditional. State v. Wells, 210 N. C. 738, 188 
S. E- 326, holding evidence insufficient to establish that 
seduction was induced by previous unconditional promise 
of marriage. 

§ 4352. Local: Using profane or indecent lan- 
guage on public highways. 

Editor's Note. — Public Laws of 1937, c. 9, struck out 
Perquimans from the list of exempted counties, thereby 
making this section applicable to such county. 

SUBCHAPTER IX. OFFENSES AGAINST 
PUBLIC JUSTICE 

Art. 26. Perjury 

§ 4369. False oath to procure benefit of insur- 
ance policy or certificate. — Any person who shall 
wilfully and knowingly present or cause to 'be 
presented a false or fraudulent claim, or any proof 
in support of such claim, for the payment of a loss, 



or other benefits, upon a contract of insurance; or 
prepares, makes or subscribes to a false or fraudu- 
lent account, certificate, affidavit or proof of loss, 
or other document or writing, with intent that the 
same may be presented or used in support of such 
claim, shall be punishable by imprisonment for 
not more than five years or by a fine of not more 
than five hundred ($500.00) dollars, or by both 
such fine or imprisonment within the discretion of 
the court. (Rev., s. 3487; 1899, c. 54, s. 60; 1913, 
c. 89, s. 28; 1937, c. 248.) 

Art. 28. Obstructing Justice 
§ 4379. Failing to aid police officers. 

Stated in Tomlinson v. Norwood, 208 N. C. 716, 182 S. E. 

659. 

Art. 31. Prison Breach and Prisoners 

§ 4409(a). Classification and commutation of 
time for prisoners other than state prisoners. 

Editor's Note. — The mandatory provisions of this section 
with reference to the use of stripes were repealed by Public 
Laws 1937, c. 88, s. 2. 

Art. 31 A. Custodial Institutions 

§ 4409(1). Persuading inmates to escape. — It 

shall be unlawful for any parent, guardian, brother, 
sister, uncle, aunt, or any person whatsoever to 
persuade or induce to leave, carry away, or ac- 
company from any state institution, except with 
the permission of the superintendent or other per- 
son next in authority, any boy or girl, man or 
woman, who has been legally committed or ad- 
mitted under suspended sentence to said institu- 
tion, by juvenile, recorder's, superior, or any other 
court of competent jurisdiction. (1935, c. 307, s. 
1; 1937, c. 189, s. 1.) 

Editor's Note. — The 1937 amendment included within the 
provisions of this and the following section inmates who have 
been "admitted under suspended sentence." Apparently, 
there was a loophole in the old law. 15 N. C. baw Rev., 
No. 4, p. 341. 

§ 4409(2). Harboring fugitives. — It shall be un- 
lawful for any person to harbor, conceal, or give 
succor to, any known fugitive from any institu- 
tion whose inmates are committed by court or are 
admitted under suspended sentence. (1935, c. 307,. 
s. 2; 1937, c. 189, s. 2.) 

See note under § 4409(1). 

SUBCHAPTER X. OFFENSES AGAINST 
THE PUBLIC PEACE 

Art. 32. Offenses against the Public Peace 
§ 4410. Carrying concealed weapons. 

Warrant Must State Defendant Carried Weapon Off His 
Own Premises.— In prosecution for carrying a concealed 
weapon, the warrant is held fatally defective in failing to 
embrace in the charge the essential element of the offense 
that the weapon was carried concealed by defendant off his 
own premises, the warrant itself excluding the charge that 
the weapon was carried off the premises by charging that 
defendant carried an unconcealed weapon off his premises. 
State v. Bradley, 210 N. C. 290, 186 S. E. 240. 

SUBCHAPTER XII. GENERAL POLICE 
REGULATIONS 

Art. 34. Lotteries and Gaming 

§ 4428. Dealing in lotteries. — 

Any person who engages in disposing of any 
species of property whatsoever, including money 
and evidences of debt, or in any manner distributes 



[120] 



§ 4433 



CRIMES AND PUNISHMENTS 



§ 4437 (t) 



gifts or prizes upon tickets, bottle crowns, bottle 
caps, seals on containers, other devices or certifi- 
cates sold for that purpose, shall ibe held liable to 
prosecution under this section. 
(1937, c. 157.) 

Editor's Note.— The 1937 amendment inserted the words 
"bottle crowns, bottle caps, seals on containers, other de- 
vices" in the second sentence of this section. The rest of 
the section, not being affected by the amendment, is not 
set out. 

Applied in State v. Blanton, 207 N. C. 872, 180 S. E. 81. 

§ 4433. Keeping gaming tables, illegal punch 
boards or slot machines, or betting thereat. 

Cited in State v. Humphries, 210 N. C. 406, 186 S. E- 
473. 

§ 4434. Allowing gaming tables, illegal punch 
boards or slot machines on premises. 

Where the agreed statement of facts in an action to re- 
cover the penalty under this section states that defendant 
kept a slot machine in his store, without a finding that 
the machine was illegal, the findings are insufficient _ to 
support a judgment against defendant. Nivens v. Justice, 

210 N. C. 349, 186 S. E. 237. 

§ 4437(d). Slot machines or devices prohibited. 

Sections Construed Together.— Chapter 37, P. L. 1935, 
§§ 4437(d) -4437(i), and Chapter 282, P. L, 1935, §§ 4437(j)- 
4437(q), both dealing with slot machines, must be con- 
strued together. State v. Humphries, 210 N. C. 406, 186 
S. E- 473. 

Slot Machines Paying Off Only in Checks to Be Used 
in Machines Are Unlawful.— See Tomberlin v. Bachtel, 

211 N. C. 265, 268, 189 S. E- 769. 

§ 4437(f). Slot machine or device defined. 

See the note to § 4437(1). 

§ 4437(g). No tax to be levied on prohibited 
machines. 

The payment of state and county license tax on slot 
machines does not justify the operation of the machines 
if they are illegal under the provision of this and ch. 282. 
Hinkle v. Scott, 211 N. C. 680, 191 S. E- 512. 

§ 4437 (j). Slot machines or devices prohibited. 

This and the following sections cannot be held to re- 
peal §§ 4437 (d)- 4437 (i), because the two acts are not in 
conflict. Both evince the same purpose to remedy the 
same evil. State v. Humphries, 210 N. C. 406, 413, 186 S. 
E. 473. 

The addition of the word "except" in the last line of 
this section, standing alone, apparently would make every 
sort of slot machine unlawful except that defined in § 
4437(1) but the language of this last section undertakes to 
define what sort of slot machine or device is "prohibited 
by the provisions of this act," thus showing the legislative 
intent to make the possession of the described machine un- 
lawful. Construing these sections together, we conclude, 
from the later inclusion of such machine in the prohibition, 
that the word "except" was not intended to exclude from 
unlawfulness the machine defined. This construction is 
consistent with the apparent purpose of the statute. Id. 

§ 4437(1). Slot machine or device defined. 

Editor's Note. — This section, standing alone is ungram- 
matical. It cannot be parsed. The predicate "may re- 
ceive" in line 15 has no subject. But by reference to § 
4437(f), it is seen that the word "user" is the subject of 
the verb "may receive," and that this word was by error 
of the draftsman or the printer inadvertently omitted. It 
is the duty of the court to supply such an omission and to 
interpolate words manifestly omitted by clerical error. 
With the word "user" or "operator" inserted, the section 
has grammatical form and intelligible meaning to carry 
out the legislative intent. See State v. Humphries, 210 
N. C. 406, 410, 186 S. E. 473. 

The purpose of this section is manifest. The General As- 
sembly under its police power, undertook to prohibit the 
possession and operation of certain slot machines which it 
declared were public nuisances. State v. Humphries, 210 
N. C. 406, 409, 186 S. E. 473. 

The language previous to the word "irrespective" defines 
what constitutes an unlawful slot machine, and this defini- 
tion must abide, irrespective of whether the machine may 



also, leaving out of consideration any element of chance or 
uncertainty of outcome or the question whether the outcome 
is not dependent on skill, sell merchandise or present enter- 
tainment. That is, if the machine is rendered unlawful by 
reason of the fact that the element of chance is present, 
and that from its operation the result is unpredictable, its 
unlawfulness is not to be affected by the further fact that 
the machine may also sell merchandise, or present entertain- 
ment, disconnected from such element of chance or where 
the outcome is not dependent on skill. State v. Humphries, 
210 N. C. 406, 411, 186 S. E. 473. 

Evidence Properly Excluded. — In a prosecution under this 
section for possession of an illegal slot machine, evidence 
as to the licensing of the machine is properly excluded. 
State v. Humphries, 210 N. C. 406, 186 S. E- 473. 



§ 4437 (m). Minors barred from playing. 

Cited in State v. Humphries, 210 N. C. 406, 186 S. 

473. 



E. 



§ 4437 (r). Manufacture, sale, etc., of slot ma- 
chines and devices. — It shall be unlawful to manu- 
facture, own, store, keep, possess, sell, rent, lease, 
let on shares, lend or give away, transport, or ex- 
pose for sale or lease, or to offer to sell, rent, lease, 
let on shares, lend or give away, or to permit the 
operation of, or for any person to permit to be 
placed, maintained, used or kept in any room, 
space or building owned, leased or occupied by 
him or under his management or control, any slot 
machine or device. (1937, c. 196, s. 1.) 

Editor's Note. — Despite the broad interpretation given the 
1935 laws [§§ 4437(d) -4437(q)] in prohibiting slot machines, 
the 1937 legislature enacted ch. 196 which probably goes fur- 
ther in placing slot machines and similar devices beyond the 
pale of the law than any statute heretofore. 15 N. C. Law 
Rev., No. 4, p. 340. 

§ 4437 (s). Agreements with reference to slot 
machines or devices made unlawful. — It shall be 
unlawful to make or permit to be made with any 
person any agreement with reference to any slot 
machines or device, pursuant to which the user 
thereof may become entitled to receive any money, 
credit, allowance, or anything of value or addi- 
tional chance or right to use such machines or de- 
vices, or to receive any check, slug, token or mem- 
orandum entitling the holder to receive any money, 
credit, allowance or thing of value. (1937, c. 196, 
s. 2.) 

§ 443 7 (t). Slot machine or device defined. — Any 

machine, apparatus or device is a slot machine or 
device within the provisions of this law if it is one 
that is adapted, or may be readily converted into 
one that is adapted, for use in such a way that, as 
a result of the insertion of any piece of money or 
coin or other object, such machine or device is 
caused to operate or may be operated in such man- 
ner that the user may receive or become entitled 
to receive any piece of money, credit, allowance 
or thing of value, or any check, slug, token or 
memorandum, whether of value or otherwise, or 
which may be exchanged for any money, credit, 
allowance or any thing of value, or which may be 
given in trade, or the user may secure additional 
chances or rights to use such machine, apparatus 
or device; or in the playing of which the operator 
or user has a chance to make varying scores or 
tallies upon the outcome of which wagers might 
'be made, irrespective of whether it may, apart 
from any element of chance or unpredictable out- 
come of such operation, also sell, deliver or pre- 
sent some merchandise, indication or weight, en- 
tertainment or other thing of value. This defini- 
tion is intended to embrace all slot machines and 



[ 121 ] 



§ 4437(u) 



CRIMES AND PUNISHMENTS 



§ 4506 



similar devices except slot machines in which is 
kept any article to ,be purchased by depositing any 
coin or thing of value, and for which may be had 
any article of merchandise which makes the same 
return or returns of equal value each and every 
time it is operated, or any machine wherein may 
be seen any pictures or heard any music by depos- 
iting therein any coin or thing of value, or any 
slot weighing machine or any machine for making 
stencils by the use of contrivances operated by de- 
positing in the machine any coin or thing of value, 
or any lock operated by slot wherein money or 
thing of value is to be deposited, where such slot 
machines make the same return or returns of 
equal value each and every time the same is op- 
erated and does not at any time it is operated of- 
fer the user or operator any additional money, 
credit, allowance, or thing of value, or check, slug, 
token or memorandum, whether of value or other- 
wise, which may be exchanged for money, credit, 
allowance or thing of value or which may be given 
in trade or by which the user may secure addi- 
tional chances or rights to use such machine, ap- 
paratus, or device, or in the playing of which the 
operator does not have a chance to make varying 
scores or tallies. (1937, c. 196, s. 3.) 

§ 4437(u). Issuance of license prohibited. — 

There shall be no state, county, or municipal tax 
levied for the privilege of operating the machines 
cr devices the operation of which is prohibited by 
this law. (1937, c. 196, s. 4.) 

§ 4437 (v). Declared a public nuisance. — An ar- 
ticle or apparatus maintained or kept in violation 
of this law is a public nuisance. (1937, c. 196, s. 5.) 

§ 4437(w). Violation made misdemeanor, — Any 

person who violates any provision of this law is 
guilty of a misdemeanor and upon conviction shall 
be fined or imprisoned in the discretion of the 
court. (1937, c. 196, s. 6.) 

Art. 36, Protection of the Family 
§ 4447. Abandonment of family by husband. 

This section in express terms constitutes the abandonment 
of children by the father a continuing offense. The prose- 
cution of an offense of this nature is a bar to a subse- 
quent prosecution for the same offense charged to have 
been committed at any time before the institution of the 
first prosecution, but it is not a bar to a subsequent pros- 
ecution for continuing the offense thereafter, as this is a 
new violation of the law. State v. Hinson, 209 N. C. 187, 
190, 183 S. E. 397. 

Sufficient Evidence to Show Willful Abandonment and 
Failure to Support Minor Child. — Evidence that defendant 
refused to support his minor child although repeated de- 
mands were made on him after the parties had returned to 
this State, is held to show that the offense of willful aban- 
donment and failure to support said minor child was com- 
mitted by the defendant in this State, since this section 
provides that the abandonment by the father of a minor 
child shall constitute a continuing offense. State v. Hin- 
son, 209 N. C. 187, 183 S. Fy. 397. 

§ 4449. Order to support from husband's prop- 
erty or earnings. 

Judgment Entered without Notice after Default in Pay- 
ment Is Void.— In State v. Brooks, 211 N. C. 702, 703, 191 
S. E- 749, an order was entered requiring the defendant to 
pay into the clerk's office for the support and maintenance 
of his children certain monthly stipulated amounts, after in- 
dictment under § 4447. Default having been made in said 
payments, judgment was entered upon the defendant's orig- 
inal, plea without his knowledge or presence, and the de- 
fendant was sentenced to two years on the road. It was 
held that the judgment was void because entered without 
the knowledge or presence of the accused. 



Art. 38. Public Drunkenness 

§ 4458. Local: Public drunkenness 

1. By a fine of not more than fifty dollars, or by 
imprisonment for not more than thirty days, in 
the counties of Alamance, Ashe, Avery, Bruns- 
wick, Catawba, Cherokee, Clay, Cleveland, Dare, 
Davie, Duplin, Franklin, Gaston, Graham, Greene, 
Haywood, Henderson, Hyde, Jackson, Johnston, 
Lincoln, Macon, Madison, McDowell, Mecklen- 
burg, Mitchell, Moore, Northampton, Orange, 
Pitt, Richmond, Rutherford, Scotland, Stanly, Un- 
ion, Vance, Warren, Washington, Wilkes and 
Yadkin, in the townships of Fruitville and Poplar 
branch in Currituck county, and at Pungo in Beau- 
fort 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; 1935, cc. 49, 208; 1937, 
cc. 46, 9-6, 286, 329, 443.) 

13. In Guilford and Surry counties, by a fine, 
for the first offense, of not more than fifty dollars, 
or imprisonment for not more than thirty days; 
for the second offense within a period of twelve 
months by a fine of not more than one hundred 
dollars, or imprisonment for not more than sixty 
days; and for the third offense within any twelve 
months' period, such third offense to be declared 
a misdemeanor, punishable as a misdemeanor, 
within the discretion of the court. (1935, c. 207; 
1937, c. 203.) 

15. In Edgecombe county, by a fine, for the first 
offense, of not more than fifty dollars ($50.00), or 
imprisonment for not more than thirty days; for 
the second offense within a period of twelve 
months, by a fine of not more than one hundred 
dollars ($100.00), or imprisonment for not more 
than sixty days; and for the third offense within 
any twelve months' period such offense is declared 
a misdemeanor, punishable as a misdemeanor 
within the discretion of the court. (1937, c. 95.) 

Editor's Note. — The 1937 amendments made subsection 13 
applicable to Surry county, and added subsection 15. The 
amendments also inserted several counties in the list in 
subsection 1 as follows: C. 46, Duplin; c. 96, Johnston; c. 
286, Avery, Davie, Mitchell, Wilkes and Yadkin; c. 329, 
Alamance; c. 443, Brunswick. Public I,aws 1937, c. 68, 
repealed subsection 14 relating to Iredell county. The rest 
of the section, not being affected by the amendment, is not 
set out here. 

Art. 41. Regulation of Employer and Employee 

§ 4476. Witness required to give self-criminat- 
ing evidence; no suit or prosecution to be founded 
thereon. 

For an article discussing the limits to self-incrimination, 
see 15 N. C. baw Rev., No. 3, p. 229. 

Art. 47. Miscellaneous Police Regulations 
§ 4506. Operating automobile while intoxicated. 

Operation of Vehicle Imports Motion.— In a prosecution 
under this section defendant testified that he was not driv- 
ing the truck, but that the driver got out to examine the 
motor when the truck stalled, and that defendant placed 
his foot on the brake to keep the truck from rolling back- 
ward. The court charged the jury to the effect that hold- 
ing his foot on the brake to keep the truck from rolling 
backward was an operation of the truck within the mean- 
ing of the statute. Held: The operation of a motor vehicle 
within the meaning of the statute imports motion of the 
vehicle, and does not include the acts of defendant as tes- 
tified to by him. State v. Hatcher, 210 N. C. 55, 185 S. F. 
435. 

Cited in State v. McKnight, 210 N. C. 57, 185 S. E. 437. 



[ 122 



§ 4511(g) 



CRIMINAL PROCEDURE 



§ 4548(a) 



§ 4511(g). Placing trash, refuse, etc., within five 
hundred yards of hard-surfaced highway. — 

Provided however, this section shall not apply 
to the counties of Alleghany, Ashe, Avery, Bruns- 
wick, Columbus, Davidson, Duplin, Forsyth, 
Franklin, Granville, Halifax, Lincoln, Madison, 
Mitchell, Montgomery, Moore, Person, Richmond, 
Rockingham, Scotland, Stanly, Stokes, Surry, 
Swain, Vance, Watauga, Warren, Wilson and 
Yancey, Macon, Jackson, Gates, Lenoir, Bertie, 
Cabarrus, Buncombe, Transylvania, Martin, Cas- 
well, Rowan, Guilford, and Hyde. (1935, c. 457; 
1937, c. 446.) 

Editor's Note. — The 1937 amendment struck out "Anson" 
from the list of counties appearing in the proviso of this sec- 
tion. The rest of the section, not being affected by the 
amendment, is not set out here. 

§ 4511(h). Tattooing prohibited. — It shall be 
unlawful for any person or persons to tattoo the 
arm, limb, or any part of the body of any other 
person under age of twenty-one years of age. Any 
one 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. (1937, c. 112, ss. 1, 2.) 



CHAPTER 83 

CRIMINAL PROCEDURE 
Art. 1. General Provisions 

§ 4516. Fees allowed counsel assigned to defend 
in capital case. — Whenever an attorney is ap- 
pointed by the judge to defend a person charged 
with a capital crime, he shall receive such fee for 
performing this service as the judge may allow; 
but the judge shall not allow any fee until he is 
satisfied that the defendant charged with the capi- 
tal crime is not able to employ counsel. The fees 
so allowed by the judge shall be paid by the 
county in which the indictment was found. (1917, 
c. 247; 1937, c. 226.) 

Editor's Note.— Prior to the 1937 amendment the fee al- 
lowed was not to exceed twenty- five dollars. 

Art. 2. Warrants 
§ 4524. Warrant issued; contents. 

For article discussing requisites of warrant, see 15 N. 
C. Law Rev., No. 2, p. 101. 

Art. 3. Search Warrants 

§ 4530(1). Warrant issued without affidavit and 
examination of complainant or other person; evi- 
dence discovered thereunder incompetent. — Any 

officer who shall sign and issue or cause to be 
signed and issued a search warrant without first 
requiring the complainant or other person to sign 
an affidavit under oath and examining said person 
or complainant in regard thereto shall be guilty of 
a misdemeanor; and no facts discovered by reason 
of the issuance of such illegal search warrant shall 
be competent as evidence in the trial of any ac- 
tion. (1937, c. 339, s. l J / 2 .) 

Editor's Note. — The caption of the act from which this 
section was codified, relates only to the requirement that 
all peace officers give bond. See § 323(b). 

This section makes one important change in criminal pro- 
cedure. Unlike the federal and the majority of state ju- 
risdictions, North Carolina has always admitted evidence 
obtained by an illegal search. The new law provides that 
evidence obtained by a search made pursuant to an ille- 



gally issued search warrant cannot be admitted in evi- 
dence. This leaves open the question whether evidence ob- 
tained by an illegal search made without any search war- 
rant would be admissible. 15 N. C. Law Rev., No. 4, p. 
343. 

Art. 5. Arrest 

§ 4542. Persons present may arrest for breach 
of peace. 

For an article on the law of arrest in North Carolina, see 
15 N. C. Law Rev., No. 2, p. 101. 

§ 4543. Arrest for felony, without warrant. 

Right of Private Person to Arrest. — 

In State v. Stancill, 128 N. C. 606, 609, 38 S. F. 926, 928, 
the court says: "A private citizen has the right to arrest 
a felon, whether he is present when the felony is committed 
or not. When he is not present, it devolves on him to show 
that the felony, for which he arrested, had been committed." 
15 N. C. Law Rev., No. 2, p. 103. 

§ 4544. When officer may arrest without war- 
rant. 

For a discussion of arrest without warrant, see 15 N. C. 
Law Rev., No. 2, p. 101. 
Admissible Evidence in Action for Unlawful Arrest. — An 

officer may make an arrest without a warrant when he acts 
in good faith and has reasonable grounds to believe that a 
felony has been committed, and that a particular person is 
guilty thereof and might escape unless arrested, and in an 
action against an officer for malicious and unlawful arrest, 
evidence that a robbery had been committed is held com- 
petent upon the issue, and defendant's evidence tending to 
show good faith and that he was acting within the provi- 
sions of the statute in arresting plaintiffs was properly 
submitted to the jury. Hicks v. Nivens, 210 N. C. 44, 185 
S. F. 469. 

§ 4546. When officer may break and enter 
houses. 

Where an officer comes armed with process founded on a 
breach of the peace, he may, after demand of admittance 
for the purpose of making the arrest, and refusal of the 
occupant to open the doors of a house, lawfully break them 
in order to effect an entrance and if he act in good faith 
in doing so, both he and his posse comitatus will be pro- 
tected. 15 N. C. Law Rev., No. 2, p. 125, citing State v. 
Mooring, 115 N. C. 709, 20 S. F- 182. 

§ 4547. Persons summoned to assist in arrest. 

Policeman Given Same Authority as Sheriff within Town 
Limits. — A policeman has the authority under general stat- 
ute to deputize a citizen to aid him in serving a warrant 
for breach of the peace, a policeman being given the same 
authority, within the town limits, in making arrests as a 
sheriff. Tomlinson v. Norwood, 208 N. C. 716, 182 S. F- 
659. 

§ 4548. Procedure on arrest without warrant. 

Custody of /Prisoner. — If offender is arrested at a time and 
under such circumstances as he cannot be carried immedi- 
ately before a justice, the officer may keep him in custody, 
commit him to jail or the lock-up, or even tie him, ac- 
cording to the nature of the offence and the necessity of 
the case. 15 N. C. Law Rev., No. 2, p. 127, citing State v. 
Freeman, 86 N. C. 683. 

§ 4548(a). Arresting officer to inform offender 
of charge, allow bail except in capital cases, and 
permit communication with counsel or friends. — 

Upon the arrest, detention, or deprivation of the 
liberties of any person by an officer in this state, 
with or without warrant, it shall be the duty of 
the officer making the arrest to immediately in- 
form the person arrested of the charge against 
him, and it shall further be the duty of the officer 
making said arrest, except in capital cases, to have 
bail fixed in a reasonable sum, and the person so 
arrested shall be permitted to give bail bond; and 
it shall be the duty of the officer making the ar- 
rest to permit the person so arrested to communi- 
cate with counsel and. friends immediately, and 



[ 123 



§ 4550 



CRIMINAL PROCEDURE 



§ 4556(7) 



the right of such persons to communicate with 
counsel and friends shall not be denied. 

Any officer who shall violate the provisions of 
this section shall be guilty of a misdemeanor and 
shall be fined or imprisoned, or both, in the discre- 
tion of the court. (1937, c. 257, ss. 1, 2.) 

Art. 6. Fugitives from Justice 
§ 4550. Fugitives from another state arrested. 

For a discussion of this and pertinent sections in con- 
nection with the law of arrest in this state, see 15 N. C. 
I,aw Rev., No. 2, p. 101. 

Art. 6A. Extradition 

§§ 4556(a) -4556(y): Repealed by Public Laws 
1937, c. 273, s. 29. 
The repealing act is codified as § 4556(1) et seq. 

§ 4556(1). Definitions. — Where appearing in 
this article the term "governor" includes any per- 
son performing the functions of governor by au- 
thority of the law of this state. The term "execu- 
tive authority" includes the governor, and any 
person performing the functions of governor in a 
state other than this state. The term "state," re- 
ferring to a state other than this state, includes 
any other state or territory, organized or unor- 
ganized, of the United States of America. (1937, 
c. 273, s. 1.) 

Editor's Note. — The repealed extradition law, Public Laws 
1931, c. 124, formerly codified as §§ 4556(a)-4556(y), seemed 
to provide for extradition proceedings only when the crime 
with which the accused was charged was punishable — in 
the state where committed — by death or imprisonment for 
more than one year in the state's prison, or where the crime 
consisted of abandonment of wife or children. However, the 
supreme court indicated in the case of In re Hubbard, 201 
N. C. 472, 160 S. E. 569, 81 A. I,. R. 547, that a person 
could be extradited for any crime. The new extradition 
law is in accord with In re Hubbard, specifically provid- 
ing for the extradition of a person accused of any crime, 
whether felony or misdemeanor. Furthermore, provision is 
made for return to a demanding state of a person who 
intentionally commits an act outside of the demanding 
state resulting in a crime in the demanding state. At last 
the extradition laws cover a situation such as existed in 
State v. Hall, 115 N. C. 811, 20 S. E. 729, 44 Am. St. Rep. 
501, 28 Iv. R. A. 289, where a man standing in North Car- 
olina shot and killed a man in Tennessee, and North Car- 
olina refused to return the murderer because he had never 
been in Tennessee. In other respects the new extradition 
law is substantially the same as the 1,931 law. 15 N. C. 
Law Rev., No. 4, pp. 343, 344. 

§ 4556(a). Duty of governor as to fugitives 
from justice of other states. — Subject to the pro- 
visions of this article, the provisions of the con- 
stitution of the United States controlling, and any 
and all acts of congress enacted in pursuance 
thereof, it is the duty of the governor of this state 
to have arrested and delivered up to the executive 
authority of any other state of the United States 
any person charged in that state with treason, fel- 
ony or other crime, who has fled from justice and 
is found in this state. (1937, c. 273, s. 2.) 

§ 4556(3). Form of demand for extradition. — 

No demand for the extradition of a person charged 
with crime in another state shall be recognized by 
the governor unless in writing alleging, except in 
cases arising under section 4556(6), that the ac- 
cused was present in the demanding state at the 
time of the commission of the alleged crime, and 
that thereafter he fled from the state, and accom- 
panied by a copy of an indictment found or by in- 
formation supported by affidavit in the state having 
jurisdiction of the crime, or by a copy of an affida- 



vit made before a magistrate there, together with a 
copy of any warrant which was issued thereupon; 
or 'by a copy of a judgment of conviction or of a 
sentence imposed in execution thereof, together 
with a statement hy the executive authority of the 
demanding state that the person claimed has es- 
caped from confinement or has broken the terms of 
his hail, probation or parole. The indictment, in- 
formation, or affidavit made before the magistrate 
must substantially charge the person demanded 
with having committed a crime under the law of 
that state; and the copy of indictment, informa- 
tion, affidavit, judgment of conviction or sentence 
must be authenticated by the executive authority 
making the demand. (1937, c. 273, s. 3.) 

§ 4556(4). Governor may cause investigation to 
be made. — When a demand shall be made upon 
the governor of this state by the executive author- 
ity of another state for the surrender of a person 
so charged with crime, the governor may call up- 
on the attorney general or any prosecuting officer 
in this state to investigate or assist in investigat- 
ing the demand, and to report to him the situation 
and circumstances of the person so demanded, 
and whether he ought to be surrendered. (1937, 
c. 273, s. 4.) 

§ 4556(5). Extradition of persons imprisoned 
or awaiting trial in another state or who have left 
the demanding state under compulsion. — When it 
is desired to have returned to this state a person 
charged in this state with a crime, and such per- 
son is imprisoned or is held under criminal pro- 
ceedings then pending against him in another 
state, the governor of this state may agree with 
the executive authority of such other state for the 
extradition of such person before the conclusion 
of such proceedings or his term of sentence in 
such other state, upon condition that such person 
be returned to such other state at the expense of 
this state as soon as the prosecution in this state 
is terminated. 

The governor of this state may also surrender 
on demand of the executive authority of any other 
state any person in this state who is charged in 
the manner provided in section 4556(23) with hav- 
ing violated the laws of the state whose executive 
authority is making the demand, even though such 
person left the demanding state involuntarily. 
(1937, c. 273, s. 5.) 

§ 4556(6). Extradition of persons not present 
in demanding state at time of commission of 
crime. — The governor of this state may also sur- 
render, on demand of the executive authority of 
any other state, any person in this state charged 
in such other state in the manner provided in sec- 
tion 4556(3) with committing an act in this state, 
or in a third state, intentionally resulting in a 
crime in the state whose executive authority is 
making the demand, and the provisions of this ar- 
ticle not otherwise inconsistent, shall apply to 
such cases, even though the accused was not in 
that state at the time of the commission of the 
crime, and has not fled therefrom. (1937, c. 273, 
s. 6.) 

§ 4556(7). Issue of governor's warrant of ar- 
rest; its recitals. — If the governor decides that the 
demand should be complied with, he shall sign a 
warrant of arrest, which shall be sealed with the 



124 ] 



§ 4556(8) 



CRIMINAL PROCEDURE 



§ 4556(15) 



state seal, and be directed to any peace officer or 
other person whom he may think fit to entrust 
with the execution thereof. The warrant must 
substantially recite the facts necessary to the va- 
lidity of its issuance. (1937, c. 273, s. 7.) 

§ 4556(8). Manner and place of execution of 
warrant. — Such warrant shall authorize the peace 
officer or other person to whom directed to arrest 
the accused at any time and any place where he 
may be found within the state, and to command 
the aid of all peace officers or other persons in 
the execution of the warrant, and to deliver the 
accused, subject to the provisions of this article 
to the duly authorized agent of the demanding 
state. (1937, c. 273, s. 8.) 

§ 4556(9). Authority of arresting officer. — Every 
such peace officer or other person empowered to 
make the arrest shall have the same authority, in 
arresting the accused, to command assistance 
therein as peace officers have by law in the execu- 
tion of any criminal process directed to them, with 
like penalties against those who refuse their as- 
sistance. (1937, c. 273, s. 9.) 

§ 4556(10). Rights of accused person; applica- 
tion for writ of habeas corpus. — No> person ar- 
rested upon such warrant shall be delivered over 
to the agent whom the executive authority de- 
manding him shall have appointed to receive him 
unless he shall first be taken forthwith before a 
judge of a court of record in this state, who shall 
inform him of the demand made for his surrender 
and of the crime with which he is charged, and 
that he has the right to demand and procure legal 
counsel; and if the prisoner or his counsel shall 
state that he or they desire to test the legality of 
his arrest, the judge of such court of record shall 
fix a reasonable time to be allowed him within 
which to apply for a writ of habeas corpus. When 
such writ is applied for, notice thereof, and of the 
time and place of hearing thereon, shall be given 
to the prosecuting officer of the county in which 
the arrest is made and in which the accused is in 
custody, and to the said agent of the demanding 
state. (1937, c. 273, s. 10.) 

§ 4556(11). Penalty for non-compliance with 
preceding section. — Any officer who shall deliver 
to the agent for extradition of the demanding state 
a person in his custody under the governor's war- 
rant, in wilful disobedience to the last section, 
shall be guilty of a misdemeanor and, on convic- 
tion, shall be fined not more than one thousand 
dollars ($1,000.00) or be imprisoned not more than 
six months, or both. (1937, c. 273, s. 11.) 

§ 4556(12). Confinement in jail when necessary. 

— The officer or persons executing the governor's 
warrant of arrest, or the agent of the demanding 
state to whom the prisoner may have been deliv- 
ered, may, when necessary, confine the prisoner in 
the jail of any county or city through which he 
may pass; and the keeper of such jail must receive 
and safely keep the prisoner until the officer or 
person having charge of him is ready to proceed 
on his route, such officer or person being charge- 
able with the expense of keeping. 

The officer or agent of a demanding state to 
whom a prisoner may have been delivered follow- 
ing extradition proceedings in another state, or to 



whom a prisoner may have been delivered after 
waiving extradition in such other state, and who 
is passing through this state with such a prisoner 
for the purpose of immediately returning such 
prisoner to the demanding state may, when nec- 
essary, confine the prisoner in the jail of any 
county or city through which he may pass; and 
the keeper of such jail must receive and safely keep 
the prisoner until the officer or agent having 
charge of him is ready to proceed on his route, 
such officer or agent, however, being chargeable 
with the expense of keeping: Provided, however, 
that such officer or agent shall produce and show 
to the keeper of such jail satisfactory written evi- 
dence of the fact that he is actually transporting 
such prisoner to the demanding state after a requi- 
sition by the executive authority of such demand- 
ing state. Such prisoner shall not be entitled to 
demand a new requisition while in this state. 
(1937, c. 273, s. 12.) 

§ 4556(13). Arrest prior to requisition. — When- 
ever any person within this state shall be charged 
on the oath of any credible person before any 
judge or magistrate of this state with the commis- 
sion of any crime in any other state and, except 
in cases arising under section 4556(6) with having 
fled from justice, or with having been convicted of 
a crime in that state and having escaped from con- 
finement, or having broken the terms of his bail, 
probation or parole, or whenever complaint shall 
have been made before any judge or magistrate in 
this state, setting forth on the affidavit of any 
credible person in another state that a crime has 
been committed in such other state, and that the 
accused has been charged in such state with the 
commission of the crime, and, except in cases aris- 
ing under section 4556(6), has fled from justice, or 
with having been convicted of a crime in that state 
and having escaped from confinement, or having 
broken the terms of his bail, probation or parole, 
and is believed to be in this state, the judge or 
magistrate shall issue a warrant directed to any 
peace officer commanding him to apprehend the 
person named therein, wherever he may be found 
in this state, and to bring him before the same or 
any other judge, magistrate or court who or which 
may be available in or convenient of access to the 
place where the arrest may be made, to answer 
the charge or complaint and affidavit, and a certi- 
fied copy of the sworn charge or complaint and 
affidavit upon which the warrant is issued shall be 
attached to the warrant. (1937, c. 273, s. 13.) 

§ 4556(14). Arrest without a warrant. — The ar- 
rest of a person may be lawfully made also by any 
peace officer or a private person, without a war- 
rant, upon reasonable information that the accused 
stands charged in the courts of a state with a 
crime punishable by death or imprisonment for a 
term exceeding one year, but when so arrested the 
accused must be taken before a judge or magis- 
trate with all practicable speed, and complaint 
must be made against him under oath setting 
forth the ground for the arrest as in the preceding 
section; and thereafter his answer shall be heard 
as if he had been arrested on a warrant. (1937, 
c. 273, s. 14.) 

§ 4556(15). Commitment to await requisition. — 

If from the examination before the judge or mag- 



[125] 



§ 4556(16) 



CRIMINAL PROCEDURE 



§ 4556(23) 



istrate it appears that the person held is the person 
charged with having committed the crime alleged 
and, except in cases arising under section 4556(6), 
that he has fled from justice, the judge or magis- 
trate must, by a warrant reciting the accusation, 
commit him to the county jail for such a time not 
exceeding thirty days and specified in the warrant, 
as will enable the arrest of the accused to be made 
under a warrant of the governor on a requisition 
of the executive authority of the state having ju- 
risdiction of the offense, unless the accused give 
bail as provided in the next section, or until he 
shall be legally discharged. (1937, c. 273, s. 15.) 

§ 4556(16). Bail in certain cases; conditions of 
bond. — Unless the offense with which the prisoner 
is charged is shown to be an offense punishable by 
death or life imprisonment under the laws of the 
state in which it was committed, a judge or mag- 
istrate in this state may admit the person arrested 
to bail by bond, with sufficient sureties, and in 
such sum as he deems proper, conditioned for his 
appearance before him at a time specified in such 
bond, and for his surrender, to be arrested upon 
the warrant of the governor of this state. (1937, 
c. 273, s. 16.) 

§ 4556(17). Extension of time of commitment; 
adjournment. — If the accused is not arrested un- 
der warrant of the governor by the expiration of 
the time specified in the warrant or bond, a judge 
or magistrate may discharge him or may recom- 
mit him for a further period not to exceed sixty 
days, or a judge or magistrate judge may again 
take bail for his appearance and surrender, as pro- 
vided in section 4556(16), but within a period not 
to exceed sixty days after the date of such new 
bond. (1937, c. 273, s. 17.) 

§ 4556(18). Forfeiture of bail. — If the prisoner 
is admitted to bail and fails to appear and surren- 
der himself according to the conditions of his 
bond, the judge, or magistrate by proper order, 
shall declare the bond forfeited and order his im- 
mediate arrest without warrant if he be within 
this state. Recovery may be had on such bond in 
the name of the state as in the case of other bonds 
given by the accused in criminal proceedings with- 
in this state. (1937, c. 273, s. 18.) 

§ 4556(19). Persons under criminal prosecution 
in this state at time of requisition. — If a criminal 
prosecution has been instituted against such per- 
son under the laws of this state and is still pend- 
ing, the governor, in his discretion, either may 
surrender him on demand of the executive author- 
ity of another state or hold him until he has been 
tried and discharged or convicted and punished in 
this state. (1937, c. 273, s. 19.) 

§ 4556(20). Guilt or innocence of accused, when 
inquired into. — The guilt or innocence of the ac- 
cused as to the crime of which he is charged may 
not 'be inquired into by the governor or in any 
proceeding after the demand for extradition ac- 
companied by a charge of crime in legal form as 
above provided shall have been presented to the 
governor, except as it may be involved in identify- 
ing the person held as the person charged with the 
crime. (1937, c. 273, s. 20.) 

§ 4556(21). Governor may recall warrant or is- 
sue alias. — The governor may recall his warrant 



of arrest or may issue another warrant whenever 
he deems proper. (1937, c. 273, s. 21.) 

§ 4556(22). Fugitives from this state; duty of 
governors. — Whenever the governor of this state 
shall demand a person charged with crime or with 
escaping from confinement or breaking the terms 
of his bail, probation or parole in this state from 
the executive authority of any other state, or from 
the chief justice or an associate justice of the su- 
preme court of the District of Columbia author- 
ized to receive such demand under the laws of the 
United States, he shall issue a warrant under the 
seal of this state, to some agent, commanding him 
to receive the person so charged if delivered to 
him and convey him to the proper officer of the 
county in this state in which the offense was com- 
mitted. (1937, c. 273, s. 22.) 

§ 4556(23). Application for issuance of requisi- 
tion; by whom made; contents. — I. When the re- 
turn to this state of a person charged with crime 
in this state is required, the prosecuting attorney 
shall present to the governor his written applica- 
tion for a requisition for the return of the person 
charged, in which application shall be stated the 
name of the person so charged, the crime charged 
against him, the approximate time, place and cir- 
cumstances of its commission, the state in which 
he is believed to be, including the location of the 
accused therein, at the time the application is 
made and certifying that, in the opinion of the 
said prosecuting attorney, the ends of justice re- 
quire the arrest and return of the accused to this 
state for trial and that the proceeding is not in- 
stituted to enforce a private claim. 

II. When the return to this state is required of 
a person who has been convicted of a crime in 
this state and has escaped from confinement or 
'broken the terms of his bail, probation or parole, 
the prosecuting attorney of the county in which 
the offense was committed, the parole board, or 
the warden of the institution or sheriff of the 
county, from which escape was made, shall pre- 
sent to the governor a written application for a 
requisition for the return of such person, in which 
application shall be stated the name of the person, 
the crime of which he was convicted, the circum- 
stances of his escape from confinement or of the 
breach of the terms of his bail, probation or pa- 
role, the state in which he is believed to be, in- 
cluding the location of the person therein at the 
time application is made. 

III. The application shall be verified by affida- 
vit, shall be executed in duplicate and shall he ac- 
companied by two certified copies of the indict- 
ment returned, or information and affidavit filed, 
or of the complaint made to the judge or magis- 
trate, stating the offense with which the accused 
is charged, or of the judgment of conviction or 
of the sentence. The prosecuting officer, parole 
board, warden or sheriff may also attach such fur- 
ther affidavits and other documents in duplicate as 
he shall deem proper to he submitted with such 
application. One copy of the application, with the 
action of the governor indicated by endorsement 
thereon, and one of the certified copies of the in- 
dictment, complaint, information and affidavits, or 
of the judgment of conviction or of the sentence 
shall be filed in the office of the secretary of state 



[126] 



§ 4556(24) 



CRIMINAL PROCEDURE 



§ 4614 



to remain of record in that office. The other cop- 
ies of all papers shall be forwarded with the gov- 
ernor's requisition. (1937, c. 273, s. 23.) 

§ 4556(24). Costs and expenses. — When the 
crime shall be a felony, the expenses shall be paid 
out of the state treasury, on the certificate of the 
governor and warrant of the auditor; and in all 
other cases they shall be paid out of the county 
treasury in the county wherein the crime is al- 
leged to have been committed. The expenses shall 
be the actual traveling and subsistence costs of 
the agent of the demanding state, together with 
such legal fees as were paid to the officers of the 
state on whose governor the requisition is made. 
In every case the officer entitled to these expenses 
shall itemize the same and verify them by his oath 
for presentation, either to the governor of the 
state, in proper cases, or to the board of county 
commissioners, in cases in which the county pays 
such expenses. (1937, c. 273, s. 24.) 

§ 4556(25). Immunity from service of process 
in certain civil actions. — A person brought into 
this state by, or after waiver of, extradition based 
on a criminal charge shall not be subject to serv- 
ice of personal process in civil actions arising out 
of the same facts as the criminal proceedings to 
answer which he is being or has been returned 
until he has been convicted in the criminal pro- 
ceeding or, if acquitted until he has had reason- 
able opportunity to return to the state from which 
he was extradited. (1937, c. 273, s. 25.) 

§ 4556(26). Written waiver of extradition pro- 
ceedings. — Any person arrested in this state 
charged with having committed any crime in an- 
other state or alleged to have escaped from con- 
finement, or broken the terms of his bail, proba- 
tion or parole may waive the issuance and service 
of the warrant provided for in sections 4556(7) 
and 4556(8) and all other procedure incidental to 
extradition proceedings, by executing or subscrib- 
ing in the presence of a judge of any court of rec- 
ord within this state a writing which states that 
he consents to return to the demanding state: 
Provided, however, that before such waiver shall 
be executed or subscribed by such person it shall 
be the duty of such judge to inform such person 
of his rights to the issuance and service of a war- 
rant of extradition and to obtain a writ of habeas 
corpus as provided for in section 4556(10). 

If and when such consent has been duly exe- 
cuted it shall forthwith be forwarded to the office 
of the governor of this state and filed therein. The 
judge shall direct the officer having such person 
in custody to deliver forthwith such person to the 
duly accredited agent or agents of the demanding 
state, and shall deliver or cause to be delivered to 
such agent or agents a copy of such consent: 
Provided, however, that nothing in this section 
shall be deemed to limit the rights of the accused 
person to return voluntarily and without formality 
to the demanding state, nor shall this waiver pro- 
cedure be deemed to be an exclusive procedure or 
to limit the powers, rights or duties of the officers 
of the demanding state or of this state. (1937, c. 
273, s. 25a.) 



§ 4556(27). Non-waiver by this state. — Nothing 
in this article contained shall be deemed to consti- 



tute a waiver by this state of its right, power or 
privilege to try such demanded person for crime 
committed within this state, or of its right, power 
or privilege to regain custody of such person by 
extradition proceedings or otherwise for the pur- 
pose of trial, sentence or punishment for any 
crime committed within this state, nor shall any 
proceedings had under this article which result in, 
or fail to result in, extradition be deemed a waiver 
by this state of any of its rights, privileges or ju- 
risdiction in any way whatsoever. (1937, c. 273, 
s. 25b.) 

§ 4556(28). No right of asylum; no immunity 
from other criminal prosecution while in this 
state. — After a person has been brought back to 
this state by, or after waiver of extradition pro- 
ceedings, he may be tried in this state for other 
crimes which he may be charged with having 
committed here as well as that specified in the req- 
uisition for his extradition. (1937, c. 273, § 26.) 

§ 4556(29). Interpretation. — The provisions of 
this article shall be so interpreted and construed 
as to effectuate its general purposes to make uni- 
form the law of those states which enact it. 
(1937, c. 273, s. 27.) 

§ 4556(30). Short title.— This article may be 
cited as the Uniform Criminal Extradition Act. 
(1937, c. 273, s. 30.) 

Art. 7. Preliminary Examination 
§ 4571. Witnesses in lynching not privileged. 



For a general discussion of 
tion, see 15 N. C. Law Rev., 



the limits 
No. 3, p. 



to self-incrimina- 
229. 



Art. 8. Bail 
§ 4574. Officers authorized to take bail, before 
imprisonment. 

As to authority of arresting officer to allow bail, see § 
4548(a). 

Art. 11. Venue 
§ 4605. In county where death occurs. 

The first "of" in the fourth line of this section in the 
original should read "or." 

§ 4608. Improper venue met by plea in abate- 
ment; procedure. 

Where Motion to Quash Indictment Was Correctly De- 
nied. — Defendant moved to quash the indictment for re- 
ceiving stolen goods on the ground that the evidence 
showed that the property, if stolen, was stolen in another 
county, and, if received by defendant, was received by him 
in a third county. It was held that the motion to quash 
was correctly denied since, under this section, the crime 
is presumed to have been committed in the county laid 
in the bill of indictment unless defendant aptly 
plea in abatement. 
836. 



State v. Ray, 209 N. C. 772, 

Art. 13. Indictment 



enters a 
184 S'. E. 



§ 4613. Bill of particulars. 

Where Motion in Arrest of Judgment Properly Denied. 

—An indictment charging defendant disjunctively with 
murder committed with malice, premeditation, and delibera- 
tion and with murder committed in the perpetration of a 
robbery, is not void for uncertainty, since either charge 
constitutes murder in the first degree, and defendant's rem- 
edy, if he desires more specific information is by motion for 
a bill of particulars under this section, but a motion in 
arrest of judgment after a verdict of guilty of murder in 
the first degree, is properly denied. State v. Puckett, 211 
N. C. 66, 189 S. E. 183. 

§ 4614. Essentials of bill for homicide. 

This section is an abbreviated form for a bill of indict- 
ment for murder. State v. Puckett, 211 N. C. 66, 73, 189 

S. E. 183. 

127 1 



§ 4615 



CRIMINAL PROCEDURE 



§ 4643. 



Indictment under Section Held to Give Full Information 
of Crime. — Where an indictment was drawn according to 
this section the defendant was given full information of 
the crime on which he was being tried. There was noth- 
ing indefinite or uncertain about the bill of indictment. It 
was in the alternative, but this was merely two counts 
in one bill of indictment. State v. Puckett, 211 N. C. 66, 
73, 189 S. E. 183. 

Applied in State v. Kirkman, 208 N. C. 719, 182 S. E- 498; 
State v. Dills, 210 N. C. 178, 185 S. E- 677. 

Cited, in State v. Thornton, 211 N. C. 413, 190 S. E. 758; 
State v. Godwin, 211 N. C. 419, 190 S. E- 761. 

§ 4615. Form of bill for perjury. 

Applied in State v. Rhinehart, 209 N. C. 150, 183 S. E- 
388. 

§ 4622. Separate counts; consolidation. 

Reckless Driving and Passing Standing School Bus. — In- 
dictments charging defendant with reckless driving and with 
passing a standing school bus on the highway may be con- 
solidated for trial as provided in this section. State v. 
Webb, 210 N. C. 350, 186 S. E. 241. 

It is permissible to join counts charging conspiracy and 
successive steps thereafter taken by the respective conspira- 
tors in executing the common design. State v. Anderson, 
208 N. C. 771, 182 S. E. 643. 

Consolidation Is within Discretionary Power of Trial Court. 
— Defendant was tried separately in municipal court on two 
warrants, each charging assault with a deadly weapon, but 
upon different persons on separate occasions about fifteen 
days apart. On appeal to the Superior Court, the court, 
upon motion of the solicitor, consolidated the cases for trial. 
Under the provisions of this section, the order of consoli- 
dation was within the discretionary power of the trial court. 
State v. Waters, 208 N. C. 769, 182 S. E- 483. See also, 
State v. McLean, 209 N. C. 38, 182 S. E- 7C0, wherein in- 
dictments charging embezzlement were consolidated. 

Applied in State v. Lancaster, 210 N. C. 584, 187 S'. E- 
802. 

§ 4623. Bill or warrant not quashed for infor- 
mality. 

I. NATURE AND PURPOSE. 
Purpose of Section. — The whole purpose of the law is to 

administer justice and that law and order and orderly gov- 
ernment may at all times be maintained. State v. Walls, 
211 N. C. 487, 498, 191 S. E- 232. 

II. GENERAL EFFECT. 
Liberal Construction. — 

Under this section bills and warrants are no longer sub- 
ject to quashal "by reason of any informality or refine- 
ment." State v. Anderson, 208 N. C. 771, 782, 182 S. E- 
643. 

Does Not Supply Essential Averments. — 

In accord with original. See State v. Tarlton, 208 N. C. 
734, 736, 182 S. E. 481. 

Prisoner Is Held Although. Indictment Is Defective. — 
Where the indictment should have been quashed because 
defective in form the prisoner could still be held for a proper 
bill under this section. State v. Callett, 211 N. C. 563, 564, 
191 S. E. 27. 

Cited in State v. Puckett, 211 N. C. 66, 189 S. E- 183. 

III. DEFECTS CURED. 
B. Omissions and Mistakes. 

Failure to Repeat Names in Charging Scienter. — Where 
defendants contended that a count in the indictment charg- 
ing receiving stolen goods was fatally defective in that the 
names of defendants were not repeated in charging scienter, 
it was held that the defect was merely an informality or 
refinement not sufficient to support a quashal of the in- 
dictment, the charge being plain, explicit and sufficient to 
enable the court to proceed to judgment. State v. Whitley, 
208 N. C. 661, 182 S'. E- 338. 

§ 4625. Defects which do not vitiate. 

In General. — 

The modern tendency is against technical objections which 
do not affect the merits of the case. Hence judgments are 
not to be stayed or reversed for nonessential or minor de- 
fects. State v. Anderson, 208 N. C. 771, 782, 182 S. E- 643. 

A charge in a murder prosecution in the alternative was 
not a vitiating defect, and the motion in arrest after ver- 
dict was properly denied, such motion being available only 
for vitiating defects upon the record proper. State v. 
Puckett, 211 N. C. 66, 189 S. E- 183. 



Art. 15. Trial in Superior Court 

§ 4632. Prisoner standing mute, plea "not 
guilty'* entered. 

Deaf Mutes. — 

In State v. Early, 211 N. C. 189, 189 S. E. 668, the court, 
upon finding that defendant was a deaf mute, subpoenaed 
an interpreter, who after being duly sworn and after the 
reading of the indictment, interpreted and explained the in- 
dictment to defendant. After defendant had indicated to 
the interpreter that he understood the indictment, the inter- 
preter translated the solicitor's question of whether defend- 
ant was guilty or not guilty, and upon a negative reply 
given through the interpreter, a plea of not guilty was en- 
tered. It was held that there was no error on the arraign- 
ment of defendant or in the acceptance of his negative an- 
swer as a plea of not guilty. 

§ 4636(a). Waiving jury trial; pleas; demurrer 
to evidence. 

The constitutional right to trial by jury in the Superior 
Court, art. I, § 13, may not be waived by the accused 
after a plea of not guilty, nor may the General Assem- 
bly permit this to be done by statute, hence this section 
is unconstitutional in that it provides, in effect, for trial 
by the court as upon a plea of "not guilty," when a de- 
fendant enters a "conditional plea" and a judgment en- 
tered upon a trial under this section will be stricken out 
upon appeal and the cause remanded for trial according to 
law. State v. Camby, 209 N. C. 50, 182 S. E- 715, followed 
in State v. Crump, 209 N. C. 52, 182 S. E- 716. See also, 
State v. Hill, 209 N. C. 53, 182 S. E- 716. 

Upon defendant's appeal from judgment and sentence by 
the court after defendant had entered a conditional plea of 
guilty under this section, the case will be remanded in or- 
der that a jury may pass upon defendant's guilt or inno- 
cence in accordance with defendant's constitutional right. 
State v. Ellis, 210 N. C. 170, 185 S. E- 662. 

§ 4640. Conviction for a less degree or an at- 
tempt. 

Application of Section.— Where there are several counts in 
a bill, if the jury find the defendant guilty on one count 
and say nothing in their verdict concerning the other courts, 
it will be equivalent to a verdict of not guilty as to them. 
This principle should not be confused with the practice, au- 
thorized by this section, which permits the conviction of a 
"lesser degree of the same crime" when included in a sin- 
gle count. State v. Hampton, 210 N. C. 283, 284, 186 S. E. 
251. 

§ 4642. Verdict for murder in first or second 
degree. 

Quoted in State v. Puckett, 211 N. C. 66, 189 S. E- 183. 
Cited in State v. Thornton, 211 N. C. 413, 190 S. E. 758; 
State v. Godwin, 211 N. C. 419, 190 S. E- 761. 

§ 4643. Demurrer to the evidence. 

On motion to nonsuit, the court is required merely to as- 
certain whether there is any competent evidence to sustain 
the allegations of the indictment. State v. Landin, 209 N. 
C. 20, 182 S. E. 689. 

Compared with Section 567. — 

In accord with original. See State v. Ormond, 211 N. 
C. 437, 191 S. E- 22. 

Sufficiency of Evidence May Be Challenged if Motion 
Timely Made. — 

A motion for judgment of nonsuit, under this section, 
must be made at the close of the state's evidence in order 
for a motion thereunder made at the close of all the evi- 
dence to be considered. State v. Ormond, 211 N. C. 437, 
439, 191 S. E. 22. 

Sufficiency of Evidence.— In accord with first paragraph 
in original. See State v. Atlantic Ice, etc., Co., 210 N. 
C. 742, 188 S. E- 412. See also, State v. Eubanks, 209 N. 
C. 758, 763, 184 S. E- 839. 

Where the evidence for the state where the defendants 
are charged with fornication and adultery, shows no more 
than that the defendants had opportunities to commit the 
crime, on motion of the defendants, the action should be 
dismissed, and a verdict of not guilty, entered under this 
section. State v. Woodell, 211 N. C. 635, 636, 191 S. E- 
334. 

The court said in State v. Woodell, 211 N. C. 635, 636, 
191 S. E. 334, citing State v. Prince, 182 N. C. 788, 108 
S. E- 330, that when it is said that there is no evidence 
to go to the jury, it does not mean that there is liter- 
ally and absolutely none, for as to this there could be no 



[128] 



§ 4647 



CRIMINAL PROCEDURE 



§ 4665(3) 



room for any controversy, but there is none which ought 
reasonably to satisfy the jury that the fact sought to be 
proved is established. 

Motion will not lie for failure of the state to offer evi- 
dence of a nonessential averment in the indictment, when 
each essential element of the offense is supported by com- 
petent evidence. State v. Atkinson, 210 N. C. 661, 188 
S. E- 73. 

Demurrer to the Evidence Properly Sustained. — See State 
v. S'ims, 208 N. C. 459, 460, 181 S. E- 269, wherein defend- 
ant's identity was not established; State v. White, 208 N. 
C. 537, 181 S. E. 558, wherein defendant's identity was not 
established; State v. Eandin, 209 N. C. 20, 22, 182 S. E. 689, 
wherein defendant's negligence was held harmless; State v. 
Creech, 210 N. C. 700, 188 S. E. 316, wherein owner of car 
did not know driver was intoxicated. 

Demurrer to the Evidence Properly Denied. — See State v. 
Webber, 210 N. C. 137, 185 S. E- 659, wherein evidence 
showed defendant was driving at fifty miles an hour before 
collision; State v. Smith, 211 N. C. 93, 189 S. E. 175, wherein 
evidence showed felonious intent to commit rape. 

Applied in State v. Callett, 211 N. C. 563, 191 S. E. 27; 
State v. McDonald, 211 N. C. 672, 191 S. E. 733. 

Cited in State v. Anderson, 208 N. C. 771, 182 S. E. 643; 
State v. Jones, 209 N. C. 49, 182 S. E- 699; State v. Camby, 
209 N. C. 50, 182 S. E. 715; State v. Eangley, 209 N. C. 
178, 183 S. E.. 526; State v. Hinson, 209 N. C. 187, 183 S. E- 
397; State v. Eewis, 209 N. C. 191, 183 S. E- 357; State v. 
Oakley, 210 N. C. 206, 186 S. E- 244; State v. Gallman, 210 
N. C. 288, 186 S. E. 236; State v. Evans, 211 N. C. 458, 190 
S. E. 724. 

Art. 16. Appeal 
§ 4647. Appeal from justice, trial de novo. 

See the note to § 1549 in this Supplement. 

Cited in State v. Boykin, 211 N. C. 407, 191 S. E- 18. 

§ 4648. Justice to return papers and findings to 
superior court. 

See the note to § 1549 in this Supplement. 

Cited in State v. Boykin, 211 N. C. 407, 191 S. E. 18. 

§ 4649. When state may appeal. 

Applied in State v. Parker, 209 N. C. 32, 182 S. E- 723. 

§ 4650. Appeal by defendant to supreme court. 

Appeal Lies Only from Final Judgment. — The right to ap- 
peal is wholly statutory, and a defendant may appeal only 
from a conviction or from some judgment that is final in 
its nature. Thus an appeal from the denial of defendant's 
plea in abatement will be dismissed as being an appeal from 
an interlocutory judgment. State v. Blades, 209 N. C. 56, 
182 S. E. 714, wherein the court inadvertently cited § 460. 

In the instant case, the defendant was not convicted un- 
der § 276(a) ; he was acquitted. There was no judgment on 
conviction, or judgment prejudicial to the defendant in its 
nature final. The defendant therefore had no right to appeal 
to the Supreme Court and it is without jurisdiction to enter- 
tain the appeal, or to decide the questions presented by de- 
fendant's assignment of error. State v. Hiatt, 211 N. C. 
116, 117, 189 S. E. 124. 

§ 4651. Defendant may appeal without security 
for costs. — ■ 

And where it shall appear to the presiding 
judge that a defendant who has been convicted of 
a capital felony, or having been tried upon a bill 
of indictment charging a capital felony, has been 
convicted of a less offense, and who has prayed 
an appeal to< the supreme court from the sentence 
of death or other sentence pronounced against 
him upon such conviction is unable 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 neces- 
sary cost of obtaining a transcript of the proceed- 
ings had and the evidence offered on the trial 
from the court reporter for the use of the defend- 
ant and the necessary cost of preparing the req- 
uisite copies of the record and briefs which the 
defendant is required to file in the supreme court 
under the rules of said court. 

(1937, c. 330.) 

Editor's Note. — As only the second sentence was affected 



by the 1937 amendment, the rest of the section is not set 
out here. The amendment extends the 1933 law to include 
defendants who have been tried on an indictment for a cap- 
ital felony and convicted of a lesser offense. Again the stat- 
ute would apply only in cases where counsel had been as- 
signed by the court. 15 N. C. Eaw Rev., No. 4, p. 347. 

The requirements of this section are mandatory and juris- 
dictional, "and unless the statute is complied with, the ap- 
peal is not in this Court, and we can take no cognizance 
of the case, except to dismiss it from our docket." State 
v. Holland, 211 N. C. 284, 285, 189 S. E- 761, citing Honey- 
cutt v. Watkins, 151 N. C. 652, 65 S. E- 762. 

And are not subject to indulgences or waiver. State v. 
Holland, 211 N. C. 284, 286, 189 S. E- 761. 

There is no authority for granting an appeal in forma 
pauperis without a proper supporting affidavit. State v. 
Holland, 211 N. C. 284, 285, 189 S. E. 761. 

Failure to Prosecute According to Rules of Court. — 

In accord with original. See State v. Holland, 211 N. C. 
284, 189 S. E. 761, where it was held that the affidavit not 
containing the assertion that "the application is in good 
faith," prevented the court having jurisdiction. 

§ 4654. Appeal not to vacate judgment; stay of 
execution. 

Effect of Failure to Serve Statement of Case within Time 
Fixed. — Where defendants fail to make out and serve their 
statement of case on appeal within the time fixed, they lose 
their right to prosecute the appeal, and the motion of the 
attorney- general to docket and dismiss will be allowed, but 
where defendants have been convicted of a capital felony, 
this will be done only after an inspection of the record for 
errors appearing upon its face. State v. Allen, 208 N. C. 
672, 182 S. E. 140. See also, State v. McEeod, 209 N. C. 
54, 182 S. E- 713. 

Art. 17. Execution 
§ 4657. Death by administration of lethal gas. 

This section applies only to crimes committed after the 
effective date of the statute, 1 July-, 1935, and it will not 
support a sentence of death by lethal gas imposed for a 
capital crime committed prior to the effective date of the 
statute although defendant was tried and convicted after the 
effective date thereof. State v. Hester, 209 N. C. 99, 182 S. 
E- 738. See also, State v. Dingle, 209 N. C. 293, 183 S. E- 
376; State v. McNeill, 211 N. C. 286, 287, 189 S. E- 872. 

Cited in State v. Home, 209 N. C. 725, 184 S. E. 470. 

Art. 18. Suspension of Sentence and Probation 
§ 4665(1). Suspension of sentence and proba- 
tion. — After conviction or plea of guilty or nolo 
contendere for any offense, except a crime pun- 
ishable by death or life imprisonment, the judge 
of any court of record with criminal jurisdiction 
may suspend the imposition or the execution of 
a sentence and place the defendant on probation 
or may impose a fine and also place the defend- 
ant on probation. (1937, c. 132, s. 1.) 

For a discussion of the act from which this article was 
codified, see 15 N. C. Taw Rev., No. 4, p. 345. 

§ 4665(2). Investigation by probation officer. — 

When directed by the court the probation officer 
shall fully investigate and report to the court in 
writing the circumstances of the offense and the 
criminal record, social history, and present condi- 
tion of the defendant, including, whenever prac- 
ticable, the findings of a physical and mental ex- 
amination of the defendant. When the services 
of a probation officer are available to the court, no 
defendant charged with a felony, and, unless the 
court shall direct otherwise in individual cases, 
no other defendant shall be placed on probation 
or released under suspension of sentence until the 
report of such investigation shall have been pre- 
sented to and considered by the court. (1937, c. 
132, s. 2.) 

§ 4665(3). Conditions of probation. — The court 
shall determine and may impose, by order duly 
entered, and may at any time modify the condi- 
tions of probation and may include among them 



N. C. Supp.— 9 



[129] 



§ 4665(4) 



CRIMINAL PROCEDURE 



§ 4665(8> 



the following, or any other: That the probationer 
shall: 

(a) Avoid injurious or vicious habits; 

(b) Avoid persons or places of disreputable or 
harmful character; 

(c) Report to the probation officer as directed; 

(d) Permit the probation officer to visit at his 
home or elsewhere; 

(e) Work faithfully at suitable employment as 
far as possible; 

(f) Remain within a specified area; 

(g) Pay a fine in one or several sums as directed 
by the court; 

(h) Make reparation or restitution to the ag- 
grieved party for the damage or loss caused by his 
offense, in an amount to be determined by the 
court; 

(i) Support his dependents. (1937, c. 132, s. 3.) 

§ 4665(4). Termination of probation, arrest, sub- 
sequent disposition. — The period of probation or 
suspension of sentence shall not exceed a period 
of five years and shall be determined by the judge 
of the court and may be continued or extended 
within the above limit. Upon the satisfactory ful- 
fillment of the conditions of probation or suspen- 
sion of sentence the court shall by order duly en- 
tered discharge the defendant. At any time dur- 
ing the period of probation or suspension of 
sentence, the court may issue a warrant and cause 
the defendant to be arrested for violating any of 
the conditions of probation or suspension of sen- 
tence. Any police officer, or other officer with 
power of arrest, upon the request of the proba- 
tion officer, may arrest a probationer without a 
warrant. In case of an arrest without a warrant 
the arresting officer shall have a written statement 
signed by said probation officer setting forth that 
the probationer has, in his judgment, violated the 
conditions of probation; and said statement shall 
be sufficient warrant for the detention of said pro- 
bationer in the county jail, or other appropriate 
place of detention, until said probationer shall be 
brought before the judge of the court. Such pro- 
bation officer shall forthwith report such arrest 
and detention to the judge of the court, and sub- 
mit in writing a report showing in what manner 
the probationer has violated probation. Upon such 
arrest, with or without warrant, the court shall 
cause the defendant to be brought before it and 
may revoke the probation or suspension of sen- 
tence, and shall proceed to deal with the case as 
if there had been no probation or suspension of 
sentence. (1937, c. 132, s. 4.) 

§ 4665(5). Establishment and organization of a 
state probation commission. — There is hereby es- 
tablished a state probation commission to be com- 
posed of five members, who shall be appointed by 
the governor and shall serve without a salary as 
members of such commission, but shall receive 
their actual traveling expenses while in the per- 
formance of their official duties. The first ap- 
pointments shall be made within thirty days after 
this article shall take effect, and shall be made 
in such manner that the term of one member of 
the state probation commission shall expire each 
year. Their successors shall be appointed by the 
governor w T ithin thirty days thereafter for terms 
of five years each. All vacancies occurring among 
the members shall be filled as soon as practicable 



thereafter by the governor for the unexpired terms. 
This commission shall be deemed a "commission 
for special purpose" within the meaning of the 
language of section seven of Article XIV of the 
Constitution, and the membership thereof may be 
composed of persons holding other official posi- 
tions in the state, if the governor shall so elect. 

The state probation commission shall organize 
immediately after the appointment of the first 
members thereof, and elect a chairman from its 
members. Thereafter a chairman shall be elected, 
annually between January fifteenth and January 
thirtieth of each year. (1937, c. 132, s. 5.) 

§ 4665(6). Duties and powers of the commis- 
sion; meetings; appointment of director of proba- 
tion; qualifications.— With respect to the adminis- 
tration of probation in the state, except cases, 
within the jurisdiction of the juvenile courts, the 
state probation commission shall exercise general 
supervision; formulate policies; adopt general 
rules, not inconsistent with law, to regulate meth- 
ods of procedure; and set standards for personnel.. 
It shall meet at stated times to be fixed by it not 
less often than once every three months, and on 
call of its chairman, to consider any matters re- 
lating to probation in the state. 

The state probation commission, with the ap- 
proval of the governor, shall appoint a director of 
probation, who shall serve as its executive sec- 
retary, and shall receive a salary of not less than 
three thousand six hundred ($3,600.00) dollars 
nor more than four thousand five hundred 
($4,500.00) dollars per annum and who shall give 
his entire time to the work. When the necessity 
of the service requires, it shall appoint one or 
more assistants and fix their salaries. 

The person appointed as director of probation 
shall be qualified by education, training, experi- 
ence and temperament for the duties of the office.. 
(1937, c. 132, s. 6.) 

§ 4665(7). Duties of the director of probation; 
appointment of probation officers; reports. — The 

director of probation shall appoint, subject to the 
approval of the state probation commission, such 
probation officers as are required for service in 
the state and such clerical assistance as may be 
necessary: Provided, that before any persons 
other than the director of probation shall be ap- 
pointed, the state probation commission shall 
make up and submit to the governor a budget 
covering its proposed organization and expendi- 
tures, and no fund shall be available to carry out 
the purpose of this article except to the extent 
that said budget is approved first by the state 
highway and public works commission, and then 
by the director of the budget. 

The director of probation shall direct the 
work of the probation officers appointed under 
this article. He shall consult and cooperate with 
the courts and institutions in the development of 
methods and procedure in the administration of 
probation, and shall arrange conference of pro- 
bation officers and judges. He shall make an an- 
nual written report with statistical and other in- 
formation to the probation commission and the 
governor. (1937, c. 132, s. 7.) 

§ 4665(8). Assignment and compensation and 
oath of probation officers. — Probation officers ap- 
pointed under this article shall be assigned to 



[ 130 



§ 4665(9) 



AGRICULTURE 



§ 4667 



serve in such courts or districts or otherwise as 
the director of probation may determine. They 
shall be paid annual salaries to be fixed by the 
probation commission, and shall also> be paid 
traveling and other necessary expenses incurred 
in the performance of their official duties as pro- 
bation officers when such expense accounts- have 
been authorized and approved by the director of 
probation. 

Each person appointed as a probation officer 
shall take an oath of office before the judge of the 
court or courts in which he is to serve, which oath 
shall be as follows: 

"I, , do solemnly and sincerely 

swear that I will be faithful and bear true alle- 
giance to the State of North Carolina, and to the 
constitutional powers and authorities which are or 
may be established for the government thereof; 
and that I will endeavor to support, maintain, and 
defend the Constitution of said State, not incon- 
sistent with the Constitution of the United States, 
to the best of my knowledge and ability; so help 
me God," 

and shall be noted of record by the clerk of the 
court. (1937, c. 132, s. 8.) 

§ 4665(9). Duties and powers of the probation 
officers. — A probation officer shall investigate all 
cases referred to him for investigation by the 
judges of the courts or by the director of proba- 
tion, and shall report in writing thereon. He shall 
furnish to each person released on probation un- 
der his supervision a written statement of the con- 
ditions of probation and shall instruct him regard- 
ing the same. Such officer shall keep informed con- 
cerning the conduct and condition of each person 
on probation under his supervision by visiting, re- 
quiring reports, and in other ways, and shall re- 
port thereon in writing as often as the court or 
the director of probation may require. Such offi- 
cer shall use all practicable and suitable methods, 
not inconsistent with the conditions imposed by 
the court, or the director of probation, to aid and 
encourage persons on probation to bring about 
improvement in their conduct and condition. Such 
officer shall keep detailed records of his work; 
shall make such reports in writing to the director 
of probation as he may require; and shall perform 
such other duties as the director of probation may 
require. A probation officer shall have, in the ex- 
ecution of his duties, the powers of arrest and, to 
the extent necessary for the performance of his 
duties, the same right to execute process as is now 
given, or that may hereafter be given by law, to 
the sheriffs of this state. (1937, c. 132, s. 9.) 

§ 4685(10). Co-operation with commissioner of 
parole and officials of local units. — It shall be the 
duty of the director of probation and the commis- 
sioner of parole to co-operate with each other to 
the end that the purposes of probation and parole 
may be more effectively carried out. When re- 
quested, each shall make available to the other 
case records in his possession, and in cases of 
emergency, where time and expense can be saved, 
shall provide investigation service. 

It is hereby made the duty of every city, county, 
or state official or department to render all as- 
sistance and co-operation within his or its funda- 
mental power which may further the objects of 
this article. The state probation commission, the 

[13 



director of probation, and the probation officers 
are authorized to seek the co-operation of such of- 
ficials and departments, and especially of the 
county superintendents of public welfare and of 
the state board of charities and public welfare. 
(1937, c. 132, s. 10.) 

§ 4665(11). Records treated as privileged infor- 
mation. — All information and data obtained in the 
discharge of official duty by any probation officer 
shall be privileged information, shall not be re- 
ceivable as evidence in any court, and shall not 
be disclosed directly or indirectly to any other 
than the judge or to others entitled under this 
article to receive reports, unless and until other- 
wise ordered by a judge of the court or the direc- 
tor of probation. (1937, c. 132, s. 11.) 

§ 4665(12). Payment of salaries and expenses. — 

All salaries and expenses necessary for carrying 
out the provisions of this article shall be fixed in 
accordance with the Executive Budget Act and 
the Personnel Act, and shall be paid by the state 
highway and public works commission out of the 
state highway funds, under direction of the di- 
rector of the budget. (1937, c. 132, s. 12.) 

§ 4665(13). Accommodations for probation of- 
ficers. — The county commissioners in each county 
in which a probation officer serves shall provide, 
in or near the courthouse, suitable office space for 
such officer. (1937, c. 132, s. 13.) 



CHAPTER 84 

AGRICULTURE 
Art. 1. Department of Agriculture 

Part 1. Board of Agriculture 

§ 4667. Department of agriculture, immigration, 
and statistics established; board of agriculture, 
membership, terms of office, etc. — The depart- 
ment of agriculture, immigration, and statistics is 
created and established and shall be under the 
control of the commissioner of agriculture, with 
the consent and advice of a board to be styled 
"The Board of Agriculture." The board of agri- 
culture shall consist of the commissioner of agri- 
culture, who shall be ex officio a member and 
chairman thereof and shall preside at all meetings, 
and of ten other members from the state at large, 
so distributed as to reasonably represent the dif- 
ferent sections and agriculture of the state. In 
the appointment of the members of the board the 
governor shall also take into consideration the 
different agricultural interests of the state, and 
shall appoint one member who shall be a practical 
tobacco farmer to represent the tobacco farming 
interest, one who shall be a practical cotton 
grower to represent the cotton interest, one who 
shall be a practical truck farmer or general farmer 
to represent the truck and general farming inter- 
est, one who shall be a practical dairy farmer to 
represent the dairy and livestock interest of the 
state, one who shall be a practical poultry man to 
represent the poultry interest of the state, one 
who shall be a practical peanut grower to repre- 
sent the peanut interest, one who shall be a man 
experienced in marketing to represent the market- 
ing of products of the state. The members of 
such board shall be appointed by the governor, 

1] 



§ 4677(a) 



AGRICULTURE 



§ 4689(4) 



by and with the consent of the senate, when the 
terms of the incumbents respectively expire. The 
term of office of such members shall be six years 
and until their successors are duly appointed and 
qualified. The terms of office of the five members 
constituting the present board of agriculture shall 
continue for the time for which they were ap- 
pointed. In making appointments for the enlarged 
board of agriculture, the governor shall make the 
appointments so that the term of three members 
will be for two years, three for four and four for 
six years. Thereafter the appointments shall be 
made for six years. Vacancies in such board 
shall be filled by the governor for the unexpired 
term. The commissioner of agriculture and the 
members of the board of agriculture shall be prac- 
tical farmers engaged in their profession. (1937, 
c. 174.) 

Editor's Note.— The 1937 amendment struck out the for- 
mer section and inserted the above in lieu thereof. 

Part 2. Commissioner of Agriculture 

§ 4677(a). To establish regulations for trans- 
portation of livestock. — The commissioner of agri- 
culture, by and with the consent and advice of 
the board of agriculture, shall promulgate and en- 
force such rules and regulations as may be nec- 
essary for the proper transporting of livestock by 
motor vehicle, and may require a permit for such 
vehicleb if it becomes necessary in order to pre- 
vent the spread of animal diseases. This section 
shall not apply to any county having a local law 
providing for the vaccination of hogs against chol- 
era. (1937, c. 427, ss. 1, 2.) 

Part 4. Powers and Duties of Department 
and Board 

§ 4688(a): Repealed by Public Laws 1937, c. 
131. 

Art. 1A. North Carolina Fertilizer Law of 1933 

§ 4689(3). Definitions.— 

(i) The term "grade" means the minimum per- 
centages of total nitrogen (N); phosphoric acid 
(P2O5) in available form (comprising the water 
and citrate soluble phosphoric acid) except as 
provided for in paragraph (e) of section 4689(4); 
and potash (K2O) available in water. These are 
to be stated in this order and, when applied to 
mixed fertilizers, in whole numbers only. 

(1937, c. 430, s. 1.) 

Editor's Note. — The 1937 amendment substituted the word 
"available" for the word "soluble" formerly appearing in 
the sixth line of item (i). The rest of the section, not be- 
ing affected by the amendment, is not set out here. 

§ 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 with 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 phos- 
phoric acid, per cent (whole numbers only) ; avail- 
able potash, per cent (whole numbers only), 
whether the fertilizer is acid-forming or non-acid- 
forming. The potential basicity or acidity ex- 
pressed as equivalent of calcium carbonate in mul- 
tiples of five per cent (or one hundred pounds per 
ton) 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) ; available 
potash, per cent (whole numbers only), and the 
maximum percentage of chloride expressed as: 
Chlorine, per cent. 

Whether the fertilizer is acid-forming or non- 
acid-forming. The potential basicity or acidity 
expressed as equivalent of calcium carbonate in 
multiples of five per cent (or one hundred pounds 
per ton) only. 
C — In fertilizer materials: 

Total nitrogen, per cent; nitrogen in the form 
of nitrate, per cent; available phosphoric acid, per 
cent; available potash, per cent. 

(4) The name and address of the person guar- 
anteeing 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 quinquennial pe- 
riod for which registration is made, but the guar- 
anteed analysis may be changed in other respects 
and the sources of materials may be changed, pro- 
vided prompt notification of such change is given 
to the commissioner and the change is noted on 
the container. 

(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, tankage, and other or- 
ganic materials in which the phosphoric acid con- 
tent is not shown by laboratory methods to be 
available but eventually becomes available in the 
soil, the phosphoric acid may be guaranteed as to- 
tal phosphoric acid. Unacidulated mineral phos- 
phatic materials offered for sale shall be guaran- 
teed as to both total and available phosphoric 
acid. In the case of basic slag, either the total or 
the available phosphoric acid shall be guaranteed. 
If the term "available phosphoric acid" be used 
in the statement of analyses, it shall mean the 
sum of water soluble and citrate soluble phos- 
phoric acid, except that when applied to basic 
slag phosphates the term "available" shall mean 
that part of the phosphoric acid found available 
by the Wagner citric acid method as adopted by 
the association of official agricultural chemists. 

(f) In no case, except in the case of unacidu- 
lated mineral phosphates, shall the term total 



[132] 



§ 4689(5) 



AGRICULTURE 



§ 4689(15) 



phosphoric acid and available phosphoric acid be 
used in the same statement of analysis. 

(g) All manufacturers, dealers or agents ap- 
plying for such registration under this section shall 
pay to the commissioner of agriculture of the state 
of North Carolina the sum of five dollars for 
each separate registration registered with the said 
commissioner; further, that the quinquennial reg- 
istration of brands of fertilizers, or fertilizer ma- 
terials, shall become effective December first, one 
thousand nine hundred thirty-seven. It is further 
provided herein that the full registration fee of 
five dollars shall be levied on all brands of fer- 
tilizer, or fertilizer materials, offered for registra- 
tion between the effective date and the expiration 
date of any quinquennial period. In no event shall 
two or more brands of the same brand name with 
different guaranteed analysis be included under a 
single registration by the same manufacturer, 
dealer or agent. (1933, c. 324, s. 4; 1937, c. 430, 
s. 2.) 

Editor's Note. — The 1937 amendment so changed this sec- 
tion that a comparison here is not practical. 

§ 4689(5). Marking.— 

(1) If magnesium oxide (MgO) is claimed as 
an ingredient the minimum percentage of total 
magnesium oxide, and/or water soluble or avail- 
able magnesium oxide shall be guaranteed in the 
case of tobacco fertilizers. In the case of other 
fertilizers the total magnesium oxide, if claimed, 
shall be guaranteed in minimum per cent. The 
guarantees of magnesium oxide shall be stated in 
whole numbers only. This guarantee shall ap- 
pear either on the bag or container or on a suit- 
able tag attached thereto. 

(m) The maximum sulphur may be claimed as 
an ingredient of tobacco fertilizers and the mini- 
mum calcium oxide (CaO) may be claimed in all 
mixed fertilizers. If these claims are made they 
shall be guaranteed. The guarantee shall appear 
on the bag or container or on a suitable tag or la- 
bel attached thereto and shall be stated in per 
cent in whole numbers only. 

(n) Additional plant food, elements, compounds, 
or classes of compounds determinable by chemical 
control methods, may be guaranteed by permis- 
sion of the commissioner and board of agricul- 
ture if approved by the director of the North Car- 
olina experiment station: Provided, due public 
notice of the proposed action shall have been 
given. When any such additional plant food, ele- 
ments, compounds, or classes of compounds are 
included in the guarantee, they shall be subject to 
inspection and analysis in accordance with the 
methods and regulations that may be prescribed 
by the commissioner. The commissioner shall 
also fix penalties for failure to fulfill such guaran- 
tees. (1933, c. 324, s. 5; 1937, c. 430, s. 3.) 

Editor's Note. — The 1937 amendment added paragraphs (1), 
(m) and (n). The rest of the section, not being affected 
by the amendment, is not set out here. 

§ 4689(11). Chemical analyses.— 

(c) If the state chemist is required by law to 
make analyses or determinations for any ingredi- 
ents before the association of official agricultural 
chemists shall have adopted an official, or tenta- 
tive, method for such determination, then the state 
chemist shall prescribe a method of analysis to be 
used, and he shall send a copy of such method to 
every manufacturer, whose brands are registered 



in the state, at least six months before such pro- 
visions of the law become effective. (1933, c. 324, 
s. 11; 1937, c. 430, s. 4.) 

Editor's Note. — The 1937 amendment added paragraph (c). 
The rest of the section, not being affected by the amend- 
ment, is not set out here. 

§ 4689(12). Plant food deficiency.— 

(c) Should the basicity or acidity as equivalent 
of calcium carbonate of any sample of fertilizer be 
found upon analysis to differ more than five per 
cent (or one hundred pounds calcium carbonate 
equivalent per ton) from the guarantee, then a 
penalty of fifty cents per ton for each fifty pounds 
calcium carbonate, or fraction thereof in excess of 
the one hundred pounds allowed, shall be assessed 
and paid as under paragraph (a) of this section. 

(d) Should the total magnesium oxide (MgO) 
content of any sample of fertilizer fall as much 
as one whole per cent below the guaranteed mini- 
mum, a penalty of fifty cents per ton for each ad- 
ditional one-fourth of one whole per cent, or frac- 
tion thereof, shall 'be assessed. Should the water 
soluble or available magnesium oxide (MgO) con- 
tent of any sample of fertilizer fall as much as 
one-half whole per cent below the guaranteed 
minimum, a penalty of fifty cents per ton for each 
additional one-fourth of one whole per cent, or 
fraction thereof, shall be assessed. These penal- 
ties for total and water soluble or available mag- 
nesium oxide shall not be cumulative, but only 
the greater one shall be assessed and paid as un- 
der paragraph (a) of this section. 

(e) Should the calcium oxide (CaO) content of 
any sample of fertilizer fall more than one whole 
per cent below the guaranteed minimum, a penalty 
of fifty cents per ton for each additional one-half 
whole unit, or fraction thereof, shall be assessed 
and paid as under paragraph (a) of this section. 

(f) Should the sulphur content of any tobacco 
fertilizer exceed by more than one whole per cent 
the guaranteed maximum, a penalty of fifty cents 
per ton for each additional one-half whole per 
cent, or fraction thereof, shall be assessed and 
paid as under paragraph (a) of this section. 

(g) Should the water insoluble nitrogen content 
of any sample of fertilizer fall more than twenty- 
five per cent below the guaranteed minimum, a 
penalty of twice the value of the deficiency shall 
be assessed. If it should fall as much as fifty per 
cent below the guaranteed minimum, a penalty of 
five times the value of the deficiency shall be as- 
sessed. 

(h) Should the nitrate nitrogen content of any 
sample of mixed fertilizer fall more than twenty- 
five per cent below the guaranteed minimum, a 
penalty of fifty cents per ton shall be assessed. If 
it falls more than fifty per cent below the guaran- 
teed minimum, a penalty of one dollar per ton 
shall be assessed. 

(i) All penalties assessed under this section 
shall be paid to the purchaser or consumer of the 
lot of fertilizer represented by the sample ana- 
lyzed. (1933, c. 324, s. 12; 1937, c. 430, s. 5.) 

Editor's Note. — The 1937 amendment added paragraphs (c) 
to (i) inclusive. The rest of the section, not being affected 
by the amendment, is not set out. 

§ 4689(15). Minimum plant food content. — (a) 

No super-phosphate, no fertilizer with a guarantee 
of two plant food ingredients, or no complete 



[133] 



§ 4723(a) 



AGRICULTURE 



§ 4830 



mixed fertilizer, shall be sold or offered for sale 
for fertilizer purposes within this state which con- 
tains less than fourteen per cent of plant food, ex- 
cepting potash in combination with lime, which 
shall contain not less than two per cent of avail- 
able potash. This shall not apply to natural ani- 
mal or vegetable products not mixed with other 
materials. 

(d) No mixed fertilizer containing nitrogen 
shall guarantee less than two per cent of total ni- 
trogen. No mixed fertilizer containing potash 
shall guarantee less than two per cent of available 
potash. (1933, c. 324, s. 15; 1937, c. 430, s. 6.) 

Editor's Note. — The 1937 amendment made changes in par- 
agraph (a) and added paragraph (d). The rest of the sec- 
tion, not being affected by the amendment, is not set out. 

Art. 4. Pulverized Limestone and Marl 

§ 4723(a). Tonnage tax levied on sale of agri- 
cultural lime and land plaster. — For the purpose 
of defraying expenses connected with the inspec- 
tion and analyses of agricultural lime and/or land 
plaster, there shall be paid by each manufacturer, 
dealer or agent, to the department of agriculture 
a charge of five cents (5c) per ton on such agri- 
cultural lime and/or land plaster sold or offered 
for sale in the state, except that which is sold to 
a fertilizer manufacturer for the sole purpose of 
use in the manufacture of fertilizers, said charge 
of five cents (5c) per ton to be collected by the 
department of agriculture in the same manner as 
the charge on fertilizers is now collected. 

Each bag, parcel or shipment of agricultural 
lime and/or land plaster shall have attached there- 
to a tag, or label, to be furnished by the depart- 
ment of agriculture, stating that all charges speci- 
fied in this law have been paid, and the commis- 
sioner, with the advice and consent of the board, 
is hereby empowered to prescribe a form for such 
tags or labels and to adopt such regulations as 
will insure enforcement of this law. Whenever 
any manufacturer, dealer or agent shall have paid 
the required charges, his goods shall not be liable 
to any further tax, whether by city, town, or 
county. Tax tags or labels shall be issued each 
year by the commissioner and sold to persons ap- 
plying for same at the tax rate provided herein. 
Tags or labels left in the possession of persons reg- 
istering agricultural lime and/or land plaster at the 
end of the calendar year may be exchanged for 
tags or labels of the succeeding year. 

If any manufacturer, dealer or agent, or other 
seller of agricultural lime and/or land plaster, shall 
desire to ship in bulk, either by rail or truck, the 
said manufacturer, dealer or agent shall furnish an 
invoice or bill of lading with sufficient tax certifi- 
cates attached, in such form as may be prescribed 
by the commissioner and board of agriculture, to 
pay the tax on the amount of goods shipped. 

It is required of each person registering agricul- 
tural lime and/or land plaster under this law that 
he furnish the commissioner with a written state- 
ment of the tonnage of agricultural lime and/or 
land plaster sold by him in this state. Said state- 
ments shall include all sales for the periods of Jan- 
uary first to and including June thirtieth, and of 
July first to and including December thirty-first 
of each year. These statements are to be made 
within thirty days of the expiration date of each 



of these periods. Shipments of agricultural lime 
to fertilizer manufacturers in bulk to be used in 
the manufacturer of fertilizer not to be included. 
It shall be the duty of the commissioner, per- 
sonally or by agents duly authorized in writing, 
to make such inspection of agricultural lime and/ 
or land plaster in this state, to have such samples 
taken, and to have such analyses made as in his 
judgment may be necessary, whether or not per- 
sons offering, selling, or distributing agricultural 
lime and/or land plaster are complying with the 
provisions of this law. The commissioner and 
board of agriculture shall have power to prescribe 
penalties for failure to meet guarantees; also for 
failure to use inspection tags or labels. (1937, c. 
367, ss. 1-5.) 

Art. 8. Bottling Plants for Soft Drinks 

§ 4780(3). Establishment and equipment kept 
clean; containers sterilized. — The floors, walls, 
ceilings, furniture, receptacles, implements, and 
machinery of every establishment where soft 
drinks are manufactured, bottled, stored, sold, or 
distributed shall at all times be kept in a clean 
sanitary condition; all vessels, receptacles, uten- 
sils, tables, shelves, and machinery used in mov- 
ing, handling, mixing, or processing must be thor- 
oughly cleaned daily, all bottles and other con- 
tainers used must be sterilized in caustic soda or 
alkali solution in not less than three per cent 
alkali or other solution of the equivalent steriliz- 
ing effect as prescribed by the rules and regula- 
tions adopted by the board of agriculture. (1935, 
c. 372, s. 3; 1937, c. 232.) 

Editor's Note. — The 1937 amendment inserted the words 
"or other solution of the equivalent sterilizing effect." 

Art. 121 Seed Inspection 

§ 4823. Procurement and analysis of samples. — 

Upon demand of the owner, his representative 
or agent having the seed in charge, said sample 
shall 'be thoroughly mixed and divided into two 
samples of at least two ounces each and securely 
sealed. One of said samples shall be left with or 
on the premises of the vendor, or party in interest, 
and the other retained by said commissioner, or 
analyst, or agent, for analysis. (1917, c. 241, s. 
13; 1929, c. 194, s. 13; 1935, c. 380, s. 5; 1937, c. 
300, s. 1.) 

Editor's Note.— The 1937 amendment, effective Jan. 1, 1938, 
inserted at the beginning of the next to the last sen- 
tence the following: "Upon demand of the owner, his rep- 
resentative or agent having the seed in charge." The rest 
of the section, not being affected by the amendment, is not 
set out. 

§ 4830. License tax for sale of seed. — For the 

purpose of providing a fund to defray the expenses 
of the examination and analysis prescribed in this 
article, each person, firm, or corporation selling 
or offering for sale in or export from this state 
any seed as mentioned in this article shall register 
with the department of agriculture the name of 
the person, firm, or corporation offering the seed 
for sale, and shall pay a license tax annually, on 
January first of each year, of twenty-five dollars 
($25.00) if a wholesaler or a wholesaler and re- 
tailer, and ten dollars ($10.00) if only a retailer. 
Each branch of any wholesaler or retailer shall be 
required to pay the retail license tax. The com- 
missioner's receipt for such money shall be license 



[ 134 



§ 4831 



AGRICULTURE 



§ 4870(s) 



to conduct the business. Every parcel or package 
of agricultural and vegetable seeds, as denned in 
this article, delivered to any farmer of this state 
for seeding purposes, and weighing ten (10) 
pounds or more, sold by any person, firm, or cor- 
poration whose business residence is either inside 
or outside the state, shall have affixed thereto a 
copy of the tag as designated in section 4812; said 
tag to be purchased from the commissioner of 
agriculture, and the purchaser of said tag to be 
subject to the penalties outlined in section 4825 for 
the use of the same tag a second time: Provided, 
that tags of the previous year may be given in ex- 
change for tags of the current year: Provided fur- 
ther, that no farmer residing in North Carolina 
shall be required to procure a state seed license to 
sell seeds raised on his own farm. (1917, c. 241, 
s. 17; 1921, c. 235, s. 4; 1929, c. 194, ss. 17, 18; 
1937, c. 300, ss. 2, 3.) 

Editor's Note.— The 1937 amendment reduced the retail- 
er's tax, inserted the second sentence relating to tax of 
branch, and added the second proviso. 

§ 4831. Tolerance allowances for purity guaran- 
tees, specified; tolerance scale for germination. — ■ 

The word "approximate" as used in this article 
shall be interpreted as follows: 

For purity guarantees the tolerance allowed 
shall be two-tenths of one per cent, plus twenty 
per cent of the lesser part of the sample. That is 
to say, a sample is considered as being made up of 
two parts, the pure seed (meaning the seed or 
seeds named on the label), and the balance of the 
sample (other agricultural seeds, weed seeds and 
inert matter). For example, if a purity of ninety- 
eight per cent (98%) is claimed, the sample may 
test as low as ninety-seven and forty one-hun- 
dredth per cent (97.40%) and not be deemed mis- 
labeled; if a purity of eighty-two and twenty one- 
hundredth per cent (82.20%) is claimed, the sam- 
ple may test as low as seventy-eight and forty-four 
one-hundredth per cent (78.44%) and not be 
deemed mis-labeled. 

For germination guarantees the following toler- 
ance scale shall be allowed: 
Guarantee (%) Allowable Variation (%) 

90 or above 6 

80 or above, but less than 90 7 

70 or above, but less than 80 8 

60 or above, but less than 70 9 

Less than 60 10 

(1921, c. 235, s. 5; 1929, c. 194, s. 19; 1931, c. 65; 
1937, c. 300, s. 3.) 

Editor's Note.— The 1937 amendment, effective Jan. 1, 1938, 
so changed this section that a comparison here is not prac- 
tical. 

§ 4831(1). Seizure and condemnation author- 
ized, upon violation. — When any section of this 
article has been violated, the seed may be seized 
and held until the article has been complied with. 
If the article has not been complied with within 
thirty (30) days, said seed may be condemned and 
sold at public auction. Seizures may be made by 
the commissioner of agriculture, his agents, or 
any peace officer. (1937, c. 300, s. 4.) 

Art. 14B. Liquid Fuels, Lubricating Oils, 
Greases, etc. 
§ 4870(h). Sale of fuels, etc., different from ad- 
vertised name prohibited. 

Applied in Maxwell v. Shell Eastern Petroleum Products, 
90 F. (2d) 39. 



Art. 14C. Gasoline and Oil Inspection 

§ 4870(o). Title of article.— This article shall be 
known as the Gasoline and Oil Inspection Act. 
(1937, c. 425, s. 1.) 

§ 4870(p). "Gasoline" defined. — The term "gas- 
oline" wherever used in this article shall be con- 
strued to mean a refined petroleum naphtha which 
by its composition is suitable for use as a carbu- 
rant in internal combustion engines. (1937, c. 
425, s. 2.) 

§ 4870(q). "Motor fuel" defined.— "Motor fuel" 
shall be construed to mean all products commonly 
or commercially known or sold as gasoline, 
including casing-head or absorption or natural gas- 
oline, benzol, or naphtha, regardless of their classi- 
fication or uses, and any liquid prepared, adver- 
tised, offered for sale or sold for use as or com- 
monly and commercially used as a fuel in internal 
combustion engines which, when subjected to dis- 
tillation in accordance to the standard method of 
test for distillation of gasoline, naphtha, kerosene, 
and similar petroleum products (American Society 
of Testing Materials, Designation D-86), show not 
less than ten per centum recovered below three 
hundred forty-seven degrees Fahrenheit and not 
less than ninety-five per centum recovered below 
four hundred sixty-four degrees Fahrenheit. In 
addition to the above, any other volatile and in- 
flammable liquid when sold or used to propel a 
motor vehicle on the highways shall be motor fuel. 
(1937, c. 425, s. 3.) 

§ 4870 (r). Inspection of kerosene, gasoline and 
other petroleum products provided for. — All kero- 
sene used for illuminating or heating purposes and 
all gasoline used or intended to be used for gen- 
erating power in internal combustion engines or 
otherwise sold or offered for sale, and all kero- 
sene, benzine, naphtha, petroleum solvents, distil- 
lates, gas oil, furnace or fuel oil and all other vola- 
tile and inflammable liquids by whatever name 
known or sold and produced, manufactured, re- 
fined, prepared, distilled, compounded or blended 
for the purpose of generating power in motor ve- 
hicles for the propulsion thereof by means of in- 
ternal combustion engines or which are sold or 
used for such purposes, and any and all substances 
or liquids which in themselves or by reasonable 
combination with others might be used for or as 
substitutes for motor fuel shall be subject to in- 
spection, to the end that the public may be pro- 
tected in the quality of petroleum products it buys, 
that the state's revenue may be protected, and that 
frauds, substitutions, adulterations and other rep- 
rehensible practices may be prevented. (1937, c. 
425, s. 4.) 

§ 4870(s). Inspection fee; allotments for admin- 
istration expenses. — For the purpose of defraying 
the expenses of enforcing the provisions of this 
article there shall be paid to the commissioner of 
revenue a charge of one-fourth of one cent per 
gallon upon all kerosene, gasoline, and other prod- 
ucts of petroleum used as motor fuel, which pay- 
ment shall be made in the manner prescribed by 
law. 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 may be necessary to ad- 



[135] 



§ 4870(t) 



AGRICULTURE 



§ 4870(bb) 



minister and effectively enforce the provisions of 
the inspection laws. (1937, c. 425, s. 5.) 

§ 4870 (t). Supervision of motor vehicle bureau; 
payment into state treasury; "gasoline and oil in- 
spection fund". — Gasoline and oil inspection shall 
be one organization in activities accounting and 
reporting under the motor vehicle bureau of the 
department of revenue. All moneys received un- 
der the authority of the inspection laws of this 
state shall be paid into the state treasury and kept 
as a distinct fund, to be styled "The Gasoline and 
Oil Inspection Fund," and the amount remaining 
in such fund at June thirtieth and December 
thirty-first of each year shall be turned over to 
the general fund by the state treasurer. (1937, 
c. 425, s. 6.) 

§ 4870 (u). Report of operation and expenses to 
general assembly. — The commissioner of revenue 
shall include in his report to the general assembly 
an account of the operation and expenses under 
this article. (1937, c. 425, s. 7.) 

§ 4870 (v). Inspectors, clerks and assistants. — 

The commissioner of revenue shall appoint and 
employ such number of gasoline and oil inspec- 
tors, clerks and assistants as may be necessary to 
administer and effectively enforce all the provi- 
sions of the inspection laws. All inspectors shall 
be bonded in the sum of one thousand dollars in 
the usual manner provided for the bonding of 
state employees, and the expense of such bonding 
shall be paid from the gasoline and oil inspection 
fund created by this article. Each inspector, be- 
fore entering upon his duties, shall take an oath 
of office before some person authorized to admin- 
ister oaths. Any inspector who, while in office, 
shall be interested directly or indirectly in the 
manufacture or vending of any illuminating oils 
or gasoline or other motor fuels shall be guilty of 
a misdemeanor, and upon conviction shall be fined 
not less than three hundred dollars, or be impris- 
oned for not less than three months nor more than 
twelve months, or both such fine and imprison- 
ment, in the discretion of the court. (1937, c. 425, 
s. 8.) 

§ 4870(w). Gasoline and oil inspection board 
created. — In order to more fully carry out the pro- 
visions of this article there is hereby created a 
gasoline and oil inspection board of five members, 
to be composed of the commissioner of revenue, 
the director of the gasoline and oil inspection di- 
vision, and three members to be appointed by the 
governor, who shall serve at his will. The com- 
missioner of revenue and the director of the gaso- 
line and oil inspection division shall serve without 
additional compensation. Other members of the 
board shall each receive the sum of ten dollars for 
each day he attends a session of the board and for 
each day necessarily spent in traveling to and from 
his place of residence, and he shall receive five 
cents a mile for the distance to and from Raleigh 
by the usual direct route for each meeting of the 
board which he attends. These expenses shall be 
paid from the gasoline and oil inspection fund cre- 
ated by this article. It shall be the duty of the 
gasoline and oil inspection board, after public no- 
tice and provision for the hearing of all interested 
parties, to adopt standards for the various grades 



of gasoline based upon scientific tests and ratings 
and for each of the articles for which inspection 
is provided, to prescribe the form of the label for 
the various grades of gasoline, and to pass all rules 
and regulations necessary for enforcing the pro- 
visions of the laws relating to the transportation 
and inspection of petroleum products. After the 
adoption and publication of said standards it shall 
be unlawful to sell or offer for sale or exchange 
or use in this state any products which do not 
comply with the standards so adopted. The said 
gasoline and oil inspection board shall, from time 
to time after a public hearing, have the right to 
amend, alter, or change said standards. Three 
members of said board shall constitute a quorum. 
(1937, c. 425, s. 9.) 

§ 487G(x). Adoption of standards based on 
scientific tests. — The gasoline and oil inspection 
board shall have the power to adopt standards for 
the various grades of gasoline based upon scien- 
tific tests and ratings. (1937, c. 425, s. 10.) 

§ 4870(y). Display of grade rating on pumps, 
etc.; sales from pumps or devices not labeled; sale 
of gasoline not meeting standard indicated on la- 
bel. — At all times there shall be firmly attached to 
or painted on each dispensing pump or other dis- 
pensing device used in the retailing of gasoline a 
label stating that the gasoline contained therein is 

North Carolina grade. It shall be the 

duty of the gasoline and oil inspection board to 
prescribe the form of said label. Any person, firm, 
'co-partnership, partnership, or corporation who 
shall offer or expose for sale gasoline from any 
dispensing pump or other dispensing device which 
has not been labeled as required by this section, 
and/or offer and expose for sale any gasoline 
which does not meet the required standard for the 
grade indicated on the label attached to the dis- 
pensing pump or other dispensing device, shall be 
guilty of a misdemeanor, and upon conviction shall 
be fined not more than five hundred dollars and 
be imprisoned for not more than six months, or 
by either or both in the discretion of the court, 
and the gasoline offered or exposed for sale shall 
be confiscated. (1937, c. 425, s. 11.) 

§ 4870(z). Regulations for sale of substitutes. — 

All materials, fluids, or substances offered or ex- 
posed for sale, purporting to be substitutes for or 
motor fuel improvers, shall, before being sold, ex- 
posed or offered for sale, be submitted to the com- 
missioner of revenue for examination and inspec- 
tion, and shall only be sold or offered for sale when 
properly labeled with a label, the form and con- 
tents of which label has been approved by the said 
commissioner of revenue in writing. (1937, c. 
425, s. 12.) 

§ 4870(aa). Rules and regulations of board 
available to interested parties. — It shall be the duty 
of the commissioner of revenue to make available 
for all interested parties the rules and regulations 
adopted by the gasoline and oil inspection board 
for the purpose of carrying into effect the laws 
relating to the inspection and transportation of pe- 
troleum products. (1937, c. 425, s. 13.) 

§ 4870(bb). Establishment of laboratory for 
analysis of inspected products. — The commissioner 
of revenue is authorized to provide for the analy- 



[136] 



§ 4870(cc) 



AGRICULTURE 



§ 4870(ff) 



sis of samples of inspected articles by establishing 
a laboratory under the gasoline and oil inspection 
division of the motor vehicle bureau for the analy- 
sis of inspected products. (1937, c. 425, s. 14.) 

§ 4870 (cc). Payment for samples taken for in- 
spection. — The gasoline and oil inspectors shall 
pay at the regular market price, at the time the 
sample is taken, for each sample obtained for in- 
spection purposes when request for payment is 
made: Provided, however, that no payment shall 
be made any retailer or distributor unless said re- 
tailer or distributor or his agent shall sign a re- 
ceipt furnished by the commissioner of revenue 
showing that payment has been made as re- 
quested. (1937, c. 425, s. 15.) 

§ 4870(dd). Powers and authority of inspectors. 

— The gasoline and oil inspectors shall have the 
right of access to the premises and records of any 
place where petroleum products are stored for the 
purpose of examination, inspection, and/or draw- 
ing of samples, and that said inspectors are hereby 
vested with the authority and powers of peace and 
police officers in the enforcement of motor fuel 
tax and inspection laws throughout the state, in- 
cluding the authority to arrest, with or without 
warrants, and take offenders before the several 
courts of the state for prosecution or other pro- 
ceedings, and seize or hold or deliver to the sher- 
iff of the proper county all motor or other vehicles 
and all containers used in transporting motor fuels 
and/or other liquid petroleum products in viola- 
tion of or without complying with the provisions 
of this article or the rules, regulations or require- 
ments of the commissioner of revenue and/or the 
gasoline and oil inspection board and also all mo- 
tor fuels contained therein. Said inspectors shall 
have power and authority on the public highways 
or any other place to stop and detain for inspec- 
tion and investigation any vehicle containing any 
motor fuel and/or other liquid petroleum products 
in excess of one hundred gallons or commonly 
used in the transportation of such fuels and the 
driver or person in charge thereof, and to require 
the production by such driver or person in charge 
of all records, documents and papers required by 
law to be carried and exhibited 'by persons in 
charge of vehicles engaged in transporting such 
fuels; and whenever said inspectors shall find or 
see any person engaged in handling, selling, us- 
ing, or transporting any fuels in violation of any 
of the provisions of the motor fuel tax or inspec- 
tion laws of this state, or whenever any such per- 
son shall fail or refuse to exhibit to said inspectors, 
upon demand therefor, any records, documents or 
papers required by law to be kept subject to in- 
spection or to be exhibited by such person, said 
person shall be guilty of a misdemeanor, and it 
shall be the duty of said inspectors to immediately 
arrest such violator and take him before some 
proper peace officer of the county in which the of- 
fense was committed and institute proper prosecu- 
tion. (1937, c. 425, s. 16.) 

§ 4870 (ee). Investigation and inspection of 
measuring equipment; devices calculated to falsify 
measures. — The gasoline and oil inspectors shall 
be required to investigate and inspect the equip- 
ment for measuring gasoline, kerosene, lubricat- 
ing oil, and other liquid petroleum products. 

[13 



Said inspectors shall be under the supervision of 
the commissioner of revenue, and are hereby 
vested with the same power and authority now 
given by law to inspectors of weights and meas- 
ures, in so far as the same may be necessary to 
effectuate the provisions of this article. The 
rules, regulations, specifications and tolerance lim- 
its as promulgated by the national conference of 
weights and measures, and recommended by the 
United States bureau of standards, shall be ob- 
served by said inspectors in so far as it applies 
to the inspection of equipment used in measuring 
gasoline, kerosene, lubricating oil and other pe- 
troleum products. Inspectors of weights and 
measures appointed and maintained by the various 
counties and cities of the state shall have the 
same power and authority given by this section 
to inspectors under the supervision of the com- 
mission of revenue. In all cases where it is found, 
after inspection, that the measuring equipment 
used in connection with the distribution of such 
products is inaccurate, the inspector shall con- 
demn and seize all incorrect devices which in his 
best judgment are not susceptible of satisfactory 
repair, but such as are incorrect, and in his best 
judgment may be repaired, he shall mark or tag 
as "condemned for repairs" in a manner pre- 
scribed by the commissioner of revenue. After 
notice in writing the owners or users of such 
measuring devices which have been condemned 
for repairs shall have the same repaired and cor- 
rected within ten days, and the owners and/or 
users thereof shall neither use nor dispose of said 
measuring devices in any manner, but shall hold 
the same at the disposal of the gasoline and oil 
inspector. The inspector shall confiscate and de- 
stroy all measuring devices which have been con- 
demned for repairs and have not been repaired as 
required by this article. The gasoline and oil in- 
spectors shall officially seal all dispensing pumps 
or other dispensing devices found to be accurate 
on inspection, and if, upon inspection at a later 
date, any pump is found to be inaccurate and the 
seal broken, the same shall constitute prima 
facie evidence of intent to defraud by giving in- 
accurate measure, and the owner and/or user 
thereof shall be guilty of a misdemeanor, and 
upon conviction shall be fined not less than two 
hundred dollars nor more than one thousand dol- 
lars, or be imprisoned for not less than three 
months or by both such fine and imprisonment 
in the discretion of the court. Any person who 
shall remove or break any seal placed upon said 
measuring and/or dispensing devices by said in- 
spectors until the provisions of this section have 
been complied with shall be guilty of a misde- 
meanor, and upon conviction shall be fined not 
less than fifty dollars nor more than two hun- 
dred dollars, or be imprisoned for not less than 
thirty days nor more than ninety days, or by both 
such fine and imprisonment in the discretion of 
the court. Any person, firm, or corporation who 
shall sell or have in his possession for the pur- 
pose of selling or using any measuring device to 
be used or calculated to be used to falsify any 
measure shall be guilty of a misdemeanor, and 
shall be fined or imprisoned in the discretion of 
the court. (1937, c. 425, s. 17.) 

§ 4870 (ff). Responsibility of retailers for qual- 
ity of products. — The retail dealer shall be held 



§ 4870(gg) 



AGRICULTURE 



§ 4870(mm) 



responsible for the quality of the petroleum prod- 
ucts he sells or offers for sale: Provided, how- 
ever, that the retail dealer shall be released if the 
results of analysis of a sealed sample taken in a 
manner prescribed by the commissioner of reve- 
nue at the time of delivery, and in the presence 
of the distributor or his agent, shows that the 
product delivered by the distributor was of in- 
ferior quality. It shall be the duty of the distrib- 
utor or his agent to assist in sampling the prod- 
uct delivered. (1937, c. 425, s. 18.) 

§ 4870(gg). Adulteration of products offered 
for sale. — It shall be unlawful for any person, 
firm, or corporation who has purchased gasoline 
or other liquid motor fuel upon which a road tax 
has been paid to in any wise adulterate the same 
by the addition thereto of kerosene or any other 
liquid substance and sell or offer for sale the 
same. Any person violating the provisions of 
this section shall be guilty of a misdemeanor, and 
upon conviction shall be fined not less than two 
hundred dollars nor more than one thousand dol- 
lars or be imprisoned for not more than twelve 
months or by both such fine and imprisonment 
In the discretion of the court. (1937, c. 425, s. 
19.) 

§ 4870(hh). Certified copies of official tests 
admissible in evidence. — A certified copy of the 
official test of the analysis of any petroleum prod- 
uct, under the seal of the commissioner of reve- 
nue, shall be admissible 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. (1937, c. 425, s. 20.) 

§ 4870(ii). Retail dealers required to keep 
copies of invoices and delivery tickets. — Every 
person, firm, or corporation engaged in the retail 
business of dispensing gasoline and/or other pe- 
troleum products to the public shall keep on the 
premises of said place of business, for a period of 
one year, duplicate original copies of invoices or 
delivery tickets of each delivery received, show- 
ing the name and address of the party to whom 
delivery is made, the date of delivery, the kind 
and amount of each delivery received, and the 
name and address of the distributor. Each de- 
livery ticket or invoice shall be signed by the re- 
tailer or his agent and the distributor or his agent. 
Such records shall be subject to inspection at any 
time by the gasoline and oil inspectors. (1937, c. 
425, s. 21.) 

§ 4870 (jj). Prosecution of offenders. — All 

prosecutions for fines and penalties under the 
provisions of this article shall be by indictment 
in a court of competent jurisdiction in the county 
in which the violation occurred. (1937, c. 425, s. 
22.) 

§ 4870 (kk). Violation a misdemeanor. — Unless 
another penalty is provided in this article, any 
person violating any of the provisions of this ar- 
ticle or any of the rules and regulations of the 
commissioner of revenue and/or the gasoline and 
oil inspection board shall be guilty of a misde- 
meanor, and upon conviction shall be fined not 
more than one thousand dollars or be imprisoned 
for not more than twelve months, or by both 
such fine and imprisonment in the discretion of 
the court. (1937, c. 425, s. 23.) 



§ 4870(11). Persons engaged in transporting, 
are subject to inspection laws. — The owner or op- 
erator 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 gaso- 
line or liquid motor fuel taxable in this state 
and/or any liquid petroleum product that is or 
may hereafter be made subject to inspection laws 
of this state shall make application to the com- 
missioner of revenue on forms to be provided by 
him for a liquid fuel carrier's permit. Upon re- 
ceipt of said application, together with a signed 
agreement to comply with the provisions of the 
act and/or acts relating to the transportation of 
petroleum products subject to the motor fuel tax 
and/or inspection laws, the commissioner of reve- 
nue shall, without any charge therefor, issue a 
numbered liquid fuel carrier's permit to the owner 
or operator of each motor vehicle or boat intended 
to be used in such transportation. Said numbered 
liquid fuel carrier's permit shall show the motor 
number and license number of the motor vehicle 
and number or name of boat, and shall be promi- 
nently displayed on the motor vehicle or boat at 
all times. No person shall haul, transport, or con- 
vey any motor fuel over any of the public high- 
ways of this state except in vehicles plainly and 
visibly marked on the rear thereof with the word 
"Gasoline" in plain letters of not less than six 
inches high and of corresponding appropriate 
width, together with the name and address of the 
owner of the vehicle in letters of not less than 
four inches high: Provided, however, that this 
section shall not be construed to include the 
carrying of motor fuels in the supply tank of ve- 
hicles which is regularly connected with the car- 
buretor of the engine of the vehicle except when 
said fuel supply tank shall have a capacity of 
more than one hundred gallons. Any person vio- 
lating any of the provisions of this section shall 
be guilty of a misdemeanor and upon conviction 
shall be fined not more than twenty-five dollars. 
(1937, c. 425, s. 24.) 

§ 4870(mm). Persons engaged in transporting 
required to have in possession an invoice, bill of 
sale or bill of lading. — Every person hauling, 
transporting or conveying into, out of, or between 
points in this state any motor fuel and/or any 
liquid petroleum product that is or may hereafter 
be made subject to the inspection laws of this 
state over either the public highways or water- 
ways of this state, shall, during the entire time 
he is so engaged, have in his possession an in- 
voice, or bill of sale, or bill of lading showing the 
true name and address of the person from whom 
he has received the motor fuel and/or other liq- 
uid petroleum products, the kind, and the num- 
ber of gallons so originally received by him, and 
the true name and address of every person to 
whom he has made deliveries of said motor fuel 
and/or other liquid petroleum products or any 
part thereof and the number of gallons so deliv- 
ered to each said person. Such person engaged 
in transporting said motor fuels and/or other pe- 
troleum products shall, at the request of any 
agent of the commissioner of revenue, exhibit for 
inspection such papers or documents immediately, 
and if said person fails to produce said papers or 
documents or if, when produced, it fails to clearly 



[138] 



§ 4870(nn) 



AGRICULTURE 



§ 4895(27) 



disclose said information, the agent of the com- 
missioner of revenue shall hold for investigation 
the vehicle and contents thereof. If investigation 
shows that said motor fuels and/or other petro- 
leum products are being transported in violation 
of or without compliance with the motor fuel tax 
and/or inspection laws of this state such fuels 
and/or other petroleum products and the vehicle 
used in the transportation thereof are hereby de- 
clared common nuisances and contraband, and 
shall be seized and sold and the proceeds shall go 
to the common school fund of the state: Pro- 
vided, however, that this article shall not be con- 
strued to include the carrying of motor fuel in the 
supply tank of vehicles which is regularly con- 
nected with the carburetor of the engine of the 
vehicle, except when said fuel supply tank shall 
have a capacity of more than one hundred gal- 
lons: Provided, this section shall not apply to 
franchise carriers. (1937, c. 425. s. 25.) 



§ 4870 (nn). Display required on containers used 
in making deliveries. — Every person delivering at 
wholesale or retail any gasoline in this state shall 
deliver the same to the purchaser only in tanks, 
barrels, casks, cans, or other containers having 
the word "Gasoline" or the name of such other 
like products of petroleum, as the case may be, 
in English, plainly stenciled or labeled in colors 
to meet the requirements of the regulations 
adopted by the commissioner of revenue and/or 
the gasoline and oil inspection board. Such deal- 
ers shall not deliver kerosene oil in any barrel, 
cask, can, or other container which has not been 
stenciled or labeled as hereinbefore provided. 
Every person purchasing gasoline for use or sale 
shall procure and keep the same only in tanks, 
barrels, casks, cans, or other containers stenciled 
or labeled as hereinbefore provided: Provided, 
that nothing in this section shall prohibit the de- 
livery of gasoline by hose or pipe from a tank di- 
rectly into the tank of any automobile or any 
other motor vehicle: Provided further, that in 
case gasoline or other inflammable liquids is sold 
in bottles, cans, or packages of not more than 
one gallon for cleaning and other similar pur- 
poses, the label shall also bear the words "Un- 
safe when exposed to heat or fire": Provided 
further, that this section shall not apply to 
franchise carriers. (1937, c. 425, s. 26.) 

§ 4870(oo). Registration of exclusive industrial 
users of naphthas and coal tar solvents. — All per- 
sons who are exclusive industrial users of naphtha 
and coal tar solvents, and who are not engaged 
in the business of selling motor fuel, may register 
with the commissioner of revenue as an exclusive 
industrial user of naphthas and coal tar solvents 
upon the presentation of satisfactory evidence of 
such fact to said commissioner and the filing of 
a surety bond in approved form not to exceed the 
sum of one thousand dollars. Such registration, 
properly evidenced by the issuance of a certificate 
of registration as an exclusive industrial user of 
naphthas and coal tar solvents, will thereafter, 
and until such time as certificate of registration 
may be canceled by the commissioner of revenue, 
permit licensed distributors of motor fuel in this 
state to sell naphthas and coal tar solvents to the 
holder of such certificate of registration upon the 
proper execution of an official certificate of in- 

[ 139 



dustrial use in lieu of the collection of the motor 
fuel tax: Provided, however, that no licensed dis- 
tributor of motor fuel shall sell gasoline tax free 
under the conditions of this article: Provided 
further, that the rules and regulations adopted by 
the commissioner of revenue for the proper ad- 
ministration and enforcement of this article shall 
be strictly adhered to by the holder of the certifi- 
cate of registration under penalty of cancellation 
of such certificate for violation of or non-observ- 
ance of such rules. (1937, c. 425, s. 27.) 

§ 4870 (pp). Certain laws adopted as part of 
article. — Chapter one hundred seventy-four, Pub- 
lic Laws of one thousand nine hundred twenty- 
seven [§§ 4870(a)-4870(e)], and chapter one hun- 
dred eight, Public Laws of one thousand nine 
hundred thirty-three [§§ 4870 (g) -4870 (n)], are 
hereby made a part of this article. (1937, c. 425, 
s. 28.) 

§ 4870 (qq). Charges for analysis of samples. — 

The commissioner of revenue is hereby authorized 
to fix and collect such charges as he may deem 
adequate and reasonable for any analysis made 
by the gasoline and oil inspection division of any 
sample submitted by any person, firm, association 
or corporation other than samples submitted by 
the gasoline and oil inspectors in the performance 
of the duties required of said inspectors under 
this article: Provided, however, that no charge 
shall be made for the analysis of any sample sub- 
mitted by any municipal, county, state or federal 
official when the results of such analyses are nec- 
essary for the performance of his official duties. 
All moneys collected for such analyses shall be 
paid into the state treasury to the credit of the 
gasoline and oil inspection fund. (1937, c. 425, s. 
29.) 

§ 4870 (rr). Inspection of fuels used by state. — 
The gasoline and oil inspection division is hereby 
authorized, upon request of the proper state au- 
thority, to inspect, analyze, and report the result 
of such analysis of all fuels purchased by the state 
of North Carolina for the use of all departments 
and institutions. (1937, c. 153.) 



Art. 15. Animal Diseases 

Part 7. Rabies 
§ 4895(3). Appointment of rabies inspectors; 
preference to veterinarians. 

Editor's Note.— By Public Laws 1937, c. 255, the board of 
county commissioners of Davie county was authorized and 
directed to appoint one rabies inspector for said county in- 
stead of one for each township as provided in this section. 

Part 8. Bang's Disease 
§ 4895(26). Animals affected with, or exposed 
to Bang's disease, declared subject to quarantine, 
etc. — It is hereby declared that the disease of ani- 
mals known as Bang's disease, contagious abor- 
tion, abortion disease, bovine infectious abortion, 
or Bang's bacillus disease, is of a contagious and 
infectious character, and animals affected with, or 
exposed to, or suspected of being carriers of said 
disease shall be subject to quarantine and the 
rules and regulations of the department of agri- 
culture. (1937, c. 175, s. 1.) 

§ 4895(27). "Bang's disease" defined; co-opera- 
tion with federal department of agriculture. — 

Bang's disease shall mean the disease wherein an 



§ 4895(28) 



AGRICULTURE 



§ 4930(1) 



animal is infected with the Bang bacillus, irre- 
spective of the occurrence or absence of an abor- 
tion. An animal shall be declared infected with 
Bang's disease if it reacts to a seriological test, 
or if the Bang bacillus has been found in the 
body or its secretions or discharge, or if it has 
been treated with a live culture of the Bang ba- 
cillus. The control and eradication of Bang's 
disease in the herds of the state shall be conducted 
as far as the funds of the department of agricul- 
ture will permit, and in accordance with the rules 
and regulations made by the said department. 
Said department of agriculture is hereby author- 
ized to co-operate with the United States depart- 
ment of agriculture in the control and eradication 
of Bang's disease. (1937, c. 175, s. 2.) 

§ 4895(28). Blood samples; diseased animals to 
be branded and quarantined; sale, etc. — All blood 
samples for a Bang's disease test shall be drawn 
by a qualified veterinarian whose duty it shall be 
to brand all animals affected with Bang's disease 
with the letter "B" on the left hip or jaw, not less 
than three or more than four inches high, and to 
tag such animals with an approved cattle ear tag 
and to report same to the state veterinarian. Cat- 
tle affected with Bang's disease shall be quaran- 
tined on the owner's premises. No animal affected 
with Bang's disease shall be sold, traded or other- 
wise disposed of except for immediate slaughter, 
and it shall be the duty of the person disposing of 
such infected animals to see that they are promptly 
slaughtered and a written report of same is made 
to the state veterinarian. (1937, c. 175, s. 3.) 

§ 4895(29). Civil liability of vendors. — Any per- 
son or persons who knowingly sells or otherwise 
disposes of, to another, an animal affected with 
Bang's disease shall be liable in a civil action to 
any person injured, and for any and all damages 
resulting therefrom. (1937, c. 175, s. 4.) 

§ 4895(30). Sales by non-residents. — When 
cattle are sold, or otherwise disposed of, in this 
state, by a non-resident of this state, the person 
or persons on whose premises the cattle are sold, 
or otherwise disposed of, with his knowledge and 
consent, shall be equally responsible for violations 
of this law and the regulations of the department 
of agriculture. (1937, c. 175, s. 5.) 

§ 4895(31). Duties of state veterinarian; quar- 
antine for failure to comply with recommenda- 
tions. — When the state veterinarian receives in- 
formation, or has reason to believe that Bang's 
disease exists in any animal or animals, he shall 
promptly notify the owner or owners, and recom- 
mend that a test be applied to said animals, that 
diseased animals shall be properly disposed of, 
and the premises disinfected under the supervi- 
sion of the state veterinarian or his authorized 
representative. Should the owner or owners fail 
or refuse to comply with the said recommenda- 
tions of the state veterinarian within ten days 
after said notice, then the state veterinarian shall 
quarantine said animals on the premises of the 
owner or owners. Said animals shall not be re- 
moved from the premises where quarantined. 
Said quarantine shall remain in effect until the 
said recommendations of the state veterinarian 
have been complied with and the quarantine is 



canceled by the state veterinarian. (1937, c. 175, 

s. 6.) 

§ 4895(32). Co-operation of county boards of 
commissioners. — The several boards of county 
commissioners in the state are hereby expressly 
authorized and empowered within their discretion 
to make such appropriations from the general 
funds of their county as will enable them to co- 
operate effectively with the state and federal de- 
partments of agriculture in the eradication of 
Bang's disease in their respective counties. (1937, 
c. 175, s. 7.) 

§ 4895(33). Compulsory testing. — Whenever a 
county board shall co-operate with the state and 
federal governments, as provided for in this law, 
the testing of all cattle in said county shall be- 
come compulsory, and it shall be the duty of the 
cattle owners to give such assistance as may be 
necessary for the proper testing of said cattle, 
and no cattle, except for immediate slaughter, 
shall be brought into the county unless accom- 
panied by a proper test chart and health certifi- 
cate issued by a qualified veterinarian, showing 
that the cattle have passed a proper test for Bang's 
disease. (1937, c. 175, s. 8.) 

§ 4895(34). "Qualified veterinarian" defined — 

The words "qualified veterinarian" shall be con- 
strued to mean a veterinarian approved by the 
state veterinarian and chief of the United States 
bureau of animal industry for the testing of cat- 
tle intended for interstate shipment. (1937, c. 
175, s. 9.) 

§ 4895(35). Authority to promulgate and en- 
force rules and regulations. — The commissioner 
of agriculture, by and with the consent of the 
state board of agriculture, shall have full power to 
promulgate and enforce such rules and regulations 
as may be necessary to carry out the provisions 
of this law and for the effective control and eradi- 
cation of Bang's disease. (1937, c. 175, s. 10.) 

§ 4895(36). Violation made misdemeanor. — Any 

person or persons who shall violate any provi- 
sion set forth in this law, or any rule or regula- 
tion duly established by the state board of agri- 
culture, or any officer or inspector who shall wil- 
fully fail to comply with any provisions of this 
law, shall be guilty of a misdemeanor. (1937, c. 
175, s. 11.) 

§ 4895(37). Punishment for sales of animals 
known to be infected. — Any person or persons 
who shall wilfully and knowingly sell or other- 
wise dispose of any animal or animals known to 
be affected with Bang's disease, except as pro- 
vided for in this law, shall be guilty of a misde- 
meanor, and punishable by a fine of not less than 
fifty dollars and not more than two hundred dol- 
lars, or imprisoned for a term of not less than 
thirty days or more than two years. (1937, c. 
175, s. 12.) 

Art. 19A. Production, Sale, Marketing and 
Distribution of Tobacco 

§ 4930(1). Definitions. — As used in this article, 
unless otherwise stated or unless the context or 
subject matter clearly indicates otherwise: 

"Person" means any individual, partnership, 
firm, joint-stock company, corporation, associa- 



[140] 



§ 4930(2) 



AGRICULTURE 



§ 4930(3) 



tion, trust, estate, or any agency of the state or 
federal government. 

"Similar act" means an act of another state con- 
taining provisions substantially the same as this 
article, except that the omission of provisions re- 
quiring the establishment of acreage quotas for 
individual farms shall not be deemed a substantial 
variation from this article. 

"Kind of tobacco" means one or more types of 
tobacco as classified in the service and regulatory 
announcement number one hundred and eighteen 
of the bureau of agricultural economics of the 
United States department of agriculture as listed 
below, according to the name or names by which 
known: 

Types eleven, twelve, thirteen and fourteen, 
known as flue-cured tobacco. 

Type thirty-one, known as burley tobacco. 

"Crop year" means the period from May first 
of one year to April thirtieth of the succeeding 
year, both dates inclusive. 

"Surplus tobacco" means the quantity of to- 
bacco marketed from the crop produced on a 
farm in any crop year in excess of the marketing 
quota for such farm for such year. 

"Buyer or handler" means any person who buys 
tobacco from the producer thereof, or who sells 
tobacco for the producer thereof, and pays the 
producer for such tobacco, or who redries or oth- 
erwise processes tobacco for the producer there- 
of prior to the sale of such tobacco by the pro- 
ducer, or any producer who markets tobacco pro- 
duced by him directly to the consumer. 

"Dealer" means any person who buys and re- 
sells tobacco prior to the redrying, conditioning, 
or processing thereof. 

"Producer" means any person who has the 
right during any year to sell, or to receive a share 
of the proceeds derived from the sale of, tobacco 
produced by him or on land owned or leased by 
him. 

"Operator" means any person who, as owner- 
operator, or as cash rent, standing rent, or share 
rent tenant, operates a farm (i. e., a tract or tracts 
of land operated as a unit with the same machin- 
ery and other equipment) on which tobacco is 
produced, and includes a share-cropper who oper- 
ates a farm if the owner-operator or tenant does 
not provide for the obtaining of marketing cer- 
tificates with respect to the tobacco crop of the 
farm. (1937, c. 22, s. 1.) 

Editor's Note.— This article, known as the Tobacco Com- 
pact Act, depended upon similar action in other tobacco- 
producing states, which failed to materialize, and conse- 
quently is of no avail until other tobacco-producing states 
co-operate. 15 N. C. Iyaw Rev., No. 4, p. 323. 

§ 4930(2). North Carolina tobacco commission 
created; members; county and district committee- 
men; vacancies; compensation. — There is hereby 
created a commission to be known as the North 
Carolina tobacco commission (hereinafter re- 
ferred to as the "commission"). The commission 
shall consist of seven (7) members, and each of 
the four (4) tobacco belts, viz: eastern belt, mid- 
dle belt, old belt and border belt, shall have one 
or more representatives selected as follows: When 
this article becomes effective, the director of the 
state argicultural extension service shall arrange 
for a meeting of tobacco producers in each county 
(any county in which there are less than one hun- 
dred tobacco producers shall be grouped with an- 



other adjoining county), at which three (3) to- 
bacco producers shall be elected, by the produc- 
ers attending the meeting, to serve as county 
committeemen for one crop year. The director 
of the state agricultural extension service shall 
divide the state into six (6) districts and arrange 
for a meeting of the county committeemen elected 
in each district, at which meeting the county 
committeemen in each district shall nominate 
from among their number three (3) producers to 
serve as district committeemen. From the three 
(3) district committeemen nominated in each dis- 
trict the governor shall appoint one producer to 
serve for a period of one crop year as a member 
of the commission. The director of the state ag- 
ricultural extension service shall serve, or shall 
appoint one member of his staff to serve, as a 
member of the commission. Vacancies on the 
commission during any crop year shall be filled 
by the governor by the appointment of another 
district committeeman for the remainder of such 
year from the district in which the vacancy oc- 
curs: Provided, that the director of the state ag- 
ricultural extension service shall fill the vacancy 
in the case of the member of the commission ap- 
pointed by him. At the end of each crop year 
the tobacco commission shall be selected for the 
succeeding crop year in the manner provided 
above. Each member of the commission not al- 
ready in the employment of the state shall be paid 
the sum of ten dollars ($10.00) for each day ac- 
tually spent in the performance of his duties, and 
shall be reimbursed for subsistence, not exceed- 
ing five dollars ($5.00) per day, and for necessary 
travel expenses. (1937, c. 22, s. 2.) 

§ 4930(3). Compacts with governors of other 
states. — The governor is authorized and directed 
to negotiate and enter into a compact with re- 
spect to each kind of tobacco with the governor 
of each of the states producing such kind of to- 
bacco: Provided, (1) that any compact shall not 
become effective until it has been entered into by 
the states of North Carolina, Virginia, South 
Carolina and Georgia, and any compact with re- 
spect to burley tobacco shall not become effective 
until it has been entered into by the states of 
North Carolina, Kentucky, Virginia and Tennes- 
see; (2) that a compact with respect to any kind 
of tobacco shall not become effective during any 
crop year unless entered into prior to the first 
day of such crop year, and (3) that any provi- 
sions in such compact or compacts which relate 
to the establishment of tobacco acreage quotas as 
provided herein shall not become effective unless 
and until the consent of the congress of the 
United States shall be given to a compact or com- 
pacts providing for the establishment of tobacco 
acreage quotas. This article shall be enforced 
with respect to any kind of tobacco upon the es- 
tablishment of a compact with respect to such 
kind of tobacco, and its enforcement with respect 
to such kind of tobacco shall be suspended upon 
the withdrawal from such compact by any state 
required as a party thereto. If an injunction is- 
sued by a court of competent jurisdiction against 
the enforcement of a similar act of any state is 
made permanent so as to stop the administration 
of said act in such state during any crop year, the 
enforcement of this article may be suspended by 
the commission with respect to the kind of to- 



[141] 



§ 4930(4) 



AGRICULTURE 



§ 4930(5) 



bacco covered by such compact until such time 
as the compact is again made effective or the in- 
junction dissolved, as the case may be. Upon the 
filing with the commission of a petition or peti- 
tions by fifteen per cent or more of the producers 
of any kind of tobacco in this state requesting 
that the enforcement of this article be suspended 
with respect to such kind of tobacco, the com- 
mission shall conduct a referendum within sixty 
days after the receipt of such petition or peti- 
tions to determine whether the producers of such 
kind of tobacco in the state are in favor of the 
enforcement of this article, and if the commission 
finds that one-third or more of the producers who 
vote in the referendum are not in favor of the en- 
forcement of the article, such findings of the 
commission shall be certified to the governor, 
who shall proclaim the article inoperative for the 
crop year next succeeding the crop year in which 
the referendum is conducted. (1937, c. 22, s. 3.) 

§ 4930(4). Cooperation with other states and 
secretary of agriculture in making determinations. 
— The commission shall meet and co-operate with 
the tobacco commissions of other states that are 
parties to a compact, and any persons designated 
by the secretary of agriculture of the United 
States to serve in an advisory capacity, for the 
purposes of making certain determinations enu- 
merated in this section, and when such determi- 
nations are agreed upon by a majority of the 
members of the commission for this state, and a 
majority of the members of the commissions for 
other states, such determinations shall be accepted 
and followed in the administration of this article. 

(a) Determine from statistics of the United 
States department of agriculture a marketing 
quota, which for any kind of tobacco shall be that 
quantity of such kind of tobacco produced in the 
United States which is estimated to be required 
for world consumption during any crop year, in- 
creased or decreased, as the case may be, by the 
amount by which the world stocks of such kind 
of tobacco at the beginning of such crop year are 
less than or greater than the normal world stocks 
of such kind of tobacco. 

(b) Determine a tobacco marketing quota for 
each state, for each kind of tobacco, for each crop 
year for which this article is in effect with respect 
to such kind of tobacco. The marketing quota 
for each state for each kind of tobacco shall be 
that percentage of the quantity determined under 
sub-section (a) of this section which is equal to 
the percentage that the total production of such 
kind of tobacco in the state for the year or years 
set forth below is of the total production of such 
kind of tobacco in the United States for such year 
or years: 

Flue-cured tobacco, one thousand nine hundred 
and thirty-five, and burley tobacco, one thousand 
nine hundred and thirty-three, one thousand nine 
hundred and thirty-four, and one thousand nine 
hundred and thirty-five. 

(c) Determine a base tobacco yield for each 
state for each kind of tobacco. The base tobacco 
yield for each kind of tobacco for each state shall 
be the total production of such kind of tobacco in 
such state in the year or years named in sub-sec- 
tion (b) of this section, divided by the total har- 
vested acreage of such kind of tobacco in such 
state in such year or years. 



(d) Determine and make such adjustments 
from year to year in the percentage of the mar- 
keting quota to be assigned to each state, or in 
the base yield for each state, or both (as deter- 
mined pursuant to sub-sections (b) and (c) of 
this section and as adjusted in any preceding year 
pursuant to this sub-section), not exceeding two 
per cent (2%) decrease or five per cent (5%) in- 
crease in any crop year of the percentage of the 
said marketing quota assigned to each state, or 
five per cent (5%) decrease or increase of the base 
yield for each state in any crop year, as are de- 
termined to be necessary to correct for any ab- 
normal conditions of production during the year 
or years specified in subsection (b) of this sec- 
tion, and trends in production during or since 
such year or years in any state as compared with 
other states: Provided, that the percentages of 
the marketing quota for any kind of tobacco for 
all states producing such kind of tobacco, as ad- 
justed pursuant to this sub-section, for any year 
shall equal one hundred per cent (100%). 

(e) Determine and make adjustments in the 
marketing quota established pursuant to sub-sec- 
tions (b) and (d) of this section for any kind of 
tobacco for any crop year, not exceeding ten per 
cent (10%) of said quota, from time to time dur- 
ing that period from August first to December 
fifteenth of such year if, upon the study of supply 
and demand conditions for such kind of tobacco,, 
the commission finds that such adjustments are 
required to effectuate the purpose of this article 
and of similar acts of other states: Provided, that 
any such adjustment shall apply uniformly to all 
states and only during the crop year in which 
such adjustment is made. 

(f) Determine regulations with respect to the 
transfer of marketing certificates among produc- 
ers of any kind of tobacco within the states which 
are parties to a compact with respect to such kind 
of tobacco, and such other regulations as may be 
deemed appropriate to the uniform administration 
and enforcement of this article and of similar acts 
of other states. (1937, c. 22, s. 4.) 

§ 4930(5). Tobacco acreage and marketing 
quotas for each farm. — The commission shall es- 
tablish tobacco acreage and tobacco marketing 
quotas for each crop year for any farm on which 
tobacco is grown, such quotas to be determined 
as follows: 

(a) For any farm for which a base tobacco 
acreage and a base tobacco production have pre- 
viously been determined by the agricultural ad- 
justment administration of the United States de- 
partment of agriculture, as shown by the avail- 
able records and statistics of that department, the 
base tobacco acreage and base tobacco production 
so last determined shall constitute the tobacco 
acreage and tobacco marketing quotas, subject to 
such adjustments as are recommended by the 
county committee of the county in which the 
farm is located and approved by the commission 
as being in conformity with the provisions of sub- 
sections (c) and (d) of this section. 

(b) For any farm for which a base tobacco 
acreage and base tobacco production have not 
been previously determined by the agricultural 
adjustment administration of the United States 
department of agriculture, the tobacco acreage 
and tobacco marketing quotas shall be estab- 



[142] 



§ 4930(6) 



AGRICULTURE 



§ 4930(6) 



lished in conformity with the provisions of sub- 
sections (c) and (d) of this section: Provided, 
that the total of the tobacco acreage and of the 
tobacco marketing quotas established for such 
farms in any crop year shall not exceed two per 
cent (2%) of the total tobacco acreage and to- 
bacco marketing quotas, respectively, established 
pursuant to sub-section (a) of this section, plus 
the tobacco acreage and the tobacco marketing 
quotas established for farms in preceding years 
pursuant to this sub-section. 

(c) The tobacco acreage and the tobacco mar- 
keting quotas established for each farm shall be 
fair and reasonable as compared with the tobacco 
acreage and the tobacco marketing quotas for 
other farms which are similar with respect to the 
following: The past production of tobacco on 
the farm and by the operator thereof; the per- 
centage of total cultivated land in tobacco and in 
other cash crops; the land, labor, and equipment 
available for the production of tobacco; the crop 
rotation practices and the soil and other physical 
factors affecting the production of tobacco. The 
acreage quota for farms in a county shall not ex- 
ceed such maximum percentage of the cultivated 
acreage as shall be fixed by the county committee, 
and the maximum so set by the county com- 
mittee shall not exceed a percentage which will 
insure the adjustment of the inequalities existing 
in such county. 

(d) The total of the tobacco acreage quotas for 
any kind of tobacco established for all farms in 
the state in any crop year shall not exceed a to- 
bacco acreage quota for the state determined by 
dividing the marketing quota for such kind of 
tobacco for the state by the base tobacco yield 
for such kind of tobacco for the state, determined 
in accordance with sub-sections (c) and (d) of 
section 4930(4). 

The tobacco acreage and the tobacco marketing 
quotas for any kind of tobacco established for 
each farm in any crop year pursuant to sub-sec- 
tions (a) and (b) of this section shall be adjusted 
so that the aggregate of the tobacco acreage 
quotas and the aggregate of the tobacco marketing 
quotas for all farms in the state does not exceed 
the tobacco acreage and the tobacco marketing 
quotas, respectively, for such kind of tobacco es- 
tablished for the state for such year; and the com- 
mission shall prescribe such regulations with re- 
spect to such adjustments as will tend to protect 
the interests of small producers. 

(e) If, after marketing quotas are established 
for farms for any kind of tobacco in any crop year, 
there is an adjustment, pursuant to sub-section 
(e) of section 4930(4), in the marketing quota 
for such kind of tobacco for the state for such 
year, the marketing quotas for all farms in the 
state shall be adjusted accordingly. 

(f) If a base tobacco yield is not determined 
by the several state commissions the commission 
for this state shall determine a base yield for the 
state in accordance with the procedure specified 
in sub-sections (c) and (d) of section 4930(4). 

(g) In each county there shall either be pub- 
lished in one local newspaper the following infor- 
mation for each township of the county: (1) the 
name of each tobacco grower in that township; 
(2) the number of his tobacco tenants; (3) his 

[1 



total cultivated acres; (4) his total tobacco acreage 
and tobacco marketing quota; (5) the per cent of 
his cultivated land represented by his tobacco 
acreage quota, or else there shall be posted in at 
least five public places in each township a report 
for that township showing this information. One 
copy of such information shall be filed in the office 
of the clerk of the superior court in the county. 

(h) No reduction shall be required in the flue- 
cured tobacco acreage quota established for any 
farm if such quota is three and two-tenth acres or 
less: Provided, that if the operator of the farm re- 
duces the acreage of tobacco grown on the farm in 
any year below the acreage quota, a proportionate 
reduction may be required in the marketing quota 
for the farm. 

(i) The terms of this article, relating to the 
fixing of acreage or marketing quotas, shall not 
apply to any grower of burley tobacco, with or 
without an established acreage base, whose acreage 
is two acres or less. (1937, c. 22, s. 5; c. 24, ss. 
1-3.) 

§ 4930(6). Notification of quotas established and 
adjustments; marketing and resale certificates; 
charge for surplus tobacco; administrative com- 
mittees, agents and employees; hearings and in- 
vestigations; collection of information; regula- 
tions. — The commission is authorized and di- 
rected: 

(a) To notify as promptly as possible the oper- 
ator of each farm, for which acreage and market- 
ing quotas are established, of the amount of such 
quotas for the farm and of any adjustment there- 
of which may be made from time to time pursuant 
to this article. 

(b) Upon application therefor by the operator 
of the farm, or by the person marketing the to- 
bacco grown thereon, to issue to the buyer or 
handler who purchases, or handles such tobacco, 
marketing certificates for an amount of tobacco 
not in excess of the marketing quota for the farm 
(as adjusted pursuant to subsection (d) of sec- 
tion 4930(5) ) on which such tobacco is produced, 
or not in excess of the quantity of tobacco har- 
vested from the crop produced on such farm, 
whichever is smaller: Provided, that the com- 
mission (in accordance with regulations pre- 
scribed by the commission) may provide for the 
issuance and transfer of marketing certificates 
for an amount of tobacco equal to the amount by 
which the said quantity marketed falls below the 
said marketing quota for any farm; and Provided 
further, that any regulations pertaining to such 
issuance and transfer shall be uniform as to the 
same kind of tobacco in all states entering into 
a compact with respect to such kind of tobacco. 

(c) Upon application therefor by any buyer or 
handler to issue marketing certificates for surplus 
tobacco produced on the farm upon payment of 
a charge of twenty-five per cent (25%) of the 
gross value, or of one and one-half cents (l^c) 
per pound, whichever is larger, of the tobacco 
covered by such certificates. The buyer or han- 
dler, in settling with the grower, shall deduct 
from the proceeds of sale of such surplus tobacco 
or, if not sold, from any advance or loan thereon, 
the amount of such charge, which charge shall be 
deemed an assessment upon the producer for the 
purposes of paying the costs, charges, and ex- 
penditures provided for by this article. 

43 1 



§ 4930(7) 



AGRICULTURE 



§ 4930(9) 



(d) Upon application therefor by any tobacco 
dealer to issue, under such terms and conditions 
as the commission shall by regulations prescribe, 
resale certificates for such tobacco purchased by 
any dealer during any day as such dealer speci- 
fied will be resold prior to the redrying or proc- 
essing thereof, where marketing certificates or re- 
sale certificates have been issued for such tobacco 
pursuant to the provisions of this article. 

(e) To establish or provide for the establish- 
ment of such committees of tobacco producers, 
and to appoint such agents and employees as the 
commission finds necessary for the administra- 
tion of this article, and to fix the compensation 
of the members of the county committees re- 
ferred to in section 4930(2), and of such agents 
and employees: Provided, that the rates of com- 
pensation for such committeemen, agents and 
employees shall be comparable with rates of com- 
pensation to persons employed in similar capac- 
ities in connection with the administration of the 
agricultural conservation program, and acceptable 
to the federal authority. 

(f) To provide for the making of such investi- 
gations and the holding of such hearings as the 
commission finds necessary in connection with 
the establishment of acreage and marketing 
quotas for farms and to designate persons to con- 
duct such investigations and hold such hearings 
in accordance with regulations prescribed by the 
commission. 

(g) To provide for collection of such informa- 
tion pertaining to the acreage of tobacco grown 
for harvest on each farm as the commission may 
consider necessary for the purpose of checking 
such acreage with the acreage quota for the farm 
and to prescribe any such regulations as may be 
necessary in connection therewith. 

(h) To prescribe such other regulations as the 
commission finds necessary to the exercise of the 
powers and the performance of the duties vested 
in it by the provisions of this article. (1937, c. 
22, s. 6.) 

§ 4930(7). Board of adjustment and review for 
each county. — The county committee of each 
county shall be and it is hereby constituted the 
board of adjustment and review for its county, 
whose duty it shall be to adjust and distribute the 
total base acreage and marketing quotas allocated 
to the several farms in the county by the com- 
mission so as to effectuate the provisions of this 
article. 

(a) The county board of adjustment and review 
may designate a clerk for such board. 

(b) The board of adjustment and review shall 
meet on the first Monday in January of each and 
every year, after giving ten days notice (by pub- 
lication in a newspaper published in the county) 
of the time, place and purpose of the meeting, and 
may adjourn from day to day while engaged in 
the adjustment and review of the acreage and 
marketing quotas of the county, but shall com- 
plete their duties on or before the first Monday 
in February of each and every year: Provided, 
however, that the commission shall designate the 
time within which the said adjustment and review 
shall be made for the year one thousand nine 
hundred and thirty-seven. 

(c) The board of adjustment and review, on 
request, shall hear any and all producers, oper- 



ators, and applicants in the county in respect to 
their acreage or marketing quotas, or the quotas 
of others; and after due notice to the person or 
persons affected, shall allow, increase, or reduce 
such acreage or marketing quotas as in their 
opinion will make a fair and equitable allotment 
within the meaning of this article; and shall cause 
to be done whatever else may be necessary to 
make the distribution of county acreage and mar- 
keting quotas comply with the provisions of this 
article; and after the completion of the adjust- 
ment and review, a list showing the details there- 
of shall be prepared, and a majority of the board 
shall endorse thereon and sign the statement to 
the effect that the same is the fixed list of quotas 
for the current year, and said list, or a certified 
copy thereof, shall be filed in the office of the 
clerk of the superior court within three days after 
the completion of the adjustment and review. 

(d) Any producer, operator, or person claim- 
ing or challenging an allotment quota may ex- 
cept to the decision of the board of adjustment and 
review and appeal therefrom to the commission 
by filing in duplicate a written notice of such ap- 
peal with the county committee within ten days 
after the filing of the list of quotas in the office 
of the clerk of the superior court. At the time 
of filing such notice of appeal the appellant shall 
file with the county committee a statement in 
duplicate of the grounds of appeal; and within 
three days after the filing thereof the county com- 
mittee shall forward or cause to be forwarded to 
the commission one copy each of the notice of 
appeal and statement of grounds of appeal. The 
commission shall, on or before the first Monday 
in March thereafter, hear and determine such ap- 
peal, after first giving due notice of the time and 
place of such hearing to the appellant and to the 
chairman of the county committee. At the hear- 
ing the commission shall hear relevant and perti- 
nent testimony or affidavits offered by the appel- 
lant or county committee; and thereafter, by or- 
der, shall modify or confirm the decision of the 
county board of adjustment and review, and shall 
deliver to the county committee a certified copy 
of such order, which shall be binding upon all 
parties concerned for the current year. (1937, c. 
24, s. 4.) 

§ 4930(8). Handling of funds and receiving 
payments. — The commission is authorized: 

(a) To accept, deposit with the state treasurer 
and provide for the expenditure of such funds as 
the congress of the United States may advance 
or grant to the state for the purpose of adminis- 
tering this article. Such expenditures shall be in 
accordance with the act of congress authorizing 
or making such advance or grant. 

(b) To receive, through such agents as it may 
designate, all payments covering the sale of mar- 
keting certificates pursuant to sub-section (c) of 
section 4930(6); to provide for the fixing of an 
adequate bond for any person responsible for re- 
ceiving and disbursing any funds of or adminis- 
tered by the commission; and to provide for the 
expenditure of such funds in the manner pre- 
scribed in section 4930(10). (1937, c. 22, s. 7.) 

§ 4930(9). "Tobacco commission account" de- 
posited with state treasurer. — All receipts from 
the sale of marketing certificates pursuant to sub- 



[144] 



§ 4930(10) 



AGRICULTURE 



§ 4930(17) 



section (c) of section 4930(6) and all funds 
granted or advanced to the state by the congress 
of the United States for the purpose of adminis- 
tering this article shall be deposited with the 
state treasurer and shall be placed by him in a 
special fund known as the "Tobacco Commission 
Account," and the entire amount of such receipts 
and funds hereby is appropriated out of such to- 
bacco commission account and shall be available 
to the commission until expended. (1937, c. 22, 
s. 8.) 

§ 4930(10). Purposes for which funds expended; 
reserve necessary. — Funds of or administered by 
the commission shall be expended, in accordance 
with regulations prescribed by the commission, 
for the following purposes: First, to repay to 
the treasurer of the United States any funds ad- 
vanced by the United States to the commission 
for the purpose of administering this article: 
Provided, the United States requires such repay- 
ment. Second, to pay any expenses lawfully in- 
curred in the administration of this article, in- 
cluding expenses of any agency of the state in- 
curred at the request of the commission. Third, 
to make payment to tobacco producers whose 
sales of tobacco, because of loss by fire or 
weather, or diseases affecting their tobacco crops 
adversely during any crop year, are less than the 
marketing quotas for their farms for such year. 
Such payments shall be at a rate per pound of 
such deficit determined by dividing the funds 
available for such payments by the total number 
of pounds by which the sales of tobacco by all 
producers fell below the marketing quotas for 
their farms: Provided, that such deficit is due 
to loss by fire or weather, or disease affecting 
their crops adversely; and Provided further, that 
such rate of payment shall in no event exceed five 
cents (5c) per pound, and that no such payments 
shall be made until there is established as a re- 
serve an amount necessary to pay the expenses 
which the commission estimates will be incurred 
in the administration of this article for a period 
of one crop year. (1937, c. 22, s. 9.) 

§ 4930(11). Unlawful to sell, buy, etc., without 
marketing certificate; restrictions upon dealers. — 

Upon the establishment of marketing quotas for 
any kind of tobacco for individual farms for any 
crop year, pursuant to the provisions of this arti- 
cle, it shall be unlawful: 

(a) For any person knowingly to sell, to buy, 
to redry or to condition or to otherwise process 
any of such kind of tobacco harvested in such 
crop year unless the marketing certificates there- 
for have been issued as provided in this article. 

(b) For any dealer to resell any of such kind 
of tobacco for which marketing certificates have 
not been issued as aforesaid prior to the redry- 
ing, conditioning, or processing thereof, except in 
his own name, or to resell any such tobacco except 
that purchased and owned by him and covered by 
a marketing certificate or resale certificate pre- 
viously issued showing such dealer to be the pur- 
chaser of such tobacco, or to redry, condition, or 
process or to have redried, conditioned, or proc- 
essed, prior to the resale thereof, any such to- 
bacco covered by a resale certificate unless the re- 
sale certificate issued with respect thereto is sur- 
rendered to the commission. (1937, c. 22, s. 10.) 



§ 4930(12). Violation punishable by forfeiture 
of sum equal to three times value of tobacco. — 

Any person wilfully selling, buying, redrying, 
conditioning, or processing tobacco of any kind 
with respect to which this article is effective for 
which marketing certificates or resale certificates 
have not been issued as provided in this article, 
or any person wilfully participating or aiding in 
the selling, buying, redrying, conditioning, or 
processing of tobacco not covered by such mar- 
keting or resale certificates, or any person offer- 
ing for sale or selling any tobacco except in the 
name of the owner thereof, shall forfeit to the 
state a sum equal to three times the current mar- 
ket value of such tobacco at the time of the com- 
mission of such act, which forfeiture shall be re- 
coverable in a civil suit brought in the name of 
the state. (1937, c. 22, s. 11.) 

§ 4930(13). Forfeiture for harvesting from acre- 
age in excess of quota. — Any operator wilfully 
harvesting or wilfully permitting the harvesting 
of tobacco on a farm from an acreage in excess 
of the acreage quota for the farm shall forfeit to 
the state a sum equal to fifty dollars ($50.00) per 
acre of that acreage harvested in excess of the 
acreage quota for the farm, which forfeiture shall 
be recoverable in a civil suit brought in the name 
of the state. (1937, c. 22, s. 12.) 

§ 4930(14). Violation a misdemeanor. — Any 

person violating any provisions of this article, or 
of any regulation of the commission issued pur- 
suant thereto, shall be guilty of a misdemeanor 
and upon conviction thereof shall be fined a sum 
of not more than fifty dollars ($50.00) for the first 
offense and not more than one hundred dollars 
($100.00) for each subsequent offense. (1937, c. 
22, s. 13.) 

§ 4930(15). Penalty for failure to furnish infor- 
mation on request of commission. — All tobacco 
producers, warehousemen, buyers, dealers, and 
other persons having information with respect 
to the planting, harvesting, marketing, or redry- 
ing or conditioning or processing of tobacco in 
this state for sale or resale to manufacturers, do- 
mestic or foreign, shall from time to time, upon 
the written request of the commission or its duly 
authorized representative, furnish such informa- 
tion and file such returns as the commission may 
find necessary or appropriate to the enforcement 
of this article. Any person wilfully failing or re- 
fusing to furnish such information or to file such 
return, or wilfully furnishing any false information 
or wilfully filing any false return, shall be guilty 
of a misdemeanor, and upon conviction thereof 
shall be fined a sum of not more than one hun- 
dred dollars ($100.00) for each such offense. (1937, 
c. 22, s. 14.) 

§ 4930(16). Courts may punish or enjoin vio- 
lations. — All courts of this state of competent ju- 
risdiction are hereby vested with jurisdiction 
specifically to punish violations of this article, and 
the superior courts of the state are vested with 
jurisdiction, upon application of the commission, 
to enjoin and restrain any person from violating 
the provisions of this article or of any regulations 
issued pursuant to this article. (1937, c. 22. s. 15.) 

§ 4930(17). Attorneys for state to institute pro- 
ceedings, etc., commission to report violations to 



N. C. Supp.— 10 



[145] 



§ 4930(18) 



AGRICULTURE 



§ 4944 



solicitors, etc. — Upon the request of the commis- 
sion it shall be the duty of the several attorneys 
for the state, in their respective jurisdictions, to 
institute proceedings to punish for the offenses, 
enforce the remedies, and to collect the forfeitures 
provided for in this article, and it shall foe the 
duty of the commission to call to the attention of 
the prosecuting officers of the state any violation 
of any of the criminal provisions of this article. 
(1937, c. 22, s. 16.) 

§ 4930(18). Receipts from surplus produced in 
other states, paid to commission of such states; 
co-operation with other commissions. — In order 
to assure the proper co-ordination of the adminis- 
tration of this article with the administration of 
similar acts of other states, marketing certificates 
and resale certificates shall be issued by the 
commission, in accordance with regulations pre- 
scribed by the commission, with respect to to- 
bacco marketed in this state, or redried, condi- 
tioned, or processed in this state prior to the first 
sale thereof, or resold, even though such tobacco 
was produced in another state, and the receipts 
from sales of marketing certificates for surplus 
tobacco produced in such other state shall be paid 
to the commission of the state in which such to- 
bacco was produced, and the commission shall co- 
operate with and assist the commission of any 
other state in obtaining such records as may be 
necessary to the administration of any similar act 
of such state. (1937, c. 22, s. 18.) 

§ 4930(19). Form and provisions of compact. — 

The compact referred to in section 4930(3) shall 
contain the provisions shown below, subject to 
such alterations or amendments as shall not be in 
conflict with the provisions of this article, and as 
shall be agreed upon from time to time by the 
states which enter into such compact. 

COMPACT 

This agreement entered into this day 

of between the State of by 

, Governor; the State of by 

, Governor; the State of by 

, Governor, and the State of 

by , Governor, Witnesseth: 

Whereas, the parties hereto have each enacted 
a state statute providing for the regulation and 
control of the production and sale of tobacco in 
the states, and providing for the protection of the 
producers' tobacco crops from the adversities of 
unfavorable weather, crop diseases, and fire; and 

Whereas, it is the desire of the parties uni- 
formly to enforce each state statute so as to ac- 
complish the purposes for which each act was en- 
acted: 

Now, therefore, the parties do hereby jointly 
and severally agree as follows: 

(1) To co-operate with each other in estab- 
lishing for each crop year a marketing quota for 
each state for each kind of tobacco referred to in 
the respective state statutes with respect to which 
such state statutes are or will be in effect for such 
crop year. 

(2) To co-operate with each other in formulat- 
ing such regulations as will assure uniform and ef- 
fective administration and enforcement of each of 
the aforesaid state statutes. 

(3) Not to depart from or fail to enforce to the 
best of its ability any regulation concerning the 



enforcement of the state statutes without the con- 
sent of a majority of the members of the tobacco 
commissions of each of the several parties to this 
compact. 

In witness whereof, the parties have hereunto 
set their hands as of the day of the year first 
above written. 



By 


State of . . . 




Governor. 


By 


State of... 




Governor. 


By 


State of... 




Governor. 


By 


22, s. 19.) 
Art. 20. Boys' 


Road Patrol 


Governor. 



(1937, 



§ 4931. Boys' road patrol authorized. — The state 
board of education, whose duty it shall be to ap- 
point a director of the work of the boys' road pa- 
trol in the state of North Carolina is hereby 
charged with the duty of authorizing a brigade of 
school fooys in this state to be called the Boys' 
Road Patrol, and to be composed of fooys who at- 
tend the public schools of the state. (1915, c. 239, 
s. 1; 1925, c. 300, s. 1; 1937, c. 399, s. 1.) 

Editor's Note. — Prior to the 1937 amendment, this sec- 
tion applied only to boys who attended rural public schools. 

§ 4932, Duties of patrol. — The duties of such 
patrol to foe to look after the maintenance of the 
road lying near the home of each member of the 
patrol, dragging and ditching same by the use of 
machinery placed in the care of the patrol by the 
state and county in such manner as the state board 
of education shall direct and prevent forest fires 
foy extinguishing fire along the public highway, 
study safety rules and methods, practice research 
along safety lines to the end of removing hazards 
from the highways. (1915, c. 239, s. 2; 1925, c. 
300, s. 2; 1937, c. 399, s. 2.) 

Editor's Note. — The 1937 amendment added the latter part 
of this section relating to study of safety rules, etc. 

Art. 21. Agricultural Societies and Fairs 
Part 2. County Societies 
§ 4944. Exhibits exempt from state and county- 
taxes. — Any society or association organized un- 
der the provisions of this chapter, desiring to be 
exempted from the payment of state, county, and 
city license taxes on its exhibits, shows, attrac- 
tions, and amusements, shall each year, not later 
than sixty (60) days prior to the opening date of 
its fair, file an application with the commissioner 
of revenue for a permit to operate without the 
payment of said tax; said application shall state 
the various types of exhibits and amusements for 
which the exemption is asked, and also the date 
and place they are to foe exhibited. The commis- 
sioner of revenue shall immediately refer said ap- 
plication to a committee consisting of the presi- 
dent of the North Carolina association of agricul- 
tural fairs, the commissioner of agriculture, and 
the director of the extension service of North Car- 
olina State College for approval or rejection. If 



[146] 



§ 4958(7) 



BARBERS 



§ 5O03(w) 



the application is approved by said committee, the 
commissioner of revenue shall issue a permit to 
said society or association authorizing it to exhibit 
within its fair grounds and during the period of 
its fair, without the payment of any state, county, 
or city license tax, all exhibits, shows, attractions, 
and amusements as were approved: Provided, 
however, that the commissioner of revenue shall 
have the right to cancel said permit at any time 
upon the recommendation of said committee. Any 
society or association failing to so obtain a per- 
mit from the commissioner of revenue or having 
its permit canceled shall pay the same state, 
county, and city license taxes as may be fixed by 
law for all other persons or corporations exhibit- 
ing for profit within the state, shows, carnivals, or 
other attractions. (Rev., s. 3871; 1905, c. 513, s. 2; 
1935, c. 371, s. 107.) 

Editor's Note. — The 1935 amendment so changed this sec- 
tion that a comparison here is not practical. 

Art. 23. Erosion Equipment 

§ 4958(7). Counties excepted. — This article shall 
not apply to the counties of Alleghany, Alexander, 
Ashe, Avery, Bladen, Buncombe, Camden, Colum- 
bus, Cumberland, Davie, Gates, Haywood, Hyde, 
Jackson, Lincoln, Macon, Madison, Moore, New 
Hanover, Pamlico, Pasquotank, Rutherford, Samp- 
son, Transylvania, Washington, Watauga, Wilkes, 
and Yadkin. (1935, c. 172, s. 7; 1937, c. 25.) 

Editor's Note. — The 1937 amendment struck out "Union" 
from the list of excepted counties. 



CHAPTER 87B 

BARBERS 

§ 50O3(n). Fees.— The fee to be paid by appli- 
cant for examination to determine his fitness to 
receive a certificate of registration, as a registered 
apprentice, shall be five ($5.00) dollars, and such 
fee must accompany his application. The annual 
license fee of an apprentice shall be three ($3.00) 
dollars. The fee to be paid by an applicant for 
an examination to determine his fitness to receive 
a certificate of registration as a registered