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Full text of "The North Carolina code of 1943, prepared by authority of chapter 315 of the Public laws of 1939 and chapter 35 of the Public laws of 1941"



THE 
NORTH CAROLINA CODE 

OF 1943 



Legislative Edition 




L . IllcaUcLA Cin^/idM^^^^tt 




, -Jf' > * - 4 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/northcarolinacod1942nort 



Legislative Edition 

THE 
NORTH CAROLINA CODE 

OF 1943 



PREPARED BY AUTHORITY OF CHAPTER 315 OF THE PUBLIC 

LAWS OF 1939 AND CHAPTER 35 OF THE PUBLIC 

LAWS OF 1941 



BY 



The Division of Legislative Drafting and 
Codification of Statutes 

North Carolina Department of Justice 



THE MICHIE COMPANY, LAW PUBLISHERS 
CHARLOTTESVILLE, VA. 



* 















Copyright 1942 

BY 

The; Michie Company 












. 






Recommendations of the Legislative Commis- 
sion on Recodification to the General 
Assembly of North Carolina 



The undersigned members of the Legislative Commission on Recodification, ap- 
pointed by Joint Resolution No. 33 of the General Assembly of 1941, respectfully 
make herewith their report and recommendations to the General Assembly of 
1943: 

Shortly after the adjournment of the 1941 Session of the General Assembly, 
the members of the Commission met at the office of the Attorney General and 
organized by electing F. E. Wallace as Chairman. The Commission has worked in 
close cooperation with the Attorney General and the Division of Legislative Draft- 
ing and Codification of Statutes of the Department of Justice. At the first and 
subsequent meetings of the Commission, full and detailed consideration was given 
to the problems presented in the recodification work and to the means which should 
be employed to meet those problems. 

The initial task of the Commission was the consideration and approval of a con- 
tract with a publisher for the publication of a legislative edition of the code. It 
was clear that the recodification work could not adequately be presented to the 
General Assembly without the publication of a legislative edition in accordance 
with the practice followed with respect to prior North Carolina codes. After a 
consideration of the elements of cost involved and of estimates by other publishers, 
it appeared to the Commission that the proposed contract with The Michie Com- 
pany was fair and reasonable and to the best interest of the State and it was there- 
fore approved. 

The Commission then gave careful attention to the plan for the final code. Ques- 
tions of methods of the legal work of revision, number of volumes, size, type, paper, 
chapter arrangement, annotations, numbering system and index were considered 
in detail and approved by the Commission. The use of type of the same size 
used in the current Michie's unofficial code is necessitated by the limitations of the 
legislative act authorizing the recodification. Special attention was given to the 
methods of meeting the need for an effective index and it is believed that the index 
of the final code will be found satisfactory. A detailed explanation of the methods 
of work, the arrangement and the mechanical features of the new code, and 
the reasons for many of the decisions reached may be found in the preface to 
this edition. 

The text of all the statutes contained in the legislative edition together with the 
explanatory statements prepared by the Codification Division have been submitted 
to the Commission. The statutes and the work thereon have been examined and 
studied by the Commission. After the making of various changes and suggestions, 
the work reached its present form and is found by the Commission to be a true 
and correct statement of the general and public statutes of this State. 

The Commission, therefore, recommends that the statutes embodied in this 
legislative edition of the proposed code be adopted as the official code of North 



IV 



Recommendations of the Legislative Commission 



Carolina, and that the session laws of a general and public nature enacted by the 
General Assembly of 1943 be codified and included in the first edition of the of- 
ficial code to be printed under the agreement with the publisher as soon as possible 
after the adjournment of the 1943 Session of the General Assembly. 



F. E. Wallace, Chairman 
J. A. Pritchett 
Hubert C. Jarvis 
Irving Carlyle 
Rupert T. Pickens 
Julian R. Allsbrook 
J. O. LeGrand 
O. L. Richardson 
Arch T. Allen 
John Kerr, Jr. 
George R. Uzzell 
W. Frank Taylor 
S. O. Worthington 



J. T. Pritchett 
Forrest A. Pollard 
T. E. Story 
Jeff D. Johnson, Jr. 
E. T. Sanders 

J. C. PlTTMAN 

Wade B. Matiieny 
John W. Wallace 
John D. Larkins, Jr. 
Thomas J. Gold 
Archie C. Gay 
Herbert Leary 
Hugh G. Horton ■ 









■ 
















































































Preface 



The Act of the General Assembly creating the North Carolina Department of 
Justice, Ch. 315, P. L. 1939, authorized the Attorney General to set up therein a 
division to be designated as the Division of Legislative Drafting and Codification 
of Statutes. 

This Division was assigned two principal duties by the statute: (1) to prepare 
bills to be presented to the General Assembly at the request of the Governor, state 
officials and departments, and members of the General Assembly, and to advise 
and assist counties, cities and towns in drafting legislation to be submitted to the 
General Assembly; (2) to supervise the recodification of the general public statutes 
and to keep such recodification current. 

With respect to the latter duty, the General Assembly authorized the division 
"to make an arrangement with any publisher or publishers for doing the necessary 
editorial, work and publication of the recodification, annotation, appendixes there- 
to, and indexing of such recodification of the Statute Law of North Carolina and 
all Acts of the General Assembly thereafter passed, which arrangement will pro- 
vide that all of such work shall be done by such publisher or publishers without 
cost to the State, but shall be done under the supervision and direction of the said 
division and subject to the final approval and acceptance by the General Assembly 
of North Carolina by such laws as may hereafter be passed with respect thereto, 
and if such recodification is adopted by the General Assembly, the same may be 
adopted and given such legal effect and legal status and character as may be de- 
termined and fixed by the General Assembly." 

This division was set up on July 1, 1939, with W. J. Adams, Jr., as the director 
of the staff employed to carry on the work. 

At the request of the Attorney General, Honorable Kingsland Van Winkle, 
President of the North Carolina Bar Association, and Honorable Fred S. Hutchins, 
President of the North Carolina State Bar, appointed a committee of able lawyers 
to assist in planning the new code. For the North Carolina Bar Association the 
following were named : Bennett H. Perry, Plenderson ; H. G. Hedrick, Durham ; 
H. Gardner Hudson, Winston-Salem ; Clifford Frazier, Greensboro ; and Bryan 
Grimes, Washington. For the North Carolina State Bar the following were 
named : C. W. Tillett, Charlotte ; Jack Joyner, Statesville ; H. J. Hatcher, Mor- 
ganton ; Frank E. Winslow. Rocky Mount ; and William T. Joyner, Raleigh. 

At the request of the Attorney General, the following named persons also served 
as a part of this committee : Honorable A. A. F. Seawell, Associate Justice of the 
Supreme Court; Dean M. T. Van Hecke, of the University Law School; Dean 
H. C. Horack, of the Duke University Law School ; Dean Dale F. Stansbury, of 
the Wake Forest Law School ; and Dillard S. Gardner, Raleigh, Supreme Court 
Marshal and Librarian. 

Full acknowledgment is made of the valuable assistance given by this strong 
committee in making out the plans for the new code. The members of this com- 
mittee very generously responded to the call for this service giving a great deal of 
their valuable time to it without compensation or even reimbursement for their 
travel expenses. 

The General Assembly of 1941 (Public Laws, Chapter 35) authorized the prep- 



vi Preface 

aration and printing of this Legislative Edition of the proposed code to be sub- 
mitted to the General Assembly of 1943. This Act provided, in part, "Such legis- 
lative edition shall set forth all the general public laws of North Carolina found by 
the division to be intended to be in effect, together with any supplemental or im- 
plementing legislation recommended by the division as essential to make a complete 
and clear statement of said laws, in such form and with such arrangement, number- 
ing system, etc., as said division shall determine. . . ." 

The General Assembly of 1941 also adopted Joint Resolution No. 33, providing 
for a Commission on Recodification to cooperate with the Attorney General and 
the Division of Legislative Drafting and Codification of Statutes, naming on this 
Commission the following persons : 

Representatives F. E. Wallace, J. A. Pritchett, Hubert C. Jarvis, Irving Carlyle, 
Rupert T. Pickens, Julian R. Allsbrook, J. Q. LeGrand, O. L. Richardson, Arch 
T. Allen, John Kerr, Jr., George R. Uzzell, W. Frank Taylor, S. O. Worthington, 
J. T. Pritchett, Forrest A. Pollard, and T. E. Story ; Senators Jeff D. Johnson, 
Jr., E. T. Sanders, J. C. Pittman, Wade B. Matheny, John W. Wallace, John D. 
Larkins, Jr., Thomas J. Gold, Archie C. Gay, Herbert Leary, and Hugh G. Horton. 

The Commission organized shortly after the adjournment of the Legislature and 
elected Mr. F. E. Wallace as Chairman. 

The members of this Commission have cooperated to the fullest possible extent 
in the manner provided by the Statute. Every chapter and every section of the 
new code has been checked and approved by the Commission. This has involved 
an enormous amount of work as must be evident. The cooperation and approval 
of this Commission affords assurance that the work has been properly done and 
errors reduced to a minimum. 

Plans for the Publication of the Official Code 

It is proposed that the official code will be published in four volumes. A one- 
volume work is no longer practicable because of the increase in the volume of 
legislation, the great increase in the size of the index, the use of much heavier 
paper, the inclusion of frontal tables, and the addition of supplemental material, 
such as State Bar regulations, etc., and additional comparative tables translating 
section numbers of prior codes to the new code numbers. 

The type of the statutes and annotations will be the same size as that of the pub- 
lisher's 1939 code. Since no money was appropriated for the publication, the pub- 
lisher's offer was based on a use of its standing type. The index type will be 
eight point. Fifty pound paper will be used instead of the thirty pound paper used 
in the publisher's 1939 code. The code will be bound in a durable keratol binding. 

The code will be kept current for at least six years by pocket supplements. 
Annotation supplements will be issued at intervals of six months. 

Volume and Chapter Arrangement of Final Code 

The arrangement of chapters in the proposed code has proceeded on the basis 
that such code will in its final form, together with annotations and other supple- 
mentary materials, be printed in four volumes. Once the idea of a one-volume final 
code was abandoned it became necessary to devise a new classification and arrange- 
ment of statutes since a purely alphabetical arrangement of chapters would be most 



Preface vii 

inconvenient in that all too frequently it would be necessary to resort to all volumes 
in order to consult several related sections appearing in different chapters. There- 
fore, an effort was made to group related chapters in larger "divisions" and to 
place related divisions together in each volume. At the same time it was neces- 
sary to maintain a balance so that all four volumes will be as nearly uniform in 
size as is conveniently possible. Within each division the chapters are arranged 
alphabetically. Under present plans Volume I will contain the Chapters on Civil 
Procedure, Courts, and related matters, Motor Vehicles, and Commercial Laws. 
Volume II will contain the divisions relating to Decedents' Estates, Real and Per- 
sonal Property, Domestic Relations, Corporations and Associations, Regulations 
in the Exercise of the Police Power, Occupations, Employer and Employee, Taxa- 
tion and a few miscellaneous chapters. Volume III will consist exclusively of di- 
visions containing the chapters relating to State Government and Agencies, County 
and City Government, and Election Laws. Volume IV will contain the index, 
appendixes, and other supplementary materials. The Legislative Commission on 
Recodification has approved this chapter arrangement. 

The space required for printing the index will be much greater than that used 
for this purpose at present because (1) the index is being expanded considerably 
as to number of titles and index lines; (2) the size of the type in which it is to be 
printed will be increased from 6-point to 8-point ; and (3) it will be printed two 
columns to the page instead of three. 

Numbering System 

The enactment of thousands of new laws since adoption of the Consolidated 
Statutes of 1919 made it necessary to change the section numbers in the new code 
unless the present very unsatisfactory plan used in the unofficial code is to be per- 
petuated. 

The choice of a satisfactory numbering system for the new code was carefully 
studied. The following systems were considered : ( 1 ) a decimal numbering sys- 
tem, (2) a purely consecutive numbering system, and (3) a modified form of the 
consecutive numbering system. It was thought that the decimal system of num- 
bering, although in use in the newer codes, would cause entirely too much confusion, 
outweighing any theoretical advantage with respect to unlimited expansion. On 
the other hand, consecutive numbering throughout from section one to the end 
of the code, as practiced in many older codes, would be open to the objection that 
it is cumbersome and permits of no addition of new sections without immediately 
introducing variations in the numbering scheme, resulting ultimately in such a 
number as "6055 (a27^)" or "7880(1 56) uuu," appearing in the present unofficial 
code. 

It was finally decided that a modified form of consecutive numbering would be 
the most satisfactory system to adopt, and such a system was approved by the Leg- 
islative Commission on Recodification. This system consists of: (1) numbering 
the chapters of the code consecutively, (2) using the chapter number as the first 
part of each code section number, and (3) numbering the sections in each chapter 
consecutively from "one" on through the end of the chapter. The code section 
number consists of the chapter number, a dash, and the number of the section in 
the chapter. Thus, the sections in Chapter One are numbered "1-1, 1-2, 1-3, 1-4, 
etc.;" the sections in Chapter Two are numbered "2-1, 2-2, 2-3, 2-4, etc.;" the 



viii Preface 

sections in Chapter Three, "3-1, 3-2, 3-3, 3-4, etc." To illustrate further, Section 27 
of Chapter Nine will be "9-27." This system will have two advantages. New sec- 
tions may be added indefinitely at the end of each chapter without necessitating 
subnumbering and disturbing the numbering system. This numbering system will 
readily permit the insertions of new chapters with a minimum of inconvenience and 
confusion in the numbering of the new sections. The old Consolidated Statutes 
section number has been carried forward in the section history as has been the 
practice heretofore in placing prior official code references in section histories. 
Comparative tables translating the Consolidated Statutes and Michie Code section 
numbers to the new code numbers are being included in an appendix. 






Method of Work 



Chapter 35 of the Public Laws of 1941 directed that in the Legislative Edition 
there should be incorporated such changes as were desirable for codification pur- 
poses without changing the substance or effect of any law. Resolution 33 of the 
1941 General Assembly in creating the Commission on Recodification referred to 
above provided that ". . . the commission shall review and examine the recodi- 
fication work and consult with and advise the Attorney General and the Division 
in the revision of the statutes. . . ." 

The Division has worked closely with the Legislative Commission and every 
matter of policy such as the terms of the contract for the Legislative Edition, the 
chapter arrangement of the code, the numbering system, as well as every change 
made in any section for the Legislative Edition, has been approved by the Com- 
mission. 

Certain changes which could not possibly affect the meaning of the statutes have 
been made without making detailed explanations, such as: (1) conforming the 
proof to the Consolidated Statutes or to session laws appearing since; (2) cor- 
recting section histories; (3) improving section catch-lines so that they will more 
accurately indicate the contents of the sections; (4) correcting spelling and faulty 
punctuation; and, (5) making purely formal changes for recodification purposes 
such as changing "act" to "section" or to specifically inclusive sections or to 
"article" or "chapter" as might be appropriate under the different circumstances. 

Explanatory Reports 

Any changes in any law beyond those of the purely formal nature described 
above are carefully explained in a detailed section-by-section report. Even in this 
field no change has been made which it is thought would change existing law, but 
only such changes have been made as were necessary to set forth the laws "found 
by the Division to be intended to be in effect, together with any supplemental or 
implementing legislation . . . essential to make a complete and clear state- 
ment of said laws . . ." These changes are illustrated in some detail below. 
There are no hidden or buried changes. Every alteration is spotlighted with an 
explanation calling attention to the specific change made and setting forth the rea- 
sons for it. In view of the length and great number of these explanations it has 
not been feasible to print them but several copies will be available for considera- 
tion by all interested persons : one set will be placed at the disposal of the House, 
one at the disposal of the Senate and a third will be on file in the Attorney General's 



Preface ix 

office. This will afford an opportunity to any interested person to study each 
change in such detail as he may choose. 

These changes which are accompanied by explanatory remarks consist of those 
made : 

(1) To modernize references. 

To illustrate : There are frequently references in the Code to "the preced- 
ing section." But since the enactment of the original section a new sec- 
tion has been inserted between the section containing the reference and the 
section to which reference is made, thus rendering the reference inaccurate. 
Such a reference is corrected to refer to the proper section (e. g., Section 
427 where the correct reference therein is Section 425 instead of "the pre- 
ceding section"). 

(2) To correct improper wording resulting from clerical errors or inadvertence. 
To illustrate : "Affected" is often used when "effected" is obviously in- 
tended, and vice-versa. Such wording is corrected. To illustrate further, 
in Section 7150, second paragraph, line five, the word "pilotage" is used 
when "postage" was obviously intended. Here, the correct word is 
substituted. 

(3) To delete statutes expressly repealed. 

(4) To delete superseded statutes. 

(5) To delete statutes having only a temporary usefulness, and being without 

prospective significance. 
To illustrate: Section 4269(a) providing for certain types of refunds 
by the Governor and Council of State directs that the power granted there- 
in to make such refunds shall not be exercised after July 1, 1927. 

(6) To delete statutes unconstitutional under the decisions of the North Caro- 

lina Supreme Court. 
To illustrate: Section 218(v) purports to authorize depositors in banks 
in certain enumerated counties to assign their claims to debtors of the banks 
and to permit such debtors to set off such assigned claims against the debts 
owed by them to the banks. This statute was held unconstitutional in 
Edgerton v. Hood, 205 N. C. 816. 

(7) To delete statutes unconstitutional under the decisions of the United States 

Supreme Court. 
To illustrate: The Alien Registration Act, Sections 193 (a) -193(h), 
required aliens to register with the Clerk of the Superior Court of the 
counties where they resided. Under the decision of Hincs v. Davidowits, 
312 U. S. 52 (1940) such a statute is clearly unenforceable. 

(8) To incorporate in the Code hitherto uncodified statutes which should be 

codified. 
To illustrate: Chapter 155 of the Public Laws of 1925, the "World War 
Veterans Loan Act of 1925" is being codified as an article in the chapter 
dealing with State Departments, Institutions and Commissions. 

(9) To restore to the Code in proper form statutes erroneously deleted. 

To illustrate: Section 3891 prescribed solicitors' fees. Chapter 157 of 
the Public Laws of 1923 placed solicitors on a salary basis exclusively. 
Section 3891 subsequently was deleted from the code. This was erroneous 
in that the same Chapter 157 of the Public Laws of 1923 did not abolish 
the solicitors' fees but merely diverted them, with certain exceptions, to 
certain county purposes. Therefore, the section should be restored to 
furnish the list of fees and to indicate proper application. 

(10) To redraft sections to eliminate obsolete or superseded provisions in the 
sections. 



x Preface 

(11) To redraft a section where imperfect expression and ungrammatical con- 

struction render sections or portions of sections awkward although there 
is no ambiguity and the meaning intended can be perceived. 

(12) To redraft and consolidate related sections or parts of sections dealing with 

the same aspects of the same subjects. 
To illustrate: Sections 1112(n) and 11 12(z), both relating to the adop- 
tion and use of a seal by the Utilities Commission, have been combined 
into a single section. 

In codifying the statutes it was necessary to determine what disposition should 
be made of certain standard provisions or parts of statutes. After a study of codes 
of other states and other research the following policies were adopted : 

(1) Preambles, enacting clauses, repeal provisions and "taking effect" provi- 
sions are not codified. 

(2) Clauses purporting to exempt pending litigation from the operation of the 
law are not codified. Their presence in many cases needlessly pads the statutes, 
and they have no proper function in a permanent code. Their omission from the 
code will not effect their repeal. 

(3) Constitutionality, partial invalidity, or separability clauses, which have be- 
come increasingly popular in the enactment of session laws in recent years, have 
not been codified. It is believed that such provisions serve no useful function in- 
asmuch as the presence of such a provision would be unlikely to preserve any por- 
tion of an act held unconstitutional in part which would not remain valid even in 
the absence of such a provision. The omission of such construction sections does 
not effect their repeal. 

(4) Validating acts, which by reason of the date of validation or the nature of 
the validating act have in some instances been deleted as obsolete and having no 
place in a permanent code. 

(5) Many state bond acts are not codified. The sections authorizing a specific 
issue of bonds or notes for specific purposes provide in what amount the bonds 
or notes shall be issued when they shall mature, the rate of interest they shall bear, 
and denomination, and the machinery in general for their disposition. Statutes 
authorizing the specific issuance of bonds or notes, only rarely referred to, soon 
become obsolete for all practical purposes, and their limited use does not justify 
the space required to set them out in full in the code. Instead, a synopsis of the 
purpose for which the bonds or notes are to be issued, together with the citation 
to the Consolidated Statutes (when the acts appeared therein) and the session 
laws will be inserted at the end of the appropriate sections. This will afford a 
convenient reference to these acts. Bond sections have also been noted in this 
fashion in the Chapters, State Debt and Roads and Highways. The status of the 
state bond laws will not be changed by reason of their omission from the code. A 
saving clause in the sections dealing with the effect of the adoption of the new 
code will save these bond sections from repeal. 

Local Laws 

The recodification has been made of the "general public statutes." North Caro- 
lina has enacted a great volume of private, special and local legislation. Prior 
codifications have included many local laws for convenience or to fill some gap in 



Preface xi 

the general laws. However, with the great increase in the volume and complexity 
of legislation it was clearly apparent that to continue to include in the code statutes 
which are essentially local in nature (except for necessary exceptions) would re- 
sult in an over-bulky code and greatly complicate the search of the general laws. 

The last official revision of the statutes was that embodied in the two volumes of 
the Consolidated Statutes of 1919, as brought forward by the third volume in 1924. 
Thus the basis for the present work is that revision and subsequent public session 
laws. The inclusion of a law in the "public laws" volume of the session laws is, 
of course, not controlling on the question of whether the statute is public or private, 
general or special, as regards a constitutional limitation, but for purposes of codi- 
fication the statutes set forth in the "public laws" volumes form the basis of the 
work. 

The immediate task of examining the statutes in the "public laws" volumes alone 
involved a review of more than 4,500 statutes which have been enacted since 1919. 
These statutes, when added to laws appearing in the Consolidated Statutes, pre- 
sented a total in the neighborhood of 14,000 sections that had to be studied. 

In many instances public-local laws have altered or suspended for particular 
communities the operation of the general statutes. The question of the treatment 
of local legislation was one of the most vexing problems encountered in the work 
of recodification and seems to be more serious in North Carolina than in most of 
the states. It is impossible to reflect all local variations of the law in a general code. 

It was necessary to make a decision as to which statutes should be codified. It 
was finally decided that any statute or portion of a statute which did not affect at 
least 10 or more counties would not be placed in the code. All portions of statutes 
or direct amendments to statutes affecting 9 counties or less have merely been 
cited in the first annotation paragraph following the statute and entitled "Local 
Modification". Under this heading the affected counties together with the ap- 
propriate session law or Consolidated Statutes citation have been listed alphabeti- 
cally without any attempt to summarize the provisions of the local laws modifying 
the general law. It was believed that any attempt to analyze the exact effect of 
particular local provisions would often be not only misleading but inaccurate in the 
absence of a comprehensive study of all the vast body of local legislation appearing 
in the Public-Local and Private Law volumes since many, in fact the vast majority 
of local laws, do alter the general law without making direct references. 

Annotations 

Although annotations form no part of the revised code as such and require no 
legislative action, nevertheless, it seems not inappropriate to describe the nature of 
the revision of the annotations which is being prepared for inclusion in the new 
four-volume code. 

The editorial staff of the publisher has made a preliminary revision of the an- 
notations based on a check of the following sources, which revision is in turn be- 
ing examined and improved by the Codification Division: 

(1) Shepard's Citators for cases citing specific statutes; (2) the annotations of 
the Consolidated Statutes of 1919; (3) the annotations in Pell's Revisal of 1908 
for earlier cases ; and, (4) the North Carolina Law Review. 

References to standard treatises are also planned ; and many cross references 
are being made to link related statutes. 



xn Preface 



The material thus gathered must be assorted, classified, weighed and edited. 
An effort has been made to avoid annotations which are not helpful to a present 
understanding of the statutes. It is believed that the proper function of code an- 
notations is to illuminate the statutes, and that the annotations should not take the 
scope of a general digest of case law. 



i_ j 



ex 



Although practically all work has been completed on the index, it was impossible 
to print the index in the Legislative Edition in that it is contemplated that the 1943 
session laws will be incorporated in the code as finally printed which will, of course, 
necessitate weaving into the index full index references to the 1943 laws. However, 
a few sample pages are being printed to indicate the form, style, size of type, etc., 
in which the index will eventually appear. 

The index type will be increased from six point to eight point. There will be 
a two-column page. Deeper indentations will be made for the secondary indented 
index lines in order to clarify the relation of the references. 

The demand for a satisfactory index is widespread and urgent. Before enter- 
ing upon the indexing work, helpful reference works were sought in vain. It be- 
came necessary to rely largely on the experience gained by law publishers, on a 
study of other indexes, and on the experience of the staff as the work progressed. 
A few fundamentals soon became clear. Indexing is not an exact science, and code 
indexing is particularly intricate. An index must be constructed not by a mere me- 
chanical listing of definite titles, but by a collection of ideas logically associated 
with the statutes, and since individuals do not uniformly share the same ideas, the 
effectiveness with which any given point is indexed will vary. The work is ex- 
tremely technical and calls for a high degree of imagination and a retentive memory. 
An easy pitfall is to index part of a subject in one place and part in another. Con- 
sistency is a prime goal. It is not practicable to follow the frequently offered sug- 
gestion to dispense with cross references and reprint all the material wherever there 
is a reference to any part of it. Such an index would run into many volumes. 

The index is constructed from a careful section-by-section reading of the statutes. 
As each statute was studied, indexing ideas were written down. These were passed 
along to the member of the staff who specialized in the indexing work. After sup- 
plementing the list with his own ideas, he referred to a card file prepared by the 
publisher which showed in detail how each section in the publisher's 1939 code is 
indexed. By comparing the list of ideas prepared by the staff with the indexing of 
the 1939 code, the accuracy and effectiveness of the present indexing was weighed 
and rounded out wherever necessary by the addition of other references. 

An effort is being made to make the index as effective as possible for use in North 
Carolina. Such references as "Martin Act" and "Connor Act" are being added. 

A great deal of attention has been devoted to the index in a section-by-section 
analysis, designed (1) to delete inapplicable index references, (2) to correct in- 
accurate index references, and (3) to add new index references where sections or 
portions of sections are found to be indexed inadequately or not at all. At the same 
time, index lines are being repeated as often as the limitations of space and utility 
permit to the end that "Cross References" or "See" references may be reduced to 
a minimum, and where they cannot be entirely eliminated, the inclusive section 
numbers are also being listed along with the Cross Reference. 



Preface; xiii 

Additional Features of New Code 

A complete table of contents is inserted at the beginning of the code and will be 
of considerable assistance in locating any chapter immediately. Frontal tables, 
listing the catch lines of each section in a chapter, are being placed at the beginning 
of each chapter and should be of great assistance in locating any section desired. 
Comparative tables are planned for the final code to include not only the one ap- 
pearing in this Legislative Edition, but also tables translating section numbers of 
codes prior to the Consolidated Statutes to the numbers of this code. 

Recommendations 

In addition to making the types of changes listed above for the purpose of the 
Legislative Edition, the work of recodification has uncovered a variety of situations 
which should be improved by express legislative action but which are beyond the 
authority of the Division to incorporate in the proposed code since they would 
effect changes in the law. They include generally such matters as the necessity 
for express repeal of outmoded statutes, redrafting to clarify ambiguity and to 
resolve conflicts between different sections, and the enactment of implementing or 
supplemental legislation. In all cases the defects in the statutes have been pointed 
out in some detail, but it has not always been possible to make a recommendation as 
to the specific action which should be taken. When a statute is ambiguous and 
there is no means of determining which possible meaning expresses the legislative 
intent, or even where the more likely intended meaning is clear, it has been felt 
that it was beyond the scope of the power of the Division to choose under such 
circumstances and to incorporate such choice in the Legislative Edition, but, rather, 
it was thought desirable to set out the problem and to indicate which course seemed 
advisable along with the reasons therefor. Therefore, these recommendations along 
with the explanatory reports described above have also in every case been sub- 
mitted to the Legislative Commission on Recodification for approval, and it is 
hoped that they will furnish the basis for the drafting of supplemental legislation, 
amending the official code, in order to produce the most effective final code. A 
copy of these recommendations will be available for study in the House, the Senate 
and the Attorney General's office. 

Whether or not the recommendations are acted on by the 1943 General As- 
sembly, the material will be available for consideration at some future date, and 
failure to act on these recommendations will not affect the adoption of the official 
code. 

The Codification Staff 

The staff of the Division has consisted of five lawyers, including the director, 
and one secretary. The calls of the military and naval services and the opportuni- 
ties for advancement elsewhere have resulted in many changes in personnel since 
the work was first begun. During this time the following persons have served on 
the legal staff: Moses B. Gillam, Jr., Cornelia McKimmon, James E. Tucker, 
Carmon Stuart, John Lawrence, Harry W. McGalliard, James B. McMillan, Kemp 
Yarborough, J. B. Bilisoly, Sarah Starr, Junius D. Grimes, Jr., Joseph B. Ches- 
hire, IV and Catherine Paschal ; and the following persons have served as secre- 
taries : Minerva Coppage, Marjorie Mann and Effie McLean English. All of 



XI i Preface 

The material thus gathered must be assorted, classified, weighed and edited. 
An effort has been made to avoid annotations which are not helpful to a present 
understanding of the statutes. It is believed that the proper function of code an- 
notations is to illuminate the statutes, and that the annotations should not take the 
scope of a general digest of case law. 

Index 

Although practically all work has been completed on the index, it was impossible 
to print the index in the Legislative Edition in that it is contemplated that the 1943 
session laws will be incorporated in the code as finally printed which will, of course, 
necessitate weaving into the index full index references to the 1943 laws. However, 
a few sample pages are being printed to indicate the form, style, size of type, etc., 
in which the index will eventually appear. 

The index type will be increased from six point to eight point. There will be 
a two-column page. Deeper indentations will be made for the secondary indented 
index lines in order to clarify the relation of the references. 

The demand for a satisfactory index is widespread and urgent. Before enter- 
ing upon the indexing work, helpful reference works were sought in vain. It be- 
came necessary to rely largely on the experience gained by law publishers, on a 
study of other indexes, and on the experience of the staff as the work progressed. 
A few fundamentals soon became clear. Indexing is not an exact science, and code 
indexing is particularly intricate. An index must be constructed not by a mere me- 
chanical listing of definite titles, but by a collection of ideas logically associated 
with the statutes, and since individuals do not uniformly share the same ideas, the 
effectiveness with which any given point is indexed will vary. The work is ex- 
tremely technical and calls for a high degree of imagination and a retentive memory. 
An easy pitfall is to index part of a subject in one place and part in another. Con- 
sistency is a prime goal. It is not practicable to follow the frequently offered sug- 
gestion to dispense with cross references and reprint all the material wherever there 
is a reference to any part of it. Such an index would run into many volumes. 

The index is constructed from a careful section-by-section reading of the statutes. 
As each statute was studied, indexing ideas were written clown. These were passed 
along to the member of the staff who specialized in the indexing work. After sup- 
plementing the list with his own ideas, he referred to a card file prepared by the 
publisher which showed in detail how each section in the publisher's 1939 code is 
indexed. By comparing the list of ideas prepared by the staff with the indexing of 
the 1939 code, the accuracy and effectiveness of the present indexing was weighed 
and rounded out wherever necessary by the addition of other references. 

An effort is being made to make the index as effective as possible for use in North 
Carolina. Such references as "Martin Act" and "Connor Act" are being added. 

A great deal of attention has been devoted to the index in a section-by-section 
analysis, designed (1) to delete inapplicable index references, (2) to correct in- 
accurate index references, and (3) to add new index references where sections or 
portions of sections are found to be indexed inadequately or not at all. At the same 
time, index lines are being repeated as often as the limitations of space and utility 
permit to the end that "Cross References" or "See" references may be reduced to 
a minimum, and where they cannot be entirely eliminated, the inclusive section 
numbers are also being listed along with the Cross Reference. 



Preface: xiii 

Additional Features of New Code 

A complete table of contents is inserted at the beginning of the code and will be 
of considerable assistance in locating any chapter immediately. Frontal tables, 
listing the catch lines of each section in a chapter, are being placed at the beginning 
of each chapter and should be of great assistance in locating any section desired. 
Comparative tables are planned for the final code to include not only the one ap- 
pearing in this Legislative Edition, but also tables translating section numbers of 
codes prior to the Consolidated Statutes to the numbers of this code. 

Recommendations 



In addition to making the types of changes listed above for the purpose of the 
Legislative Edition, the work of recodification has uncovered a variety of situations 
which should be improved by express legislative action but which are beyond the 
authority of the Division to incorporate in the proposed code since they would 
effect changes in the law. They include generally such matters as the necessity 
for express repeal of outmoded statutes, redrafting to clarify ambiguity and to 
resolve conflicts between different sections, and the enactment of implementing or 
supplemental legislation. In all cases the defects in the statutes have been pointed 
out in some detail, but it has not always been possible to make a recommendation as 
to the specific action which should be taken. When a statute is ambiguous and 
there is no means of determining which possible meaning expresses the legislative 
intent, or even where the more likely intended meaning is clear, it has been felt 
that it was beyond the scope of the power of the Division to choose under such 
circumstances and to incorporate such choice in the Legislative Edition, but, rather, 
it was thought desirable to set out the problem and to indicate which course seemed 
advisable along with the reasons therefor. Therefore, these recommendations along 
with the explanatory reports described above have also in every case been sub- 
mitted to the Legislative Commission on Recodification for approval, and it is 
hoped that they will furnish the basis for the drafting of supplemental legislation, 
amending the official code, in order to produce the most effective final code. A 
copy of these recommendations will be available for study in the House, the Senate 
and the Attorney General's office. 

Whether or not the recommendations are acted on by the 1943 General As- 
sembly, the material will be available for consideration at some future date, and 
failure to act on these recommendations will not affect the adoption of the official 
code. 

The Codification Staff 

The staff of the Division has consisted of five lawyers, including the director, 
and one secretary. The calls of the military and naval services and the opportuni- 
ties for advancement elsewhere have resulted in many changes in personnel since 
the work was first begun. During this time the following persons have served on 
the legal staff: Moses B. Gillam, Jr., Cornelia McKimmon, James E. Tucker, 
Cannon Stuart, John Lawrence, Harry W. McGalliard, James B. McMillan, Kemp 
Yarborough, J. B. Bilisoly, Sarah Starr, Junius D. Grimes, Jr., Joseph B. Ches- 
hire, IV and Catherine Paschal ; and the following persons have served as secre- 
taries : Minerva Coppage, Marjorie Mann and Effie McLean English. All of 



xiv Preface 

them have given loyal and diligent service. Grateful acknowledgment is made to 
them for their labors which were both extensive and difficult. 

When W. J. Adams, Jr., was named Assistant Attorney General in October, 1941, 
Harry W. McGalliard was appointed Director of the Division. Mr. Adams con- 
tinued to assist in the supervision of the recodification work. Mr. McGalliard 
has continued to serve as Director until the present. He has personally done the 
important job of revamping the index. 

Use of Legislative Edition 

A full table of contents at the beginning of this volume lists all the chapters of 
the code. A comparative table in the back of the volume translates the Consolidated 
Statutes and Michie Code section numbers into the new section numbers of this 
edition. A frontal table at the beginning of each chapter furnishes an analysis of 
the sections contained in the chapter, listing the catch lines of all the sections of 
the chapter. Through the use of these editorial aids it should prove relatively 
simple to locate any section. In addition, the Division of Legislative Drafting and 
Codification of Statutes will be glad to assist anyone in every way possible in the 
study and examination of the code. 

Effect to Be Given New Code 

It is recommended that the code when adopted be made the official code of North 
Carolina as was done with the Consolidated Statutes of 1919 and previous com- 
pilations of our laws. 

Harry McMullan, 
Attorney General. 



Table of Contents 



DIVISION I. CONSTITUTIONS 

Constitution of North Carolina ) Not in Legislative 
Constitution of the United States j Edition. 

PAGE 

DIVISION II. COURTS AND CIVIL PROCEDURE 1 

Chap. 1. Civil Procedure 3 

Art. 1. Definitions 9 

Art. 2. General Provisions 9 

Art. 3. Limitations, General Provisions 9 

Art. 4. Limitations, Real Property 11 

Art. 5. Limitations, Other than Real Property 12 

Art. 6. Parties 13 

Art. 7. Venue 16 

Art. 8. Summons 17 

Art. 9. Prosecution Bonds 21 

Art. 10. Joint and Several Debtors 22 

Art. 11. Lis Pendens 22 

Art. 12. Complaint 23 

Art. 13. Defendant's Pleadings 24 

Art. 14. Demurrer 24 

Art. 15. Answer 25 

Art. 16. Reply 25 

Art. 17. Pleadings, General Provisions 25 

Art. 18. Amendments 27 

Art. 19. Trial 28 

Art. 20. Reference 29 

Art. 21. Issues 30 

Art. 22. Verdict 30 

Art. 23. Judgment 31 

Art. 24. Confession of Judgment 37 

Art. 25. Submission of Controversy without Action 37 

Art. 26. Declaratory Judgments 37 

Art. 27. Appeal 38 

Art. 28. Execution 42 

Art. 29. Execution and Judicial Sales 45 

Art. 30. Betterments 47 

Art. 31. Supplemental Proceedings 48 

Art. 32. Property Exempt from Execution 50 

Art. 33. Special Proceedings 54 

Art. 34. Arrest and Bail 55 

Art. 35. Attachment 58 

Art. 36. Claim and Delivery 62 

Art. 37. Injunction 64 

Art. 38. Receivers 66 

Art. 39. Deposit or Delivery of Money or Other Property 67 

Art. 40. Mandamus 67 

Art. 41. Quo Warranto 67 

Art. 42. Waste 69 

Art. 43. Nuisance 69 

Art. 44. Compromise 69 

Art. 45. Arbitration and Award 70 

Art. 46. Examination of Parties 72 



XVI 



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Chap. 6. 

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Chap. 7. 

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PAGE 

47. Motions and Orders 73 

48. Notices 73 

49. Time 74 

50. General Provisions as to Legal Advertising 74 

Clerk of Superior Court 75 

1. The Office > 76 

2. Assistant Clerks 76 

3. Deputies 77 

4. Powers and Duties 77 

5. Reports 84 

6. Money in Hand; Investments 84 

Commissioners of Affidavits and Deeds 86 

Common Law 87 

Contempt 87 

Costs 89 

1. Generally 90 

2. When State Liable for Costs 91 

3. Civil Actions and Proceedings 92 

4. Costs on Appeal 93 

5. Liability of Counties in Criminal Actions 93 

6. Liability of Defendant in Criminal Actions 95 

7. Liability of Prosecutor for Costs 95 

8. Fees of Witnesses 95 

9. Criminal Costs before Justices, Mayors, County or Recorders' Courts 97 
Courts 98 

1. Organization and Terms 103 

2. Jurisdiction 103 

3. Officers of Court 105 

4. Supreme Court Library 105 

5. Supreme Court Reports 106 

6. Salaries of Supreme Court Employees 106 

7. Organization 106 

8. Jurisdiction 109 

9. Judicial Districts and Terms of Court 109 

10. Special Terms of Court 128 

11. Special Regulations 128 

12. Commission for Improvement of Laws 130 

13. In Counties with a City of at Least Twenty-five Thousand In- 

habitants 131 

14. Election and Qualification 133 

15. Jurisdiction 134 

16. Dockets and Fees 134 

17. Fees 134 

18. Process 135 

19. Pleading and Practice 136 

20. Jury Trial 138 

21. Judgment and Execution 139 

22. Appeal 141 

23. Forms 141 

24. Municipal Recorders' Courts 150 

25. County Recorders' Courts . . . 154 

26. Municipal-County Courts 157 

27. Provisions Applicable to All Recorders' Courts 157 

.28. Civil Jurisdiction of Recorders' Courts 158 

29. Elections to Establish Recorders' Courts 159 

30. Establishment, Organization and Jurisdiction 160 

31. Practice and Procedure 163 

32. District County Courts 164 



Table of Contents xvii 

PAGE 

Art. 33. With Jurisdiction Not to Exceed $3000 166 

Art. 34. With Jurisdiction Not to Exceed $5000 169 

Art. 35. With Jurisdiction Not to Exceed $1500 171 

Art. 36. County Criminal Courts 174 

Art. 37. Special County Courts 177 

Chap. 8. Evidence 181 

Art. 1. Statutes 182 

Art. 2. Grants, Deeds and Wills 183 

Art. 3. Public Records 186 

Art. 4. Other Writings in Evidence 187 

Art. 5. Life Tables 188 

Art. 6. Calendars 189 

Art. 7. Competency of Witnesses 189 

Art. 8. Attendance of Witness 191 

Art. 9. Attendance of Witnesses from without State . . . . 192 

Art. 10. Depositions 193 

Art. 11. Perpetuation of Testimony 196 

Art. 12. Inspection and Production of Writings 196 

Chap. 9. Jurors 197 

Art. 1. Jury List and Drawing of Original Panel 197 

Art. 2. Petit Jurors; Attendance, Regulation and Privileges 199 

Art. 3. Peremptory Challenges in Civil Cases 200 

Art. 4. Grand Jurors 200 

Art. 5. Special Venire 203 

Chap. 10. Notaries 203 

Chap. 11. Oaths 204 

Art. 1. General Provisions 204 

Art. 2. Forms of Official and Other Oaths 205 

Chap. 12. Statutory Construction 209 

DIVISION III. CRIMINAL LAW AND PROCEDURE 211 

Chap. 13. Citizenship Restored 213 

Chap. 14. Criminal Law 214 

Art. 1. Felonies and Misdemeanors 220 

Art. 2. Principals and Accessories 220 

Art. 3. Rebellion 221 

Art. 4. Subversive Activities 221 

Art. 5. Counterfeiting and Issuing Monetary Substitutes 222 

Art. 6. Homicide 222 

Art. 7. Rape and Kindred Offenses 222 

Art. 8. Assaults 223 

Art. 9. Hazing 224 

Art. 10. Kidnapping and Abduction 224 

Art. 11. Abortion and Kindred Offenses 225 

Art. 12. Libel and Slander 225 

Art. 13. Injuring Others by Use of High Explosives 225 

Art. 14. Burglary and Other House-Breakings 225 

Art. 15. Arson and Other Burnings 226 

Art. 16. Larceny 227 

Art. 17. Robbery 229 

Art. 18. Embezzlement 229 

Art. 19. False Pretenses and Cheats 231 

Art. 20. Frauds 233 

Art. 21. Forgery 234 

Art. 22. Trespasses to Land and Fixtures 235 

Art. 23. Trespasses to Personal Property 240 

Art. 24. Vehicles and Draft Animals. — Protection of Bailor against Acts 

of Bailee 240 

Art. 25. Regulating the Leasing of Storage Batteries 241 



xviii Table of Contents 

PAGE 

Art. 26. Offenses against Public Morality and Decency 241 

Art. 27. Prostitution 244 

Art. 28. Perjury 245 

Art. 29. Bribery 245 

Art. 30. Obstructing Justice 246 

Art. 31. Misconduct in Public Office :^ 246 

Art. 32. Misconduct in Private Office 249 

Art. 33. Prison Breach and Prisoners 249 

Art. 34. Custodial Institutions 251 

Art. 35. Offenses against the Public Peace 251 

Art. 36. Offenses against the Public Safety 252 

Art. 37. Lotteries and Gaming 253 

Art. 38. Marathon Dances and Similar Endurance Contests 256 

Art. 39. Protection of Minors 256 

Art. 40. Protection of the Family 257 

Art. 41. Intoxicating Liquors 258 

Art. 42. Public Drunkenness 258 

Art. 43. Vagrants and Tramps 259 

Art. 44. Regulation of Sales 260 

Art. 45. Regulation of Employer and Employee 261 

Art. 46. Regulation of Landlord and Tenant 262 

Art. 47. Cruelty to Animals 263 

Art. 48. Animal Diseases 263 

Art. 49. Protection of Livestock Running at Large 263 

Art. 50. Protection of Letters, Telegrams, and Telephone Messages 264 

Art. 51. Protection of the Game of Baseball " 264 

Art. 52. Miscellaneous Police Regulations 265 

Art. 53. Sale of Weapons 268 

Chap. 15. Criminal Procedure 270 

Art. 1. General Provisions 272 

Art. 2. Record and Disposition of Seized, etc., Articles 273 

Art. 3. Warrants 274 

Art. 4. Search Warrants 274 

Art. 5. Peace Warrants 275 

Art. 6. Arrest 276 

Art. 7. Fugitives from Justice 277 

Art. 8. Extradition 277 

Art. 9. Preliminary Examination 281 

Art. 10. Bail 282 

Art. 11. Forfeiture of Bail 283 

Art. 12. Commitment to Prison 285 

Art. 13. Venue 285 

Art. 14. Presentment 286 

Art. 15. Indictment 286 

Art. 16. Trial before Justice 288 

Art. 17. Trial in Superior Court 288 

Art. 18. Appeal 290 

Art. 19. Execution 291 

Art. 20. Suspension of Sentence and Probation 292 

Chap. 16. Gaming Contracts and Futures 294 

Art. 1. Gaming Contracts 294 

Art. 2. Contracts for "Futures" 295 

Chap. 17. Habeas Corpus 296 

Art. 1. Constitutional Provisions 296 

Art. 2. Application 296 

Art. 3. Writ 297 

Art. 4. Return 297 

Art. 5. Enforcement of Writ 298 



Table of Contents xix 

page 

Art. 6. Proceedings and Judgment 299 

Art. 7. Habeas Corpus for Custody of Children in Certain Cases 300 

Art. 8. Habeas Corpus Ad Testificandum 300 

Chap. 18. Regulation of Intoxicating Liquors 301 

Art. 1. The Turlington Act 302 

Art. 2. Miscellaneous Regulations 307 

Art. 3. Alcoholic Beverage Control Act of 1937 307 

Art. 4. Beverage Control Act of 1939 314 

Art. 5. Fortified Wine Control Act of 1941 322 

Art. 6. Light Domestic Wines; Manufacture and Regulation 322 

Chap. 19. Offenses against Public Morals 323 

DIVISION IV. MOTOR VEHICLES 325 

Chap. 20. Motor Vehicles 327 

Art. 1. Department of Motor Vehicles 329 

Art. 2. Uniform Driver's License Act 330 

Art. 3. Motor Vehicle Act of 1937 335 

Art. 4. State Highway Patrol 361 

Art. 5. Enforcement of Collection of Judgments against Irresponsible Driv- 
ers of Motor Vehicles 363 

Art. 6. Giving Publicity to Highway Traffic .Laws through the Public 

Schools 367 

Art. 7. Miscellaneous Provisions Relating to Motor Vehicles 367 

Art. 8. Sales of Used Motor Vehicles Brought into State 367 

DIVISION V. COMMERCIAL LAW 369 

Chap. 21. Bills of Lading 371 

Art. 1. Definitions 371 

Art. 2. Issue of Bills of Lading 371 

Art. 3. Obligations and Rights of Carriers upon Bills of Lading 372 

Art. 4. Negotiation and Transfer of Bills 374 

Art. 5. Criminal Offenses 375 

Chap. 22. Contracts Requiring Writing 376 

Chap. 23. Debtor and Creditor 376 

Art. 1. Assignments for Benefit of Creditors 377 

Art. 2. Petition of Insolvent for Assignment for Creditors 378 

Art. 3. Trustee for Estate of Debtor Imprisoned for Crime 379 

Art. 4. Discharge of Insolvent Debtors 379 

Art. 5. General Provisions under Articles 2, 3, and 4 381 

Art. 6. Practice in Insolvency and Certain Other Proceedings 382 

Art. 7. Bankruptcy of Taxing, etc., Districts, Counties, Cities, Towns and 

Villages 382 

Chap. 24. Interest 382 

Chap. 25. Negotiable Instruments 383 

Art. 1. General Provisions 385 

Art. 2. Form and Interpretation 386 

Art. 3. Consideration 388 

Art. 4. Negotiation 388 

Art. 5. Rights of Holder 389 

Art. 6. Liabilities of Parties 390 

Art. 7. Presentment for Payment 391 

Art. 8. Notice of Dishonor 392 

Art. 9. Discharge 394 

Art. 10. Bills of Exchange 395 

Art. 11. Acceptance 395 

Art. 12. Presentment for Acceptance 396 

Art. 13. Protest 396 

Art. 14. Acceptance for Honor 397 



xx Table of Contents 

PAGE 

Art. 15. Payment for Honor 397 

Art. 16. Bills in a Set 398 

Art. 17. Promissory Notes and Checks 398 

Chap. 26. Suretyship 399 

Chap. 27. Warehouse Receipts 401 

Art. 1. General Provisions 401 

Art. 2. Issue of Warehouse Receipts 402 

Art. 3. Obligations and Rights of Warehousemen on Receipts 402 

Art. 4. Negotiation and Transfer of Receipts 406 

Art. 5. Criminal Offenses 407 

DIVISION VI. DECEDENTS' ESTATES 409 

Chap. 28. Administration 411 

Art. 1. Probate Jurisdiction 413 

Art. 2. Necessity for Letters and Their Form 413 

Art. 3. Right to Administer 414 

Art. 4. Public Administrator 415 

Art. 5. Administrator with Will Annexed 415 

Art. 6. Collectors 416 

Art. 7. Appointment and Revocation 416 

Art. 8. Bonds 417 

Art. 9. Notice to Creditors 418 

Art. 10. Inventory 419 

Art. 11. Assets 419 

Art. 12. Discovery of Assets 421 

Art. 13. Sales of Personal Property 421 

Art. 14. Sales of Real Property 422 

Art. 15. Proof and Payment of Debts of Decedent 426 

Art. 16. Accounts and Accounting 427 

Art. 17. Distribution 430 

Art. 18. Settlement 432 

Art. 19. Actions by and against Representative 433 

Art. 20. Representative's Powers, Duties and Liabilities 434 

Art. 21. Construction and Application of Chapter 435 

Chap. 29. Descents 435 

Chap. 30. Widows 437 

Art. 1. Dissent from Wills 437 

Art. 2. Dower 437 

Art. 3. Allotment of Dower 438 

Art. 4. Year's Allowance 439 

Chap. 31. Wills 441 

Art. 1. Execution of Will 442 

Art. 2. Revocation of Will 442 

Art. 3. Witnesses to Will 443 

Art. 4. Depository for Wills 443 

Art. 5. Probate of Will 443 

Art. 6. Caveat to Will 446 

Art. 7. Construction of Will 447 

DIVISION VII. FIDUCIARIES 449 

Chap. 32. Fiduciaries 451 

Chap. 33. Guardian and Ward 452 

Art. 1. Creation and Termination of Guardianship 453 

Art. 2. Guardian's Bond 455 

Art. 3. Powers and Duties of Guardian 456 

Art. 4. Sales of Ward's Estate 457 

Art. 5. Returns and Accounting 458 

Art. 6. Public Guardians 459 

Art. 7. Foreign Guardians 459 



Table of Contents xxi 

PAGK 

Art. 8. Estates without Guardian 459 

Art. 9. Guardians of Estates of Missing Persons 460 

Chap. 34. Veterans' Guardianship Act 461 

Chap. 35. Insane Persons and Incompetents 463 

Art. 1. Inebriates 464 

Art. 2. Guardianship and Management of Estates of Incompetents 464 

Art. 3. Sales of Estates 466 

Art. 4. Mortgage or Sale of Estates Held by the Entireties 467 

Art. 5. Surplus Income and Advancements 467 

Art. 6. Detention, Treatment, and Cure of Inebriates 468 

Art. 7. Sterilization of Persons Mentally Defective 469 

Art. 8. Temporary Care and Restraint of Inebriates, Drug Addicts and 

Persons Insane 473 

Chap. 36. Trusts and Trustees 473 

Art. 1. Investment and Deposit of Trust Funds 474 

Art. 2. Removal of Trust Funds from State 475 

Art. 3. Resignation of Trustee 475 

Art. 4. Charitable Trusts 476 

Art. 5. Uniform Trusts Act 477 

Art. 6. Uniform Common Trust Fund Act 479 

Chap. 37. Uniform Principal and Income Act 480 

DIVISION VIII. REAL AND PERSONAL PROPERTY 485 

Chap. 38. Boundaries 487 

Chap. 39. Conveyances 487 

Art. 1. Construction and Sufficiency 488 

Art. 2. Conveyances by Husband and Wife 489 

Art. 3. Fraudulent Conveyances 490 

Art. 4. Vountary Organizations and Associations 491 

Art. 5. Sale of Building Lots in North Carolina 491 

Chap. 40. Eminent Domain 492 

Art. 1. Right of Eminent Domain 492 

Art. 2. Condemnation Proceedings 494 

Art. 3. Public Works Eminent Domain Law 497 

Chap. 41. Estates 502 

Chap. 42. Landlord and Tenant 505 

Art. 1. General Provisions 505 

Art. 2. Agricultural Tenancies 506 

Art. 3. Summary Ejectment 508 

Art. 4. Forms 509 

Chap. 43. Land Registration 511 

Art. 1. Nature of Proceedings 512 

Art. 2. Officers and Fees 512 

Art. 3. Procedure for Registration 512 

Art. 4. Registration and Effect 515 

Art. 5. Adverse Claims and Correction after Registration 516 

Art. 6. Method of Transfer 518 

Art. 7. Liens upon Registered Lands 520 

Art. 8. Assurance Fund 521 

Art. 9. Removal of Land from Operation of Torrens Law 522 

Chap. 44. Liens 522 

Art. 1. Mechanics', Laborers' and Materialmen's Liens 523 

Art. 2. Subcontractors', etc., Liens and Rights against Owners 524 

Art. 3. Liens on Vessels 526 

Art. 4. Warehouse Storage Liens 527 

Art. 5. Liens of Hotel, Boarding and Lodging-House Keeper 527 

Art. 6. Liens of Livery-Stable Keepers 527 

Art. 7. Liens on Colts, Calves and Pigs 527 

Art. 8. Perfecting, Enforcing and Discharging Liens 528 



xxii Table of Contents 

PAGE 

Art. 9. .Liens upon Recoveries for Personal Injuries to Secure Sums Due 

for Medical Attention, etc 528 

Art. 10. Agricultural Liens for Advances 529 

Art. 11. Liens for Internal Revenue 531 

Chap. 45. Mortgages and Deeds of Trust 532 

Art. 1. Chattel Mortgages: Form and Sufficiency 532 

Art. 2. Right to Foreclose or Sell under Power 533 

Art. 3. Mortgage Sales , 535 

Art. 4. Discharge and Release 538 

Art. 5. Real Estate Mortgage Loans 539 

Chap. 46. Partition 540 

Art. 1. Partition of Real Property 540 

Art. 2. Partition Sales of Real Property 543 

Art. 3. Partition of Lands in Two States 544 

Art. 4. Partition of Personal Property 545 

Chap. 47. Probate and Registration 546 

Art. 1. Probate 547 

Art. 2. Registration 550 

Art. 3. Forms of Acknowledgment, Probate and Order of Registration .... 553 

Art. 4. Curative Statutes; Acknowledgments; Probates; Registration .... 555 
Art. 5. Registration of Official Discharges from the Military and Naval 

Forces of the United States 563 

DIVISION IX. DOMESTIC RELATIONS 565 

Chap. 48. Adoption of Minors 567 

Chap. 49. Bastardy 570 

Art. 1. Support of Illegitimate Children 570 

Art. 2. Legitimation of Illegitimate Children 571 

Chap. 50. Divorce and Alimony 571 

Chap. 51. Marriage 574 

Art. 1. General Provisions 574 

Art. 2. Marriage License 575 

Chap. 52. Married Women 577 

Art. 1, Powers and Liabilities of Married Women 578 

Art. 2. Acts Barring Reciprocal Property Rights of Husband and Wife . . 579 

Art. 3. Free Traders 580 

DIVISION X. CORPORATIONS AND ASSOCIATIONS 581 

Chap. 53. Banks 583 

Art. 1. Definitions 584 

Art. 2. Creation 585 

Art. 3. Dissolution and Liquidation 588 

Art. 4. Reopening of Closed Banks 594 

Art. 5. Stockholders 595 

Art. 6. Powers and Duties 595 

Art. 7. Officers and Directors 602 

Art. 8. Commissioner of Banks and Banking Department 604 

Art. 9. Bank Examiners 608 

Art. 10. Penalties 609 

Art. 11. Industrial Banks 611 

Art. 12. Joint Deposits; Assignments as Evidence of Insolvency; Receivers 612 

Art. 13. Conservation of Bank Assets and Issuance of Preferred Stock . . 613 

Chap. 54. Co-Operative Organizations 614 

Art. 1. Organization 616 

Art. 2. Shares and Shareholders 620 

Art. 3. Loans 620 

Art. 4. Under Control of Insurance Commissioner 621 

Art. 5. Foreign Associations 622 

Art. 6. Withdrawals 623 



Table of Contents xxiii 

PAGE 

Art. 7. Statements of Financial Conditions of Associations 624 

Art. 8. Organization and Powers 624 

Art. 9. Superintendent of Credit Unions 627 

Art. 10. Incorporation of Credit Unions 628 

Art. 11. Powers of Credit Unions 629 

Art. 12. Shares in the Corporation 630 

Art. 13. Members and Officers 631 

Art. 14. Supervision and Control 632 

Art. 15. Central Associations 633 

Art. 16. Organization of Associations 634 

Art. 17. Stockholders and Officers 635 

Art. 18. Powers and Duties 635 

Art. 19. Purpose and Organization 636 

Art. 20. Members and Officers 638 

Art. 21. Powers, Duties and Liabilities 639 

Chap. 55. Corporations 641 

Art. 1. Definitions 643 

Art. 2. Formation 644 

Art. 3. North Carolina State Thrift Society 646 

Art. 4. Powers and Restrictions 647 

Art. 5. Directors and Officers 651 

Art. 6. Capital Stock 652 

Art. 7. Capital Stock without Nominal or Par Value 654 

Art. 8. Uniform Stock Transfer Act 656 

Art. 9. Meetings, Elections and Dividends 658 

Art. 10. Foreign Corporations 660 

Art. 11. Dissolution 661 

Art. 12. Execution 664 

Art. 13. Receivers 665 

Art. 14. Taxes and Fees 667 

Art. 15. Reorganization 668 

Art. 16. Merger 668 

Art. 17. Severance of Certain Partially Merged Charitable, Educational or 

Social Corporations 671 

Chap. 56. Electric, Telegraph, and Power Companies 673 

Art. 1. Acquisition and Condemnation of Property 673 

Art. 2. Intrastate Telegraph Messages 675 

Chap. 57. Hospital Service Corporations 675 

Chap. 58. Insurance 679 

Art. 1. Title and Definitions 683 

Art. 2. Insurance Commissioner 683 

Art. 3. General Regulations for Insurance 686 

Art. 4. Deposit of Securities 689 

Art. 5. License Fees and Taxes 690 

Art. 6. General Domestic Companies 691 

Art. 7. Guaranty Fund for Domestic Companies 695 

Art. 8. Mutual Insurance Companies 696 

Art. 9. Conversion of Stock Corporations into Mutual Corporation 699 

Art. 10. Assessment Companies 699 

Art. 11. Fidelity Insurance Companies 701 

Art. 12. Promoting and Holding Companies 702 

Art. 13. Rate-Making Companies 703 

Art. 14. Real Estate Title Insurance Companies 704 

Art. 15. Title Insurance Companies and Land Mortgage Companies Issu- 
ing Collateral Loan Certificates 704 

Art. 16. Reciprocal or Inter-Insurance Exchanges 705 

Art. 17. Foreign Insurance Companies 706 

Art. 18. General Regulations of Business 708 



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Art. 19. Fire Insurance Policies 711 

Art. 20. Deposits by Foreign Fire Insurance Companies 714 

Art. 21. Insuring State Property 715 

Art. 22. General Regulations of Business 716 

Art. 23. Registered Policies 720 

Art. 24. Mutual Burial Associations 722 

Art. 25. Regulation of Automobile Liability Insurance Rates 726 

Art. 26. Nature of Policies 727 

Art. 27. General Regulations 730 

Art. 28. Fraternal Orders 731 

Art. 29. Whole Family Protection 741 

Art. 30. General Provisions for Societies 742 

Art. 31. Non-Profit Life Benefit Association 742 

Chap. 59. Partnership 745 

Art. 1. Uniform Limited Partnership Act 746 

Art. 2. Uniform Partnership Act 750 

Art. 3. Surviving Partners 756 

Art. 4. Business under Assumed Name Regulated 758 

Chap. 60. Railroads and Other Carriers 758 

Art. 1. General Provisions 760 

Art. 2. Incorporation, Officers, and Stock of Railroad 761 

Art. 3. County Subscriptions in Aid of Railroads 764 

Art. 4. Township Subscriptions in Aid of Railroads 764 

Art. 5. Powers and Liabilities 765 

Art. 6. Hours of Service for Employees of Carriers 769 

Art. 7. Lease, Sale, and Reorganization 770 

Art. 8. Liability of Railroads for Injuries to Employees 770 

Art. 9. Construction and Operation of Railroads 771 

Art. 10. Railroad Police 773 

Art. 11. Joint Rates 773 

Art. 12. Carriage of Passengers 773 

Art. 13. Carriage of Freight 776 

Art. 14. Street and Interurban Railways 780 

Art. 15. Electric Interurban Railways 781 

Art. 16. Pipe Line Companies 781 

Chap. 61. Religious Societies 782 

Chap. 62. Utilities Commission 783 

Art. 1. Organization of the Commission 785 

Art. 2. Procedure before the Commission 785 

Art. 3. Powers and Duties of the Commission 787 

Art. 4. Public Utilities Act of 1933 792 

Art. 5. Miscellaneous Provisions as to Public Utilities 797 

Art. 6. Motor Carriers 797 

Art. 7. Rate Regulation 802 

Art. 8. Railroad Freight Rates 805 

Art. 9. Penalties and Actions 806 

DIVISION XL POLICE REGULATIONS 809 

Chap. 63. Aeronautics 811 

Art. 1. Muncipal Airports 811 

Art. 2. State Regulation 812 

Art. 3. Stealing, Tampering with, or Operating While Intoxicated 813 

Art. 4. Model Airport Zoning Act 813 

Chap. 64. Aliens 816 

Chap. 65. Cemeteries 817 

Art. 1. Care of Rural Cemeteries 817 

Art. 2. Care of Confederate Cemetery 817 

Art. 3. Cemeteries for Inmates of County Homes 817 

Art. 4. Trust Funds for the Care of Cemeteries 817 



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Art. 5. Removal of Graves 818 

Art. 6. Cemetery Associations 819 

Chap. 66. Commerce and Business 819 

Art. 1. Regulation and Inspection 820 

Art. 2. Manufacture and Sale of Matches 821 

Art. 3. Candy and Similar Products 822 

Art. 4. Electrical Materials, Devices, Appliances and Equipment 822 

Art. 5. Sale of Phonograph Records or Electrical Transcriptions 823 

Art. 6. Sale of Nursery Stock 823 

Art. 7. Tagging Secondhand Watches 823 

Art. 8. Public Warehouses 824 

Art. 9. Collection of Accounts 824 

Art. 10. Fair Trade 825 

Art. 11. Government in Business 827 

Chap. 67. Dogs 827 

Art. 1. Owner's Liability 827 

Art. 2. License Taxes on Dogs 828 

Art. 3. Special License Tax on Dogs 829 

Chap. 68. Fences and Stock Law 830 

Art. 1. Lawful Fences 831 

Art. 2. Division Fences 831 

Art. 3. Stock Law 832 

Chap. 69. Fire Protection 836 

Art. 1. Investigation of Fires and Inspection of Premises 836 

Art. 2. Fire-Escapes 838 

Art. 3. State Volunteer Fire Department 839 

Chap. 70. Indian Antiquities 840 

Chap. 71. Indians 841 

Chap. 72. Inns, Hotels and Restaurants 842 

Art. 1. Innkeepers 842 

Art. 2. Sanitary Inspection and Conduct 843 

Art. 3. Immoral Practices of Guests of Hotels and Lodging-houses 845 

Art. 4. Licensing and Regulation of Tourist Camps and Homes, Cabin 

Camps, Roads Houses and Public Dance Halls 845 

Art. 5. Sanitation of Establishments Providing Food and Lodging 847 

Chap. 73. Mills 847 

Art. 1. Public Mills 848 

Art. 2. Condemnation for Mill by Owner of One Bank of Stream 848 

Art. 3. Condemnation for Races, Waterways, etc., by Owner of Mill or 

Millsite 849 

Art. 4. Recovery of Damages for Erection of Mill 850 

Chap. 74. Mines and Quarries 850 

Art. 1. Operation of Mines and Quarries 851 

Art. 2. Inspection of Mines and Quarries 853 

Art. 3. Waterways Obtained 854 

Art. 4. Adjustment of Conflicting Claims 854 

Chap. 75. Monopolies and Trusts 855 

Chap. 76. Navigation 858 

Art. 1. Cape Fear River 858 

Art. 2. Beaufort Harbor 862 

Art. 3. Bogue Inlet 863 

Art. 4. Hatteras and Ocracoke 863 

Art. 5. General Provisions 864 

Chap. 77. Rivers and Creeks 866 

Art. 1. Commissioners for Opening and Clearing Streams 866 

Art. 2. Obstructions in Streams 868 

Chap. 78. Securities Law 868 

Chap. 79. Strays 879 



xxvi Table of Contents 

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Chap. 80. Trademarks, Brands, etc 880 

Art. 1. Trademarks 880 

Art. 2. Timber Marks 883 

Art. 3. Mineral Waters and Beverages 883 

Art. 4. Farm Names 885 

Art. 5. Stamping of Gold and Silver Articles 885 

Art. 0. Cattle Brands 887 

Art. 7. Recording of Cattle Brands and Marks with Commissioner of 

Agriculture 887 

Chap. 81. Weights and Measures 888 

Art. 1. Uniform Weights and Measures 889 

Art. 2. Establishment and Use of Standards 891 

Art. 3. County Standard 892 

Art. 4. Public Weigh Masters 893 

Art. 5. Scale Mechanics 895 

Art. 6. Surveyors 896 

Art. 7. Standard Weight Packages of Grits, Meal, and Flour 897 

Chap. 82. Wrecks 898 

DIVISION XII. OCCUPATIONS 901 

Chap. 83. Architects 903 

Chap. 84. Attorneys at Law 905 

Art. 1. Qualifications of Attorney; Unauthorized Practice of Law 905 

Art. 2. Relation to Client 907 

Art. 3. Arguments 907 

Art. 4. North Carolina State Bar 907 

Chap. 85. Auctioneers 913 

Art. 1. In General 913 

Art. 2. Auction Sales of Articles Containing Hidden Value 914 

Chap. 86. Barbers 916 

Chap. 87. Contractors 921 

Art. 1. General Contractors 921 

Art. 2. Plumbing and Heating Contractors 924 

Art. 3. Tile Contractors 927 

Art. 4. Electrical Contractors 928 

Chap. 88. Cosmetic Art 930 

Chap. 89. Engineering and Land Surveying 934 

Chap. 90. Medicine and Allied Occupations 938 

Art. 1. Practice of Medicine 941 

Art. 2. Dentistry 944 

Art. 3. The Licensing of Mouth Hygienists to Teach and Practice Mouth 

Hygiene in Public Institutions 949 

Art. 4. Pharmacy 949 

Art. 5. Narcotic Drug Act 955 

Art. 6. Optometry 959 

Art. 7. Osteopathy 962 

Art. 8. Chiropractic 964 

Art. 9. Trained Nurses 966 

Art. 10. Midwives 968 

Art. 11. Veterinaries 969 

Art. 12. Chiropodists 970 

Art. 13. Embalmers 971 

Art. 14. Cadavers for Medical Schools 972 

Art. 15. Autopsies 973 

Chap. 91. Pawnbrokers 973 

Chap. 92. Photographers 974 

Chap. 93. Public Accountants 978 



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DIVISION XIII. EMPLOYER AND EMPLOYEE 981 

Chap. 94. Apprenticeship 983 

Chap. 95. Department of Labor and Labor Regulations 985 

Art. 1. Department of Labor 986 

Art. 2. Maximum Working Hours 989 

Art. 3. Various Regulations 991 

Art. 4. Conciliation Service and Mediation of Labor Disputes 992 

Art. 5. Regulation of Employment Agencies 993 

Art. 6. Separate Toilets for Sexes and Races 994 

Art. 7. Board of Boiler Rules and Bureau of Boiler Inspection 994 

Art. 8. Bureau of Labor for the Deaf 997 

Art. 9. Earnings of Employees in Interstate Commerce 997 

Chap. 96. Unemployment Compensation 998 

Art. 1. Unemployment Compensation Commission 998 

Art. 2. Unemployment Compensation Division 1004 

Art. 3. Employment Service Division 1017 

Chap. 97. Workmen's Compensation Act 1019 

Art. 1. Workmen's Compensation Act 1021 

Art. 2. Compensation Rating and Inspection Bureau 1036 

Art. 3. Occupational Diseases 1037 

Art. 4. Security Funds 1042 

DIVISION XIV. MISCELLANEOUS PROVISIONS 1047 

Chap. 98. Burnt and Lost Records 1049 

Chap. 99. Libel and Slander 1051 

Chap. 100. Monuments, Memorials and Parks 1052 

Art. 1. Memorials Commission 1052 

Art. 2. Memorials Financed by Counties and Cities 1053 

Art. 3. Mount Mitchell Park 1053 

Art. 4. Toll Roads or Bridges in Public Parks 1054 

Chap. 101. Names of Persons 1054 

Chap. 102. Official Survey Base 1055 

Chap. 103. Sundays and Holidays 1056 

Chap. 104. United States Lands 1057 

Art. 1. Authority for Acquisition 1057 

Art. 2. Inland Waterway 1059 

DIVISION XV. TAXATION 1061 

Chap. 105. Taxation 1063 

Art. 1. Schedule A. Inheritance Tax 1068 

Art. 2. Schedule B. License Taxes 1077 

Art. 3. Schedule C. Franchise Tax 1108 

Art. 4. Schedule D. Income Tax 1115 

Art. 5. Schedule E. Sales Tax 1127 

Art. 6. Schedule G. Gift Taxes 1134 

Art. 7. Schedule H. Intangible Personal Property 1136 

Art. 8. Schedule I. Compensating Use Tax 1142 

Art. 9. Schedule J. General Administration — Penalties and Remedies .... 1145 

Art. 10. Liability for Failure to Levy Taxes 1152 

Art. 11. Short Title and Definitions 1152 

Art. 12. State Board of Assessment 1153 

Art. 13. Quadrennial and Annual Assessment 1156 

Art. 14. Personnel for County Tax Listing and Assessing 1156 

Art. 15. Classification, Valuation and Taxation of Property 1159 

Art. 16. Exemptions and Deductions 1159 

Art. 17. Real Property — Where and in Whose Name Listed 1161 

Art. 18. Personal Property — Where and in Whose Named Listed 1162 

Art. 19. What the Tax List Shall Contain and Miscellaneous Matters Af- 
fecting Listing 1163 



xxviii Table of Contents 

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Art. 20. Special Provisions Affecting Motor Vehicle Owners, Warehouse- 
men, etc 1165 

Art. 21. Procedure Subsequent to the Close of the Tax Listing Period .... 1166 

Art. 22. Assessment Procedure of Cities and Towns 1170 

Art. 23. Reports to the State Board of Assessment and Local Government 

Commission 1171 

Art. 24. Levy of Taxes and Penalties for Failure to Pay Taxes 1172 

Art. 25. Banks, Banking Associations, Trust Companies and Building and 

Loan Associations 1173 

Art. 26. Public Service Companies 1174 

Art. 27. Collection and Foreclosure of Taxes 1180 

Art. 28. General Provisions 1195 

Art. 29. Validation of Listings 1195 

Art. 30. General Provisions 1195 

Art. 31. Rights of Parties Adjusted 1196 

Art. 32. Tax Liens 1197 

Art. 33. Time and Manner of Collection 1198 

Art. 34. Tax Sales 1198 

Art. 35. Sheriff's Settlement of Taxes 1199 

Art. 36. Gasoline Tax 1200 

Art. 37. Department of Tax Research 1206 

Art. 38. Equitable Distribution between State and Local Governments .... 1207 

DIVISION XVI. STATE GOVERNMENT AND AGENCIES 1209 

Chap. 106. Agriculture 1211 

Art. 1. Department of Agriculture 1218 

Art. 2. North Carolina Fertilizer Law of 1933 1222 

Art. 3. Fertilizer Laboratories 1229 

Art. 4. Insecticides and Fungicides 1229 

Art. 5. Seed Cotton and Peanuts 1231 

Art. 6. Cotton-Seed Meal 1232 

Art. 7. Pulverized Limestone and Marl 1233 

Art. 8. Sale, etc., of Agricultural Liming Material, etc 1233 

Art. 9. Commercial Feeding Stuffs 1235 

Art. 10. Mixed Feed Oats 1237 

Art. 11. Stock and Poultry Tonics 1237 

Art. 12. Food, Drugs and Cosmetics 1238 

Art. 13. Canned Dog Foods 1246 

Art. 14. State Inspection of Slaughterhouses 1247 

Art. 15. Inspection of Meat and Meat Products by Counties and Cities . . 1248 

Art. 16. Bottling Plants for Soft Drinks 1249 

Art. 17. Marketing and Branding Farm Products 1250 

Art. 18. Shipper's Name on Receptacles 1251 

Art. 19. Trademark for Standardized Farm Products 1251 

Art. 20. Standard Weight of Flour and Meal 1252 

Art. 21. Artificially Bleached Flour 1253 

Art. 22. Inspection of Bakeries 1254 

Art. 23. Oleomargarine 1255 

Art. 24. Excise Tax on Certain Oleomargarines 1256 

Art. 25. Sale of Eggs 1256 

Art. 26. Inspection of Ice Cream Plants, Creameries, and Cheese Factories 1256 

Art. 27. Records of Purchases of Milk Products 1257 

Art. 28. Records and Reports of Milk Distributors and Processors 1258 

Art. 29. Inspecting, Grading, and Testing Milk and Dairy Products 1258 

Art. 30. Farm Crop Seed Improvement Division 1259 

Art. 31. North Carolina Seed Law 1259 

Art. 32. Linseed Oil 1262 

Art. 33. Adulterated Turpentine 1264 

Art. 34. Animal Diseases 1264 



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Art. 35. Public Livestock Markets 1274 

Art. 36. Crop Pests 1275 

Art. 37. Cotton Grading 1276 

Art. 38. Marketing Cotton and Other Agricultural Commodities 1277 

Art. 39. Leaf Tobacco Warehouses 1280 

Art. 40. Leaf Tobacco Sales 1280 

Art. 41. Dealers in Scrap Tobacco 1282 

Art. 42. Production, Sale, Marketing and Distribution of Tobacco 1283 

Art. 43. Threshers of Wheat 1289 

Art. 44. Unfair Practices by Handlers of Farm Products 1289 

Art. 45. Agricultural Societies and Fairs 1290 

Art. 46. Erosion Equipment 1292 

Art. 47. State Marketing Authority 1293 

Art. 48. Relief of Potato Farmers 1295 

Chap. 107. Agricultural Development Districts 1295 

Chap. 108. Board of Charities 1300 

Art. 1. State Board of Charities and Public Welfare 1301 

Art. 2. County Boards of Charities and Public Welfare 1302 

Art. 3. Division of Public Assistance 1304 

Art. 4. Home Boarding Fund 1316 

Art. 5. Regulation of Organizations and Individuals Soliciting Public Alms 1317 

Chap. 109. Bonds 131S 

Art. 1. Official Bonds 1319 

Art. 2. Bonds in Surety Company 1320 

Art. 3. Mortgage in Lieu of Bond 1321 

Art. 4. Cash Deposit in Lieu of Bond 1322 

Art. 5. Actions on Bonds 1322 

Chap. 110. Child Welfare 1323 

Art. 1. Child Labor Regulations 1324 

Art. 2. Juvenile Courts 1327 

Art. 3. Control over Indigent Children 1332 

Art. 4. Placing or Adoption of Juvenile Delinquents or Dependents 1333 

Chap. 111. Commission for the Blind 1334 

Art. 1. Organization and General Duties of Commission 1334 

Art. 2. Aid to the Needy Blind 1335 

Chap. 112. Confederate Homes and Pensions 1339 

Art. 1. Confederate Woman's Home 1339 

Art. 2. Pensions 1340 

Chap. 113. Conservation and Development 1345 

Art. 1. Organization and Powers 1349 

Art. 2. Acquisition and Control of State Forests and Parks 1353 

Art. 3. Private Lands Designated as State Forests 1355 

Art. 4. Protection against Forest Fires 1356 

Art. 5. Corporations for Protection and Development of Forests 1357 

Art. 6. Cooperation for Development of Federal Parks, Parkways and 

Forests 1359 

Art. 7. North Carolina Game Law of 1935 1360 

Art. 8. Fox Hunting Regulations 1369 

Art. 9. Federal Regulations on Federal Lands 1369 

Art. 10. Regulation of Fur Dealers; Licenses 1369 

Art. 11. Miscellaneous Provisions 1370 

Art. 12. General Provisions for Administration 1371 

Art. 13. Powers and Duties of Board and Commissioners 1372 

Art. 14. Licenses for Fishing in Inland Waters 1373 

Art. 15. Commercial Licenses and Regulations 1375 

Art. 16. Shellfish; General Laws 1378 

Art. 17. Experimental Oyster Farms 1383 

Art. 18. Propagation of Oysters 1383 



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Art. 19. Terrapin 1384 

Art. 20. Salt Fish and Fish Scrap 1384 

Art. 21. Commercial Fin Fishing; General Regulations 1385 

Art. 22. Cooperation with United States Bureau of Fisheries 1389 

Art. 23. Propagation of Fish 1389 

Art. 24. Shellfish; Local Laws 1390 

Art. 25. Commercial Fin Fishing; Local Regulations 1391 

Chap. 114. Department of Justice 1405 

Art. 1. Attorney General 1406 

Art. 2. Division of Legislative Drafting and Codification of Statutes 1406 

Art. 3. Division of Criminal and Civil Statistics 1407 

Art. 4. State Bureau of Investigation 1407 

Chap. 115. Education 1409 

Art. 1. Interpretations 1414 

Art. 2. The State Board of Education 1416 

Art. 3. State Superintendent of Public Instruction 1417 

Art. 4. Boys' Road Patrol 1418 

Art. 5. The Board : Its Corporate Powers 1418 

Art. 6. The Direction and Supervision of the School System 1420 

Art. 7. Children at Orphanages 1422 

Art. 8. Instruction of Illiterates — Adult Education 1423 

Art. 9. Miscellaneous Provisions Regarding School Officials 1423 

Art. 10. Erection, Repair and Equipment of School Buildings 1425 

Art. 11. Creating and Consolidating School Districts 1427 

Art. 12. General Duties 1428 

Art. 13. Duty of County Superintendent Toward Committemen, Teachers 

and Principals 1428 

Art. 14. Duty of County Superintendent in Regard to School Funds 1430 

Art. 15. In Non-Local Tax Districts 1430 

Art. 16. Their Powers, Duties and Responsibilities 1431 

Art. 17. Certification of Teachers 1433 

Art. 18. County Board of Education: Budget 1433 

Art. 19. Powers, Duties and Responsibilities of the Board of County Com- 
missioners in Providing Certain Funds 1434 

Art. 20. The Treasurer: His Powers, Duties and Responsibilities in Dis- 
bursing School Funds 1435 

Art. 21. Fines, Forfeitures and Penalties 1437 

Art. 22. School Districts Authorized to Vote Local Taxes 1437 

Art. 23. Special School Taxing Districts 1441 

Art. 24. County Tax for Supplement in Which Part of Local Taxes May 

Be Retained 1442 

Art. 25. Legal Attendance of Pupils in School Districts 1442 

Art. 26. Funding or Refunding Loans from State Literary and Special 

Building Funds 1443 

Art, 27. Collection of Amounts Due State Literary and Revolving Funds 1443 

Art. 28. Loans from State Literary Fund 1443 

Art. 29. Relending Certain Funds 1444 

Art. 30. State Bond Sinking Fund Act 1444 

Art. 31. Issuance and Levy of Tax for Payment 1445 

Art. 32. Issuance and Levy of Tax for Payment 1445 

Art. 33. Transfer to County Treasurer 1446 

Art. 34. Duties, Powers and Responsibilities of State Board for Vocational 

Education 1446 

Art. 35. Vocational Rehabilitation of Persons Disabled in Industry or 

Otherwise 1447 

Art. 36. Textile Training School 1448 

Art. 37. Textbooks for Elementary Grades i 1448 

Art. 38. Textbooks for High Schools 1450 



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PAGE 

Art. 39. Furnishing Textbooks 1451 

Art. 40. State Textbook Commission 1453 

Art. 41. Public Libraries 1454 

Art. 42. General Compulsory Attendance Law 1455 

Art. 43. Compulsory Attendance of Deaf and Blind Children 145G 

Art. 44. School Extension Work 1457 

Art. 45. Physical Examination of Pupils 1457 

Art. 46. State Board of Education to Regulate Degrees 1458 

Art. 47. Licensing of Commercial Schools 1458 

Art. 48. Special Days to Be Observed in Public Schools 1460 

Art. 49. Certain Injuries to School Children Compensable 1460 

Chap. 116. Educational Institutions of the State 1471 

Art. 1. The University of North Carolina 1473 

Art. 2. Western Carolina Teachers' College 1478 

Art. 3. East Carolina Teachers' College 1480 

Art. 4. Appalachian State Teachers' College 1480 

Art. 5. Pembroke State College for Indians 1482 

Art. 6. Vocational and Normal School for Indians in Certain Counties . . 1483 

Art. 7. Negro Agricultural and Technical College of North Carolina .... 1484 

Art. 8. North Carolina College for Negroes 1484 

Art. 9. Negro State Teachers' Colleges 1485 

Art. 10. State School for the Blind and the Deaf in Raleigh 1486 

Art. 11. North Carolina School for the Deaf at Morganton 1488 

Art. 12. The Caswell Training School 1489 

Art. 13. Colored Orphanage of North Carolina 1491 

Art. 14. General Provisions as to Tuition Fees in Certain State Institutions 1491 

Art. 15. Educational Advantages for Children of World War Veterans .... 1492 

Chap. 117. Electrification 1492 

Art. 1. Rural Electrification Authority 1493 

Art. 2. Electric Membership Corporations 1494 

Art. 3. Miscellaneous Provisions 1497 

Chap. 118. Firemen's Relief Fund 1497 

Art. 1. Fund Derived from Fire Insurance Companies 1497 

Art. 2. State Appropriation 1499 

Chap. 119. Gasoline and Oil Inspection and Regulation 1500 

Art. 1. Lubricating Oils 1501 

Art. 2. Liquid Fuels, Lubricating Oils, Greases, etc 1501 

Art. 3. Gasoline and Oil Inspection 1502 

Chap. 120. General Assembly 1507 

Art. 1. Apportionment of Members 1508 

Art. 2. Duty and Privilege of Members 1509 

Art. 3. Contests 1509 

Art. 4. Reports of Officers to General Assembly 1510 

Art. 5. Investigating Committees 1510 

Art. 6. Acts and Journals 1510 

Art. 7. Employees 1511 

Art. 8. Preservation and Protection of Furniture and Fixtures 1512 

Art. 9. Lobbying 1512 

Chap. 121. Historical Commission 1513 

Chap. 122. Hospitals for the Insane 1515 

Art. 1. Organization and Management 1516 

Art. 2. Officers and Employees 1518 

Art. 3. Admission of Patients 1520 

Art. 4. Discharge of Patients 1525 

Art. 5. Private Hospitals for the Insane 1526 

Art. 6. Dangerous Insane 1527 

Chap. 128. Impeachment 1529 

Art. 1. The Court 1529 



xxxu Table of Contents 

PAGE 

Art. 2. Procedure in Impeachment 1530 

Art. 3. Effect of Impeachment 1530 

Chap. 124. Internal Improvements 1530 

Chap. 125. Libraries 1531 

Art. 1. State Library 1532 

Art. 2. Document Library 1532 

Art. 3. Library Commission 1533 

Chap. 126. Merit System Council 1534 

Chap. 127. Militia 153? 

Art. 1. Classification of Militia 1538 

Art. 2. General Administrative Officers 1539 

Art. 3. National Guard 1540 

Art. 4. Naval Militia 1543 

Art. 5. Regulations as to Active Service 1545 

Art. 6. Unorganized Militia 1545 

Art. 7. Pay of Militia 1546 

Art. 8. Privilege of Organized Militia 1546 

Art. 9. Care of Military Property 1547 

Art. 10. Support of Militia 1548 

Art. 11. General Provisions 154S 

Art. 12. State Guard 1549 

Chap. 128. Offices and Public Officers 1 550 

Art. 1. General Provisions 1551 

Art. 2. Removal of Unfit Officers 1553 

Art. 3. Retirement System for Counties, Cities and Towns 1553 

Art. 4. Leaves of Absence 1561 

Chap. 129. Public Buildings and Grounds 1562 

Chap. 130. Public Health 1564 

Art. 1. State Board of Health 1567 

Art. 2. State Laboratory of Hygiene 1569 

Art. 3. County Organization 1570 

Art. 4. Joint Health Departments 1572 

Art. 5. Municipal Organization 1572 

Art. 6. Sanitary Districts in General 1573 

Art. 7. Special-Tax Sanitary Districts 1578 

Art. 8. Local and District Health Departments 1580 

Art. 9. Registration of Births and Deaths 1580 

Art. 10. Water Protection 1588 

Art. 11. State Housing Law 1 590 

Art. 12. Privies 1594 

Art. 13. Used Plumbing Fixtures 1595 

Art. 14. Infectious Diseases Generally 1596 

Art. 15. Smallpox 1599 

Art. 16. Diphtheria 1599 

Art. 17. Hydrophobia 1600 

Art. 18. Inflammation of Eyes of Newborn 1600 

Art. 19. Venereal Diseases 1602 

Art. 20. Tubercular Prisoners 1604 

Art. 21. Health of Domestic Servants 1606 

Art. 22. Surgical Operations on Inmates of State Institutions 1606 

Art. 23. Maritime Quarantine 1606 

Art. 24. Meat Markets and Abattoirs 1609 

Art. 25. Regulation of the Manufacture of Bedding 1609 

Art. 26. Transportation of Foodstuffs 1611 

Chap. 131. Public Hospitals 1611 

Art. 1. Orthopedic Hospital 1612 

Art. 2. Hospitals in Counties, Townships, and Towns 1613 

Art. 3. County Tuberculosis Hospitals 1616 



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PAGE 

Art. 4. Joint County Tuberculosis Hospitals 1618 

Art. 5. County Tuberculosis Hospitals; Additional Method of Establish- 
ment 1619 

Art. 6. Joint County and Municipal Tuberculosis Hospitals 1620 

Art. 7. State Sanatorium for Tuberculosis 1621 

Art. 8. Western North Carolina Sanatorium 1622 

Art. 9. Eastern North Carolina Sanatorium 1623 

Art. 10. Funds of Deceased Inmates 1624 

Art. 11. Sanatorium for Tubercular Prisoners 1624 

Chap. 132. Public Records 1625 

Chap. 133. Public Works 1626 

Chap. 134. Reformatories 1626 

Art. 1. Stonewall Jackson Manual Training and Industrial School 1627 

Art, 2. State Home and Industrial School for Girls 1629 

Art. 3. The Industrial Farm Colony for Women 1631 

Art. 4. Reformatories or Homes for Fallen Women 1633 

Art. 5. Eastern Carolina Industrial Training School for Boys 1635 

Art. 6. Morrison Training School 1637 

Art. 7. Conditional Release and Final Discharge of Inmates of Certain 

Training and Industrial Schools 1637 

Art. 8. Care of Persons under Federal Jurisdiction 1638 

Chap. 135. Retirement System for Teachers and State Employees 1638 

Chap. 136. Roads and Highways 1646 

Art. 1. Organization of State Highway and Public Works Commission . . 1647 

Art. 2. Powers and Duties of Commission 1650 

Art. 3. State Highways 1658 

Art. 4. Neighborhood Roads, Cartways, Church Roads, etc 1662 

Art. 5. Bridges 1663 

Art. 6. Ferries and Toll Bridges 1664 

Art. 7. Miscellaneous Provisions 1665 

Art. 8. Citation to Highway Bond Acts 1667 

Chap. 137. Rural Rehabilitation 1667 

Art. 1. State Rural Rehabilitation Law 1668 

Art. 2. North Carolina Rural Rehabilitation Corporation 1672 

Chap. 138. Salaries and Fees 1674 

Chap. 139. Soil Conservation Districts 1674 

Chap. 140. State Art Society 1682 

Chap. 141. State Boundaries 1683 

Chap. 142. State Debt 1684 

Art. 1 . General Provisions 1684 

Art. 2. Borrowing Money in Emergencies and in Anticipation of Collection 

of Taxes 1686 

Art. 3. Refunding Bonds 1687 

Art. 4. Sinking Fund Commission 1687 

Art. 5. Sinking Funds for Highway Bonds 1689 

Art. 6. Citations to Bond and Note Acts 1689 

Chap. 143. State Departments, Institutions, and Commissions 1690 

Art. 1. Executive Budget Act 1693 

Art. 2. Division of Personnel under the Budget Bureau 1700 

Art. 3. Division of Purchase and Contract 1701 

Art. 4. World War Veterans Loan Administration 1705 

Art. 5. Check on License Forms, Tags and Certificate Used or Issued . . 1710 

Art. 6. Officers of State Institutions 1710 

Art. 7. Inmates of State Institutions to Pay Costs 1711 

Art. 8. Public Building Contracts 1713 

Art. 9. Building Code 1714 

Art. 10. Various Powers and Regulations 1716 

Art. 11. Revenue Bonds and Governmental Aid 1718 



xxxiv Table of Contents 

page 

Art. 12. Law Enforcement Officers' Benefit and Retirement Fund 1718 

Art. 13. Publications 1720 

Art. 14. State Planning Board 1721 

Art. 15. Commission on Interstate Co-Operation 1722 

Art. 16. Spanish-American War Relief Fund 1723 

Chap. 144. State Flag and Motto 1724 

Chap. 145. State Flower 1724 

Chap. 146. State Lands 1724 

Art. 1. Lands Subject to Grant 1725 

Art. 2. Entry-Taker 1727 

Art. 3. Entries 1728 

Art. 4. Surveys 1729 

Art. 5. Grants 1730 

Art. 6. Correction of Grants 1732 

Art. 7. Grants Vacated 1733 

Art. 8. Phosphate Beds 1734 

Art. 9. Swamp Lands Reclaimed 1735 

Art. 10. Lands Sold for Taxes 1736 

Art. 11. Controversies Concerning Lands 1736 

Art. 12. Sale of Lands 1737 

Chap. 147. State Officers 1738 

Art. 1. Classification and General Provisions 1739 

Art. 2. Expenses of State Officers and State Departments 1739 

Art. 3. The Governor 1740 

Art. 4. Secretary of State 1743 

Art. 5. Auditor 1746 

Art. 6. Treasurer 1748 

Art. 7. Commissioner of Revenue 1751 

Art. 8. Solicitors 1751 

Chap. 148. State Prison System 1751 

Art. 1. Government by Highway and Public Works Commission 1752 

Art. 2. Prison Regulations 1754 

Art. 3. Labor of Prisoners 1755 

Art. 4. Paroles 1758 

Art. 5. Farming Out Convicts 1760 

Art. 6. Reformatory 1761 

Art. 7. Bureau of Identification 1761 

Chap. 149. State Song 1762 

Chap. 150. Uniform Revocation of Licenses 1762 

DIVISION XVII. COUNTY AND CITY GOVERNMENT 1765 

Chap. 151. Constables 1767 

Chap. 152. Coroners 1767 

Chap. 153. Counties and County Commissioners 1770 

Art. 1. Corporate Existence and Powers of Counties 1773 

Art. 2. County Commissioners 1773 

Art. 3. Forms of County Government 1778 

Art. 4. State Association of County Commissioners 1780 

Art. 5. Clerk to Board of Commissioners 1781 

Art. 6. Finance Committee 1781 

Art. 7. Courthouse and Jail Buildings 1781 

Art. 8. County Revenue 1782 

Art. 9. County Finance Act 1784 

Art. 10. County Fiscal Control 1792 

Art. 11. Requiring County, Municipal, etc., Officials to Make Contracts 

for Auditing and Standardizing Bookkeepings Systems 1797 

Art. 12. Sinking Funds 1798 

Art. 13. County Poor 1799 

Art. 14. District Hospital Homes 1801 



Table of Contents xxxv 

PAGE 

Art. 15. County Prisoners 1802 

Art. 16. District Prison Farm 1804 

Art. 17. Houses of Correction 1805 

Art. 18. Consolidation, Annexation and Joint Administration of Counties 1807 

Chap. 154. County Surveyor 1811 

Chap. 155. County Treasurer 1811 

Chap. 156. Drainage 1814 

Art. 1. Jurisdiction in Clerk of Superior Court 1815 

Art. 2. Jurisdiction in County Commissioners 1820 

Art. 3. Manner of Organization 1821 

Art. 4. Rights and Liabilities in the Corporation 1823 

Art. 5. Establishment of Districts 1824 

Art. 6. Drainage Commissioners 1829 

Art. 7. Construction of Improvement 1831 

Art. 8. Assessments and Bond Issue 1833 

Art. 9. Adjustment of Delinquent Assessments 1843 

Art. 10. Report of Officers 1844 

Art. 11. Genereal Provisions 1845 

Chap. 157. Housing Authorities and Projects 1845 

Art. 1. Housing Authorities Law 1846 

Art. 2. Municipal Cooperation and Aid 1858 

Art. 3. Eminent Domain 1859 

Art. 4. National Defense Housing Projects 1860 

Chap. 158. Local Development 1862 

Chap. 159. Local Government Acts 1863 

Art. 1. Local Government Commission and Director of Local Government 1864 

Art. 2. Validation of Bonds, Notes and Indebtedness of Unit 1874 

Art. 3. Funding and Refunding of Debts of Local Units Other than Coun- 
ties, Cities and Towns 1875 

Art. 4. Assistance for Defaulting Local Government Units in the Prepara- 
tion of Workable Refinancing Plans 1876 

Chap. 160. Municipal Corporations 1877 

Art. ] . General Powers 1881 

Art. 2. Municipal Officers 1882 

Art. 3. Elections Regulated 1884 

Art. 4. Ordinances and Regulations 1886 

Art. 5. Municipal Taxation 1886 

Art. 6. Sale of Municipal Property 1886 

Art. 7. General Municipal Debts 1887 

Art. 8. Public Libraries 1887 

Art. 9. Local Improvements 1889 

Art. 10. Inspection of Meters 1894 

Art. 11. Regulation of Buildings 1894 

Art. 12. Recreation Systems and Playgrounds 1899 

Art. 13. Market Houses 1901 

Art. 14. Zoning Regulations 1902 

Art. 15. Repair, Closing and Demolition of Unfit Dwellings 1903 

Art. 16. Operation of Subchapter 1905 

Art. 17. Organization under the Subchapter 1906 

Art. J 8. Powers of Municipal Corporations 1907 

Art. 19. Exercise of Powers by Governing Body 1920 

Art. 20. Accounting System 1923 

Art. 21. Adoption of New Plan of Government 1924 

Art. 22. Different Forms of Municipal Government 1926 

Art. 23. Amendment and Repeal of Charter 1935 

Art. 24. Elections Regulated 1937 

Art. 25. General Provisions 1937 

Art. 26. Budget and Appropriations 1937 



xxxvi Table oe Contents 

PAGE 

Art. 27. Temporary Loans 1938 

Art. 28. Permanent Financing 1939 

Art. 29. Restrictions upon the Exercise of Municipal Powers 1945 

Art. 30. General Effect of Municipal Finance Act 1946 

Art. 31. Municipal Fiscal Agency Act 1946 

Art. 32. Municipal Bond Registration Act 1947 

Art. 33. Fiscal Control 1947 

Art. 34. Revenue Bond Act of 1938 1947 

Chap. 161. Register of Deeds 1950 

Art. 1. The Office 1951 

Art. 2. The Duties 1953 

Chap. 162. Sheriff 1955 

Art. 1. The Office 1955 

Art. 2. Sheriff's Bonds 1957 

Art. 3. Duties of Sheriff 1958 

DIVISION XVIII. ELECTIONS AND ELECTION LAWS 1961 

Chap. 163. Elections arid Election Laws 1963 

Art. 1. Political Parties 1966 

Art. 2. Time of Elections 1966 

Art. 3. State Board of Elections 1967 

Art. 4. County Board of Elections 1968 

Art. 5. Precinct Election Officers and Election Precincts 1969 

Art. 6. Qualification of Voters 1971 

Art 7. Registration of Voters 1972 

Art. 8. Permanent Registration 1973 

Art. 9. New State-Wide Registration of Voters 1974 

Art. 10. Absent Voters 1977 

Art. 11. Absent Voters in Military or Naval Service 1981 

Art. 12. Challenges 1982 

Art. 13. Conduct of Elections 1983 

Art. 14. Counting of Ballots; Precinct Returns; Canvass of Votes and 
Preparation of Abstracts; Certification of Results by County 

Board of Elections 1983 

Art. 15. Canvass of Returns for Higher Offices and Preparation of State 

Abstracts 1985 

Art. 16. State Officers, Senators and Congressmen 1986 

Art. 17. Election of Presidential Electors 1987 

Art. 18. Miscellaneous Provisions as to General Elections 1987 

Art. 19. Primary Elections 1988 

Art. 20. Election Laws of 1929 1994 

Art. 21. Corrupt Practices Act of 1931 2003 

Art. 22. Other Offenses against the Elective Franchise 2006 

DIVISION XIX. CONCERNING THE NORTH CAROLINA CODE OF 1943 2009 

Chap. 164. Concerning the North Carolina Code of 1943 2009 



STATE OF NORTH CAROLINA 

IN THE YEAR OF OUR LORD ONE THOUSAND 
NINE HUNDRED AND FORTY-THREE 

A BILL TO BE ENTITLED 

AN ACT 

REVISING AND CONSOLIDATING THE PUBLIC AND GENERAL 
STATUTES OF THE STATE OF NORTH CAROLINA 



The General Assembly of North Carolina do enact the following named chapters, 
subchapters and sections, to be known as the NORTH CAROLINA CODE OF 
1943, that is to say: 



Division I. Constitutions. 

Constitution of North Carolina } Not in Legislative 

Constitution of United States ) Edition. 



Division II. Courts and Civil Procedure. 

PAGE 

Chap. 1. Civil Procedure 3 

2. Clerk of Superior Court 75 

3. Commissioners of Affidavits and Deeds 86 

4. Common Law 87 

5. Contempt 87 

6. Costs 89 

7. Courts 98 

8. Evidence 181 

9. Jurors 197 

10. Notaries 203 

11. Oaths 204 

12. Statutory Construction 209 



n] 



Chapter 1. Civil Procedure. 



SUBCHAPTER I. 
GENERAL 

Art. 1. Definitions 



DEFINITIONS AND 
PROVISIONS. 



Sec. 

1-1. Remedies. 

1-2. Actions. 

1-3. Special proceedings. 

1-4. Kinds of actions. 

1-5. Criminal action. 

1-6. Civil action. 

1-7. When court means clerk. 

Art. 2. General Provisions. 

1-8. Remedies not merged. 

1-9. One form of action. 

1-10. Plaintiff and defendant. 

1-11. How party may appear. 

1-12. Feigned issues abolished and substituted. 

1-13. Jurisdiction of clerk. 

SUBCHAPTER II. LIMITATIONS. 

Art. 3. Limitations, General Provisions. 

1-14. When action commenced. 
1-15. Statute runs from accrual of action; plead- 
ing. 
1-16. Defenses deemed pleaded by insane party. 
1-17. Disabilities. 
1-18. Disability of marriage. 
1-19. Cumulative disabilities. 
1-20. Disability must exist when right of action 

accrues. 
1-21. Defendant out of state; when action begun 

or judgment enforced. 
1-22. Death before limitation expires; action by 

or against executor. 
1-23. Time of stay by injunction or prohibition. 
1-24. Time during controversy on probate of will 
or granting letters. 
New action within one year after nonsuit, 

etc. 
New promise must be in writing. 
Admission by partner or comaker. 
Undisclosed partner. 
Cotenants. 

Applicable to actions by state. 
Action on open account. 
Not applicable to bank bills. 
Actions against bank directors or stock- 
holders. 
Aliens in time of war. 



1-25. 

1-26. 
1-27. 
1-28. 
1-29. 
1-30. 
1-31. 
1-32. 
1-33. 

1-34. 



Art. 4. Limitations, Real Property. 

1-35. Title against state. 

1-36. Title presumed out of state. 

1-37. Such possession valid against claimants un- 
der state. 

1-38. Seven years possession under color of title. 

1-39. Seizin within twenty years necessary. 

1-40. Twenty years adverse possession. 

1-41. Action after entry. 

1-42. Possession follows legal title. 

1-43. Tenant's possession is landlord's. 

1-44. No title by possession of right of way. 

1-45. No title by possession of public ways. 

Art. 5. Limitations, Other than Real Property. 

1-46. Periods prescribed. 
1-47. Ten years. 

1-48. Actions to recover deficiency judgments 
limited to within one year of foreclosure. 



Sec. 

1-49. Seven years. 

1-50. Six years. 

1-51. Five years. 

1-52. Three years. 

1-53. Two years. 

1-54. One year. 

1-55. Six months. 

1-56. All other actions, ten years. 

SUBCHAPTER III. PARTIES. 

Art. 6. Parties. 

1-57. Real party in interest; grantees and as- 
signees. 

1-58. Suits for penalties. 

1-59. Suit for penalty, plaintiff may reply fraud 
to plea of release. 

1-60. Suit on bonds; defendant may plead satis- 
faction. 

1-61. Payment into court of sum due discharges 
penalty of bonds. 

1-62. Action by purchaser under judicial sale. 

1-63. Action by executor or trustee. 

1-64. Infants, etc., sue by guardian or next friend. 

1-65. Infants, etc., defend by guardian ad litem. 

1-66. Appointment of guardian ad litem in ac- 
tions begun by publication. 

1-67. Guardian ad litem to file answer. 

1-68. Who may be plaintiffs. 

1-69. Who may be defendants. 

1-70. Joinder of parties; action by or against one 
for benefit of a class. 

1-71. Persons severally liable. 

1-72. Persons jointly liable. 

1-73. New parties by order of court. 

1-74. Abatement of actions. 

1-75. Procedure on death of party. 

SUBCHAPTER IV. VENUE. 
Art. 7. Venue. 

1-76. Where subject of action situated. 

1-77. Where cause of action arose. 

1-78. Official bonds, executors and administrators. 

1-79. Domestic corporations. 

1-80. Foreign corporations. 

1-81. Actions against railroads. 

1-82. Venue in all other cases. 

1-83. Change of venue. 

1-84. Removal for fair trial. 

1-85. Affidavits on hearing for removal; when re- 
moval ordered. 

1-86. Additional jurors from other counties in- 
stead of removal. 

1-87. Transcript of removal; subsequent pro- 
ceedings. 

SUBCHAPTER V. COMMENCEMENT OF 
ACTIONS. 

Art. 8. Summons. 

1-88. Civil actions commenced by. 

1-89 Contents, return, seal. 

1-90. Issued to several counties. 

1-91. When directed to officer of adjoining 
county. 

1-92. Uniform pleading and practice in inferior 
courts where summons issued to run out- 
side of county. 

1-93. Amount requisite for summons to run out- 
side of county. 

1-94. When officer must execute and return. 



[3] 



CHAPTER 1. CIVIL PROCEDURE 



Sec. 

1-95. Alias and pluries. 

1-96. Discontinuance. 

1-97. Service by copy. 

1-98. Service by publication. 

1-99. Manner of publication. 

1-100. When service by publication complete. 

1-101. Jurisdiction acquired from service. 

1-102. Proof of service. 

1-103. Voluntary appearance by defendant. 

1-104. Personal service on nonresident. 

1-105. Service upon non-resident drivers of mo- 
tor vehicles. 

1-106. Record of such processes; delivery of re- 
turn. 

1-107. Alternative method of service upon non- 
resident defendants. 

1-108. Defense after judgment on substituted 
service. 

Art. 9. Prosecution Bonds. 

1-109. Plaintiff's, for costs. 
1-110. Suit as a pauper; counsel. 
1-111. Defendant's, for costs and damages in ac- 
tions for land. 
1-112. Defense without bond. 

Art. 10. Joint and Several Debtors. 

1-113. Defendants jointly or severally liable. 
1-114. Summoned after judgment; defense. 
1-115. Pleadings and proceedings same as in ac- 
tion. 

Art. 11. Lis Pendens. 

1-116. Filing of notice of suit. 

1-117. Cross-index of lis pendens. 

1-118. Effect on subsequent purchasers. 

1-119. Notice void unless action prosecuted. 

1-120. Cancellation of notice. 

SUBCHAPTER VI. PLEADINGS. 

Art. 12. Complaint. 

1-121. First pleading and its filing. 

1-122. Contents. 

1-123. What causes of action may be joined. 

Art. 13. Defendant's Pleadings. 

1-124. Demurrer and answer. 

1-125. When defendant appears and pleads; ex- 
tension of time; clerk to mail answer to 
plaintiff. 

1-126. Sham and irrelevant defenses. 

Art. 14. Demurrer. 

1-127. Grounds for. 

1-128. Must specify grounds. 

1-129. Amendment; hearing. 

1-130. Appeals. 

1-131. Procedure after return of judgment. 

1-132. Division of actions when misjoinder. 

1-133. Grounds not appearing in complaint. 

1-134. Objection waived. 

Art. 15. Answer. 

1-135. Contents. 

1-136. Debt for purchase money of land denied. 
1-137. Counterclaim. 
1-138. Several defenses. 

1-139. Contributory negligence pleaded and 
proved. 



Art. 16. Reply. 

Sec. 

1-140. Demurrer or reply to answer; where answer 

contains a counterclaim. 
1-141. Content; demurrer to answer. 
1-142. Demurrer to reply. 

Art. 17. Pleadings, General Provisions. 

1-143. Forms of pleading. 

1-144. Subscription and verification of pleading. 

1-145. Form of verification. 

1-146. Verification by agent or attorney. 

1-147. Verification by corporation or the state. 

1-148. Verification before what officer. 

1-149. When verification omitted; use in criminal 

prosecutions. 
1-150. Items of account; bill of particulars. 
1-151. Pleadings construed liberally. 
1-152. Time for pleading enlarged. 
1-153. Irrelevant, redundant, indefinite pleadings. 
1-154. Pleading judgments. 
1-155. How conditions precedent pleaded. 
1-156. How instrument for payment of money 

pleaded. 
1-157. How private statutes pleaded. 
1-158. Pleadings in libel and slander. 
1-159. Allegations not denied, deemed true. 
1-160. Pleading lost, copy used. 

Art. 18. Amendments. 

1-161. Amendment as of course. 

1-162. Pleading over after demurrer. 

1-163. Amendments in discretion of court. 

1-164. Amendment changing nature of action or 
relief; effect. 

1-165. Unsubstantial defects disregarded. 

1-166. Defendant sued in fictitious name; amend- 
ment. 

1-167. Supplemental pleadings. 

1-168. Variance, material and immaterial. 

1-169. Total failure of proof. 

SUBCHAPTER VII. TRIAL AND ITS 
INCIDENTS. 

Art. 19. Trial. 

1-170. Defined. 

1-171. Joinder of issue and trial. 

1-172. How issue tried. 

1-173. Issues of fact. 

1-174. Issues of fact before the clerk. 

1-175. Continuance before term; affidavit. 

1-176. Continuance during term. 

1-177. Counter affidavits as to continuance. 

1-178. Order of business. 

1-179. Separate trials. 

1-180. Judge to explain law, but give no opinion 

on facts. 
1-181. Request for instructions. 
1-182. Instructions in writing; when to be taken 

to jury room. 
1-183. Motion for nonsuit. 
1-184. Waiver of jury trial. 
1-185. Findings of fact and conclusions of law by 

judge. 
1-186. Exceptions to decision of court. 
1-187. Proceedings upon judgment on issue of 

law. 

Art. 20. Reference. 

1-188. By consent. 



[4] 



CHAPTER 1. CIVIL PROCEDURE 



Sec. 

1-189. Compulsory. 

1-190. How referee chosen or appointed. 

1-191. Referees may administer oaths. 

1-192. Powers of referee of trial. 

1-193. Testimony reduced to writing. 

1-194. Report; review and judgment. 

1-195. Report, contents and effect. 

Art. 21. Issues. 
1-196. Defined. 
1-197. Of law. 
1-198. Of fact. 
1-199. Order of trial. 
1-200. Form and preparation. 

Art. 22. Verdict. 
1-201. General and special. 
1-202. Special controls general. 
1-203. Character of, for different actions. 
1-204. Jury to assess damages; counterclaim. 
1-205. Entry of verdict and judgment. 
1-206. Exceptions. 
1-207. Motion to set aside. 

SUBCHAPTER VIII. JUDGMENT. 
Art. 23. Judgment. 

Defined. 

Judgments authorized to be entered by 
clerk; sale of property; continuance pend- 
ing sale; writs of assistance and posses- 
sion. 

Return of execution; order for disburse- 
ment of proceeds. 

By default final. 

By default and inquiry. 

By default for defendant. 

Judgment by default where no answer filed; 
record; force; docket. 

Time for entering judgments; liens. 

Time for entering judgment where copy of 
complaint served on defendant. 

Certain default judgments validated. 

Rendered in vacation; confirmation 
judicial sales. 

On frivolous pleading. 

Mistake, surprise, excusable neglect. 

Stands until reversed. 

For and against whom given; failure 
prosecute. 

Against married women. 

Nonsuit not allowed after verdict. 

Party dying after verdict. 

When limited by demand in complaint. 

When passes legal title. 

Regarded as a deed and registered. 

Certified registered copy evidence. 

In action for recovery of personal property. 

What judge approves judgments. 

Judgment roll. 

Docketed and indexed; held as of first day 
of term. 

Where and how docketed; lien. 

Of supreme court docketed in superior 
court; lien. 

Fees for filing transcripts of judgments by 
clerks of superior courts. 

Of federal court docketed; lien. 

On what property judgment of federal 
court constitutes a lien; recordation. 

Paid to clerk; docket credited; transcript to 
other counties. 

[5 



1-208. 
1-209. 



1-210. 

1-211. 
1-212, 
1-213, 
1-214. 

1-215. 
1-216. 

1-217. 
1-218. 

1-219. 
1-220. 
1-221. 
1-222. 

1-223. 
1-224. 
1-225. 
1-226. 
1-227. 
1-228. 
1-229. 
1-230. 
1-231. 
1-232. 
1-233. 

1-234. 
1-235. 

1-236. 

1-237. 
1-238. 

1-239. 



ot- 



to 



Sec. 

1-240. Payment by one of several; transfer to trus- 
tee for payor. 

1-241. Clerk to pay money to party entitled. 

1-242. Credits upon judgments. 

1-243. For money due on judicial sale. 

1-244. Applicable to justices' courts. 

1-245. Cancellation of judgments discharged 
through bankruptcy proceedings. 

1-246. Assignment of judgment to be entered on 
judgment docket, signed and witnessed. 

Art. 24. Confession of Judgment. 

When and for what. 

Debtor to make verified statement. 

Judgment; execution; installment debt. 

25. Submission of Controversy without 
Action. 

Submission, affidavit, and judgment. 

Judgment roll. 

Judgment enforced; appeal. 

Art. 26. Declaratory Judgments. 

Courts of record permitted to enter declara- 
tory judgments of rights, status and other 
legal relations. 

Courts given power of construction of all 
instruments. 

Who may apply for a declaration. 

Enumeration of declarations not exclusive. 

Discretion of court. 

Review. 

Supplemental relief. 

Parties. 

Jury trial. 

Hearing before judge where no issues of 
fact raised or jury trial waived; what 
judge may hear. 

Costs. 

Liberal construction and administration. 

Word "person" construed. 

Uniformity of interpretation. 

Short title. 

SUBCHAPTER IX. APPEAL. 
Art. 27. Appeal. 

Writs of error abolished. 

Certiorari, recordari, and supersedeas. 

Appeal to supreme court; security on ap- 
peal; stay. 

Who may appeal. 

Appeal from clerk to judge. 

Clerk to transfer issues of fact to civil issue 
docket. 

Duty of clerk on appeal. 

Duty of judge on appeal. 

Judge determines entire controversy; may 
recommit. 

Appeal from superior court judge. 

Interlocutory orders reviewed on appeal 
from judgment. 

When appeal taken. 

Entry and notice of appeal. 

Appeals from judgments not in term time. 

Case on appeal; statement, service, and re- 
turn. 

Settlement of case on appeal. 

Clerk to prepare transcript. 

Undertaking on appeal; filing; waiver. 

Justification of sureties. 



1-247. 
1-248. 
1-249. 

Art 

1-250. 
1-251. 
1-252. 



1-253. 



1-254. 

1-255. 
1-256. 
1-257. 
1-258. 
1-259. 
1-260. 
1-261. 
1-262. 



1-263. 
1-264. 
1-265. 
1-266. 
1-267. 



1-268 
1-269. 
1-270, 

1-271. 
1-272. 
1-273. 

1-274. 
1-275. 
1-276. 

1-277. 
1-278, 

1-279. 
1-280. 
1-281. 
1-282. 

1-283. 
1-284. 
1-285. 
1-286. 

J 



CHAPTER 1. CIVIL PROCEDURE 



Sec. 

1-287. Notice of motion to dismiss; new bond or 
deposit. 

1-288. Appeals in forma pauperis; clerk's fees. 

1-289. Undertaking to stay execution on money 
judgment. 

1-290. How judgment for personal property 
stayed. 

1-291. How judgment directing conveyance stayed. 

1-292. How judgment for real property stayed. 

1-293. Docket entry of stay. 

1-294. Scope of stay; security limited for fiducia- 
ries. 

1-295. Undertaking in one or more instruments; 
served on appellee. 

1-296. Judgment not vacated by stay. 

1-297. Judgment on appeal and on undertakings; 
restitution. 

1-298. Procedure after determination of appeal. 

1-299. Appeal from justice heard de novo; judg- 
ment by default; appeal dismissed. 

1-300. Appeal from justice docketed for trial de 
novo. 

1-301. Plaintiff's cost bond on appeal from justice. 

SUBCHAPTER X. EXECUTION. 
Art. 28. Execution. 

1-302. Judgment enforced by execution. 

1-303. Kinds of; signed by clerk; when sealed. 

1-304. Against married woman. 

1-305. Clerk to issue, in six weeks; penalty. 

1-306. Enforcement as of course. 

1-307. Issued from and returned to court of rendi- 
tion. 

1-308. To what counties issued. 

1-309. Sale of land under execution. 

1-310. When dated and returnable. 

1-311. Against the person. 

1-312. Rights against property of defendant dying 
in execution. 

1-313. Form of execution. 

1-314. Variance between judgment and execution. 

1-315. Property liable to sale under execution. 

1-316. Sale of trust estates; purchaser's title. 

1-317. Sheriff's deed on sale of equity of redemp- 
tion. 

1-318. Forthcoming bond for personal property. 

1-319. Procedure on giving bond; subsequent 
levies. 

1-320. Summary remedy on forthcoming bond. 

1-321. Entry of returns on judgment docket; 
penalty. 

1-322. Cost of keeping livestock; officer's account. 

1-323. Purchaser of defective title; remedy against 
defendant. 

1-324. Costs on execution paid to clerk; penalty. 
Art. 29. Execution and Judicial Sales. 

1-325. How advertised. 

1-326. Advertisement of resale. 

1-327. Judicial foreclosure; notice of sale and re- 
sale. 

1-328. Notice defined. 

1-329. Validation of certain sales. 

1-330. Notice served on defendant; when on 
governor and attorney general. 

1-331. Sale days; place of sale; ratification of prior 
sales. 

1-332. Sales on other days validated. 

1-333. Sale hours. 

1-334. Postponement. 

[6 



Sec. 

1-335. Certain sales validated. 
1-336. Advertisement as to personal property. 
1-337. Penalty for selling contrary to law. 
1-338. Officer's return of no sale for want of bid- 
ders; penalty. 
1-339. Officer to prepare deed for property sold. 

Art. 30. Betterments. 

1-340. Petition by claimant; execution suspended; 
issues found. 

1-341. Annual value of land and waste charged 
against defendant. 

1-342. Value of improvements estimated. 

1-343. Improvements to balance rents. 

1-344. Verdict, judgment, and lien. 

1-345. Life tenant recovers from remainderman. 

1-346. Value of premises without improvements. 

1-347. Plaintiff's election that defendant take 
premises. 

1-348. Payment made to court; land sold on de- 
fault. 

1-349. Procedure where plaintiff is under disa- 
bility. 

1-350. Defendant evicted, may recover from plain- 
tiff. 

1-351. Not applicable to suit by mortgagee. 

Art. 31. Supplemental Proceedings. 

1-352. Execution unsatisfied, debtor ordered to 
answer. 

1-353. Property withheld from execution; pro- 
ceedings. 

1-354. Proceedings against joint debtors. 

1-355. Debtor leaving state, or concealing himself, 
arrested; bond. 

1-356. Examination of parties and witnesses. 

1-357. Incriminating answers not privileged; not 
used in criminal proceedings. 

1-358. Disposition of property forbidden. 

1-359. Debtors of judgment debtor may satisfy 
execution. 

1-360. Debtors of judgment debtor, summoned. 

1-361. Where proceedings instituted and defend- 
ant examined. 

1-362. Debtor's property ordered sold. 

1-363. Receiver appointed. 

1-364. Filing and record of appointment; property 
vests in receiver. 

1-365. Where order of appointment recorded. 

1-366. Receiver to sue debtors of judgment debtor. 

1-367. Reference. 

1-368. Disobedience of orders punished as for con- 
tempt. 

SUBCHAPTER XI. HOMESTEAD AND 
EXEMPTIONS. 

Art. 32. Property Exempt from Execution. 

1-369. Property exempted. 

1-370. Conveyed homestead not exempt. 

1-371. Sheriff to summon and swear appraisers. 

1-372. Duty of appraisers; proceedings on return. 

1-373. Reallotment for increase of value. 

1-374. Appeal as to reallotment. 

1-375. Levy on excess; return of officer. 

1-376. When appraisers select homestead. 

1-377. Homestead in tracts not contiguous. 

1-378. Personal property appraised on demand, 

1-379. Appraiser's oath and fees. 

1-380. Returns registered. 

] 



CHAPTER 1. CIVIL PROCEDURE 



Sec, 

1-381. Exceptions to valuation and allotment; 
procedure. 

1-382. Revaluation demanded; jury verdict; com- 
missioners; report. 

1-383. Undertaking of objector. 

1-384. Set aside for fraud, or irregularity. 

1-385. Return registered; original or copy evi- 
dence. 

1-386. Allotted on petition of owner. 

1-387. Advertisement of petition; time of hearing. 

1-388. Exceptions, when allotted on petition. 

1-389. Allotted to widow or minor children on 
death of homesteader. 

1-390. Liability of officer as to allotment, return 
and levy. 

1-391. Liability of officer, appraiser, or assessor, 
for conspiracy or fraud. 

1-392. Forms. 

SUBCHAPTER XII. SPECIAL PRO- 
CEEDINGS. 

Art. 33. Special Proceedings. 

1-393. Chapter applicable to special proceedings. 

1-394. Contested special proceedings; commence- 
ment; summons. 

1-395. Return of summons. 

1-396. When complaint filed. 

1-397. Nonsuit for failure to file. 

1-398. Filing time enlarged. 

1-399. Defenses pleaded; transferred to civil issue 
docket; amendments. 

1-400. Ex parte; commenced by petition. 

1-401. Clerk acts summarily; authority from non- 
resident. 

1-402. Judge approves when petitioner is infant. 

1-403. Orders signed by judge. 

1-404. Reports of commissioners and jurors. 

1-405. No report set aside for trivial defect. 

1-406. Commissioner of sale to account in sixty 
days. 

1-407. Commissioners selling land for reinvest- 
ment, etc., to give bond. 

1-408. Action in which clerk may allow fees of 
commissioners; fees taxed as costs. 

SUBCHAPTER XIII. PROVISIONAL 
REMEDIES. 

Art. 34. Arrest and Bail. 

1-409. Arrest only as herein prescribed. 

1-410. In what cases arrest allowed. 

1-411. Order and affidavit. 

1-412. Undertaking before order. 

1-413. Issuance and form of order. 

1-414. Copies of affidavit and order to defendant. 

1-415. Execution of order. 

1-416. Vacation of order for failure to serve. 

1-417. Motion to vacate order; jury trial. 

1-418. Counter affidavits by plaintiff. 

1-419. How defendant discharged. 

1-420. Defendant's undertaking. 

1-421. Defendant's undertaking delivered to clerk; 

exception. 
1-422. Notice of justification; new bail. 
1-423. Qualifications of bail. 
1-424. Justification of bail. 
1-425. Allowance of bail. 
1-426. Deposit in lieu of bail. 

[' 



Sec. 

1-427. Deposit paid into court; liability on sheriff's 

bond. 
1-428. Bail substituted for deposit. 
1-429. Deposit applied to plaintiff's judgment. 
1-430. Defendant in jail, sheriff may take bail. 
1-431. When sheriff liable as bail. 
1-432. Action on sheriff's bond. 
1-433. Bail exonerated. 
1-434. Surrender of defendant. 
1-435. Bail may arrest defendant. 
1-436. Proceedings against bail by motion. 
1-437. Liability of bail to sheriff. 
1-438. When bail to pay costs. 
1-439. Bail not discharged by amendment. 

Art. 35. Attachment. 

1-440. In what actions attachment granted. 

1-441. Affidavit must show what. 

1-442. Affidavit to be filed. 

1-443. By whom granted. 

1-444. Time of issuance; service of summons. 

1-445. Undertaking. 

1-446. Validity of undertaking. 

1-447. To whom warrant directed; duty of officer. 

1-448. Notice; service and content. 

1-449. Execution, levy, and lien. 

1-450. Return of warrant by sheriff. 

1-451. When granted by justice of peace. 

1-452. Publication in justice's court. 

1-453. Justice's attachment against land. 

1-454. Sale of attached property pending litigation. 

1-455. Replevy by defendant; undertaking. 

1-456. Defendant may apply for discharge and de- 
livery of property. 

1-457. Defendant's undertaking. 

1-458. All property liable to attachment. 

1-459. Levy on intangible property. 

1-460. Certificate of defendant's interest to be 
furnished to sheriff. 

1-461. Proceedings against garnishee. 

1-462. Failure of garnishee to appear. 

1-463. Garnishee denying debt; issue tried. 

1-464. Property with garnishee valued; garnishee 
exonerated. 

1-465. Conditional judgment against garnishee. 

1-466. Satisfaction of judgment. 

1-467. Plaintiff may sue on defendant's bond. 

1-468. On defendant's recovery, bonds and prop- 
erty delivered to him. 

1-469. Motion to vacate or increase security. 

1-470. Exceptions to and justification of sureties. 

1-471. Intervention. 

Art. 36. Claim and Delivery. 

1-472. Claim for delivery of personal property. 

1-473. Affidavit and requisites. 

1-474. Order of seizure and delivery to plaintiff. 

1-475. Plaintiff's undertaking. 

1-476. Sheriff's duties. 

1-477. Exceptions to undertaking; liability of 
sheriff. 

1-478. Defendant's undertaking for replevy. 

1-479. Qualification and justification of defend- 
ant's sureties. 

1-480. Property concealed in buildings. 

1-481. Care and delivery of seized property. 

1-482. Property claimed by third person; pro- 
ceedings. 

1-483. Delivery of property to intervener. 

1-484. Sheriff to return papers in ten days. 



CHAPTER l. CIVIL PROCEDURE 



Sec. 

Art. 37. Injunction. 

1-485. When temporary injunction issued. 

1-486. When solvent defendant restrained. 

1-487. Timber lands, trial of title to. 

1-488. When timber may be cut. 

1-489. Time of issuing. 

1-490. Not issued for longer than twenty days 

without notice. 
1-491. Issued after answer, only on notice. 
1-492. Order to show cause. 
1-493. What judges have jurisdiction. 
1-494. Before what judge returnable. 
1-495. Stipulation as to judge to hear. 
1-496. Undertaking. 
1-497. Damages on dissolution. 
1-498. Issued without notice; application to vacate. 
1-499. When opposing affidavits admitted. 
1-500. Restraining orders and injunctions in effect 

pending appeal; indemnifying bond. 

Art. 38. Receivers. 

1-501. What judge appoints. 

1-502. In what cases appointed. 

1-503. Appointment refused on bond being given. 

1-504. Receiver's bond. 

1-505. Sale of property in hands of receiver. 

1-506. Confirmation of sales outside county of ac- 
tion; notice to creditors. 

1-507. Validation of sales made outside county of 
action. 

Art. 39. Deposit or Delivery of Money or Other 
Property. 

1-508. Ordered paid into court. 

1-509. Ordered seized by sheriff. 

1-510. Defendant ordered to satisfy admitted sum. 

SUBCHAPTER XIV. ACTIONS IN PAR- 
TICULAR CASES. 

Art. 40. Mandamus. 

1-511. Begun by summons and verified complaint. 
1-512. For money demand. 

1-513. For other relief returnable in vacation; 
issues of fact. 

Art. 41. Quo Warranto. 

1-514. Writs of sci. fa. and quo warranto abolished. 

1-515. Action by attorney-general. 

1-516. Action by private person with leave. 

1-517. Solvent sureties required. 

1-518. Leave withdrawn and action dismissed for 
insufficient bond. 

1-519. Arrest and bail of defendant usurping office. 

1-520. Several claims tried in one action. 

1-521. Trials expedited. 

1-522. Time for bringing action. 

1-523. Defendant's undertaking before answer. 

1-524. Possession of office not disturbed pending 
trial. 

1-525. Judgment by default and inquiry on failure 
of defendant to give bond. 

1-526. Service of summons and complaint. 

1-527. Judgment in such actions. 

1-528. Mandamus to aid relator. 

1-529. Appeal; bonds of parties. 

1-530. Relator inducted into office; duty. 

1-531. Refusal to surrender official papers misde- 
meanor. 



Sec. 

1-532. Action to recover property forfeited to 
state. 

Art. 42. Waste. 

1-533. Remedy and judgment. 

1-534. For and against whom action lies. 

1-535. Tenant in possession liable. 

1-536. Action by tenant against cotenant. 

1-537. Action by heirs. 

1-538. Judgment for treble damages and posses- 
sion. 

Art. 43. Nuisance. 

1-539. Remedy for nuisance. 

SUBCHAPTER XV. INCIDENTAL PRO- 
CEDURE IN CIVIL ACTIONS. 

Art. 44. Compromise. 

1-540. By agreement receipt of less sum is dis- 
charge. 

1-541. Tender of judgment. 

1-542. Conditional tender of judgment for dam- 
ages. 

1-543. Disclaimer of title in trespass; tender of 
judgment. 

Art. 45. Arbitration and Award. 



1-544. 
1-545. 
1-546. 
1-547. 

1-548. 
1-549. 
1-550. 
1-551. 
1-552. 
1-553. 
1-554. 
1-555. 
1-556. 

1-557. 
1-558. 
1-559. 
1-560. 
1-561. 

1-562. 
1-563. 

1-564. 
1-565. 
1-566. 

1-567. 



1-568. 
1-569. 
1-570. 

1-571. 

1-572. 
1-573. 
1-574. 

1-575. 
1-576. 



Agreement for arbitration. 

Statement of questions in controversy. 

"Court" defined. 

Cases where court may appoint arbitrator; 
number of arbitrators. 

Application in writing; hearing. 

Notice of time and place of hearing. 

Hearing if party fails to appear. 

Aw r ard within sixty days. 

Representation before arbitrators. 

Requirement of attendance of witnesses. 

Depositions. 

Orders for preservation of property. 

Questions of law submitted to court; form 
of award. 

Award in writing and signed by arbitrators. 

Time for application for confirmation. 

Order vacating award. 

Order modifying or correcting award. 

Notice of motion to vacate, modify or cor- 
rect award within three months. 

Judgment or decree entered. 

Papers to be filed on motion relating to 
award. 

Force and effect of judgment or decree. 

Appeal. 

Uniformity of interpretation — Interpretation 
of article. 

Citation of article. 

Art. 46. Examination of Parties. 

Action for discovery abolished. 

Adverse party examined. 

Before trial in his own county. 

Compelling attendance of party for exami- 
nation before trial. 

Party's refusal to testify; penalty. 

Rebuttal of party's testimony. 

Irresponsive answers may be met by party's 
own testimony. 

Real party in interest examined. 

Examination of coplaintiff or codefendant. 



[8] 



§ 1-1 



CH. l. CIVIL PROCEDURE— DEFINITIONS 



§ 1-14 



Sec. 

1-577. 
1-578. 
1-579. 
1-580. 
1-581. 
1-582. 
1-583. 

1-584. 

1-585. 
1-586. 
1-587. 
1-588. 
1-589. 



Art. 47. Motions and Orders. 

Definition of order. 

Motions; when and where made. 

Affidavit for or against, compelled. 

Motions determined in ten days. 

Notice of motion. 

Orders without notice, vacated. 

Orders by clerk on motion to remove; right 

of appeal; notice. 
Motions to remove to federal court; notice. 

Art. 48. Notices. 

•Form and service. 
Service upon attorney. 
Service upon a party. 
Service by publication. 

Service by telephone or registered mail on 
witnesses and jurors. 



Sec. 

1-590. Subpoena, service and signature. 

1-591. Application of this article. 

1-592. Officer's return evidence of service. 

Art. 49. Time. 



SUBCHAPTER I. DEFINITIONS AND GEN- 
ERAL PROVISIONS. 

Art. 1. Definitions. 
§ 1-1. Remedies. — Remedies in the courts of 
justice are divided into — 

1. Actions. 

2. Special proceedings. 

(Rev., s. 346; Code, s. 125; C. C. P., s. 1; C. S. 
391.) 

§ 1-2. Actions. — An action is an ordinary pro- 
ceeding in a court of justice, by which a party 
prosecutes another party for the enforcement or 
protection of a right, the redress or prevention of 
a wrong, or the punishment or prevention of a 
public offense. (Rev., s. 347; Code, s. 126; C. C. 
P., s. 2; 1868-9, c. 277, s. 2; C. S. 392.) 

§ 1-3. Special proceedings. — Every other rem- 
edy is a special proceeding. (Rev., s. 348; Code, s. 
127; C. C. P., s. 3; C. S. 393.) 

§ 1-4. Kinds of actions. — Actions are of two 
kinds — 

1. Civil. 

2. Criminal. 

(Rev., s. 349; Code, s. 128; C. C. P., s. 4; C. S. 
394.) 
§ 1-5. Criminal action. — A criminal action is — ■ 

1. An action prosecuted by the state as a party, 
against a person charged with a public offense, 
for the punishment thereof. 

2. An action prosecuted by the state, at the in- 
stance of an individual, to prevent an appre- 
hended crime against his person or property. 
(Rev., s. 350; Code, s. 129; C. C. P., s. 5; Const, 
Art. IV, s. 1; C. S. 395.) 

§ 1-6. Civil action. — Every other is a civil ac- 
tion. (Rev., s. 351; Code, s. 130; C. C. P., s. 6; 
C. S. 396.) 

§ 1-7. When court means clerk. — In the fol- 
lowing sections which confer jurisdiction or 
power, or impose duties, where the words "supe- 
rior court," or "court," in reference to a superior 
court are used, they mean the clerk of the superior 
court, unless otherwise specially stated, or unless 
reference is made to a regular term of the court, 
in which cases the judge of the court alone is 
meant. (Rev., s. 352; Code, s. 132; C. C. P s 
9; C. S. 397.) 

[! 



1-593. How computed. 
1-594. Computation in 



>ublication. 



Art. 50. General Provisions as to Legal 
Advertising. 

1-595. Advertisement of public sales. 

1-596. Charges for legal advertising. 

1-597. Regulations for newspaper publication of 
legal notices, advertisements, etc. 

1-598. Annual statements filed with clerk; viola- 
tion a misdemeanor. 

1-599. Application of two preceding sections. 



Art. 2. General Provisions. 

§ 1-8. Remedies not merged. — Where the vio- 
lation of a right admits both of a civil and a crim- 
inal remedy, the right to prosecute the one is not 
merged in the other. (Rev., s. 353; Code, s. 131; 
C. C. P., s. 7; C. S. 398.) 

§ 1-9. One form of action. — The distinction 
between actions at law and suits in equity and 
the forms of such actions and suits are abolished, 
and there is but one form of action for the en- 
forcement or protection of private rights and the 
redress of private wrongs, which is denominated 
a civil action. (Rev., s. 354; Code, s. 133; C. C. 
P., s. 12; Const., Art. IV, s. 1; C. S. 399.) 

§ 1-10. Plaintiff and defendant. — In civil ac- 
tions the party complaining is the plaintiff, and 
the adverse party the defendant. (Rev., s. 355; 
Code, s. 134; C. C. P., s. 13; C. S. 400.) 

§ 1-11. How party may appear. — A party may 
appear either in person or by attorney in actions 
or proceedings in which he is interested. (Rev., 
s. 356; Code, s. 109; C. C. P., s. 423; C. S. 401.) 

§ 1-12. Feigned issues abolished and substi- 
tuted. — Feigned issues are abolished, and instead 
thereof, in the cases where the power formerly 
existed to order a feigned issue, or when a ques- 
tion of fact not put in issue by the pleadings is to 
be tried by a jury, an order for the trial may be 
made by the judge, stating distinctly and plainly 
the question of fact to be tried; and this order is 
the only authority necessary for a trial. (Rev s 
357; Code, s. 135; C. C. P., s. 15; C. S. 402.) 

§ 1-13. Jurisdiction of clerk.— The clerk of the 
superior court has jurisdiction to hear and decide 
all questions of practice and procedure and all 
other matters over which jurisdiction is given to 
the superior court, unless the judge of the court 
or the court at a regular term is expressly re- 
ferred to. (Rev., s. 358; Code, s. 251; C C P s 
108; C. S. 403.) 

SUBCHAPTER II. LIMITATIONS. 
Art. 3. Limitations, General Provisions. 
§ 1-14. When action commenced.— An action is 
commenced as to each defendant when the sum- 
mons is issued against him. (Rev s 359- Code 
s. 161; C. C. P., s. 40; C. S. 404.) 

] 



§ 1-15 



CH. 1. CIVII PROCEDURE— LIMITATIONS 



§ 1-26 



§ 1-15. Statute runs from accrual of action; 
pleading. — Civil actions can only be commenced 
within the periods prescribed in this chapter, 
after the cause of action has accrued, except 
where in special cases a different limitation is pre- 
scribed by statute. The objection that the action 
was not commenced within the time limited can 
only be taken by answer. (Rev., s. 360; Code, s. 
138: C. C. P., s. 17; C. S. 405.) 

§ 1-16. Defenses deemed pleaded by insane 
party. — On the trial of any action or special pro- 
ceeding to which an insane person is a party, such 
insane person is deemed to have pleaded specially 
any defense, and shall on trial have the benefit of 
any defense, whether pleaded or not, that might 
have been made for him by his guardian or at- 
torney under the provisions of this chapter. The 
court, at any time before the action or proceeding 
is finally disposed of, may order the bringing in, 
by proper notice, of one or more of the near rela- 
tives or friends of the insane person, and may 
make such other order as it deems necessary for 
his proper defense. (Rev., s. 361; 1889, c. 89, s. 
2; C. S. 406.) 

§ 1-17. Disabilities. — A person entitled to com- 
mence an action, except for a penalty or forfei- 
ture, or against a sher'vrf or other officer for an 
escape, who is at the time the cause of action 
accrued either — - 

1. Within the age of twenty-one years; or 

2. Insane; or 

3. Imprisoned on a criminal charge, or in exe- 
cution under sentence for a criminal offense; 
may bring his action within the times herein 
limited, after the disability is removed, except in 
an action for the recovery of real property, or to 
make an entry or defense founded on the title to 
real property, or to rents and services out of the 
same, when he must commence his action, or 
make his entry, within three years next after the 
removal of the disability, and at no time there- 
after. (Rev., s. 362; Code, ss. 148, 163; C. C. P., 
ss. 27, 142; 1899, c. 78; C. S. 407.) 

§ 1-18. Disability of marriage. — In any action 
in which the defense of adverse possession is re- 
lied upon, the time computed as constituting 
such adverse possession shall not include any 
possession had against a feme covert during cover- 
ture prior to February thirteenth, one thousand 
eight hundred and ninety nine. (Rev., s. 363; 1899, 
c. 78, ss. 2, 3; C. S. 408.) 

§ 1-19. Cumulative disabilities. — When two or 
more disabilities coexist at the time the right of 
action accrues, or when one disability supervenes 
an existing one, the limitation does not attach 
until they all are removed. (Rev., s. 364; Code, 
ss. 149, 170; C. C. P., ss. 28, 49; C. S. 409.) 

§ 1-20. Disability must exist when right of ac- 
tion accrues. — No person may avail himself of a 
disability except as authorized in § 1-19, unless 
it existed when his right of action accrued. (Rev., 
s. 365; Code, s. 169; C. C. P., s. 48; C. S. 410.) 

§ 1-21. Defendant out of state; when action be- 
gun or judgment enforced. — If, when the cause 
of action accrues or judgment is rendered or 
docketed against a person, he is out of the state, 

[10 



action may be commenced, or judgment enforced, 
within the times herein limited, after the return 
of the person into this state, and if, after such 
cause of action accrues or judgment is rendered 
or docketed, such person departs from and re- 
sides out of this state, or remains continuously 
absent therefrom for one year or more, the time 
of his absence shall not be a part of the time 
limited for the commencement of the action, or 
the enforcement of the judgment. (Rev., s. 366; 
Code, s. 162; C. C. P., s. 41; 1881, c. 258, ss. 1, 2; 
C. S. 411.) 

§ 1-22. Death before limitation expires; action 
by or against executor. — If a person entitled to 
bring an action dies before the expiration of the 
time limited for the commencement thereof, and 
the cause of action survives, an action may be 
commenced by his representatives after the ex- 
piration of that time, and within one year from 
his death. If a person against whom an action 
may be brought dies before the expiration of the 
time limited for the commencement thereof, and 
the cause of action survives, an action may be 
commenced against his personal representative 
after the expiration of that time, and within one 
year after the issuing of letters testamentary or 
of administration, provided the letters are issued 
within ten years of the death of such person. If 
the claim upon which the cause of action is based 
is filed with the personal representative within the 
time above specified, and admitted by him, it is 
not necessary to bring an action upon such claim 
to prevent the bar, but no action shall be brought 
against the personal representative upon such 
claim after his final settlement. (Rev., s. 367; 
Code, s. 164; C. C. P., s. 43; 1881, c. 80; C. S. 412.) 

§ 1-23. Time of stay by injunction or prohibition. 

— When the commencement of an action is stayed 
by injunction or statutory prohibition, the time 
of the continuance of the injunction or prohibi- 
tion is not part of the time limited for the com- 
mencement of the action. (Rev., s. 368; Code, s. 
167; C. C. P., s. 46; C. S. 413.) 

§ 1-24. Time during controversy on probate of 
will or granting letters. — In reckoning time when 
pleaded as a bar to actions, that period shall not 
be counted which elapses during any controversy 
on the probate of a will or granting letters of ad- 
ministration, unless there is an administrator ap- 
pointed during the pendency of the action, and it 
is provided that an action may be brought against 
him. (Rev., s. 369; Code, s. 168; C. C. P., s. 47; 
C. S. 414.) 

§ 1-25. New action within one year after non- 
suit, etc. — If an action is commenced within the 
time prescribed therefor, and the plaintiff is 
nonsuited, or a judgment therein reversed 
on appeal, or is arrested, the plaintiff or. if 
he dies and the cause of action survives, his heir 
or representative may commence a new action 
within one year after such nonsuit, reversal, or 
arrest of judgment, if the costs in the original ac • 
tion have been paid by the plaintiff before the 
commencement of the new suit, unless the origi- 
nal suit was brought in forma pauperis. (Rev.. 
s. 370; Code, ss. 142, 166; C. C. P., ss. 21, 45; 1915. 
c. 211, s. 1; C. S. 415.) 

§ 1-26. New promise must be in writing. — No 

] 



§ 1-27 



CH. 1. CIVIL PROCEDURE— LIMITATIONS 



§ 1-40 



acknowledgment or promise is evidence of a new 
or continuing contract, from which the statutes 
of limitations run, unless it is contained in some 
writing signed by the party to be charged there- 
by; but this section does not alter the effect of 
any payment of principal or interest. (Rev., s. 
371; Code, s. 172; C. C. P., s. 51; C. S. 416.) 

§ 1-27. Admission by partner or comaker. — No 
act, admission or acknowledgment by any partner 
after the dissolution of the copartnership, or by 
any of the makers of a promissory note or bond 
after the statute of limitations has barred the same, 
is evidence to repel the statute, except against the 
partner or maker of the promissory note or bond 
doing the act or making the admission or ac- 
knowledgment. (Rev., s. 372; Code, s. 171; C. C. 
P., s. 50; C. S. 417.) 

§ 1-28. Undisclosed partner. — The statutes of 
limitations apply to a civil action brought against 
an undisclosed partner only from the time- the 
partnership became known to the plaintiff. (Rev., 
s. 373; 1893, c. 151; C. S. 418.) 

§ 1-29. Cotenants. — If in actions by tenants in 
common or joint tenants of personal property, to 
recover the same, or damages for its detention 
or injury, any of them are barred of their recov- 
ery by limitation of time, the rights of the others 
are not affected thereby, but they may recover 
according to their right and interest, notwith- 
standing such bar. (Rev., s. 374; Code, s. 173; 
C. C. P., s. 52; 1921, c. 106; C. S. 419.) 

§ 1-30. Applicable to actions by state. — The lim- 
itations prescribed by law apply to civil actions 
brought in the name of the state, or for its bene- 
fit, in the same manner as to actions by or for the 
benefit of private parties. (Rev., s. 375; Code, s. 
159; C. C. P., s. 38; C. S. 420.) 

§ 1-31. Action on open account. — In an action 
brought to recover a balance due upon a mutual, 
open and current account, where there have been 
reciprocal demands between the parties, the cause 
of action accrues from the time of the latest item 
proved in the account on either side. (Rev., s. 
376; Code, s. 160; C. C. P., s. 39; C. S. 421.) 

§ 1-32. Not applicable to bank bills. — The limi- 
tations prescribed by law do not affect actions to 
enforce the payment of bills, notes or other evi- 
dences of debt, issued or put in circulation as 
money by banking corporations incorporated un- 
der the laws of this state. (Rev., s. 377; Code, s. 
174; C. C. P., s. 53; 1874-5, c. 170; C. S. 422.) 

§ 1-33. Actions against bank directors or stock- 
holders. — The limitations prescribed by law do 
not affect actions against directors or stockhold- 
ers of any banking association incorporated un- 
der the laws of this state, to recover a penalty or 
forfeiture imposed, or to enforce a liability created 
by law; but such actions must be brought withm 
three years after the discovery by the aggrieved 
party of the facts upon which the penalty or for- 
feiture attached, or the liability was created. 
(Rev., s. 378; Code, s. 175; C. C. P., s. 54; C. S. 
423.) 

§ 1-34. Aliens in time of war. — When a person 
is an alien subject, or a citizen of a country at 
war with the United States, the time of the con- 
tinuance of the war is not a part of the period lim- 
ited for the commencement of the action. (Rev., 

[11 



s. 379; Code, s. 165; C. C. P., s. 44; C. S. 424.) 

Art. 4. Limitations, Real Property. 

§ 1-35. Title against state. — The state will not 
sue any person for, or in respect of, any real 
property, or the issue or profits thereof, by rea- 
son of the right or title of the state to the same — 

1. When the person in possession thereof, or 
those under whom he claims, has been in the ad- 
verse possession thereof for thirty years, this pos- 
session having been ascertained and identified un- 
der known and visible lines or boundaries; which 
shall give a title in fee to the possessor. 

2. When the person in possession thereof, or 
those under whom he claims, has been in posses- 
sion under color of title for twenty-one years, 
this possession having been ascertained and iden- 
tified under known and visible lines or bounda- 
ries. (Rev., s. 380; Code, s. 139; C. C. P., s. 18; 
R. C, c. 65, s. 2; C. S. 425.) 

§ 1-36. Title presumed out of state. — In all 
actions involving the title to real property title 
is conclusively deemed to be out of the state un- 
less it is a party to the action, but this section 
does not apply to the trials of protested entries 
laid for the purpose of obtaining grants, nor to 
actions instituted prior to May 1, 1917. (1917, c. 
195; C. S. 426.) 

§ 1-37. Such possession valid against claimants 
under state. — All such possession as is described 
in § 1-35, under such title as is therein described, 
is hereby ratified and confirmed, and declared to 
be a good and legal bar against the entry or suit 
of any person, under the right or claim of the 
state. (Rev., s. 381; Code, s. 140; C. C. P., s. 19; 
C. S. 427.) 

§ 1-38. Seven years possession under color of 
title. — When a person or those under whom he 
claims is and has been in possession of any real 
property, under known and visible lines and 
boundaries and under color of title, for seven 
years, no entry shall be made or action sustained 
against such possessor by a person having any 
right or title to the same, except during the seven 
years next after his right or title has descended 
or accrued, who in default of suing within that 
time shall be excluded from any claim thereafter 
made; and such possession, so held, is a perpet- 
ual bar against all persons not under disability. 
(Rev., s. 382; Code, s. 141; C. C. P., s. 20; C. S. 
428.) 

§ 1-39. Seizin within twenty years necessary. — . 
No action for the recovery or possession of real 
property shall be maintained, unless it appears 
that the plaintiff, or those under whom he claims, 
was seized or possessed of the premises in ques- 
tion within twenty years before the commence- 
ment of the action, unless he was under the disa- 
bilities prescribed by law. (Rev., s. 383; Code, s. 
143; C. C. P., s. 22; C. S. 429.) 

§ 1-40. Twenty years adverse possession. — No 

action for the recovery or possession of real prop- 
erty, or the issues and profits thereof, shall be 
maintained when the person in possession there- 
of, or defendant in the action, or those under 
whom he claims, has possessed the property un- 
der known and visible lines and boundaries ad- 
versely to all other persons for twenty years; and 
such possession so held gives a title in fee to the 
possessor, in such property, against all persona 
] 



§ 1-41 



CH. l. CIVIL PROCEDURE— LIMITATIONS 



§ 1-51 



not under disability. (Rev., s. 384; Code, s. 144; 
C. C. P., s. 23; C. S. 430.) 

§ 1-41. Action after entry. — No entry upon real 
estate shall be deemed sufficient or valid, as a 
claim, unless an action is commenced thereupon 
within one year after the making of the entry, and 
within the time prescribed in this chapter. (Rev., 
s. 385; Code, s. 145; C. C. P., s. 24; C. S. 431.) 

§ 1-42. Possession follows legal title. — In every 
action for the recovery or possession of real prop- 
erty, or damages for a trespass on such posses- 
sion, the person establishing a legal title to the 
premises is presumed to have been possessed 
thereof within the time required by law; and the 
occupation of such premises by any other person 
is deemed to have been under, and in subordina- 
tion to, the legal title, unless it appears that the 
premises have been held and possessed adversely 
to the legal title for the time prescribed by law 
before the commencement of the action. (Rev., 
s. 386; Code, s. 146; C. C. P., s. 25; C. S. 432.) 

§ 1-43. Tenant's possession is landlord's. — When 
the relation of landlord and tenant has existed, the 
possession of the tenant is deemed the possession 
of the landlord, until the expiration of twenty 
years from the termination of the tenancy; or 
where there has been no written lease, until the 
expiration of twenty years from the time of the 
last payment of rent, notwithstanding that the 
tenant may have acquired another title, or may 
have claimed to hold adversely to his landlord. 
But such presumptions shall not be made after 
the periods herein limited. (Rev., s. 387; Code, s. 
147; C. C. P., s. 26; C. S. 433.) 

§ 1-44. No title by possession of right of way. 
— No railroad, plank road, turnpike or canal com- 
pany may be barred of, or presumed to have con- 
veyed, any real estate, right of way, easement, 
leasehold, or other interest in the soil which has 
been condemned, or otherwise obtained for its 
use, as a right of way, depot, stationhouse or 
place of landing, by any statute of limitation or 
by occupation of the same by any person what- 
ever. (Rev., s. 388; Code, s. 150; C. C. P., s. 29; 
R. C, c. 65, s. 23; C. S. 434.) 

§ 1-45. No title by possession of public ways. — 
No person or corporation shall ever acquire any 
exclusive right to any part of a public road, street, 
lane, alley, square or public way of any kind by 
reason of any occupancy thereof or by encroach- 
ing upon or obstructing the same in any way, and 
in all actions, whether civil or criminal, against 
any person or corporation on account of an en- 
croachment upon or obstruction or occupancy of 
any public way it shall not be competent for a 
court to hold that such action is barred by any 
statute of limitations. (Rev., s. 389; 1891, c. 224; 
C. S. 435.) 

Art. 5. Limitations, Other than Real Property. 

§ 1-46. Periods prescribed. — The periods pre- 
scribed for the commencement of actions, other 
than for the recovery of real property, are as set 
forth in this article. (Rev., s. 390; Code, s. 151; 
C. C. P., s. 30; C. S. 436.) 

§ 1-47. Ten years. — Within ten years an action — 

1. Upon a judgment or decree of any court of 

the United States, or of any state or territory 

thereof, from the date of its rendition. No such 

[12 



action may be brought more than once, or have 
the effect to continue the lien of the original 
judgment. 

2. Upon a sealed instrument against the princi- 
pal thereto. 

3. For the foreclosure of a mortgage, or deed 
in trust for creditors with a power of sale, of real 
property, where the mortgagor or grantor has 
been in possession of the property, within ten 
years after the forfeiture of the mortgage, or 
after the power of sale becam° absolute, or with- 
in ten years after the last payment on the same. 

4. For the redemption of a mortgage, where 
the mortgagee has been in possession, or for a 
residuary interest under a deed in trust for cred- 
itors, where the trustee or those holding under 
him has been in possession, within ten years after 
the right of action accrued. 

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; C. S. 437.) 

§ 1-48. Actions to recover deficiency judg- 
ments limited to within one year of foreclosure. — 
No action shall be maintained on any promissory 
note, bond, evidence of indebtedness or debt se- 
cured by a mortgage or deed of trust on real es- 
tate after the foreclosure of the mortgage or deed 
of trust securing the same, except within one year 
from the date of sale under such foreclosure; but 
this section shall not extend the time of limitation 
on any such action. (1933, c. 529, s. 1.) 

§ 1-49. Seven years. — Within seven years an ac- 
tion — 

1. On a judgment rendered by a justice of the 
peace, from its date. 

2. By a creditor of a deceased person against 
his personal or real representative, within seven 
years next after the qualification of the executor 
or administrator and his making the advertise- 
ment required by law for creditors of the de- 
ceased to present their claims, where no personal 
service of such notice in writing is made upon 
the creditor. A creditor thus barred of a recov- 
ery against the representative of any principal 
debtor is also barred of a recovery against any 
surety to the debt. (Rev., s. 392; Code, s. 153; 
C. C. P., s. 32; C. S. 438.) 

§ 1-50. Six years. — Within six years an action — 

1. Upon the official bond of a public officer. 

2. Against an executor, administrator, collector, 
or guardian on his official bond, within six years 
after the auditing of his final account by the 
proper officer, and the filing of the audited ac- 
count as required by law. 

3. For injury to any incorporeal hereditament. 

4. Against a corporation, or the holder of a cer- 
tificate or duplicate certificate of stock in the cor- 
poration, on account of any dividend, either a 
cash or stock dividend, paid or allotted by the cor- 
poration to the holder of the certificate or dupli- 
cate certificate of stock in the corporation. 
(Rev., s. 393; Code, s. 154; C. C. P., s. 33; 1931, 
c. 169; C. S. 439.) 

§ 1-51. Five years. — Within five years — 
1. No suit, action or proceeding shall be 
brought or maintained against a railroad com- 
pany owning or operating a railroad for damages 
or compensation for right of way or use and oc- 

] 



§ 1-52 



CH. 1. CIVIL PROCEDURE— PARTIES 



§ 1-58 



cupancy of any lands by the company for use of agraph shall not apply to claims based upon 
its railroad unless the action or proceeding is bonds, notes and interest coupons. 



commenced within five years after the lands have 
been entered upon for the purpose of construct- 



2. An action to recover the penalty for usury. 

3. The forfeiture of all interest for usury. (Rev., 



c. 91, s. 3; 1895, c. 69; 1931, c. 231; 1937, c. 359; 
C. S. 442.) 
Local Modification. — Cartaret, Haywood: 1933, c. 386; 



ing the road, or within two years after it is in s. 396; Code, ss. 756, 3836; 1874-5, c. 243; 1876-7, 
operation. 

2. No suit, action or proceeding shall be 
brought or maintained against a railroad com- 
pany for damages caused by the construction of Cherokee, Clay: 1933, c. 318. 
the road, or the repairs thereto, unless such suit, § 1-54. One year.— Within one year an action- 
action or proceeding is commenced within five 1- Against a public officer, for a trespass under 
years after the cause of action accrues, and the color of his office. 

jury shall assess the entire amount of damages 2. Upon a statute, for a penalty or forfeiture, 

which the party aggrieved is entitled to recover where the action is given to the state alone, or in 

by reason of the trespass on his property. (Rev., whole or in part to the party aggrieved, or to a 

s. 394; 1893, c. 152; 1895, c. 224; 1897, c. 339; C. common informer, except where the statute im- 

S. 440.) posing it prescribes a different limitation. 

Local Modification— Burke, McDowell: Pub. Loc, 1925, c. 3. For libel, assault, battery, or false imprison- 

535; Caldwell: Pub. Loc., 1927, c. 119; Haywood, Mitchell, ment. 

4. Against a public officer, for the escape of a 
prisoner arrested or imprisoned on civil process. 

5. An application for a widow's year's allow- 
ance. (Rev., s. 397; Code, s. 156; C. C. P., s. 35; 
1885, c. 96; C. S. 443.) 

§ 1-55. Six months. — Within six months an 



Yancey: Pub. Loc, 1923, c. 433. 



§ 1-52. Three Years. — Within three years an 
action — 

1. Upon a contract, obligation or liability aris- 
ing out of a contract, express or implied, except 
those mentioned in the preceding sections. 

2. Upon a liability created by statute, other action — 

than a penalty or forfeiture, unless some other 1- For slander. 

time is mentioned in the statute creating it. 2. Upon a contract, transfer, assignment, power 

3. For trespass upon real property. When the of attorney or other instrument transferring or af- 
trespass is a continuing one, the action shall be fecting unearned salaries or wages, or future earn- 
commenced within three years from the original ings, or any interest therein, whether said instru- 
trespass, and not thereafter. ment be under seal or not under seal. The above 

4. For taking, detaining, converting or injur- period of limitation shall commence from the date 
ing any goods or chattels, including action for of the execution of such instrument. (Rev., s. 398; 
their specific recovery. Code, s. 157; C. C. P., s. 36; 1931, c. 168; C. S. 

5. For criminal conversation, or for any other 444.) 

injury to the person or rights of another, not Local Modification.— Cleveland, Rutherford: 1933, c. 167. 

arising on contract and not hereinafter enumer- § 1-56. All other actions, ten years. — An action 

ated. for relief not herein provided for must be com- 

6. Against the sureties of any executor, admin- menced within ten years after the cause of action 
istrator, collector or guardian on the official bond has accrued. (Rev., s. 399; Code, s. 158; C. C. P., 
of their principal; within three years after the s. 37; C. S. 445.) 

breach thereof complained of. SUBCHAPTER III. PARTIES. 

7. Against bail; within three years after judg- A t fi P t' 
ment against the principal; but bail may dis- 
charge himself by a surrender of the principal, at . » U57 - Real P art y in interest; grantees and as- 
any time before final judgment against the bail, signees.— Every action must be prosecuted in the 

8. For fees due to a clerk, sheriff or other offi- name ° f th ^ «al Party in interest except as other- 
cer, by the judgment of a court; within three wise prodded; but this section does not author- 

r , t ■ <•,' e it. • j t , ize the assignment of a thing in action not aris- 

years from the rendition of the judgment, or the ■ r & , . fe , ** b 

issuing of the last execution thereon. mg out of «"*»<*• An action may be maintained 

9. For relief on the ground of fraud or mistake; by u a S rantee of rea l estate in his own name, 
the cause of action shall not be deemed to have W f en h * or . any gran 1 tor or ° ther P erson through 
accrued until the discovery by the aggrieved whom he de " ves title might maintain such ac 
party of the facts constituting the fraud or mis- tlon \ notwithstanding the conveyance of the 
take grantor is void, by reason of the actual posses- 



10. For the recovery of real property sold tor 



sion of a person claiming under a title adverse to 



the nonpayment of taxes, within three years after ^ at ° f , tl ?. e erantor or oth ^ P erson > at the time 

ot the delivery of the conveyance. In case of an 
assignment of a thing in action the action by the 
assignee is without prejudice to any set-off or 
other defense, existing at the time of, or before 
notice of, the assignment; but this does not ap- 
ply to a negotiable promissory note or bill of ex- 



the execution of the sheriff's deed. (Rev., s. 395; 
Code, s. 155; C. C. P., s. 34; 1895, c. 165; 1889, cc. 
269, 218; 1899, c. 15, s. 71; 1901, c. 558, s. 23; 
1913, C. 147, s. 4; C. S. 441.) 

§ 1-53. Two years. — Within two years — 



1. All claims against counties, cities and towns change, transferred in good faith, upon good con- 

of this state shall be presented to the chairman of sideration, and before maturity. (Rev., s. 400; 

the board of county commissioners, or to the chief Code, s. 177; C. C. P., s. 55; 1874-5, c. 256; C. S. 

officers of the cities and towns, within two years 446.) 

after the maturity of such claims, or the holders § 1-58. Suits for penalties. — Where a penalty is 

shall be forever barred from a recovery thereon; imposed by any law, and it is not provided to 

provided, however, that the provisions of this par- what person the penalty is given, it may be re- 

[13] 



§ 1-59 



CH. 1. CIVIL PROCEDURE— PARTIES 



§ 1-66 



covered, for his own use, by any one who sues 
for it. When a penalty is allowed by statute, and 
it is not prescribed in whose name suit therefor 
may be commenced, suit must be brought in the 
name of the state. (Rev., ss. 401, 402; Code, ss. 
1212, 1213; R. C, c. 35, ss. 47, 48; C. S. 447.) 

§ 1-59. Suit for penalty, plaintiff may reply 
fraud to plea of release. — If an action be brought 
in good faith by any person to recover a penalty 
under a law of this state, or of the United States, 
and the defendant shall set up in bar thereto a 
former judgment recovered by or against him it) 
a former action brought by any other person foT 
the same cause, then the plaintiff in such action, 
brought in good faith, may reply that the said 
former judgment was obtained by covin; and if 
the collusion or covin so averred be found, the 
plaintiff in the action sued with good faith shall 
have recovery; and no release made by such party 
suing in covin, whether before action brought or 
after, shall be in anywise available or effectual. 
(Code, s. 932; R. C, c. 31, s. 100; 4 Hen. VII, c. 
20; Rev., s. 1521; 1925, c. 21; C. S. 447(a).) 

§ 1-60. Suit on bonds; defendant may plead 
satisfaction. — When an action shall be brought 
on any single bill or on any judgment, if the de- 
fendant had paid the money due upon such bill or 
judgment before . tion brought, or where the de- 
fendant hath made satisfaction to the plaintiff 
of the money due on such bill or judg- 
ment in other manner than by payment there- 
of, such payment or satisfaction may be pleaded 
in bar of such action; and where only part of the 
money due on such single bill or judgment hath 
been paid by the defendant, or satisfied in other 
manner than by payment of money, such part 
payment or part satisfaction may be pleaded in 
bar of so much of the money due on such single 
bill or judgment, as the same may amount to, 
and where an action is brought on any bond 
which hath a condition or defeasance to make 
void the same upon the payment of a lesser sum 
at a day or place certain, if the obligor, his heirs, 
executors or administrators have, before the ac- 
tion brought, paid to the obligee, his executor or 
administrator, the principal and interest due by 
the condition or defeasance of such bond, though 
such payments were not made strictly according 
to the condition or defeasance; or if such obligor, 
his heirs, executors or administrators have before 
action brought made satisfaction to the plaintiff 
of the principal and interest due by the condition 
or defeasance of such bond, in other manner than 
by payment thereof, j'et the said payment or satis- 
faction may be pleaded in bar of such action, and 
shall be effectual as a bar thereof, in like manner 
as if the money had been paid at the day and place, 
according to the condition or defeasance, and so 
pleaded. (Rev., s. 1522; Code, s. 933; R. C, c. 31, 
s. 101; 4 Hen. VII, c. 20; 1925, c. 21; C. S. 447(b).) 

§ 1-61. Payment into court of sum due dis- 
charges penalty of bonds. — If at any time, pend- 
ing an action on any bond with a penalty, the 
defendant shall bring into court, where the ac- 
tion shall be pending, all the principal money 
and interest due, and also all such costs as have 
been expended in any suit upon such bond, the 
said money shall be deemed and taken to be in 
full satisfaction and discharge of said bond, and 
the court shall give judgment accordingly. (Rev., 

[14 



s. 1523; Code, s. 934; R. C, c. 31, s. 102; 4 Anne, 
c. 16; 1925, c. 21; C. S. 447(c).) 

§ 1-62. Action by purchaser under judicial sale. 
— Any one given possession under a judicial sale 
confirmed, where the title is retained as a security 
for the price, is the legal owner of the property 
for all purposes of bringing suits for injuries 
thereto, after the day of sale, by trespass or 
wrongful possession, in the same manner as if 
the title had been conveyed to him on day of 
sale, unless restrained by some order of the court 
directing the sale; and the suit brought is under 
the control of the court ordering the sale. (Rev., 
s. 403; Code, s. 942; 1858-9, c. 50; C. S. 448.) 

§ 1-63. Action by executor or trustee. — An exec- 
utor or administrator, a trustee of an express 
trust, or a person expressly authorized by statute, 
may sue without joining with him the person for 
whose benefit the action is prosecuted. A trustee 
of an express trust, within the meaning of this 
section, includes a person with whom, or in 
whose name, a contract is made for the benefit of 
another. (Rev., s. 404; Code, s. 179; C. C. P., s. 
57; C. S. 449.) 

§ 1-64. Infants, etc., sue by guardian or next 
friend. — In actions and special proceedings when 
any of the parties plaintiff are infants, idiots, 
lunatics, or persons non compos mentis, whether 
residents or nonresidents of this state, they must 
appear by their general or testamentary guardian, 
if they have any within the state; but if the ac- 
tion or proceeding is against such guardian, or if 
there is no such guardian, then said persons may 
appear by their next friend. The duty of the state 
solicitors to prosecute in the cases specified in 
chapter entitled Guardian and Ward is not af- 
fected by this section. (Rev., s. 405; Code, s. 180; 
1893, c. 5; C. C. P., s. 58; 1870-1, c. 233; 1871-2, c. 
95; C. S. 450.) 

§ 1-65. Infants, etc., defend by guardian ad 
litem. — In all actions and special proceedings 
when any of the defendants are infants, idiots, 
lunatics, or persons non compos mentis, whether 
residents or nonresidents of this state, they must 
defend by their general or testamentary guardian, 
if they have one within this state; and if they 
have no general or testamentary guardian in the 
state, and any of them has been summoned, the 
court in which said action or special proceeding is 
pending, upon motion of any of the parties, 
may appoint some discreet person to act as 
guardian ad litem, to defend in behalf of such in- 
fants, idots, lunatics, or persons non compos mentis. 
The guardian so appointed shall, if the cause is a 
civil action file his answer to the complaint with- 
in the time required for other defendants, unless 
the time is extended by the court; and if the 
cause is a special proceeding, a copy of the com- 
plaint, with the summons, must be served on him. 
After twent}' days notice of the summons and 
complaint in the special proceeding, and after 
answer filed as above prescribed in the civil ac- 
tion, the court may proceed to final judgment as 
effectually and in the same manner as if there had 
been personal service upon the said infant, idiot, 
lunatic, or person non compos mentis, defendants. 
(Rev., s. 406; Code, s. 181; C. C. P., s. 59; 1870-1, 
c. 233, s. 5; 1871-2, c. 95, s. 2; C. S. 451.) 

§ 1-66. Appointment of guardian ad litem in 

] 



§ 1-67 



CH. l. CIVIL PROCEDURE— PARTIES 



§ 1-74 



actions begun by publication. — In all actions and 
special proceedings wherever any of the defend- 
ants are infants, idiots, lunatics, or persons non 
compos mentis, and it shall become necessary to 
serve the summons on said infants, idiots, luna- 
tics, or persons non compos mentis by publica- 
tion, it shall not be necessary to await the com- 
pletion of the service of summons by publica- 
tion before moving for the appointment of a 
guardian ad litem for said infants, idiots, lunatics, 
or persons non compos mentis, but a guardian ad 
litem may be appointed on motion at the time of 
the issuance of the order of publication; and the 
service of a summons, with a copy of the com- 
plaint or petition, can be made on the guardian 
ad litem returnable on the same date as the in- 
fant defendants are required to appear in the 
notice of publication; and after ten days notice of 
said summons and complaint in special proceed- 
ings and after answer filed as prescribed in § 
1-65 under this article, the court may proceed 
in the same cause to final judgment and decree 
therein, in the same manner as if there had been 
personal service upon the said infant, idiot, luna- 
tic, or person non compos mentis, defendants, 
and any decree or judgment in the cause shall 
conclude the infant, idiot, lunatic, or person non 
compos mentis, defendants, as effectually as if he, 
or they, had been personally summoned. (1919, 
c. 246; C. S. 452.) 

§ 1-67. Guardian ad litem to file answer. — When 
a guardian ad litem is appointed, he shall file an 
answer in the action or special proceeding, ad- 
mitting or denying the allegations thereof. The 
costs and expenses of the answer, in all applica- 
tions to sell or divide the real estate of said in- 
fants, shall be paid out of the proceeds of the 
property, or in case of division shall be charged 
upon the land if the sale or division is ordered by 
the court, and, if not ordered, in any other man- 
ner the court directs. (Rev., s. 407; Code, s. 182; 
1870-1, c. 233, s. 4; C. S. 453.) 

§ 1-68. Who may be plaintiffs. — All persons 
having an interest in the subject of the action 
and in obtaining the relief demanded may be 
joined as plaintiffs, either jointly, severally, or 
in the alternative, except as otherwise provided. 
If, upon the application of any party, it shall ap- 
pear that such joinder may embarrass or delay the 
trial, the court may order separate trials or make 
such other order as may be expedient. (Rev., s. 
409; Code, s. 183; C. C. P., s. 60; 1931, c. 344, s. 
1; C. S. 455.) 

§ 1-69. Who may be defendants — All per- 
sons may be made defendants, jointly, sever- 
ally, or in the alternative, who have, or claim, 
an interest in the controversy adverse to the plain- 
tiff, or who are necessary parties to a complete 
determination or settlement of the questions in- 
volved. In an action to recover the possession of 
real estate, the landlord and tenant may be joined 
as defendants. Any person claiming title Oi right 
of possession to real estate may be made a party 
plaintiff or defendant, as the case requires, in such 
action. If the plaintiff is in doubt as tc the per- 
sons from whom he is entitled to redress, he may 
join two or more defendants, to determine which 
is liable. (Rev., s. 410; Code, s. 184; C. C. P., s. 
61; 1931, c. 344, s. 2; C. S. 456.) 

§ 1-70. Joinder of parties; action by or against 

1 15 



one for benefit of a class. — Of the parties to the ac- 
tion, those who are united in interest must be 
joined as plaintiffs or defendants; but if the con- 
sent of any one who should have been joined as 
plaintiff cannot be obtained, he may be made a de- 
fendant, the reason thereof being stated in the 
complaint. When the question is one of a com- 
mon or general interest of many persons, or where 
the parties are so numerous that it is impracticable 
to bring them all before the court, one or more 
may sue or defend for the benefit of all. Any and/ 
or all unincorporated, beneficial organizations, fra- 
ternal benefit orders, associations and/or societies, 
or voluntary fraternal beneficial organizations, or- 
ders, associations and/or societies issuing certif- 
icates and/or policies of insurance, foreign or do- 
mestic, now or hereafter doing business in this 
state, shall have the power to sue and/or be sued 
in the name commonly known and/or used by 
them in the conduct of their business to the same 
extent as any other legal entity established by law, 
and without naming any of the individual mem- 
bers composing it: Provided, however, this sec- 
tion shall apply only in actions concerning such 
certificates and/or policies of insurance. (Rev., s. 
411; Code, s. 185; C. C. P., s. 62; 1933, c. 182; C. 
S. 457.) 

§ 1-71. Persons severally liable. — Persons sev- 
erally liable upon the same obligation, includ- 
ing the parties to bills of exchange and promis- 
sory notes, may all or any of them be included 
in the same action at the option of the plaintiff. 
(Rev., s. 412; Code, s. 186; C. C. P., s. 63; C. S. 
458.) 

§ 1-72. Persons jointly liable. — In all cases of 
joint contracts of partners in trade or others, 
suit may be brought and prosecuted against all 
or any number of the persons making such con- 
tracts. (Rev., s. 413; Code, s. 187; R. C, c. 31, s. 
84; 1871-2, c. 24, s. 1; C. S. 459.) 

§ 1-73. New parties by order of court. — The 
court either between the terms, or at a regular 
term, according to the nature of the controversy, 
may determine any controversy before it, when 
it can be done without prejudice to the right of 
others, but when a complete determination of the 
controversy cannot be made without the presence 
of other parties, the court must cause them to 
be brought in. When in an action for the re- 
covery of real or personal property, a person not 
a party to the action, but having an interest in its 
subject matter, applies to the court to be made a 
party, it may order him to be brought in by the 
proper amendment. A defendant against whom 
an action is pending upon a contract or for specific 
real or personal property, upon proof by affidavit 
that a person not a party to the action makes a 
demand against him for the same debt or property 
without collusion with him, may at any time be- 
fore answer apply to the court, upon notice to 
that person and the adverse party, for an order to 
substitute that person in his place, and to dis- 
charge him from liability to either, on his paying 
into court the amount of the debt, or delivering 
the possession of the property or its value to such 
person as the court directs. The court may make 
such an order. (Rev., s. 414; Code, s. 189; C. C. 
P., s. 65; C. S. 460.) 

§ 1-74. Abatement of actions.— 1. No action 
abates by the death, or disability of a party, or by 
1 



§ 1-75 



CH. l. CIVIL PROCEDURE— VENUE 



§ 1-82 



the transfer of any interest therein, if the cause 
of action survives, or continues. In case of death, 
except in suits for penalties and for damages 
merely vindictive, or in case of the disability of 
a party, the court, on motion at any time within 
one year thereafter, or afterwards on a supple- 
mental complaint, may allow the action to be 
continued, by, or against, his representative or 
successor in interest. In case of any other trans- 
fer of interest, the action shall be continued in 
the name of the original party, or the court may 
allow the person to whom the transfer is made 
to be substituted in the action. 

2. After a verdict is rendered in any action for 
a wrong, the action does not abate by the death 
of a party. 

3. At any time after the death or disability of 
the party plaintiff, the court in which an action 
is pending, upon notice to such persons as it di- 
rects and upon application of any person aggrieved, 
may order that the action be abated, unless it is 
continued by the proper parties, within a time 
to be fixed by the court, not less than six nor 
more than twelve months from the granting of 
the order. 

4. No action against a receiver of a corporation 
abates by reason of his death, but, upon sugges- 
tion of the facts on the record, it continues 
against his successor, or against the corporation 
in case a new receiver is not appointed. (Rev., s. 
415; Code, s. 188; 1901, c. 2, s. 85; C. C. P., s. 64; 
R. C, c. 1, s. 4; c. 46, s. 43; C. S. 461.) 

§ 1-75. Procedure on death of party. — When a 
party to an action in the superior court dies pend- 
ing the action, his death may be suggested be- 
fore the clerk of the court where the action is 
pending, during vacation. It is then the duty of 
the clerk to issue a summons to the party who 
succeeds to the rights or liabilities of a deceased 
defendant, commanding him to appear before him 
on a day named in the summons, which must be 
at least twenty days after its service, and answ r er 
the complaint, and the issue joined by the filing 
of the answer stands for trial at the succeeding 
term of the superior court. It is the duty of the 
clerk to issue a notice to the party succeeding to 
the rights of a deceased party who will be neces- 
sary to the prosecution of the action to final 
judgment to appear and become party plaintiff; 
and if the party made plaintiff files an amended 
complaint, the defendant has twenty days after 
notice of same in which to file an answer thereto, 
and the issue thus made up stands for trial at the 
succeeding term. (Rev., ss. 416, 417, 418; 1887, 
c. 389; C. S. 462.) 

SUBCHAPTER IV. VENUE. 

Art. 7. Venue. 
§ 1-76. Where subject of action situated.— Ac- 
tions for the following causes must be tried in the 
county in which the subject of the action, or 
some part thereof, is situated, subject to the 
power to the court to change the place of trial, in 
the cases provided by law: 

1. Recovery of real property, or of an estate 
or interest therein, or for the determination in 
any form of such right or interest, and for in- 
juries to real property. 

2. Partition of real property. 

3. Foreclosure of a mortgage of real property. 

[16 



4. Recovery of personal property. (Rev., s. 419; 
Code, s. 190; 1889, c. 219; C. C. P., s. 66; C. S. 
463.) 

§ 1-77. Where cause of action arose. — Actions 
for the following causes must be tried in the 
county where the cause, or some part thereof, 
arose, subject to the power of the court to change 
the place of trial, in the cases provided by law: 

1. Recovery of a penalty or forfeiture, imposed 
by statute; except that, when it is imposed for an 
offense committed on a sound, bay, river, or 
other body of water, situated in two or more 
counties, the action may be brought in any 
county bordering on such body of water, and op- 
posite to the place where the offense was com- 
mitted. 

2. Against a public officer or person especially 
appointed to execute his duties, for an act done 
by him by virtue of his office; or against a per- 
son who by his command or in his aid does any- 
thing touching the duties of such officer. (Rev., 
s. 420; Code, s. 191; C. C. P., s. 67; C. S. 464.) 

§ 1-78. Official bonds, executors and administra- 
tors. — All actions against executors and admin- 
istrators in their official capacity, except where 
otherwise provided by statute, and all actions up- 
on official bonds must be instituted in the county 
where the bonds were given, if the principal or 
any surety on the bond is in the county; if not, 
then in the plaintiff's county. (Rev., s. 421; Code, 
S. 193; 1868-9, c. 258; C. S. 465.) 

§ 1-79. Domestic corporations. — For the pur- 
pose of suing and being sued the principal place 
of business of a domestic corporation is its 
residence. (Rev., s. 422; 1903, c. 806; C. S. 466.) 

§ 1-80. Foreign corporations. — An action against 
a corporation created by or under the law of any 
other state or government may be brought in the 
superior court of any county in which the cause 
of action arose, or in which the corporation usually 
did business, or has property, or in which the 
plaintiffs, or either of them, reside, in the follow- 
ing cases: 

1. By a resident of this state, for any cause of 
action. 

2. By a nonresident of this state in any county 
where he or they are regularly engaged in carry- 
ing on business. 

3. By a plaintiff, not a resident of this state, 
when the cause of action arose or the subject of 
the action is situated in this state. (Rev., s. 423; 
Code, s. 194; C. C. P., s. 36.1; 1876-7, c. 170; 1907, 
c. 460; C. S. 467.) 

§ 1-81. Actions against railroads. — In all actions 
against railroads the action must be tried either 
in the county where the cause of action arose or 
where the plaintiff resided at that time, or in 
some county adjoining that in which the cause 
of action arose, subject to the power of the 
court to change the place of trial as provided by 
statute. (Rev., s. 424; C. S. 468.) 

§ 1-82. Venue in all other cases. — In all other 
cases the action must be tried in the county in 
which the plaintiffs or the defendants, or any of 
them, reside at its commencement; or if none of 
the defendants reside in the state, then in the 
county in which the plaintiffs, or any of them, re- 
side; and if none of the parties reside in the state, 
then the action may be tried in any county which 
the plaintiff designates in his summons and com- 

] 



§ 1-83 



CH. l. CIVIL PROCEDURE— SUMMONS 



§ 1-89 



plaint, subject to the power of the court to 
change the place of trial, in the cases provided by 
statute. (Rev., s. 424; Code, s. 192; C. C. P., s. 
68; 1868-9, cc. 59, 277; 1905, c. 367; C. S. 469.) 

§ 1-83. Change of venue. — If the county desig- 
nated for that purpose in the summons and com- 
plaint is not the proper one, the action may, how- 
ever, be tried therein, unless the defendant, be- 
fore the time of answering expires, demands in 
writing that the trial be conducted in the proper 
county, and the place of trial is thereupon changed 
by consent of parties, or by order of the court. 

The court may change the place of trial in the 
following cases: 

1. When the county designated for that pur- 
pose is not the proper one. 

2. When the convenience of witnesses and the 
ends of justice would be promoted by the change. 

3. When the judge has, at any time, been inter- 
ested as party or counsel. (Rev., s. 425; Code, s. 
195; C. C. P., s. 69; R. C, c. 31, ss. 115, 118; 
1870-1, c. 20; C. S. 470.) 

§ 1-84. Removal for fair trial. — In all civil and 
criminal actions in the superior and criminal 
courts, when it is suggested on oath or affirma- 
tion, on behalf of the state or the traverser of the 
bill of indictment, or of the plaintiff or defendant, 
that there are probable grounds to believe that a 
fair and impartial trial cannot be obtained in the 
county in which the action is pending, the judge 
may order a copy of the record of the action re- 
moved to some adjacent county for trial, if he is 
of the opinion that a fair trial cannot be had in 
said county, after hearing all the testimony of- 
fered on either side by affidavits. The county 
from which the cause is removed must pay to the 
county in which the cause has been tried the full 
amount paid by the trial county for jurors' fees, 
and the full costs in the cause which are not tax- 
able against or cannot be recovered from a party 
to the action, and for which the trial county is 
liable. (Rev., s. 426; Code, s. 196; 1879, c. 45; 1899, 
cc. 104, 508; 1806, c. 693, s. 12; 1917, c. 44; C. S. 
471.) 

§ 1-85. Affidavits on hearing for removal; when 
removal ordered. — No action, civil or criminal, 
shall be removed, unless the affidavit sets forth 
particularly and in detail the ground of the appli- 
cation. It is competent for the other side to con- 
trovert the allegations of fact in the application, 
and to offer counter affidavits to that end. The 
judge shall order the removal of the action, if he 
is satisfied after thorough examination of the 
evidence as aforesaid that the ends of justice de- 
mand it. (Rev., s. 427; Code, s. 197; 1879, c. 45; 
1899, c. 104, s. 2; C. S. 472.) 

§ 1-86. Additional jurors from other counties 
instead of removal. — Upon suggestion made as 
provided by § 1-84 or on his own motion, the pre- 
siding judge, instead of making order of removal 
may cause as many jurors as he deems necessary 
to be summoned from any county in the same 
judicial district or in an adjoining district by the 
sheriff or other proper officer thereof, to attend, 
at such time as the judge designates, and serve 
as jurors in said action. The judge may direct 
the required number of names to be drawn from 
the jury box in said count}' in such manner as he 
may direct, and a list of the same to be delivered 



to the sheriff or other proper officer of the county, 
who shall at once summon the jurors so drawn 
to appear at the time and place specified in the 
order. In case a jury is not obtained from those 
so summoned the judge may, in like manner, 
from time to time, order additional jurors sum- 
moned from any county in the same judicial 
district or in an adjoining district, or from the 
county where the trial is being held, until a jury 
is obtained. These jurors are subject to challenge 
for cause as other jurors, but not for nonresidence 
in the county of trial, or service within two years, 
or not being freeholders, and all jurors so sum- 
moned are entitled to compensation for mileage and 
time, to be paid by the county to which they are 
summoned, at the rate now provided by law for 
regular jurors in the county of their residence. 
Provided, that when the judge shall determine that 
it is necessary to have a special venire drawn from 
an adjoining county, instead of directing the ju- 
rors to appear at the courthouse in the county 
where the trial is pending, he may order them to 
appear at the courthouse of their own county and 
in lieu of their receiving mileage in going from 
their own county to the county in which the trial 
is held, it shall be optional with the county where 
the trial is held to provide transportation to said 
jurors from their own county seat to the place of 
trial and return instead of paying mileage to the 
jurors in going from their county seat to the place 
of trial. (1913, c. 4, ss. 1, 2; 1931, c. 308; 1933, c. 
248; C. S. 473.) 
Local Modification.— Ashe, Durham : 1933, c. 24S. 

§ 1-87. Transcript of removal; subsequent pro- 
ceedings. — When a cause is directed to be re- 
moved, the clerk shall transmit to the court to 
which it is removed a transcript of the record of 
the case, with the prosecution bond, bail bond, 
and the depositions, and all other written evi- 
dences filed therein; and all other proceedings 
shall be had in the county to which the place of 
trial is changed, unless otherwise provided by the 
consent of the p-;-ties in writing duly filed, or by 
order of court. (Rev., s. 428; Code, ss. 195, 198; 
R. C, c. 31, s. 118; 1806, c. 694, s. 12; 1810, c. 787; 
C. C. P., S. 69; C. S. 474.) 



SUBCHAPTER 



V. COMMENCEMENT OF 
ACTIONS. 



Art. 8. Summons. 

§ 1-88. Civil actions commenced by. — Civil ac- 
tions shall be commenced by issuing a summons; 
but no summons need issue in controversies sub- 
mitted without action, and in confessions of judg- 
ment without action. (Rev., s. 429; Code, s. 199; 
C. C. P., s. 70; C. S. 475.) 

§ 1-89. Contents, return, seal. — The summons 
must run in the name of the State, be signed by 
the Clerk of the Superior Court having jurisdic- 
tion to try the action, and be directed to the 
sheriff or other proper officers of the county or 
counties in which the defendanti or any of them 
reside or may be found. It must be returnable 
before the clerk and must command the sheriff 
or other proper officer to summon the defendant, 
or defendants, to appear and answer the com- 
plaint of the plaintiff within thirty (30) days after 
its service upon defendant, or defendants; and 
must contain a notice stating in substance that if 



[17] 



§ 1-90 



CH. 1. CIVIL PROCEDURE— SUMMONS 



§ 1-95 



the defendant or defendants fail to answer the 
complaint within the time specified the plaintiff 
will apply to the court for the relief demanded in 
the complaint; and must be dated on the date of 
its issue. Every summons addressed to the sher- 
iff or other officer of a county, other than that 
from which it issued, must be attested by the seal 
of the court; but when addressed to the sheriff or 
other officer of the county in which it issued, such 
seal is unnecessary. Summons must be served 
by the sheriff to whom it is addressed for serv- 
ice within ten (10) days after the date of its issue; 
and upon serving the same, the officer shall note 
in writing upon the copy thereof, delivered to the 
defendant, the date of service, but failure to com- 
ply with this requirement shall not invalidate the 
service, and, if not served within ten (10) days 
after the date of its issue upon every defendant, 
must be returned by the officer holding the same 
for service, to the clerk of the court issuing the 
summons, with notation thereon of its non-serv- 
ice and the reasons therefor as to every defend- 
ant not served. In all cases where service of sum- 
mons is made by publication, such service by pub- 
lication shall be completed within fifty days from 
the order of publication. Provided, that in all ac- 
tions for tax foreclosures, street assessment fore- 
closures and sidewalk assessment foreclosures, 
summons must be served by the sheriff to whom 
it is addressed for service within sixty (60) days 
after the date of its issue; and upon serving the 
same, the officer shall note in writing upon the 
copy thereof, delivered to the defendant, the date 
of service, but failure to comply with this require- 
ment shall not invalidate the service, and. if not 
served within sixty (60) days after the date of its 
issue upon every defendant, must be returned by 
the officer holding the same for service, to the 
clerk of the court issuing the summons, with no- 
tation thereon of its non-service and the reasons 
therefor as to every defendant not served. (Rev., 
ss. 430, 431; Code, ss. 200, 203, 213; C. C. P., s. 
74; 1876-7, cc. 85, 241; 1919, c. 304, s. 1; Ex. Sess. 
1920, c. 96, s. 1; Ex. Sess. 1921, c. 92, s. 1; 1927, 
c. 66, s. 1; 1927, c. 132; 1929, c. 237, s. 1; 1935, c. 
343; 1939, c. 15; C. S. 476.) 
Local Modification. — Beaufort: 1937, c. 65. 

§ 1-90. Issued to several counties. — The plain- 
tiff may issue a summons, directed to the sheriff 
of any count}' where a defendant is most likely 
to be found, noting on each summons that it is 
issued in the same action. When the summons 
is returned, it shall be docketed as if only one had 
issued, and if any defendant is not served with 
such process, the same proceeding shall be had 
as in other cases of similar process not executed. 
(Rev., s. 432; Code, s. 204; R. C, c. 31, s. 44; 1789, 
c. 314, ss. 1, 2; 1831, c. 14, s. 2; C. S. 477.) 

§ 1-91. When directed to officer of adjoining 
county. — If at any time there is not in the county 
a proper officer to whom summons or other proc- 
ess of a court of record is or ought to be directed, 
who can lawfully execute it; or if such officer 
refuses or neglects to execute the same, the clerk 
of the court from which it has issued or shall 
issue, upon the facts being verified before him by 
written affidavit, subscribed by the plaintiff or 
his agent, shall issue such summons or process 
to the sheriff of any adjoining county, who has 



power to and shall execute the same in like man- 
ner as if he were sheriff of the county. In all 
cases where the sheriff of any county is inter- 
ested, if there is no coroner in the county, proc- 
ess may be issued to and shall be executed by 
the sheriff of any adjoining county. (Rev., ss. 
1530, 1531; Code, ss. 929, 930; R. C, c. 31, s. 55; 
1779, c. 156; 1821, c. 1080; 1882, c. 1132; 1846, c. 
61; 1869-70, c. 175; C. S. 478.) 

§ 1-92. Uniform pleading and practice in in- 
ferior courts where summons issued to run out- 
side of county. — In all cases in which any court 
in North Carolina inferior to the Superior Court, 
except courts of Justices of the Peace, shall issue 
any summons to run outside the county of such 
inferior court, the case in which such summons 
is issued shall, as to the summons and the filing 
of all pleadings, be subject to, and governed by, 
the laws and rules applicable to actions in the 
Superior Court of North Carolina. (1931, c. 420.) 

§ 1-93. Amount requisite for summons to run 
outside of county. — No summons in civil suits or 
civil proceedings shall run outside the county 
where issued, unless the amount involved in the 
litigation is more than two hundred dollars in 
matters arising out of contract and more than 
fifty dollars in matters arising in tort: Provided, 
that this section shall not affect or limit the pro- 
visions of §§ 7-138, 7-140 to 7-143. (1939, c. 81.) 

§ 1-94. When officer must execute and return. 

— The officer to whom the summons is addressed 
must note on it the day of its delivery to him 
and serve it by delivering a copy thereof to 
each of the defendants. In all cases when a 
summons is issued by any court of this state, 
and the officer to whom said summons is directed 
shall find that the person or persons against whom 
said summons is issued cannot be served without 
danger of injury to said person or persons on ac- 
count of the condition of said person or persons 
arising from i'lness, accident or otherwise, the offi- 
cer shall file with his returns a certificate from a 
reputable physician certifying to this fact, and 
said returns shall relieve the said officer from any 
liability by reason of failure to actually serve the 
summons. The said officer shall as soon as pos- 
sible make actual service of said sumn.ons, and 
when actually served the cause of action shall be 
deemed to have been commenced as of the date 
of the original summons, and the defendant shall 
have twenty days from the date of actual service 
within which to demur, answer or otherwise 
plead. (Rev., s. 433; Code, s. 200; 1876-7, c. 85; 
1919, c. 304, s. 1; Ex. Sess. 1921, c. 92, s. 1; 1923, 
c. 62; C. S. 479.) 

§ 1-95. Alias and pluries. — When the defendant 
in a civil action or special proceeding is not served 
with summons within ten days, the plaintiff may 
sue out an alias or pluries summons, returnable 
in the same manner as original process. An alias 
or pluries summons may be sued out at any time 
within ninety (90) days after the date of issue of 
the next preceding summons in the chain of 
summonses. Provided, however, that in case of 
tax suits brought under the provisions of § 105- 
391, as amended, an alias or pluries summons 
may be sued out at any time within two years 
after the issuance of the original summons, whether 
any intervening alias or pluries summons has 

n 



§ 1-96 



CH. 1. CIVIL PROCEDURE— SUMMONS 



§ 1-98 



heretofore been issued or not, and after the is- 
suance of such alias or pluries summons, the 
chain of summonses may be kept up as in any 
other action. (Rev., s. 437; Code, s. 205; R. C, c. 
31, s. 52; 1777, c. 115, ss. 23, 71; 1929, c. 237, S. 
2; 1931, c. 264; C. S. 480.) 

§ 1-96. Discontinuance. — A failure to keep up 
the chain of summonses issued against a party, 
but not served, by means of an alias or pluries 
summons, is a discontinuance as to such party; 
and if a summons is served after a break in the 
chain, it is a new action as to such party, begun 
when the summons was issued. (Rev., s. 438; 
C. S. 481.) 

§ 1-97. Service by copy. — The manner of de- 
livering summons in the following cases shall be 
as hereinafter stated: 

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

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

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

4. Every unincorporated, fraternal, beneficial 
organization, fraternal benefit order, association 
and/or society issuing certificates and/or policies 
of insurance, whether foreign or domestic, now or 
hereafter doing business in this state, shall be sub- 
ject to service of process, in the same manner as 
is now or hereafter provided for service of process 
on corporations: Provided, this paragraph shall 
only apply in actions concerning such certificates 
and/or policies of insurance. 

[1 



5. Every nonresident individual who is en- 
gaged in business in this state and who conducts 
such business through an agent, employee, trus- 
tee, or other representative in this state, or who is 
a member of a partnership, firm, or unincorpo- 
rated organization or association, or beneficiary or 
shareholder in a business trust doing business in 
this state, shall be subject to process in any action 
or proceeding in any court of competent jurisdic- 
tion in this state arising out of or connected with 
such business in this state, and such process may 
be served upon such agent, employee, trustee, or 
other representative or upon any person in this 
state receiving or collecting money with respect to 
such business, or upon any member of such part- 
nership, firm, organization or association residing 
in this state or upon any person residing in this 
state who is authorized to act or contract for or 
collect or receive money on behalf of such part- 
nership, firm, organization, association, or busi- 
ness trust with respect to its business in this state. 
Within five days after such service the plaintiff or 
petitioner or his attorney shall send by registered 
mail to said nonresident individual at his last ad- 
dress, if known, a copy of the summons and a 
copy of the complaint or petition with a statement 
calling attention to the provisions hereof and of 
the expiration of the time to answer or demur. 
Such service shall bind such individual as fully 
and effectually as if it had been made upon him 
personally. (Rev., s. 440; Code, s. 217; C. C. P., 
s. 82; 1874-5, c. 168; 1889, c. 89; 1933, c. 24; 1941, 
c. 256; C. S. 483.) 

§ 1-98. Service by publication. — Where the per- 
son on whom the service of the summons is to 
be made cannot, after due diligence, be found in 
the state, and that fact appears by affidavit to the 
satisfaction of the court, or a judge thereof and it 
in like manner appears that a cause of action ex- 
ists against the defendant in respect to whom 
service is to be made, or that he is a proper party 
to an action relating to real property in this state, 
such court or judge may grant an order that the 
service be made by publication of a notice in 
either of the following cases: 

1. Where the defendant is a foreign corpora- 
tion and has property, or the cause of action 
arose, in the state. 

2. Where the defendant, a resident of this state, 
has departed therefrom or keeps himself concealed 
therein with intent to defraud his creditors or to 
avoid the service of a summons. 

3. Where he is not a resident, but has property 
in this state, and the court has jurisdiction of the 
subject of the action. 

4. Where the subject of the action is real or 
personal property in this state, and the (defendant 
has, or claims, or the relief demanded consists 
wholly or partly in excluding him from any actual 
or contingent lien or interest therein. 

5. Where the action is for divorce. 

6. Where the stockholders of a corporation are 
deemed to be necessary parties to an action and 
their names or residences are unknown; or where 
the names or residences of parties interested in 
real estate the subject of an action are unknown, 
if the name of at least one of the parties to the 
action and interested in the subject matter there- 
of is known, and he is a resident of the state, the 
court having jurisdiction may, upon affidavit that 



§ 1-99 



CH. l. CIVIL PROCEDURE— SUMMONS 



§ 1-105 



after due diligence the names or residences of 
such parties cannot be ascertained, authorize 
service by publication. 

7. Where in actions for the foreclosure of mort- 
gages on real estate, if any party having any in- 
terest in, or lien upon, such mortgaged premises, 
is unknown to the plaintiff, and his residence 
cannot, with reasonable diligence, be ascertained, 
and such fact is made to appear by affidavit. 

8. Where no officer or agent of a domestic cor- 
poration upon whom service can be made can, after 
due diligence, be found in the state, and such facts 
are made to appear by affidavit. This subsection 
also applies to all summonses, orders to show 
cause, orders and notices issued by any board of 
aldermen, board of town or county commissioners, 
or by individuals. (Rev., s. 442; Code, ss. 218, 
221; 1885, c. 380; 1889, cc. 108, 263; 1895, c. 334; 
C. S. 484.) 

§ 1-98. Manner of publication. — The order 
must direct the publication in one or two news- 
papers to be designated as most likely to give 
notice to the person to be served, and for such 
length of time as is deemed reasonable, not less 
than once a week for four successive weeks, of a 
notice, giving the title and purpose of the action, 
and requiring the defendant to appear and an- 
swer, or demur to the complaint at a time and 
place therein mentioned; and no publication of 
the summons, or mailing of the summons and 
complaint, is necessary. The cost of publishing 
in a newspaper shall not exceed one dollar and 
fifty cents an inch of solid type, and shall in no 
case exceed six dollars for the notice. (Rev., s. 
443; Code, s. 219; 1903, c. 134; C. C. P., c. 84; 
1876-7, c. 241, s. 3; C. S. 485.) 

§ 1-100. When service by publication complete. 

— In the cases in which service by publication is 
allowed, the summons is deemed served at the 
expiration of the time prescribed by the order of 
publication, and the party is then in court; and the 
defendant shall have twenty days thereafter in 
civil actions and ten days in special proceedings in 
which to answer or demur. (Rev., s. 444; Code, 
s. 227; C. C. P., s. 88; 1939, c. 49, s. 1; C. S. 487.) 

§ 1-101. Jurisdiction acquired from service. — ■ 
From the time of service of the summons, in a 
civil action, or the allowance of a provisional 
remedy, the court is deemed to have acquired 
jurisdiction, and to have control of all subse- 
quent proceedings. (Rev., s. 445; Code, s. 229; C. 
C. P., s. 90; C. S. 488.) 

§ 1-102. Proof of service. — Proof of the service 
of the summons or notice must be — 

1. By the certificate of the sheriff or other 
proper officer. 

2. In case of publication, the affidavit of the 
printer, or of his foreman or principal clerk, 
showing the same. 

3. The written admission of the defendant. 
(Rev., s. 446; Code, s. 228; C. C. P., s. 89; C. S. 
489.) 

§ 1-103. Voluntary appearance by defendant. — 

A voluntary appearance of a defendant is equiva- 
lent to personal service of the summons upon 
him. (Rev., s. 447; Code, s. 229; C. C. P., s. 90; 
C. S. 490.) 

[20 



§ 1-104. Personal service on nonresident. — When 
the place of residence of a person out of the state 
is known and the same is made to appear by 
affidavit, in lieu of publication in a newspaper it 
is sufficient to mail a copy of the summons, notice 
or other process, accompanied by a statement as 
to the nature of the action or proceeding, to the 
sheriff or other process officer of the county and 
state where the defendant resides, who shall serve 
same according to its tenor. The process officer 
who serves the paper shall, in making his return, 
use a form of certificate substantially as follows: 

State of 

County of 

I, clerk of the court of 

county, in the state of which 

court is a court of record having a seal, which is 

hereto attached, do certify that , to me 

well known as the sheriff of said county of 

, who being by me duly sworn, says that 

as such sheriff he has full power to serve any and 
all legal processes issuing from the courts of said 

state, and that on the day of , 

19 he served the summons hereto attached 

by reading and delivering a copy of same to 

the defendant therein named. 

, Sheriff, 

County, 

State of 

Sworn to and subscribed before me, this .... 

day of , 19 

, Clerk Court, 

County of 

[L, S.] 
(Rev., s. 448; 1891, c. 120; C. S. 491.) 

§ 1-105. Service upon non-resident drivers of 
motor vehicles. — The acceptance by a non-resi- 
dent of the rights and privileges conferred by the 
laws now or hereafter in force in this state per- 
mitting the operation of motor vehicles, as evi- 
denced by the operation of a motor vehicle by 
such non-resident on the public highways of this 
state, or the operation by such non-resident of a 
motor vehicle on the public highways of the state 
other than as so permitted or regulated, shall be 
deemed equivalent to the appointment by such 
non-resident of the Commissioner of Motor Ve- 
hicles, or of his successor in office, to be his true 
and lawful attorney upon whom may be served all 
summonses or other lawful process in any action 
or proceeding against him, growing out of any acci- 
dent or collision in which said non-resident may 
be involved by reason of the operation by him, 
for him, or under his control or direction, express 
or implied, of a motor vehicle on such public 
highway of this State, and said acceptance or op- 
eration shall be a signification of his agreement 
that any such process against him shall be of the 
same legal force and validity as if served on him 
personally. Service of such process shall be made 
by leaving a copy thereof, with a fee of one dol- 
lar, in the hands of said Commissioner of Motor 
Vehicles, or in his office, and such service shall be 
sufficient service upon the said non-resident: Pro- 
vided, that notice of such service and a copy of 
the process are forthwith sent by registered mail 
by the plaintiff or the Commissioner of Motor Ve- 
hicles to the defendant and the defendant's return 
receipt and the plaintiff's affidavit of compliance 
] 



§ 1-106 



CH. l. CIVIL PROCEDURE— PROSECUTION BONDS 



§ 1-1C9 



herewith are appended to the summons or other 
process and filed with said summons, complaint 
and other papers in the cause. The court in 
which the action is pending shall order such con- 
tinuance as may be necessary to afford the de- 
fendant reasonable opportunity to defend the ac- 
tion. (1929, c. 75, s. 1; 1941, c. 3o, s. 4.) 

§ 1-106. Record of such processes; delivery of 
return. — The Commissioner of Motor Vehicles 
shall keep a record of all such processes, which 
shall show the day and hour of service upon him. 
When the registry return receipt shall be returned 
to the Commissioner of Motor Vehicles, he shall 
deliver it to the plaintiff on request and keep a 
record showing the date of its receipt by him and 
its delivery to the plaintiff. (1929, c. 75, s. 2; 1941, 
c. 36, s. 4.) 

§ 1-107. Alternative method of service upon non- 
resident defendants. — In addition to the method 
provided in §§ 1-105 and 1-106, the plaintiff may 
adopt the following method of giving notice to a 
non-resident defendant or defendants: 

When the place of residence of the defendant or 
defendants in the action described in §§ 1-105 and 
1-106 is made to appear by affidavit filed with the 
Commissioner of Motor Vehicles and the plaintiff 
files with the Commissioner of Motor Vehicles at 
least five ($5.00) dollars to pay the costs of the 
service hereinafter provided for, then it shall be 
sufficient for the Commissioner of Motor Vehicles 
to mail a copy of the summons, together with a 
statement sufficient to show the nature of the ac- 
tion or proceedings, accompanied by his certificate 
that the summons and complaint had been served 
on him, to the sheriff or other process officer of the 
county and state where the defendant or defend- 
ants reside. This sheriff or other process officer, 
authorized to serve process in the state to which 
it is sent, shall serve the same according to its 
tenor. This sheriff or process officer, who serves 
the papers, shall, in making his return, use a form 
of certificate substantially as follows; and this 
form of certificate shall accompany the other 
papers in the case: 

STATE OF 

COUNTY OF 

I, , Clerk of the Court of 

County in the State of , which court is a 

court of record, having a seal, which is hereto at- 
tached, do certify that , to me well known 

as a proper process officer of said county of 

who being by me duly sworn, says that as such 
process officer he has full powc to serve any and 
all legal processes, issued f r om the courts of said 

State, and that on the day of 19 , 

he served the summons and accompanying state- 
ment hereto attached, by reading and delivering a 
copy of the same to the defendant therein named 
(if more than one defendant, copies to each of 
them). 

SIGNED 

Process Officer. 

County 

State 

Sworn to and subscribed before me this 

day of , 19 , , Clerk 

Court, county of , or city of 

(SEAL) 

Said sheriff or process officer shall immediately 

[ 



upon the execution of this evidence of service, 
return the same with the original papers in the 
cause to the Commissioner of Motor Vehicles, 
Raleigh, North Carolina. When the Commissioner 
of Motor Vehicles shall receive these papers, thus 
served, he shall deliver the same to the plaintiff on 
request, and keep a record showing the date of 
their receipt by him and their delivery to the plain- 
tiff. Upon the filing of these papers in the court 
where the action is pending, accompanied by evi- 
dence of service upon the Commissioner of Motor 
Vehicles, as required by § 1-105, that shall 
constitute presumptive evidence of actual notice 
to the defendant or defendants of the pendency of 
the action and of its nature and effect. (1931, c. 
33, s. 1; 1941, c. 36.) 

§ 1-108. Defense after judgment on substituted 
service. — The defendant against whom publica- 
tion is ordered, or who is served under the pro- 
visions of § 1-104, or his representatives, on ap- 
plication and sufficient cause shown at any time 
before judgment, must be allowed to defend the 
action; and, except in an action for divorce, the 
defendant against whom publication is ordered, or 
his representatives, may in like manner, upon good 
cause shown, be allowed to defend after judgment, 
or at any time within one year after notice there- 
of, and within five years after its rendition, on 
such terms as are just; and if the defense is suc- 
cessful and the judgment or any part thereof has 
been collected or otherwise enforced, such restitu- 
tion may be compelled as the court directs. Title 
to property sold under such judgment to a pur- 
chaser in good faith is not thereby affected. No 
fiduciary officer or trustee who has made distribu- 
tion of a fund under such judgment in good faith 
is personally liable if the judgment is changed by 
reason of such defense made after its rendition; 
nor in case the judgment was rendered for the 
partition of land, and any persons receiving any of 
the land in such partition sell it to a third person; 
the title of such third person is not affected if such 
defense is successful, but the redress of the per- 
son so defending after judgment shall be had by 
proper judgment against the parties to the origi- 
nal judgment and their heirs and personal repre- 
sentatives, and in no case affects persons who in 
good faith have dealt with such parties or their 
heirs or personal representatives on the basis of 
such judgment being permanent. (Rev., s. 449; 
Code, s. 220; C. C. P., s. 85; 1917, c. 68; C. S. 492.) 

Art. 9. Prosecution Bonds. 

§ 1-109. Plaintiff's, for costs. — Before issuing 
the summons the clerk shall require the plaintiff 
to do one of the following: 

1. Give an undertaking with sufficient surety 
in the sum of two hundred dollars, with the con- 
dition that it will be void if the plaintiff pays the 
defendant all costs which the latter recovers of 
him in the action. 

2. Deposit two hundred dollars with him as 
security to the defendant for these costs, in which 
event the clerk must give to the plaintiff and de- 
fendant a certificate to that effect. 

3. File with him a written authority from a 
judge or clerk of a superior court, authorizing 
the plaintiff to sue as a pauper: Provided, how- 
ever, that the requirements of this section shall 
not apply to cities and towns; provided, further, 

21] 



§ 1-110 



CH. 1. CIVIL PROCEDURE— LIS PENDENS 



§ 1-117 



that cities and towns may institute civil actions 
and special proceedings without being required to 
give a prosecution bond or make deposit in lieu 
of bond. (Rev., s. 450; Code, s. 209; R. C, c. 31, 
s. 40; C. C. P., s. 71; 1935, c. 398; C. S. 493.) 

§ 1-110. Suit as a pauper; counsel. — Any judge 
or clerk of the superior court may authorize a 
person to sue as a pauper in their respective courts 
when he proves, by one or more witnesses, that 
he has a good cause of action, and makes affidavit 
that he is unable to comply with the preceding 
section. The court to which such summons is 
returnable may assign to the person suing as a 
pauper learned counsel, who shall prosecute his 
action. (Rev., ss. 451, 452; Code, ss. 210, 211; C. 
C. P., s. 72; 1868-9, c. 96, s. 2; C. S. 494.) 
Local Modification.— Durham, Forsyth, Nash, Northamp- 



ton: 1937, 



381. 



§ 1-111. Defendant's, for costs and damages in 
actions for land. — In all actions for the recovery 
or possession of real property, the defendant, be- 
fore he is permitted to plead, must execute and 
file in the office of the clerk of the superior court 
of the county where the suit is pending an under- 
taking with sufficient surety, in an amount fixed 
by the court, not less than two hundred dollars, 
to be void on condition that the defendant pays 
to the plaintiff all costs and damages which the 
latter recovers in the action, including damages 
for the loss of rents and profits. (Rev., s. 453; 
Code, s. 237; 1869-70, c. 193; C. S. 495.) 

§ 1-112. Defense without bond. — The undertak- 
ing prescribed in the preceding section is not 
necessary if an attorney practicing in the court 
where the action is pending certifies to the court 
in writing that he has examined the case of the 
defendant and is of the opinion that the plain- 
tiff is not entitled to recover; and if the defendant 
also files an affidavit stating that he is unable to 
give and is not worth the amount of the undertak- 
ing in any property whatsoever. (Rev., s. 454; 
Code, s. 237; 1869-70, c. 193; C. S. 496.) 



Art. 10. Joint and Several Debtors. 

§ 1-113. Defendants jointly or severally liable. — 
Where the action is against two or more defend- 
ants, and the summons is served on one or more, 
but not on all of them, the plaintiff may proceed 
as follows: 

1. If the action is against defendants jointly in- 
debted upon contract, he may proceed against 
the defendants served, unless the court otherwise 
directs, and if he recovers judgment it may be en- 
tered against all the defendants thus jointly in- 
debted, so far only as that it may be enforced 
against the joint property of all and the separate 
property of the defendants served, and if they are 
subject to arrest, against the persons of the de- 
fendants served. 

2. If the action is against defendants severally 
liable, he may proceed against the defendants 
served, in the same manner as if they were the 
only defendants. 

3. If all the defendants have been served, judg- 
ment may be taken against any or either of them 
severally, when the plaintiff would be entitled to 
judgment against such defendant or defendants 
if the action had been against them or any of 
them alone. 



4. If the name of one or more partners has, for 
any cause, been omitted in an action in which 
judgment has been rendered against the defend- 
ants named in the summons, and the omission 
was not pleaded in the action, the plaintiff, in 
case the judgment remains unsatisfied, may by 
action recover of such partner separately, upon 
proving his joint liability, notwithstanding he 
was not named in the original action; but the 
plaintiff may have satisfaction of only one judg- 
ment rendered for the same cause of action. 
(Rev., s. 455; Code, s. 222; C. C. P., s. 87; C. S. 
497.) 

§ 1-114. Summoned after judgment; defense. — ■ 
When a judgment is recovered against one or 
more of several persons jointly indebted upon a 
contract in accordance with the preceding section, 
those who were not originally summoned to 
answer the complaint may be summoned to show 
cause why they should not be bound by the judg- 
ment, in the same manner as if they had been 
originally summoned. A party so summoned 
may answer within the time specified denying the 
judgment, or setting up any defense thereto 
which has arisen subsequent to such judgment; 
and may make any defense which he might have 
made to the action if the summons had been 
served on him originally. (Rev., ss. 456, 457; 
Code, ss. 223, 224; C. C. P., ss. 318, 322; C. S. 498.) 

§ 1-115. Pleadings and proceedings same as in 
action. — The party issuing the summons may de- 
mur or reply to the answer, and the party sum- 
moned may demur to the reply. The answer and 
reply must be verified in like cases and manner 
and be subject to the same rules that apply in an 
action, and the issues may be tried and judgment 
given in the same manner as in action and en- 
forced by execution if necessary. (Rev., ss. 458, 
459; Code, ss. 225, 226; C. C. P., ss. 323, 324; C. 
S. 499.) 

Art. 11. Lis Pendens. 



§ 1-116. Filing of notice of suit. — In action af- 
fecting the title to real property, the plaintiff, 
at or any time after the time of filing the com- 
plaint or when or any time after a warrant of at- 
tachment is issued, or a defendant when he sets 
up an affirmative cause of action in his answer 
and demands substantive relief, at or any time 
after the time of filing his answer, if it is in- 
tended to affect real estate, may file with the 
clerk of each county in which the property is sit- 
uated a notice of the pendency of the action, con- 
taining the names of the parties, the object of the 
action, and the description of the property in that 
county affected thereby. (Rev., s. 460; Code, s. 
229; C. C. P., s. 90; 1917, c. 106; C. S. 500.) 

§ 1-117. Cross-index of lis pendens. — Any party 
to an action desiring to claim the benefit of a 
notice of lis pendens, whether given formally un- 
der this article or in the pleadings filed in the 
case, shall cause such notice to be cross-indexed 
by the clerk of the superior court in a docket to 
be kept by him, to be called Record of Lis Pen- 
dens, which index shall contain the names of the 
parties to the action, where such notice (whether 
formal or in the pleadings) is filed, the object of 
the action, the date of indexing, and sufficient de- 
scription of the land to be affected to enable any 
[22] 



§ 1-118 



CH. l. CIVIL PROCEDURE— COMPLAINT 



§ 1-123 



person to locate said lands. The clerk shall be en- 
titled to a fee of twenty-five cents for indexing 
said notice, to be paid as are other costs in the 
pending action. (Rev., s. 464; 1903, c. 472; 1919, 
c. 31; C. S. 501.) 

§ 1-118. Effect on subsequent purchasers. — 
From the cross-indexing of the notice of lis pen- 
dens only is the pendency of the action construc- 
tive notice to a purchaser or incumbrancer of the 
property affected thereby; and every person 
whose conveyance or incumbrance is subse- 
quently executed or subsequently registered is a 
subsequent purchaser or incumbrancer, and is 
bound by all proceedings taken after the cross- 
indexing of the notice to the same extent as if he 
were made a party to the action. For the pur- 
poses of this section an action is pending from 
the time of cross-indexing the notice. (Rev., s. 
462; Code, s. 229; C. C. P., s. 90; 1919, c. 31; C. 
S. 502.) 

§ 1-119. Notice void unless action prosecuted.— 

The notice of lis pendens is of no avail unless it 
is followed by the first publication of notice of 
the summons or by an order therefor, or by the 
personal service on the defendant within sixty 
days after the cross-indexing. (Rev., s. 461; Code, 
s. 229; C. C. P., s. 90; 1919, c. 31; C. S. 503.) 

§ 1-120. Cancellation of notice. — The court in 
which the said action was commenced may, at 
any time after it is settled, discontinued or 
abated, on application of any person aggrieved, 
on good cause shown, and on such notice as is 
directed or approved by the court, order the no- 
tice authorized by this article to be canceled of 
record, by the clerk of any county in whose office 
the same has been filed or recorded; and this 
cancellation must be made by an endorsement to 
that effect on the margin of the record, which 
shall refer to the order. (Rev., s. 463; Code, s. 
229; C. C. P., s. 90; C. S. 504.) 

SUBCHAPTER VI. PLEADINGS. 
Art. 12. Complaint. 

§ 1-121. First pleading and its filing. — The first 
pleading on the part of the plaintiff is the com- 
plaint. It must be filed in the clerk's office at or 
before the time of the issuance of summons and a 
copy thereof delivered to the defendant, or de- 
fendants, at the time of the service of summons; 
provided, that the clerk may at the time of the 
issuance of summons on application of plaintiff by 
written order extend the time for filing complaint 
to a day certain not to exceed twenty (20) days, 
and a copy of such order shall be delivered to the 
defendant, or defendants, at the time of the serv- 
ice of summons in lieu of a copy of the com- 
plaint: Provided further, said application and 
order shall state the nature and purpose of the 
suit. The clerk shall not extend the time for fil- 
ing complaint beyond the time specified in such 
order; except that when application is made to the 
court, under article forty-six of this chapter, for 
leave to examine the defendant prior to filing com- 
plaint, and it shall be made to appear to the court 
that such examination of defendant is necessary to 
enable the plaintiff to file his complaint, and such 
examination is allowed, the clerk shall extend the 
time for filing complaint until twenty (20) days 

[ 23 



after the report of the examination is filed as re- 
quired by § 1-571. When the complaint is not filed 
at the time of the issuance of the summons, the 
plaintiff shall, when he files complaint, likewise 
file at least one copy thereof for the use of the 
defendant and his attorney. When there are 
more than one defendant, the clerk, may, by 
written notice to the plaintiff, require the filing 
of additional (not to exceed six) copies of the 
complaint within the time specified in such no- 
tice, not to exceed ten days. Such notice may be 
served by mailing to the plaintiff or his attorney 
of record. (Rev., ss. 465, 466; Code, ss. 206, 232, 
238; C. C. P., s. 92; 1868-9, c. 76, s. 3; 1870-1, c. 42, 
s. 3; 1919, c. 304, s. 2; 1927, c. 66, s. 3; C. S. 505.) 

§ 1-122. Contents. — The complaint must con- 
tain — 

1. The title of the cause, specifying the name 
of the court in which the action is brought, the 
name of the county in which the trial is required 
to be had, and the names of the parties to the 
action, plaintiff and defendant. 

2. A plain and concise statement of the facts 
constituting a cause of action, without unneces- 
sary repetition; and each material allegation 
must be distinctly numbered. 

3. A demand for the relief to which the plain- 
tiff supposes himself entitled. If the recovery of 
money is demanded, the amount must be stated. 

4. In actions for the recovery of a debt con- 
tracted for the purchase of land, a statement 
that the consideration of the debt was the pur- 
chase money of certain land, describing the land 
in an intelligible manner, such as the location, 
boundaries, and acreage. (Rev., ss. 467-8; Code, 
ss. 233-4; C. C. P., s. 93; 1879, c. 217; C. S. 506.) 

§ 1-123. What causes of action may be joined. — ■ 

The plaintiff may unite in the same complaint 
several causes of action, of legal or equitable 
nature, or both, where they all arise out of — 

1. The same transaction, or transaction con- 
nected with the same subject of action. 

2. Contract, express or implied. 

3. Injuries with or without force to person or 
property. 

4. Injuries to character. 

5. Claims to recover real property, with or 
without damages for the withholding thereof, and 
the rents and profits of the same. 

6. Claims to recover personal property, with or 
without damages for the withholding thereof; or, 

7. Claims against a trustee, by virtue of a con- 
tract, or by operation of law. But the causes of 
action so united must all belong to one of these 
classes, and, except in actions for the foreclosure 
of mortgages, must affect all the parties to the ac- 
tion, and not require different places of trial, and 
must be separately stated. 

In actions to foreclose mortgages, the court 
may adjudge and direct the payment by the 
mortgagor of any residue of the mortgage debt 
that remains unsatisfied after a sale of the mort- 
gaged premises, in cases in which the mortgagor 
is personally liable for the debt secured; and if 
the mortgage debt is secured by the covenant or 
obligation of any person other than the mort- 
gagor, the plaintiff may make that person a party 
to the action, and the court may adjudge payment 

] 



§ 1-124 



CH. l. CIVIL PROCEDURE— DEMURRER 



§ 1-133 



of the residue of the debt remaining unsatisfied 
after a sale of the mortgaged premises, against 
the other person, and may enforce such judg- 
ment as in other cases. (Rev., s. 469; Code, s. 
267; C. C. P., s. 126; C. S. 507.) 

Art. 13. Defendant's Pleadings. 

§ 1-124. Demurrer and answer. — The only 
pleading on the part of the defendant is either a 
demurrer or an answer. He may demur to one 
or more of several causes of action stated in the 
complaint, and answer to the residue. (Rev., ss. 
470, 471; Code, ss. 238, 246; C. C. P., ss. 94, 103; 
C. S. 508.) 

§ 1-125. When defendant appears and pleads; 
extension of time; clerk to mail answer to plain- 
tiff. — The defendant must appear and demur or 
answer within thirty (30) days after the service 
of summons upon him, or within thirty (30) days 
after the final determination of a motion to remove 
as a matter of right, or after the final determina- 
tion of a motion to dismiss upon a special appear- 
ance, or after the final determination of any other 
motion required to be made prior to the filing of 
the answer, or after final judgment overruling 
demurrer, or after the final determination of a 
motion to set aside a judgment by default under" 
§ 1-220, or to set aside a judgment under § 1- 
108. If the time is extended for filing com- 
plaint, then the defendant shall have thirty (30) 
days after the final day fixed by such extension 
in which to plead. The clerk shall not extend 
the time for filing answer or demurrer more than 
once nor for a period of time exceeding twenty 
days except by consent of parties. The defend- 
ant shall, when he files answer, likewise file at 
least one copy thereof for the use of the plaintiff, 
and his attorney; and the clerk shall not receive 
and file any answer until and unless such copy is 
filed therewith. The clerk shall forthwith mail 
the copy of answer filed to the plaintiff or his at- 
torney of record. This section shall also apply 
to all courts of record inferior to the superior 
court, where any defendant resides out of the 
county from which the summons is issued and no 
court of record inferior to the superior court shall 
fix such return date at less than thirty (30) days. 
(Rev., s. 473; Code, 207; 1870-1, c. 42, s. 4; 1919, 
C. 304, s. 3; Ex. Sess. 1919, c. 92, s. 3; 1927, c. 66, 
s. 4; 1935, c. 267; C. S. 509.) 

§ 1-126. Sham and irrelevant defenses. — Sham 
and irrelevant answers and defenses may be 
stricken out on motion, upon such terms as the 
court may in its discretion impose. (Rev., s. 472; 
Code, s. 247; C. C. P., s. 104; C. S. 510.) 

Art. 14. Demurrer. 

§ 1-127. Grounds for. — The defendant may de- 
mur to the complaint when it appears upon the 
face thereof, either that: 

1. The court has no jurisdiction of the person 
of the defendant, or of the subject of the action; 
or, 

2. The plaintiff has not legal capacity to sue; or, 

3. There is another action pending between the 
same parties for the same cause; or, 

4. There is a defect of parties plaintiff or de- 
fendant; or, 



5. Several causes of action have been im- 
properly united; or, 

6. The complaint does not state facts suffi- 
cient to constitute a cause of action. (Rev., s. 474; 
Code, s. 239; C. C. P., s. 95; C. S. 511.) 

§ 1-128. Must specify grounds. — The demurrer 
must distinctly specify the grounds of objection 
to the complaint, or it may be disregarded. It 
may be taken to the whole complaint, or to any 
of the alleged causes of action stated therein. 
(Rev., s. 475; Code, s. 240; C. C. P., s. 96; C. S. 
512.) 

§ 1-129. Amendment; hearing. — If a demurrer is 
filed the plaintiff may be allowed to amend. If 
plaintiff fail to amend within five days after notice, 
the parties may agree to a time and place of hear- 
ing the same before some judge of the superior 
court, and upon such agreement it shall be the 
duty of the clerk of the superior court forthwith 
to send the complaint and demurrer to the judge 
holding the courts of the district, or to the resi- 
dent judge of the district, who shall hear and pass 
upon the demurrer: Provided, if there be no agree- 
ment between the parties as to the time and place 
of hearing the same before the judge of the 
superior court, then it shall be the duty of the 
clerk of the superior court to send the complaint 
and demurrer to the judge holding the next term 
of the superior court in the county where the ac- 
tion is pending, who shall hear and pass upon the 
demurrer at that term of the court. (1919, c. 304, 
s. 4; Ex. Sess. 1921, c. 92, s. 5: C. S. 513.) 

§ 1-130. Appeals. — Upon the rendering of the 
decision upon the demurrer, if either party desires 
to appeal, notice shall be given and the appeal per- 
fected as is now provided in case of appeals from 
decisions in term time. (1919, c. 304, s. 5; Ex. 
Sess. 1921, c. 92, s. 6; C. S. 514.) 

§ 1-131. Procedure after return of judgment. — 

Within ten days after the return of the judgment 
upon the demurrer, if there is no appeal, or within 
ten days after the receipt of the certificate from 
the supreme court, if there is an appeal, if the de- 
murrer is sustained the plaintiff may move, upon 
three days notice, for leave to amend the com- 
plaint. If this is not granted, judgment shall be 
entered dismissing the action. If the demurrer is 
overruled the answer shall be filed within ten days 
after the receipt of the judgment, if there is no 
appeal, or within ten days after the receipt of the 
certificate of the supreme court, if there is an ap- 
peal. Otherwise the plaintiff shall be entitled to 
judgment by default final or by default and inquiry 
according to the course and practice of the court. 
(1919, c. 304, ss. 6, 7; Ex. Sess. 1921, c. 92, ss. 7, 
8; C. S. 515.) 

§ 1-132. Division of actions when misjoinder. — 

If the demurrer is sustained for the reason that 
several causes of action have been improperly 
united, the judge shall, upon such terms as are 
just, order the action to be divided into as many 
actions as are necessary for the proper determina- 
tion of the causes of the action therein mentioned. 
(Rev., s. 476; Code, s. 272; C. C. P., s. 131; C. S. 
516.) 

§ 1-133. Grounds not appearing in complaint. — 

When any of the matters enumerated as grounds 
of demurrer do not appear on the face of the com- 



[24] 



§ 1-134 



CH. l. CIVIL PROCEDURE— PLEADINGS 



§ 1-145 



plaint, the objection may be taken by answer. 
(Rev., s. 477; Code, s. 241; C. C. P., s. 98; C. S. 
517.) 

§ 1-134. Objection waived. — If objection is not 
taken either by deinurrer or answer, the defend- 
ant waives the same, except the objections to the 
jurisdiction of the court and that the complaint 
does not state facts sufficient to constitute a 
cause of action. (Rev., s. 478; Code, s. 242; C. C. 
P., s. 99; C. S. 518.) 

Art. 15. Answer. 

§ 1-135. Contents. — The answer of the defend- 
ant must contain — 

1. A general or specific denial of each ma- 
terial allegation of the complaint controverted by 
the defendant, or of any knowledge or informa- 
tion thereof sufficient to form a belief. 

2. A statement of any new matter constituting 
a defense or counterclaim, in ordinary and con- 
cise language, without repetition. (Rev., s. 479; 
Code, s. 243; C. C. P., s. 100; C. S. 519.) 

§ 1-136. Debt for purchase money of land denied. 

— If the defendant shall deny in his answer that 
the obligation sued on was for the purchase 
money of the land described in the complaint, it 
shall be the duty of the court to submit the issue 
so joined to the jury. (Rev., s. 480; Code, s. 235; 
1879, c. 217; 1921, c. 45; C. S. 520.) 

§ 1-137. Counterclaim. — The counterclaim men- 
tioned in this article must be one existing in favor 
of a defendant and against a plaintiff between 
whom a several judgment might be had in the ac- 
tion, and arising out of one of the following 
causes of action: 

1. A cause of action arising out of the con- 
tract or transaction set forth in the complaint as 
the foundation of the plaintiff's claim, or con- 
nected with the subject of the action. 

2. In an action arising on contract, any other 
cause of action arising also on contract, and ex- 
isting at the commencement of the action. (Rev., 
s. 481; Code, s. 244; C. C. P., s. 101; C. S. 521.) 

§ 1-138. Several defenses. — The defendant may 
set forth by answer as many defenses and coun- 
terclaims as he has, whether they are of a legal or 
equitable nature, or both. They must be sep- 
arately stated and numbered, and refer to the 
cause of action which they are intended to answer 
in such manner that they may be intelligibly dis- 
tinguished. (Rev., s. 482; Code, s. 245; C. C. P., 
s. 102; C. S. 522.) 

§ 1-139. Contributory negligence pleaded and 
proved. — In all actions to recover damages by 
reason of the negligence of the defendant, where 
contributory negligence is relied upon as a de- 
fense, it must be set up in the answer and proved 
on the trial. (Rev., s. 483; 1887, c. 33; C. S. 523.) 

Art. 16. Reply. 

§ 1-140. Demurrer or reply to answer; where 
answer contains a counterclaim. — If the answer 
contains a counterclaim against the plaintiff or 
plaintiffs, or any of them, such answer shall be 
served upon the plaintiff or plaintiffs against 
whom such counterclaim is plead, or against the 
attorney or attorneys of record of such plaintiff 

[25 



or plaintiffs; the plaintiff or plaintiffs against 
whom such counterclaim shall be plead shall have 
twenty (20) days after the service thereof within 
which to answer or reply to such counterclaim: 
Provided, for good cause shown, the clerk may 
extend the time of filing such answer or reply to a 
day certain. If a counterclaim is plead against 
any of the plaintiffs and no copy of the answer 
containing such counterclaim shall be served up- 
on the plaintiff or plaintiffs or his or their attor- 
neys of record, such counterclaim shall be deemed 
to be denied as fully as if the plaintiff or plaintiffs 
had filed an answer or reply denying the same. 
All other replies, if any, shall be filed within 
twenty (20) days from the filing of the answer: 
Provided, for good cause shown, the clerk or 
judge, in the event the cause shall have been 
transferred to the civil issue docket, may extend 
the time to a day certain. (Rev., s. 484; Code, s. 
208; 1870-71, c. 42, s. 5; 1919, c. 304; Ex. Sess. 
1921, c. 92, s. 1; Ex. Sess. 1924, c. 18; C. S. 524.) 

§ 1-141. Content; demurrer to answer. — When 
the answer contains new matter constituting a 
counterclaim, the plaintiff may reply to the new 
matter, denying generally or specifically each al- 
legation controverted by him or any knowledge 
or information thereof sufficient to form a belief; 
and he may allege in ordinary and concise lan- 
guage, without repetition, any new matter not in- 
consistent with the complaint, constituting a de- 
fense to the new matter in the answer. The 
plaintiff may in all cases demur to an answer con- 
taining new matter, where, upon its face, it does 
not constitute a counterclaim or defense; and he 
may demur to one or more of such defenses or 
counterclaims, and reply to the residue. Such de- 
murrer shall be heard and determined as provided 
for demurrers to the complaint. In other cases, 
when an answer contains new matter constitut- 
ing a defense by way of avoidance, the court may 
in its discretion, on the defendant's motion, re- 
quire a reply to such new matter, and such reply 
shall be subject to the same rules as a reply to a 
counterclaim. (Rev., s. 485; Code, s. 248; C. C. 
P., s. 105; 1919, c. 304; C. S. 525.) 

§ 1-142. Demurrer to reply. — If a reply of the 
plaintiff to a defense set up by the answer of the 
defendant is insufficient, the defendant may de- 
mur thereto, and must state the grounds thereof. 
(Rev., s. 486; Code, s. 250; C. C. P., s. 107; C. S. 
526.) 

Art. 17. Pleadings, General Provisions. 

§ 1-143. Forms of pleading. — The forms of 
pleading in civil actions in courts of record, and 
the rules by which the sufficiency of the pleadings 
is to be determined, are those prescribed by this 
chapter. (Rev., s. 487; Code, s. 231; C. C. P., s. 
91; C. S. 527.) 

§ 1-144. Subscription and verification of plead- 
ing. — Every pleading in a court of record must 
be subscribed by the party or his attorney, and 
when any pleading is verified, every subsequent 
pleading, except a demurrer, must be verified al- 
so. (Rev., s. 488; Code, s. 257; C. C. P., s. 116; 
C. S. 528.) 

§ 1-145. Form of verification. — The verification 
] 



§ 1-146 



CH. 1. CIVIL PROCEDURE— PLEADINGS 



§ 1-158 



must be in substance that the same is true to the 
knowledge of the person making it, except as to 
those matters stated on information and belief, 
and as to those matters he believes it to be true; 
and must be by affidavit of the party, or if there are 
several parties united in interest and pleading to- 
gether, by one at least of such parties acquainted 
with the facts, if the party is in the county where 
the attorney resides and is capable of making the 
affidavit. (Rev., s. 489; Code, s. 258; C. C. P., s. 
117; 18-68-9, c. 159, s. 7; C. S. 529.) 

§ 1-146. Verification by agent or attorney. — The 

affidavit may also be made by the agent or at- 
torney, if the action or defense is founded upon 
a written instrument for the payment of money 
only and the instrument is in the possession of 
the agent or attorney, or if all the material alle- 
gations of the pleadings are within the personal 
knowledge of the agent or attorney. When the 
pleading is verified by any other person than the 
party, he shall set forth in the affidavit his knowl- 
edge or the grounds of his belief on the subject. 
and the reasons why it is not made by the party. 
(Rev., s. 490; Code, s. 258; C. C. P., s. 117; 1868- 
9, c. 159, s. 7; C. S. 530.) 

§ 1-147. Verification by corporation or the state. 
— When a corporation is a party the verification 
may be made by any officer, or managing or lo- 
cal agent thereof upon whom summons might 
be served; and when the state or any offi- 
cer thereof in its behalf is a party, the verifica- 
tion may be made by any person acquainted with 
the facts. (Rev., s. 491; Code, s. 258; 1901, c. 610; 
C. C. P., s. 117; 1868-9, c. 159, s. 7; C. S. 531.) 

§ 1-148. Verification before what officer. — Any 
officer competent to take the acknowledgment of 
deeds, and any judge or clerk of the superior 
court, notary public, in or out of the state, or jus- 
tice of the peace, is competent to take affidavits 
for the verification of pleadings, in any court or 
county in the state, and for general purposes. 
(Rev., s. 492; Code, s. 258; 1891, c. 140; C. C. P., 
s 117; 1868-9, c. 159, s. 7; C. S. 532.) 

§ 1-149. When verification omitted; use in crim- 
inal prosecutions. — The verification may be omit- 
ted when an admission of the truth of the alle- 
gation might subject the party to prosecution for 
felony. No pleading can be used in a criminal 
prosecution against the party as proof of a fact ad- 
mitted or alleged in it. (Rev., s. 493; Code, s. 
258; C. C. P., s. 117; 1868-9, c. 159, s. 7; C. S. 533.) 

§ 1-150. Items of account; bill of particulars. — 

It is not necessary for a party to set forth in a 
pleading the items of an account alleged in it; 
but he must deliver to the adverse party, within 
ten days after a demand therefor in writing, a 
copy of the account, which, if the pleading is 
verified, must be verified by his own oath or that 
of his agent or attorney if within the personal 
knowledge of the agent or attorney, to the effect 
that he believes it to be true, or be precluded from 
giving evidence thereof. The court or judge may 
order a further account when the one delivered 
is defective, and may, in all cases, order a bill of 
particulars of the claim of either party to be fur- 
nished. (Rev., s. 494; Code, s. 259; C. C. P., s. 
118; C. S. 534.) 

[ 26 



§ 1-151. Pleadings construed liberally. — In the 

construction of a pleading for the purpose of de- 
termining its effect its allegations shall be lib- 
erally construed with a view to substantial jus- 
tice between the parties. (Rev., s. 495; Code, s. 
260; C. C. P., s. 119; C. S. 535.) 

§ 1-152. Time for pleading enlarged. — The 

judge may likewise, in his discretion, and upon 
such terms as may be just, allow an answer or 
reply to be made, or other act to be done, after 
the time limited, or by an order may enlarge the 
time. (Rev., s. 512; Code, s. 274; C. C. P., s. 133; 
C. S. 536.) 

§ 1-153. Irrelevant, redundant, indefinite plead- 
ings. — If irrelevant or redundant matter is in- 
serted in a pleading, it may be stricken out on 
motion of any person aggrieved thereby, but this 
motion must be made before answer or demur- 
rer, or before an extension of time to plead is 
granted. When the allegations of a pleading are 
so indefinite or uncertain that the precise nature 
of the charge or defense is not apparent, the 
court may require the pleading to be made defi- 
nite and certain by amendment. (Rev., s. 496; 
Code, s. 261; C. C. P., s. 120; C. S. 537.) 

§ 1-154. Pleading judgments. — In pleading a 
judgment or other determination of a court or of 
an officer of special jurisdiction, it is not neces- 
sary to state the facts conferring jurisdiction, but 
the judgment or determination may be stated to 
have been duly given or made. If this allegation 
is controverted, the party pleading must estab- 
lish, on the trial, the facts conferring jurisdiction. 
(Rev., s. 497; Code, s. 262; C. C. P., s. 121; C. S. 
538.) 

§ 1-155. How conditions precedent pleaded. — 
In pleading the performance of conditions pre- 
cedent in a contract, it is not necessary to state 
the facts showing performance, but it may be 
stated generally that the party duly performed all 
the conditions on his part. If this allegation is 
controverted, the party pleading must establish, 
on the trial, the facts showing performance. 
(Rev., s. 498; Code, s. 263; C. C. P., s. 122; C. S. 
539.) 

§ 1-156. How instrument for payment of money 
pleaded. — In an action or defense founded upon 
an instrument for the payment of money only, it 
is sufficient for the party pleading to give a copy 
of the instrument, and to state that there is due 
to him thereon, from the adverse party, a speci- 
fied sum which he claims. (Rev., s. 499; Code, s. 
263; C. C. P., s. 122; C. S. 540.) 

§ 1-157. How private statutes pleaded. — In 

pleading a private statute or right derived there- 
from it is sufficient to refer to the statute by its 
title or the day of its ratification, and the court 
shall thereupon take judicial notice of it. (Rev., 
s. 500; Code, s. 264; C. C. P., s. 123; C. S. 541.) 

§ 1-158. Pleadings in libel and slander. — In an 
action for libel or slander it is not necessary to 
state in the complaint any extrinsic facts for 
the purpose of showing the application to the 
plaintiff of the defamatory matter out of which 
the cause of action arose, but it is sufficient to 
state generally that the same was published or 

] 



§ 1-159 



CH. l. CIVIL PROCEDURE— AMENDMENTS 



§ 1-168 



spoken concerning the plaintiff; and if such alle- § 1-164. Amendment changing nature of action 

gation is controverted, the plaintiff is bound to or relief; effect.— When the complaint is so 

establish on trial that it was so published or amended as to change the nature of the action 

spoken. and the character of the relief demanded, the 

, , , . „ . .. judgment rendered does not operate as an estoppel 

The defendant may in his answer allege both upon &ny pgrson acquiring an inte rest in the prop- 

the truth of the matter charged as defamatory, erty Jn controversy prior to the allowance of the 

and any mitigating circumstances to reduce the amendment . (R ev ., s. 508; 1901, c. 486; C. S. 548.) 
amount of damages; and whether he proves the 

justification or not, he may give in evidence the § 1-165. Unsubstantial defects disregarded. — 

mitigating circumstances. (Rev., ss. 501, 502; The court or judge shall, in every stage of the ac- 

Code, ss. 265, 266; C. C. P., ss. 124, 125; C. S. 542.) tion, disregard any error or defect in the pleadings 

or proceedings which do not affect the substantial 

§ 1-159. Allegations not denied, deemed true.— rightg of the adverse party . and no judgment may 

Every material allegation of the complaint not be reversed or affected by reason of such error or 

controverted by the answer, and every material defect (Rey __ s 509; Code> s _ 276; R c c 3> ss 

allegation of new matter in the answer, constitut- 5 6- C C P s 135; C S 549.) 
ing a counterclaim, not controverted by the reply 

is, for the purposes of the action, taken as true. § 1-166. Defendant sued in fictitious name; 

But the allegation of new matter in the answer, amendment. — When the plaintiff is ignorant of the 

not relating to a counterclaim, or of new mat- name of a defendant the latter may be designated 

ter in reply, is to be deemed controverted by the in a pleading or proceeding by any name; and 

adverse party as upon a direct denial or avoid- when his true name is discovered, the pleading or 

ance, as the case requires. (Rev., s. 503; Code, s. proceeding mav be amended accordingly. (Rev., 

268; C. C. P., s. 127; C. S. 543.) s. 510; Code, s. 275; C. C. P.. s. 134; C. S. 550.) 

§ 1-160. Pleading lost, copy used.— If an origi- § l-\Q7. Supplemental pleadings.— The plaintiff 
nal pleading or paper is lost or withheld by any or defendant respectively may be allowed on mo- 
person, the court may authorize a copy to be t j on to ma k e a supplemental complaint, answer 
filed and used instead of the original. (Rev., s. or re ply, alleging facts material to the case oc- 
504; Code, s. 600; C. C. P., s. 357; C. S. 544.) curring after, or of which the party was ignorant 

when his former pleading was filed. Either party 

Art. 18. Amendments. may get up by a supplemental pleading, the judg- 

§ 1-161. Amendment as of course.— Any plead- ment or decree of an V court of competent juris- 

ing may be once amended of course, without diction, rendered since the commencement of an 

costs, and without prejudice to the proceedings actlon - determining all or any part of the matter 

already had, at any time before the period for ln controversy in said action, and if the judgment 

answering it expires; or it can be so amended at ls set U P b y the plaintiff, it shall be without prej- 

any time, unless it is made to appear to the udlc e to any provisional remedy theretofore is- 

court that it was done for the purpose of delay, sued or other proceedings had in the action on 



and the plaintiff or defendant will thereby lose 
the benefit of a term for which the cause is, or 



his behalf. Such motions may be made before 
the clerk of the superior court of the county in 



may be, docketed for trial; and if it appears to which the action is pending, by filing with the 



the court or judge that the amendment was 
made for that purpose, it may be stricken out. 



clerk the original and one copy of the proposed 
amended pleading and motion, which copy shall 



and such terms imposed as seem just to the be forwarded to the opposing party or counsel 
court or judge. (Rev., s. 505; Code, s. 272; C. C. and m wh ' cn motion the clerk shall name a day 

and time of not less than ten days, unless by con- 



P., s. 131; C. S. 545.) 



sent, to hear any objection to same; from the de- 



§ 1-162. Pleading over after demurrer. — After termination of the clerk, either party may have 

the decision on a demurrer, the judge shall, if it ap- the matter sent to the judge of, or holding courts 

pear that the demurrer was interposed in good in the judicial district in which the matter is 

faith, allow the party to plead over upon such pending, by giving notice thereof to the clerk 

terms as may be just. (Rev., s. 506; Code, s. 272; and opposing party or counsel within ten days 

C. C. P., s. 131; 1871-2, c. 173; C. S. 546.) from such date of hearing by the clerk: Provided, 

such motion shall be made at least thirty days be- 



§ 1-163. Amendments in discretion of court. — 



fore the convening of a term of court at which 



The judge or court may, before and after judg- the cause be calendare d for trial. (Rev., 

ment, in furtherance of justice, and on such terms ,..-.. p ode - ann. P C P s 136- 1929 c 95' C 

as may be proper, amend any pleading, process e cm \ 
or proceeding, by adding or striking out the name 

of any party; by correcting a mistake in the name § 1-168. Variance, material and immaterial. — 1. 

of a party, or a mistake in any other respect; No variance between the allegation in a pleading 

by inserting other allegations material to the and the proof shall be deemed material, unless it 

case; or when the amendment does not change has actually misled the adverse party to his prei- 

substantially the claim or defense, by conforming udice in maintaining his action upon the merits, 

the pleading or proceeding to the fact proved. Whenever it is alleged that a party has been so 

When a proceeding taken by a party fails to con- misled, that fact and in what respect he has been 

form to law in any respect, the trial judge may misled must be proved to the satisfaction of the 

permit an amendment of the proceeding so as to court; and thereupon the judge may order the 

make it conformable thereto. (Rev., ss. 507, 512; pleading to be amended upon such terms as shall 

Code, ss. 273, 274; C. C. P., ss. 132, 133; C. S. 547.) be just. 

[27] 



§ 1-169 



CH. l. CIVIL PROCEDURE— TRIAL 



§ 1-180 



2. Where the variance is not material as herein 
provided, the judge may direct the fact to be 
found according to the evidence, or may order an 
immediate amendment without costs. (Rev., ss. 
515, 516; Code, ss. 269, 270; C. C. P., ss. 128, 129; 
C. S. 552.) 

§ 1-169. Total failure of proof. — Where the alle- 
gation of the cause of action or defense to which 
the proof is directed is unproved, not in some 
particular or particulars only, but in its entire 
scope and meaning, it is not deemed a case of va- 
riance, but a failure of proof. (Rev., s. 517; Code, 
s. 397; C. C. P., s. 223; C. S. 553.) 

SUBCHAPTER VII. TRIAL AND ITS IN- 
CIDENTS. 

Art. 19. Trial. 

§ 1-170. Defined. — A trial is the judicial exami- 
nation of the issues between the parties, whether 
they be issues of law or of fact. (Rev., s. 526; 
Code, s. 397; C. C. P., s. 223; C. S. 554.) 

§ 1-171. Joinder of issue and trial. — Pleadings 
shall be made up and issues joined before the 
clerk. After pleadings have been so made up and 
issues joined, the clerk shall forthwith transmit 
the original papers in the cause to the court at 
term for trial upon the issues, when the case shall 
be proceeded with according to the course and 
practice of the court, and on appeal with the same 
procedure as is now in force. (1919, c. 304, s. 8; 
Ex. Sess. 1921, c. 92, s. 13; C. S. 555.) 

§ 1-172. How issue tried. — An issue of law must 
be tried by the judge or court, unless it is referred. 
An issue of fact must be tried by a jury, unless a 
trial by jury is waived or a reference ordered. Every 
other issue is triable by the court, or judge, who, 
however, may order the whole issue, or any spe- 
cific question of fact involved therein, to be tried 
by a jury, or may refer it. (Rev., s. 527; Code, ss. 
398, 399; C. C. P., ss. 224, 225; C. S. 556.) 

§ 1-173. Issues of fact. — Every issue of fact 
joined on the pleadings, and inquiry of damages 
ordered to be tried by a jury, must be tried at the 
term of the court next ensuing the joinder of issue 
or order for inquiry, if the issue was joined or 
order made more than ten days before such term, 
but if not, they may be tried at the second term 
after the joinder or order. (Rev., s. 528; Code, s. 
400; C. C. P., s. 226; 1923, c. 54; 1925, c. 5; C. 
S. 557.) 

§ 1-174. Issues of fact before the clerk. — All is- 
sues of fact joined before the clerk shall be trans- 
ferred to the superior court for trial at the next 
succeeding term, and in case of such transfer nei- 
ther party is required to give an undertaking for 
costs. (Rev., s. 529; C. S. 558.) 

§ 1-175. Continuance before term; affidavit. — A 
party to an action may apply to the court in which 
it is pending, or to the judge thereof, by affidavit, 
thirty days before the trial term, and after three 
days notice in writing to the adverse party, to 
have the trial continued to a term subsequent to 
that in which it is regularly triable. The court or 
judge may continue the trial as asked for, on such 
terms as may be just, if satisfied — 

1. That the applicant has used due diligence 
to have his case ready for trial. 



2. That by reason of circumstances beyond 
his control, which he must set forth, he cannot 
have a fair trial at the regular trial term. If the ap- 
plication is made by reason of the expected absence 
of a witness, it must state the name and residence 
of the witness, the facts expected to be proved by 
him, the grounds for the expectation of his nonat- 
tendance, and that the applicant expects to procure 
his evidence at or before some named subsequent 
term. The applicant must in all cases pay the costs 
of the application. (Rev., s. 530; Code, 401; C. C. 
P., s. 227; C. S. 559.) 

§ 1-176. Continuance during term. — The judge 
at any time during the term at which an action is 
triable may continue the trial on the applica- 
tion of either party, and on such terms as shall be 
just, if satisfied — 

1. That the applicant has used due diligence 
to be ready for trial. 

2. That he cannot have a fair trial at that 
term, by reason of circumstances stated, and if the 
ground of application is the nonattendance of a 
witness, the affidavit must contain the particulars 
required by subdivision two of § 1-175. Unless the 
applicant also sets forth in his affidavit that the 
facts upon which his application is grounded oc- 
curred or came to his knowledge too late to allow 
him to apply as prescribed in § 1-175, and that his 
application is made as soon as it reasonably could 
be after the knowledge of those facts, the con- 
tinuance shall not be granted, except on the pay- 
ment of the costs in the action for the term. 
(Rev., s. 531; Code, s. 402; C. C. P., s. 228; R. C, 
c. 31, s. 57; C. S. 560.) 

§ 1-177. Counter affidavits as to continuance. — 
It is competent in all civil cases only for the op- 
posing side to controvert the allegations of fact 
in applications for continuance, and to offer coun- 
ter affidavits to that end. The judge shall not al- 
low the continuance unless satisfied, after thor- 
ough examination of the evidence aforesaid, that 
the ends of justice demand it. (Rev., s. 532; 1885, 
c 394; C. S. 561.) 

§ 1-178. Order of business. — The criminal calen- 
dar must be first disposed of, unless, by consent 
of counsel, or for reasons satisfactory to the 
judge, particular criminal actions may be defer- 
red. The issue on the civil calendar must be dis- 
posed of in the following order, unless, for the 
convenience of parties or the dispatch of business, 
the court otherwise directs: 

1. Issues of fact to be tried by a jury. 

2. Issues of fact to be tried by the court. 

3. Issues of law. 

(Rev., s. 533; Code, s. 403; C. C. P., s. 229; C. S. 
562.) 

§ 1-179. Separate trials. — A separate trial be- 
tween a plaintiff and any of several defendants may 
be allowed by the court when, in its opinion, 
justice will thereby be promoted. (Rev., s. 534; 
Code, s. 407; C. C. P., s. 230; C. S. 563.) 

§ 1-180. Judge to explain law, but give no opin- 
ion on facts. — No judge, in giving a charge to the 
petit jury, either in a civil or criminal action, shall 
give an opinion whether a fact is fully or suf- 
ficiently proven, that being the true office and prov- 
ince of the jury; but he shall state in a plain and 
correct manner the evidence given in the case 



[28] 



§ 1-181 



CH. 1. CIVIL PROCEDURE— REFERENCE 



§ 1-189 



and declare and explain the law arising thereon. 
(Rev., s. 535; Code, s. 413; C. C. P., s. 237; R. C, 
c. 31, s. 130; 1796, c. 452; C. S. 564.) 

§ 1-181. Request for instructions. — Counsel pray- 
ing of the judge instructions to the jury, must put 
their requests in writing entitled of the cause, and 
sign them; otherwise the judge may disregard 
them. They must be filed with the clerk as a part 
of the record. (Rev., s. 538; Code, s. 415; C. C. 
P., s. 239; C. S. 565.) 

§ 1-182. Instructions in writing; when to be 
taken to jury room. — The judge, at the request of 
any party to an action on trial, made at or before 
the close of the evidence, before instructing the 
jury on the law, must put his instructions in writ- 
ing and read them to the jury. He shall then sign 
and file them with the clerk as a part of the record 
of the action. 

When a judge puts his instructions in writing 
either of his own will or at the request of a party 
to the action, he must, at the request of either 
party to the action, allow the jury to take his in- 
structions with them on their retirement, and 
the jury must return the instructions with their 
verdict to the court. (Rev., ss. 536, 537; Code, s. 
414; C. C. P., s. 238; 1885, c. 137; C. S. 566.) 

§ 1-183. Motion for nonsuit. — When on trial 
of an issue of fact in a civil action or special pro- 
ceeding, the plaintiff has introduced his evidence 
and rested his case, the defendant may move to 
dismiss the action, or for judgment as in case of 
nonsuit. If the motion is allowed the plaintiff 
may except and appeal to the supreme court. If 
the motion is refused the defendant may except, 
and if the defendant introduces no evidence the 
jury shall pass upon the issues in the action, and 
the defendant has the benefit of his exception on 
appeal to the supreme court. After the motion 
is refused he may waive his exception and intro- 
duce his evidence just as if he had not made the 
motion, and he may again move to dismiss after 
all the evidence on both sides is in. If the motion 
is then refused, upon consideration of all the evi- 
dence, he may except, and after the jury has ren- 
dered its verdict, he has the benefit of the latter 
exception on appeal to the supreme court. (Rev., 
s. 539; 1897, c. 109; 1899, c. 131; 1901, c. 594; C. 
S. 567.) 

§ 1-184. Waiver of jury trial. — Trial by jury may 
be waived by the several parties to an issue of fact, 
in actions on contract, and with the assent of the 
court in other actions, in the manner following: 

1. By failing to appear at the trial. 

2. By written consent, in person or by attorney, 
filed with the clerk. 

3. By oral consent, entered in the minutes. 
(Rev., s. 540; Code, s. 416; C. C. P., s. 240; C. S. 
568.) 

§ 1-185. Findings of fact and conclusions of law 
by judge. — Upon trial of an issue of fact by the 
court, its decision shall be given in writing, and 
shall contain a statement of the facts found, and 
the conclusions of law separately. Upon trial of 
an issue of law, the decision shall be made in the 
same manner, stating the conclusions of law. Such 
decision must be filed with the clerk during the 
court at which the trial takes place, and judgment 



upon it shall be entered accordingly. (Rev., s. 
541; Code, s. 417; C. C. P., s. 241; C. S. 569.) 

§ 1-186. Exceptions to decision of court. — 1. 
For the purposes of an appeal, either party 
may except to a decision on a matter of law aris- 
ing upon a trial by the court within ten days after 
the judgment, in the same manner and with the 
same effect as upon a trial by jury. Where the 
decision does not authorize a final judgment, but 
directs further proceedings before a referee or 
otherwise, either party may except thereto, and 
make a case or exception as above provided in 
case of an appeal. 

2. Either party desiring a review, upon the evi- 
dence appearing on the trial of the questions of 
law, may at any time within ten days after the 
judgment, or within such time as is prescribed 
by the rules of the court, make a case or excep- 
tions in like manner as upon a trial by jury, except 
that the judge in settling the case must briefly 
specify the facts found by him, and his conclusions 
of law. (Rev., s. 542; Code, s. 418; C. C. P., s. 
242; C. S. 570.) 

§ 1-187. Proceedings upon judgment on issue 
of law. — On a judgment for the plaintiff upon an 
issue of law, he may proceed in the manner pre- 
scribed by the first two subdivisions of section 
1-211 herein upon failure of the defendant to an- 
swer, where the summons was personally served. 
If judgment is for the defendant, upon an issue of 
law, and if taking of an account or the proof of 
any fact is necessary to enable the court to com- 
plete the judgment, a reference or assessment by 
jury may be ordered, as provided in section 1-212 
herein. (Rev., s. 543; Code, s. 419; C. C. P., s. 
243; C. S. 571.) 

Art. 20. Reference. 

§ 1-188. By consent. — Any or all of the issues 
in an action, whether of fact or law, may be re- 
ferred, upon the written consent of the parties, 
except in actions to annul a marriage, or for di- 
vorce and separation. (Rev., s. 518; Code, s. 420 - 
C. C. P., s. 244; C. S. 572.) 

§ 1-189. Compulsory.— Where the parties do not 
consent, the court may, upon the application of 
either, or of its own motion, direct a reference in 
the following cases: 

1. Where the trial of an issue of fact requires 
the examination of a long account on either side; 
in which case the referee may be directed to hear 
and decide the whole issue, or to report upon any 
specific question of fact involved therein. 

2. Where the taking of an account is necessary 
for the information of the court, before judgment, 
or for carrying a judgment or order into effect. 

3. Where the case involves a complicated 
question of boundary, or one which requires a 
personal view of the premises. 

4. Where a question of fact other than upon 
the pleadings arises upon motion or otherwise, in 
any stage of the action. 

5. Where the issues of fact and questions of 
fact arise in an action of which the courts of equity 
of the state had exclusive jurisdiction prior to the 
adoption of the constitution of one thousand eight 
hundred and sixty-eight, and in which the matter 



[29] 



§ 1-190 



CH. l. CIVIL PROCEDURE— VERDICT 



§ 1-203 



or amount in dispute is not less than the sum or 
value of five hundred dollars. 

The compulsory reference under this section 
does not deprive either party of his constitutional 
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 referee. 
(Rev., s. 519; Code, s. 421; 1897, c. 237, ss. 1, 2; 
C. C. P., s. 245; 1917, c. 280; 1919, c. 7; C. S. 573.) 

§ 1-190. How referee chosen or appointed. — In 

all cases of reference the parties as to whom issues 
are joined in the action (except when the defend- 
ant is an infant or an absentee) may agree in 
writing upon a person or persons, not exceeding 
three, and a reference shall be ordered to him or 
them, and to no other person or persons. And if 
such parties do not agree, the court shall appoint 
one or more referees, not more than three, who 
are free from exception. No person may be ap- 
pointed referee to whom all parties in the action 
object. No judge or justice of any court may sit 
as referee in action pending in the court of which 
he is judge or justice, and not already referred, 
unless the parties otherwise stipulate. (Rev., s. 
520; Code, s. 423; C. C. P., s. 247; C. S. 574.) 

§ 1-191. Referees may administer oaths. — Every 
referee has power to administer oaths in any pro- 
ceeding before him, and has generally the power 
vested in a referee by law. (Rev., s. 521; Code, 
s. 599; C. C. P., s. 356; C. S. 575.) 

§ 1-192. Powers of referee of trial. — The trial 
by referees shall be conducted in the same manner 
as a trial by the court. Referees have the same 
power to grant adjournments and to allow amend- 
ments to pleadings and to the summons as the 
court upon such trial, upon the same terms and 
with like effect. They shall have the same power 
to preserve order and punish all violations thereof 
upon such trial, and to compel the attendance of 
witnesses before them by attachment and to 
punish them as for contempt for nonattendance 
or refusal to be sworn or to testify, as is possessed 
by the court. (Rev., s. 522; Code, s. 422; C. C. 
P., s. 246; C. S. 576.) 

§ 1-193. Testimony reduced to writing. — The 

testimony of all witnesses on both sides must be 
reduced to writing by the referee, or under his di- 
rection, and signed by the witnesses, and the evi- 
dence so taken and signed shall be filed in the 
cause, and constitute a part of the record. (Rev., 
s. 523; 1897, c. 237, s. 3; C. S. 577.) 

§ 1-194. Report; review and judgment. — The ref- 
eree shall make and deliver a report, within the 
time ordered by the court, to the clerk of the court 
in which the action is pending. Either party, dur- 
ing the term or upon ten days notice to the ad- 
verse party out of term, may move the judge to 
review the report, and set aside, modify or con- 
firm it in whole or in part, and no judgment may 
be entered on any reference except by order of the 
judge. (Rev., s. 524; Code, s. 423; C. C. P., s. 247; 
C. S. 578.) 

§ 1-195. Report, contents and effect. — The ref- 
eree must state the facts found and the conclu- 
sions of law separately. His decision must be 
given, and may be excepted to and reviewed in 
like manner and with like effect in all respects as 

[ 30 



in cases of appeal; and he may in like manner 
settle a case or exceptions. The report of the 
referee upon the whole issue stands as the de- 
cision of the court, and judgment may be entered 
thereon upon application to the judge. When 
the reference is to report the facts, the report has 
the effect of a special verdict. (Rev., s. 525; Code, 
s. 422; C. C. P., s. 246; C. S. 579.) 

Art. 21. Issues. 

§ 1-196. Defined. — Issues arise upon the plead- 
ings, when a material fact or conclusion of law 
is maintained by one party and controverted by 
the other. They are of two kinds: 

1. Of law. 

2. Of fact. 

(Rev., s. 544; Code, s. 391; C. C. P., s. 219; C. S. 
580.) 

§ 1-197. Of law. — An issue of law arises upon a 
demurrer to the complaint, answer or reply, or to 
some part thereof. (Rev., s. 545; Code, s. 392; C. 
C. P., s. 220; C. S. 581.) 

§ 1-198. Of fact. — An issue of fact arises — 

1. Upon a material allegation in the complaint 
controverted by the answer; or, 

2. Upon new matter in the answer, contro- 
verted by the reply; or, 

3. Upon new matter in the reply, unless an is- 
sue of law is joined thereon. (Rev., s. 546; Code, 
s. 393; C. C. P., s. 221; C. S. 582.) 

§ 1-199. Order of trial. — Issues both of law and 
of fact may arise upon different parts of the 
pleadings in the same action. In these cases the 
issues of law must be first tried, unless the court 
otherwise directs. (Rev., s. 547; Code, s. 394; C. 
C. P., s. 222; C. S. 583.) 

§ 1-200. Form and preparation. — Issues shall be 
framed in concise and direct terms, and prolixity 
and confusion must be avoided by not having too 
many issues. The issues arising upon the plead- 
ings, material to be tried, must be made up by 
the attorneys appearing in the action, or by the 
judge presiding, and reduced to writing, before or 
during the trial. (Rev., ss. 548, 549; Code, ss. 395, 
396; C. S. 584.) 

Art. 22. Verdict. 

§ 1-201. General and special. — A general verdict 
is that by which the jury pronounce generally 
upon all or any of the issues, either in favor of 
the plaintiff or defendant. A special verdict is 
that by which the jury finds the facts only, leav- 
ing the judgment to the court. (Rev., s. 550; 
Code, s. 408; C. C. P., s. 232; C. S. 585.) 

§ 1-202. Special controls general. — Where a 
special finding of facts is inconsistent with the 
general verdict, the former controls, and the 
court shall give judgment accordingly. (Rev., s. 
552; Code, s. 410; C. C. P., s. 234; C. S. 586.) 

§ 1-203. Character of, for different actions. — In 
an action for the recovery of specific personal 
property, if the property has not been delivered 
to the plaintiff, or the defendant by his answer 
claims a return thereof, the jury shall assess the 
value of the property, if their verdict is in favor 
of the plaintiff; or if they find in favor of the de- 
fendant, and that he is entitled to a return there- 

] 



§ 1-204 



CH. 1. CIVIL PROCEDURE— JUDGMENT 



§ 1-209 



of, they may at the same time assess the dam- 
ages, if any are claimed in the complaint or an- 
swer, which the prevailing party has sustained by 
reason of the detention or taking and withhold- 
ing the property. In every action for the re- 
covery of money only, or specific real property, 
the jury, in their discretion, may render a general 
or special verdict. In all other cases, the court 
may direct the jury to find a special verdict in 
writing, upon all or any of the issues; and in all 
cases may instruct them, if they render a general 
verdict, to find upon particular questions of fact, 
to be stated in writing, and may direct a written 
finding thereon. The special verdict or finding 
shall be filed with the clerk, and entered upon the 
minutes. (Rev., s. 551; Code, s. 409; C. C. P., s. 
233; C. S. 587.) 

§ 1-204. Jury to assess damages; counterclaim. 

— When a verdict is found for the plaintiff in an 
action for the recovery of money, or for the de- 
fendant when a counterclaim for the recovery of 
money is established beyond the amount of the 
plaintiff's claim as established, the jury must al- 
so assess the amount of the recovery; they may 
also, under the direction of the court, assess the 
amount of the recovery when the court gives judg- 
ment for the plaintiff on the answer. If a coun- 
terclaim, established at the trial, exceeds the 
plaintiff's demand so established, judgment for 
the defendant must be given for the excess; or if 
it appears that the defendant is entitled to any 
other affirmative relief, judgment must be given 
accordingly. (Rev., s. 553; Code, s. 411; C. C. P., 
s. 235; C. S. 588.) 

§ 1-205. Entry of verdict and judgment. — Upon 
receiving a verdict, the clerk shall make an entry 
in his minutes, specifying the time and place of 
the trial, the names of the jurors and witnesses, 
the verdict, and either the judgment rendered 
thereon or an order that the cause be reserved 
for argument or further consideration. If a dif- 
ferent direction is not given by the court, the 
clerk must enter judgment in conformity with 
the verdict. (Rev., s. 554; Code, s. 412; C. C. P., 
s. 236; C. S. 589.) 

§ 1-206. Exceptions. — 1. If an exception is taken 
upon the trial, it must be reduced to writing at 
the time with so much of the evidence or subject 
matter as may be material to the exception taken; 
the same must be entered in the judge's minutes 
and filed with the clerk as a part of the case up- 
on appeal. 

2. If there is error, either in the refusal of the 
judge to grant a prayer for instructions, or in 
granting a prayer, or in his instructions gener- 
ally, the same is deemed excepted to without 
the filing of any formal objections. (Rev., s. 554; 
Code, s. 412; C. C. P., s. 236; C. S. 590.) 

§ 1-207. Motion to set aside.— The judge who 
tries the cause may, in his discretion, entertain 
a motion, to be made on his minutes, to set aside 
a verdict and grant a new trial upon exceptions, 
or for insufficient evidence, or for excessive dam- 
ages; but such motion can only be heard at the 
same term at which the trial is had. When the 
motion is heard and decided upon the minutes of 
the judge, and an appeal is taken from the deci- 
sion, a case or exceptions must be settled in the 

[3 



usual form, upon which the argument of the ap- 
peal must be had. (Rev., s. 554; Code, s. 412; C. 
C. P., s. 236; C. S. 591.) 

SUBCHAPTER VIII. JUDGMENT. 

Art. 23. Judgment. 

§ 1-208. Defined. — A judgment is either inter- 
locutory or the final determination of the rights of 
the parties in the action. (Rev., s. 555; Code, s. 
384; C. C. P., s. 216; C. S. 592.) 

§ 1-209. Judgments authorized to be entered by 
clerk; sale of property; continuance pending sale; 
writs of assistance and possession. — The clerks 
of the superior courts are authorized to enter the 
following judgments: (a) All judgments of vol- 
untary nonsuit. (b) All consent judgments 
(judgments coming within the meaning of (a) 
and (b) may be entered at any time), (c) In 
all actions upon notes, bills, bonds, stated ac- 
counts, balances struck, and other evidences of in- 
debtedness within the jurisdiction of the superior 
court. (d) All judgments by default final and 
default and inquiry as are authorized by §§ 
1-211, 1-212, 1-213, and in this section provided, 
(e) In all cases where the clerks of the superior 
court enter judgment by default final upon any 
debt secured by mortgage, deed of trust, condi- 
tional sale contract or other conveyance of any 
kind, either real or personal property, or by a 
pledge of property, the said clerks of the superior 
court are authorized and empowered to order a 
foreclosure of such mortgage, deed of trust, con- 
ditional sale contract, or other conveyance, and 
order a sale of the property so conveyed or pledged 
upon such terms as appear to be just; and the said 
clerks of the superior court shall have all the power 
and authority now exercised by the judges of the 
superior court to appoint commissioners to make 
such sales, to receive the reports thereof, and to 
confirm the report of sale or to order a resale, 
and to that end they are authorized to continue 
such causes from time to time as may be re- 
quired to complete the sale, and in the final judg- 
ment in said causes they shall order the execution 
and delivery of all necessary deeds and make all 
necessary orders disbursing the funds arising from 
the sale, and may issue writs of assistance and 
possession upon ten days notice to parties in pos- 
session. The commissioners appointed to make 
foreclosure sales, as herein authorized, may pro- 
ceed to advertise such sales immediately after the 
date of entering judgment and order of foreclos- 
ure, unless otherwise provided in said judgment 
and order. 

In any tax foreclosure action pending on March 
15, 1939 or thereafter brought under the provi- 
sions of § 105-414 in which there is filed no 
answer which seeks to prevent entry of judgment 
of sale, the clerk of the superior court may render 
judgment of sale and make all necessary subse- 
quent orders and judgments to the same extent as 
permitted by this section in actions brought to 
foreclose a mortgage. All such judgments and 
orders heretofore rendered or made by a clerk of 
the superior court in such tax foreclosure actions 
are hereby, as to the authority of said clerk, rati- 
fied and confirmed. (1919, c. 156; Ex. Sess. 1921, 
c. 92, s. 12; 1929, cc. 35, 49; 1939, c. 107; C. S. 593.) 
Local Modification.— Vance : 1941, c. 139, s. 1. 
1] 



§ 1-210 



CH. l. CIVII, PROCEDURE— JUDGMENT 



§ 1-214 



§ 1-210. Return of execution; order for dis- 
bursement of proceeds. — In all executions issued 
by the clerk of the Superior Court upon judgment 
before the clerk of the Superior Court, under 
§ 1-209, and execution issued thereon, the sheriff 
shall make his return to the clerk of the Su- 
perior Court, who shall make the final order di- 
recting the sheriff to disburse the proceeds re- 
ceived by him under said execution: Provided, 
that any interested party may appeal to the Su- 
perior Court, where the matter shall be heard de 
novo. (1925, c. 222, s. 1.) 

§ 1-211. By default final. — Judgment by default 
filial may be had on failure of defendant to an- 
swer — 

1. Where the complaint sets forth one or 
more causes of action, each consisting of the 
breach of an express or implied contract to pay, 
absolutely or upon a contingency, a sum or sums 
of money fixed by the terms of the contract, or 
capable of being ascertained therefrom by com- 
putation. Upon proof of personal service of 
summons, or of service of summons by publi- 
cation, on one or more of the defendants, and 
upon the complaint being verified, judgment 
shall be entered for the amount mentioned in the 
complaint, against the defendant or defendants, or 
against one or more of several defendants. 

2. Where the defendant, by his answer in 
such action, does not deny the plaintiff's claim, 
but sets up a counterclaim, amounting to less 
than the plaintiff's claim, judgment may be had 
by the plaintiff for the excess of his claim over 
the counterclaim, in like manner in any such 
action, upon the plaintiff's filing with the court 
a statement admitting the counterclaim, which 
statement must be annexed to and be a part 
of the judgment roll. Or the court may in its 
discretion, order the pleadings to be so amended 
and the action severed as to entitle the plaintiff 
to judgment upon all of the claims admitted 
over and above the setoff or counterclaim 
pleaded by the defendant; and, upon applica- 
tion of the plaintiff, shall enter judgment for 
the plaintiff for so much of the claim as is ad- 
mitted. The action shall thereupon be con- 
tinued as to subsequent proceedings, as if it 
had been brought for the remainder of the 
claim, and the counterclaim or setoff as pleaded 
by the defendant shall apply thereto. Said re- 
mainder of the claim shall in any event be suf- 
ficient to cover the full amount of the princi- 
pal and interest set up by the defendant in the 
counterclaim or setoff, and an amount in ex- 
cess thereof, if in the discretion of the court 
the same is necessary, the court being empow- 
ered to designate and determine what part of 
the plaintiff's claim shall be held for the sub- 
sequent proceedings herein referred to. 

3. In actions where the service of the sum- 
mons was by publication, the plaintiff may, in 
like manner, apply for judgment, and the court 
must thereupon require proof to be made of 
the demand mentioned in the complaint, and if 
the defendant is not a resident of the state, 
must require the plaintiff or his agent to be 
examined on oath respecting any payments that 
have been made to the plaintiff, or to any one 
for his use on account of such demand, and 

[ 32 



may render judgment for the amount which he 
is entitled to recover. Before rendering judg- 
ment the court may in its discretion require the 
plaintiff to cause to be filed satisfactory secur- 
ity to abide the order of the court touching the 
restitution of any estate or effects which may 
be directed by such judgment to be transferred 
or delivered, or the restitution of any money 
that may be collected under and by virtue of 
said judgment, in case the defendant or his 
representatives apply and are admitted to defend 
the action, and succeed in such defense. 

4. In actions for the recovery of real prop- 
erty, or for the possession thereof, upon the 
failure of the defendant to file the undertaking 
required by law, or upon failure of his sureties 
to justify according to law, unless the defend- 
ant is excused from giving such undertaking 
before answering. 

5. In actions for the recovery of personal 
property, or for the possession thereof, or to 
have the plaintiff or plaintiffs adjudged the owner 
or owners thereof, if the complaint be verified. 
(Rev., s. 556; Code, ss. 385, 390; C. C. P., s. 217; 
1870-1, c. 42; 1869-70, c. 193, s. 4; 1919, c. 26; 1929* 
c. 66; C. S. 595.) 

§ 1-212. By default and inquiry. — In all other 
actions, except those mentioned in § 1-211, when 
the defendant fails to answer and upon a like 
proof, judgment by default and inquiry may be 
had, and inquiry shall be executed at the next suc- 
ceeding term. If the taking of an intricate or long 
account is necessary to execute properly the in- 
quiry, the court, at the return term, may order the 
account to be taken by the clerk of the court or 
some other fit person, and the referee shall make 
his report at the next succeeding term; in all other 
cases the inquiry shall be executed by a jury, un- 
less by consent the court is to try the facts as 
well as the law. (Rev., s. 557; Code, s. 386; C. S 
596.) 

§ 1-213. By default for defendant. — If the answer 
contains a statement of new matter constituting a 
counterclaim, and the plaintiff fails to reply or de- 
mur thereto, the defendant may move for such 
judgment as he is entitled to upon such statement; 
and if the case requires it, an order for an inquiry 
of damages by a jury may be made. (Rev., s. 
558; Code, s. 249; C. C. P., s. 106; C. S. 597.) 

§ 1-214. Judgment by default where no answer 
filed; record; force; docket. — If no answer is filed, 
the plaintiff shall be entitled to judgment by de- 
fault final or default and inquiry as authorized by 
§§ 1-211, 1-212, and 1-213, and all present or 
future amendments of the said sections; and 
all judgments by default final shall be duly ra 
corded by the clerk and be docketed and indexed 
in the same manner as judgments rendered in term, 
and in all respects be and become judgments of the 
superior court and be of the same force and effect 
as if rendered in term and before a judge of the 
superior court; and in all cases of judgment by 
default and inquiry rendered by the clerk, the clerk 
shall docket the case in the superior court at term 
time for trial upon the issues raised before a jury, 
or otherwise, as provided by law, and all judg- 
ments by default and inquiry shall be of the same 
force and effect as if rendered in term and before 
] 



§ 1-215 



CH. l, CIVIL PROCEDURE— JUDGMENT 



§ 1-227 



a judge of the superior court. (Ex. Sess., 1921, c. 
92, s. 9; C. S. 597(a).) 

§ 1-215. Time for entering judgments; liens. — 
No judgment shall be entered by the clerk except 
as herein otherwise provided, except on every Mon- 
day of each month. The liens of all judgments 
rendered on the same Mondays shall each be of 
equal priority, and each Monday shall be held and 
construed, in determining the priority of judgment 
liens, as a term of court, and the first day thereof. 
(Ex. Sess. 1921, c. 92, s. 10; 1923, c. 68; C. S. 
597(b).) 
Local Modification.— Vance : 1941, c. 139. s. 2. 

§ 1-216. Time for entering judgment where 
copy of complaint served on defendam. — If the 

plaintiff or plaintiffs shall cause a copy of the com- 
plaint to be served upon any of the defendants, 
either at the time of issuing summons or there- 
after, then judgment shall be entered by the clerk 
as to the defendants served on any Monday after 
the expiration of time to answer. (Ex. Sess. 1921, 
c. 92, s. 11; 1925, c. 16; C. S. 597(c).) 
Local Modification.— Vance : 1941, c. 139, s. 3. 

§ 1-217. Certain default judgments validated. — 

In every case where, prior to the first day of 
January, one thousand nine hundred and twenty- 
seven, a judgment by default final has been en- 
tered by the clerk of the Superior Court of any 
county in this state on a day other than Monday, 
contrary to §§ 1-215 and 1-216, such judgment 
shall be deemed to have been entered as of the 
first Monday immediately following the default 
and is hereby to all intents and purposes validated; 
provided, however, nothing in this section shall be 
construed to affect the rights of any interested 
party, as provided in section 1-220 other than for 
irregularity as to date of entry of the judgment by 
the clerk of the court. (1927, c. 187.) 

§ 1-218. 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 § 45-28, 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, resales may be 
ordered, without notice, in chambers in any county 
in the judicial district, in which the proceedings 
are pending, by the resident 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; C. S. 598.) 

§ 1-219. On frivolous pleading. — If a demurrer, 
answer or reply is frivolous, the party prejudiced 
thereby may apply to the court or judge for judg- 
ment thereon, which may be given accordingly. 
(Rev., s. 560; Code, s. 388; C. C. P., s. 218; C. S. 
599.) 

§ 1-220. Mistake, surprise, excusable neglect. — 

The judge shall, upon such terms as may be just, 
at any time within one year after notice thereof, 
—2 [ 33 



relieve a party from a judgment, order, verdict or 
other proceeding taken against him through his 
mistake, inadvertence, surprise, or excusable neg- 
lect, and may supply an omission in any proceed- 
ing. The clerk may hear and pass upon motions 
to set aside judgments rendered by him, whether 
for irregularity or under this section, and an ap- 
peal from his order on such motion shall lie to 
the judge at the next term, who shall hear and 
pass upon such motion de novo: Provided, how- 
ever, nothing in this section shall be construed to 
affect the rights of innocent purchasers for value 
in foreclosure proceedings where personal service 
is obtained. (Rev., s. 513; Code, s. 274; 1893, c. 
81; C. C. P., s. 133; Ex. Sess. 1921, c. 92, s. 14; 
C. S. 600.) 

§ 1-221. Stands until reversed. — Every judg- 
ment given in a court of record having jurisdiction 
of the subject is, and continues to be, in force un- 
til reversed according to law. (Rev., s. 561; Code, 
s. 935; R. C, c. 31, s. 103; 4 Hen. IV, c. 23; c' 
S. 601.) 

§ 1-222. For and against whom given; failure 
to prosecute. — 1. Judgment may be given for or 
against one or more of several plaintiffs, and for 
or against one or more of several defendants; and 
it may determine the ultimate rights of the par- 
ties on each side, as between themselves. 
_ 2. It may grant to the defendant any affirma- 
tive relief to which he may be entitled. 

3. In an action against several defendants, the 
court may, in its discretion, render judgment 
against one or more of them, leaving the action 
to proceed against the others, whenever a several 
judgment is proper. 

4. The court may also dismiss the complaint, 
with costs in favor of one or more defendants, 
in case of unreasonable neglect on the part of 
the plaintiff to serve the summons on other de- 
fendants, or to proceed in the cause against the 
defendant or defendants served. (Rev., s. 563- 
Code, s. 424; C. C. P., s. 248; C. S. 602.) 

§ 1-223. Against married women.— In an action 
brought by or against a married woman, judgment 
may be given against her for costs or damages or 
both, in the same manner as against other per- 
sons, to be levied and collected solely out of her 
separate estate. (Rev., 563; C. S. C03.) 

§ 1-224. Nonsuit not allowed after verdict.— In 

actions where a verdict passes against the plain- 
tiff, judgment shall be entered against him. (Rev 
s. 1520; Code, s. 936; R. C, c. 31, s. 110; 2 Hen' 
IV, c. 7; C. S. 604.) 

§ 1-225. Party dying after verdict.— In no action 
shall the death of either party between the ver- 
dict and the judgment be alleged for error, if the 
judgment is entered within two terms after the 
verdict. (Rev., s. 564; Code, s. 938; R C c 31 
s. 112; 17 Charles II, c. 8; C. S. 605.) 

§ 1-226. When limited by demand in complaint. 

—The relief granted to the plaintiff, if there is 
no answer, cannot exceed that demanded in his 
complaint; but in any other case the court may 
grant him any relief consistent with the case made 
by the complaint and embraced within the issue 
(Rev., s. 565; Code, s. 425; C. C. P., s 249- C s' 
606.) 

§ 1-227. When passes legal title.— In any action 
] 



§ 1-228 



CH. 1. CIVIL PROCEDURE— JUDGMENT 



§ 1-234 



wherein the court declares a party entitled to the taking and withholding the same. (Rev., s. 570; 
possession of real or personal property, the legal Code, s. 431; C. C. P., s. 251; C. S. 610.) 
title of which is in another party to the suit, and 



the court orders a conveyance of such legal title 
to him so declared to be entitled, or where, for 
any cause, the court orders that one of the par- 
ties holding property in trust shall convey the 
legal title to be held in trust to another person 
although not a party, the court, after declaring 
the right and ordering the conveyance, has power 
also, to be used in its discretion, to declare in the 



§ 1-231. What judge approves judgments. — In 

all cases where a judgment, decree or order of the 
superior court is required to be approved by a 
judge, it shall be approved by the judge having 
jurisdiction of receivers and injunctions. (Rev., s. 
571; Code, s. 432; 1876-7, c. 223, s. 3; 1879, c. 63; 
1881, c. 51; C. S. 611.) 

§ 1-232. Judgment roll. — Unless the party or his 



order then made, or in any made in the progress attorney furnishes a judgment roll, the clerk, im- 

of the cause, that the effect thereof is to transfer mediately after entering the judgment, shall at- 

to the party to whom the conveyance is directed tach together and file the following papers which 

to be made the legal title of the said property, to constitute the judgment roll: 

be held in the same plight, condition and estate 1. In case the complaint is not answered by 

as though the conveyance ordered were in fact any defendant, the summons and complaint, or 

executed; and shall bind and entitle the parties copies thereof, proof of service, and that no an- 

ordered to execute or to take benefit of the con- swer has been received, the report, if any, and a 

veyance, in and to all such provisions, conditions copy of the judgment. 

and covenants us are adjudged to attend the con- 2. In all other cases, the summons, pleadings, 
veyance, in the same manner and to thf same ex- or copies thereof, and a copy of the judgment, 
tent as the conveyance would if the same were with any verdict or report, the offer of the de- 
executed according to the order. A party taking fendant, exceptions, case, and all orders and 
benefit under the judgment has the same redress papers in any way involving the merits and 
at law on account of the matter adjudged as he necessarily affecting the judgment. (Rev., s. 572; 
might on the conveyance, if the same had been Code, s. 434; C. C. P., s. 253; C. S. 612.) 
executed. (Rev., s. 566; Code, s. 426; R. C, c. § U233 Docketed and indexed; held as of first 
32, s. 24; 1850, c. 107; 1874-5, c. 17; C. S. 607.) day of terrn ._ Every judgment of the superior 

§ 1-228. Regarded as a deed and registered.— court, affecting the right to real property, or re- 
Every judgment, in which the transfer of title is quiring in whole or in part the payment of 
so declared, shall be regarded as a deed of con- money, shall be entered by the clerk of said 
veyance, executed in due form and by capable superior court on the judgment docket of the 
persons, notwithstanding the want of capacity in court. The entr y must contain the names of 
any person ordered to convey, and shall be regis- the parties, and the relief granted, date of judg- 
tered in the proper county, under the rules and ment and date of docketing; and the clerk shall 
regulations prescribed for conveyances of similar kee P a cross-index of the whole, with the dates 
property executed by the party. The party de- and numbers thereof. In all cases affecting the 
siring registration of such judgment must" pro- title t0 real property the clerk shall enter upon 
duce to the register a copv thereof, certified by the judgment docket the number and page of 
the clerk of the court in which it is enrolled, un- the minute docket where the judgment is re- 
der the seal of the court, and the register shall corded, and if the judgment does not contain 
record both the judgment and certificate. All Particular description of the lands, but refers 
laws which are passed for extending the time for t0 a description contained in the pleadings, the 
registration of deeds include such judgments, clerk shall enter upon the minute docket, un- 
provided the conveyance, if actually executed, mediately following the judgment, the desenp- 
would be so included. (Rev., ss. 567, 568; Code, tIon so referred to. 

ss. 427, 429; R. C, c. 32, ss. 25, 27; 1850, c. 107, A11 Judgments rendered in any county by the 

ss 2 4- 1874-5 c 17 ss 2 4- C S 608) superior court, during a term of the court, and 

docketed during the same term, or within ten 

§ 1-229. Certified registered copy evidence. — In days thereafter, are held and deemed to have 

all legal proceedings, touching the right of par- been rendered and docketed on the first day of 

ties derived under such judgment, a certified copy said term, for the purpose only of establishing 

from the register's books is evidence of its ex- equality of priority as among such judgments, 

istence and of the matters therein contained, as (Rev., c. 573; Code, s. 433; C. C. P., s. 252; Supr. 

fully as if proved by a perfect transcript of the Ct. Rule VIII; 1909, c. 709; 1929, c. 183; C. S. 

whole case. (Rev., s. 569; Code, s. 428; R. C, c. 613.) 

32, s. 26; 1850, C 107, s. 3; 1874-5, c. 17, S. 3; C. Local Modification.— Durham : 1929, c. 88. 
c fiftQ "\ 

§ 1-234. Where and how docketed; lien. — Upon 
§ 1-230. In action for recovery of personal filing a judgment roll upon a judgment affecting 
property. — In an action to recover the possession the title of real property, or directing in whole 
of personal property, judgment for the plaintiff or in part the payment of money, it shall be 
may be for the possession, or for the recovery of docketed on the judgment docket of the superior 
possession, or for the value thereof in case a de- court of the county where the judgment roll was 
livery cannot be had, and damages tor the de- filed, and may be docketed on the judgment 
tention. If the property has been delivered to the docket of the superior court of any other county 
plaintiff, and the defendant claims a return there- upon the filing with the clerk thereof of a transcript 
of, judgment for the defendant may be for a re- of the original docket, and is a lien on the real 
turn of the property, or for the value thereof in property in the county where the same is dock- 
case a return cannot be had, and damages for eted of every person against whom any such 

[34] 



§ 1-235 



CH. 1. CIVIL, PROCEDURE— JUDGMENT 



§ 1-239 



judgment is rendered, and which he has at the 
time of the docketing thereof in the county in 
which such real property is situated, or which he 
acquires at any time thereafter, for ten years from 
the date of the rendition of the judgment. But 
the time during which the party recovering or 
owning such judgment shall be, or shall have 
been, restrained from proceeding thereon by an 
order of injunction, or other order, or by the 
operation of any appeal, or by a statutory pro- 
hibition, does not constitute any part of the ten 
years aforesaid, as against the defendant in such 
judgment, or the party obtaining such orders or 
making such appeal, or any other person who is 
not a purchaser, creditor or mortgagee in good 
faith. (Rev., s. 574; Code, s. 435;' C. C. P., s. 254; 
C. S. 614.) 

§ 1-235. Of supreme court docketed in superior 
court; lien. — It is the duty of the clerk of the su- 
preme court, on application of the party obtain- 
ing judgment in that court, directing in whole or 
in part the payment of money, or affecting the 
title to real estate, or on the like application of 
the attorney of record of said party, to certify 
under his hand and the seal of said court a tran- 
script of the judgment, setting forth ihe title of 
the court, the names of the parties thereto, the 
relief granted, that the judgment was so rendered 
by said court, the amount and date of the judg- 
ment, what part thereof bears interest and from 
what time; and said clerk shall send such certifi- 
cate and transcript to the clerk of the superior 
court of such counties as he is directed; and the 
clerk of the superior court receiving the certificate 
and transcript shall docket them in like manner 
as judgment rolls of the superior court are dock- 
eted. And when so docketed, the lien of said 
judgment is the same in all respects, subject to 
the same restrictions and qualifications, and the 
time shall be reckoned as is provider and pre- 
scribed in the preceding sections for judgments 
of the superior court, so far as the same are ap- 
plicable. The party desiring the certificate and 
transcript provided for in this section may ob- 
tain them at any time after such judgment has 
been rendered, unless the supreme court other- 
wise directs. (Rev., s. 575; Code, s. 436; 1881, c. 
75, ss. 1, 4; C. S. 615.) 

§ 1-236. Fees for filing transcripts of judgments 
by clerks of superior courts.— The fee for filing, 
docketing and indexing transcripts of judgments 
in the offices of the several clerks of the superior 
court in North Carolina shall be the same fee 
charged for filing, docketing and indexing tran- 
scripts of judgments in the office of the clerk of 
the superior court of the county from which the 
transcript of judgment is sent to said county 
(1933, c. 435, s. 1.) 

§ 1-237. Of federal court docketed; lien. — Judg- 
ments and decrees rendered in the circuit and dis- 
trict courts of the United States within this state 
may be docketed on the judgment dockets of the 
superior courts in the several counties of this 
state for the purpose of creating liens of such 
judgments and decrees upon property within the 
county where the same are so docketed in like 
manner as judgments of superior courts for the 
purpose of creating liens upon property, but in no 
other manner, extent or order than as contem- 

[ 35 



plated, provided and intended by the act of Con- 
gress entitled "An act to regulate the liens of 
judgments and decrees of the courts of rhe United 
States," approved August first, one thousand 
eight hundred and eighty-eight. And it is the 
duty of the clerk of the superior court, when a 
judgment roll of said circuit and district courts 
is filed with him, to docket it as judgments of 
the said superior courts are required tu be dock- 
eted. (Rev., s. 576; 1889, c. 439; C. S. 616.) 

§ 1-238. On what property judgment of fed- 
eral court constitutes a lien; recordation. — Judg- 
ments and decrees rendered in a circuit or dis- 
trict court of the United States within this 
State shall be a lien on property in this State 
and its various subdivisions in the same man- 
ner and to the same extent and under the same 
conditions when the same shall be registered, 
recorded, docketed and indexed as is required 
of a judgment or decree of the courts of this 
State, in the same way and manner and to the 
same extent as the same judgment rendered 
in a court of this State and so registered, re- 
corded, docketed and indexed would become a 
lien when so registered, recorded, docketed and 
indexed, and such judgments shall then have 
all the rights, and force, and effect, as judg- 
ments of the Superior Court of said county. 
Such decrees and judgments of a circuit court 
or a district court of the United States within 
this State when authenticated in the same way 
and manner as required of judgments and de- 
crees of courts of this State are authorized to 
be registered, recorded and indexed exactly un- 
der the same conditions and circumstances and 
in the same offices and in the same way and 
manner and with the same effect as judgments 
of courts of this State are authorized to be. 

It is the intent and purpose of this section 
to conform the State law to the requirements 
of the act of Congress entitled "An Act to 
Regulate the Liens on Judgments and Decrees 
of the Courts of the United States" being the 
act of August first, one thousand eight hun- 
dred and eighty-eight, chapter seven hundred 
and twenty-nine, twenty-five Statutes at large, 
page three hundred fifty-seven. (1929, c. 310, 
ss. 1, 2.) 

§ 1-239. Paid to clerk; docket credited; transcript 
to other counties. — The party against whom a 
judgment for the payment of money is rendered, 
by any court of record, may pay the whole, or 
any part thereof, to the clerk of the coutt in which 
the same was rendered, at any time thereafter, 
although no execution has issued on such judg- 
ment; and this payment of money is good and 
available to the party making it, and the clerk 
shall enter the payment on the judgment docket 
of the court, and immediately forward a certificate 
thereof to the clerk of the superior court of each 
county to whom a transcript of said judgment 
has been sent, and the clerk of such superior court 
shall enter the same on the judgment docket of 
such court and file the original with the judg- 
ment roll in the action. Entries of payment or 
satisfaction on the judgment dockets in the office 
of the clerk of the superior court, by ?.ny person 
other than the clerk, shall be made in the pres- 
ence of the clerk or his deputy, who shall wit- 
ness the same, and when entries of full payment 

] 



§ 1-240 



CH. l. CIVIL PROCEDURE— JUDGMENT 



§ 1-245 



or satisfaction have been made, the clerk or his 
deputy shall enter upon the judgment index kept 
by him, opposite and on a line with the names 
of the parties to the judgment, the words "Paid" 
or "Satisfied." (Rev., s. 577; Code, s. 438; R. C, 
c. 31, s. 127; 1823, c. 1212; 1911, c. 76; C. S. 617.) 

§ 1-240. Payment by one of several; transfer to 
trustee for payor. — In all cases in the courts of 
this state wherein judgment has been, or may 
hereafter be, rendered against two or more per- 
sons or corporations, who are jointly and sever- 
ally liable for its payment either as joint obligors 
or joint tort-feasors, and the same has not been 
paid by all the judgment debtors by each paying 
his proportionate part thereof, if one of the judg- 
ment debtors shall pay the judgment creditor, 
either before or after execution has been issued, 
the amount due on said judgment, and shall, at 
the time of paying the same, demand that said 
judgment be transferred to a trustee for his ben- 
efit, it shall be the duty of the judgment creditor 
or his attorney to transfer without recourse such 
judgment to a trustee for the benefit of the judg- 
ment debtor paying the same; and a transfer of 
such judgment as herein contemplated shall have 
the effect of preserving the lien of the judgment 
and of keeping the same in full force as against 
any judgment debtor who does not pay his pro- 
portionate part thereof to the extent of his li- 
ability thereunder in law and in equity, and in 
the event the judgment was obtained in an ac- 
tion arising out of a joint tort, and only one, or 
not all of the joint tort-feasors, were made par- 
ties defendant, those tort-feasors made parties 
defendant, and against whom judgment was ob- 
tained, may, in an action therefor, enforce con- 
tribution from the other joint tort-feasors; or 
at any time before judgment is obtained, the 
joint tort-feasors made parties defendant may, 
upon motion, have the other joint tort-feasors 
made parties defendant. 

If the judgment debtors do not agree as to 
their proportionate liability, and it be alleged in 
such action by petition that any judgment debt- 
or is insolvent or is a nonresident of the state 
and cannot be forced under the execution of the 
court to contribute to the payment of the judg- 
ment, the court shall, in the action in which the 
judgment was rendered, after notice to the de- 
fendants or such of them as may be within the 
jurisdiction of the court, submit proper issues 
to a jury to find the facts arising on such peti- 
tion and any answer that may be filed thereto, 
and shall, upon such verdict and any admis- 
sions in the petition and answer, enter judg- 
ment declaring the proportionate part each judg- 
ment debtor shall pay. 

Any judgment creditor who refuses to trans- 
fer a judgment in his favor to a trustee for the 
benefit of a judgment debtor who shall tender 
payment and demand in writing a transfer 
thereof to a trustee to preserve his rights in the 
same action, as contemplated by this section, 
shall not thereafter be entitled to an execution 
against the judgment debtor so tendering pay- 
ment. (1919, c. 194, ss. 1, 2; 1929, c. 68; C. S. 618.) 

§ 1-241. Clerk to pay money to party entitled. — 

The clerk, to whom money is paid as aforesaid, 
shall pay it to the party entitled to receive it, un- 
der the same rules and penalties as if the money 

[ 



had been paid into his office by virtue of an exe- 
cution. (Rev., s. 578; Code, s. 439; R. C, c. 31, 
s. 128; 1823, c. 1212, s. 2; C. S. 619.) 

§ 1-242. Credits upon judgments. — Where a 
payment has been made on a judgment docketed 
in the office of the clerk of the superior court, and 
no entry made on the judgment docket, or where 
any docketed judgment appealed from has been 
reversed or modified on appeal and no entry made 
on such docket, any person inteiested therein may 
move in the cause before the clerk, upon affi- 
davit after notice to all persons interested, to 
have such credit, reversal or modification en- 
tered; and upon the hearing before the clerk he 
may hear affidavits, oral testimony, depositions 
and any other competent evidence, and shall 
render his judgment, from which any party may 
appeal in the same manner as in appeals in spe- 
cial proceedings. On the trial of any issue of 
fact on the appeal either party may demand a 
jury trial, which shall be had upon the evidence 
before the clerk, which he shall reduce to writ- 
ing. On a final judgment ordering any such 
credit, reversal or modification, a transcript there- 
of shall be sent by the clerk of the superior court 
to each county in which the original judgment 
has been docketed, and the clerk of such county 
shall enter the same on the judgment docket of 
his county opposite such judgment and file the 
transcript. No final process shall issue on any 
such judgment after affidavit filed in the cause 
until the motion for credit, reversal or modifica- 
tion has been finally disposed of. (Rev., s. 579; 
1903, c. 558; C. S. 620.) 

§ 1-243. For money due on judicial sale. — The 
supreme and other courts ordering a judicial sale, 
or having possession of bonds taken on such sale, 
may, on motion, after ten days notice thereof in 
writing, enter judgment as soon as the money 
becomes due against the debtors or any of them, 
unless for good cause shown the court directs 
some other mode of collection. (Rev., s. 1524; 
Code, s. 941; R. C, c. 31, s. 129; C. S. 621.) 

§ 1-244. Applicable to justices' courts. — This ar- 
ticle applies, wherever appropriate, to proceed- 
ings in courts of justices of the peace. (Rev., s. 
562; Code, s. 389; C. S. 622.) 

§ 1-245. 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. 

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.) 
36 ] 



§ 1-246 



CH. l. CIVIL PROCEDURE— DECLARATORY JUDGMENTS 



§ 1-255 



§ 1-24G. Assignment of judgment to be entered 
en judgment docket, signed and witnessed.— No 
assignment of judgment shall be valid at law to 
pass any property as against creditors or pur- 
chasers for a valuable consideration from the 
donor, bargainor, or assignor, but from the entry 
of such assignment on the margin of the judg- 
ment docket opposite the said judgment, signed 
by the owner of said judgment, or his attorney 
under power of attorney or his attorney of record, 
and witnessed by the clerk or the deputy clerk of 
the superior court of the county in which said 
judgment is docketed. (1941, c. 61.) 

Art. 24. Confession of Judgment. 

§ 1-247. When and for what. — A judgment by 
confession may be entered without action either 
in or out of term, either for monev due or to be- 



Art. 25. Submission of Controversy without 
Action. 

§ 1-250. Submission, affidavit, and judgment. — 

Parties to a question in difference which might 
be the subject of a civil action may, without ac- 
tion, agree upon a case containing the facts upon 
which the controversy depends, and present a 
submission of the same to any court which would 
have jurisdiction if an action had bee?] brought. 
But it must appear by affidavit that the con- 
troversy is real, and the proceedings in good 
faith to determine the rights of the parties. The 
judge shall hear and determine the case, and ren- 
der judgment thereon as if an action were pend- 
ing. (Rev., s. 803; Code, s. 567; C. C. P., s. 315; 
C. S. 626.) 

§ 1-251. Judgment roll. — Judgment shall be en- 



come due, or to secure any person against con- tered on the judgment docket, as in o.her cases, 
tingent liability on behalf of the defendant, or but w ithout cost for any proceedings prior to trial, 
both, in the manner prescribed by this article. The case> the subrnission) and a copy f the j udg - 

ment, constitute the judgment roll. (Rev., s. 804; 

Code, s. 568; C. C. P., s. 316; C. S. 627.) 



(Rev., s. 580; Code, s. 570; C. C. P., s. 325; C. S. 
623.) 

§ 1-248. Debtor to make verified statement. — A 

statement in writing must be made, signed, and 
verified by the defendant, to the following effect: 

1. It must state the amount for which judg- 
ment may be entered, and authorize the entry of 
judgment therefor. 

2. If it is for money due, or to become due, 
it must state concisely the facts out of which it 
arose, and must show that the sum confessed is 
justly due, or to become due. 

3. If it is for the purpose of securing the plain- 
tiff against a contingent liability, it must state 
concisely the facts constituting the liability, and 
must show that the sum confessed does not ex- 



§ 1-252. Judgment enforced; appeal. — The judg- 
ment may be enforced in the same manner as if 
it had been rendered in an action, and is subject 
to appeal in like manner. (Rev., s. 805; Code, s. 
569; C. C. P., s. 317; C. S. 628.) 

Art. 26. Declaratory Judgments. 

§ 1-253. Courts of record permitted to enter 
declaratory judgments of rights, status and other 
legal relations. — Courts of record within their re- 
spective jurisdictions shall have power to declare 
rights, status, and other legal relations, whether 
or not further relief is or could be claimed. No 



ceed the same. (Rev., s. 581; Code, s. 571; C. C. action or proceeding shall be open to objection on 



P., s. 326; C. S. 624.) 

§ 1-249. Judgment; execution; installment debt. 

— The statement may be filed with the clerk of the 
superior court of the county in which the de- 
fendant resides, or if he does not retide in the 
state, of some county in which he has property. 
The clerk shall indorse upon it and enter on his 
judgment docket a judgment of the court for the 
amount confessed, with three dollars costs, to 



the ground that a declaratory judgment or decree 
is pruyed for. The declaration may be either af- 
firmative or negative in form and effect; and such 
declarations shall have the force and effect of a 
final judgment or decree. (1931, c. 102, s. 1.) 

§ 1-254. Courts given power of construction of 
all instruments. — Any person interested under a 
deed, will, written contract or other writings con- 



,, ... ,• i ' „„ . n^u„ „,..,, ._,__*' „„a s-tituting a contract, or whose rights, status or 

gether with disbursements. the statement and 6 ' u 



affidavit, with the judgment indorsed, thence- 
forth become the judgment roll. Executions may 



other legal relations are affected by a statute, 
municipal ordinance, contract or franchise, may 



be issued and enforced thereon in the same man- have cetermmed any question of construction or 

ner as upon judgments in other cases in such vahdlty ansin S under *« instrument, statute, 

courts. When the debt for which the judgment ordinance, contract, or franchise, and obtain a 

is recovered is not all due, or is payable in in- declaration of rights, status, or other legal rela- 



stallments, and the installments are not all due, 



tions thereunder. A contract may be construed 



the execution may issue upon such judgment for e £ ther b efore or after ther e ha s been a breach 

the collection of such installments as have be- thereo1 - ( 1931 > c - 103 > s - 2 -) 

come due, and shall be in the usual form; but § 1-255. Who may apply for a declaration. — 
must have indorsed thereon, by the attorney or Any person interested as or through an executor, 
person issuing it, a direction to the sheriff to col- administrator, trustee, guardian or other fiduciary, 
lect the amount due on such judgment, with in- creditor, devisee, legatee, heir, next of kin, or 
terest and costs, which amount shall be stated, cestui que trust, in the administration of a trust, 
with interest thereon, and costs of said judg- or of the estate of a decedent, an infant, lunatic, 
ment. Notwithstanding the issue and collection or insolvent, may have a declaration of rights or 
of such execution, the judgment remains as se- legal relations in respect thereto: (a) To ascertain 
curity for the installments thereafter to become any class of creditors, devisees, legatees, heirs, 
due; and whenever any further installment be- next of kin or others; or (b) To direct the ex- 
comes due, execution may, in like manner, be is- ecutors, administrators, or trustees to do or ab- 
sued for its collection and enforcement. (Rev., s. stain from doing any particular act in their 
582; Code, s. 572; C. C. P., s. 327; C. S. 625.) fiduciary capacity; or (c) To determine any ques- 

[37] 



§ 1-256 



CH. 1. CIVIL PROCEDURE— APPEAL 



§ 1-271 



tion arising in the administration of the estate or 
trust, including questions of construction of wills 
and other writings. (1931, c. 102, s. 3.) 

§ 1-256. Enumeration of declarations not ex- 
clusive. — The enumeration in sections 1-254 and 
1-255 does not limit or restrict the exercise of 
the general powers conferred in section 1-253 in 
any proceedings where declaratory relief is 
sought, in which a judgment or decree will termi- 
nate the controversy or remove an uncertainty. 
(1931, c. 102, s. 4.) 

§ 1-257. Discretion of court. — The court may 
refuse to render or enter a declaratory judgment 
or decree where such judgment or decree, if ren- 
dered or entered, would not terminate the un- 
certainty or controversy giving rise to the pro- 
ceeding. (1931, c. 102, s. 5.) 

§ 1-258. Review. — All orders, judgments and 
decrees under this article may be reviewed as other 
order-:, judgments and decrees. (1931, c. 102, 
s. 6.) 

§ 1-259. Supplemental relief. — Further relief 
based on a declaratory judgment or decree may 
be granted whenever necessary or proper. The 
application therefor shall be by petition to a court 
having jurisdiction to grant the relief. If the ap- 
plication be deemed sufficient, the court shall, on 
reasonable notice, require any adverse party 
whose rights have been adjudicated by the declar- 
atory judgment or decree, to show cause why 
further relief should not be granted forthwith. 
(1931, c. 102, s. 7.) 

§ 1-260. Parties. — When declaratory relief is 
sought, all persons shall be made parties who 
have or claim any interest which would be af- 
fected by the declaration, and no declaration shall 
prejudice the rights of persons not parties to the 
proceedings. In any proceeding which involves 
the validity of a municipal ordinance or franchise, 
such municipality shall be made a party, and shall 
be entitled to be heard, and if the statute, ordin- 
ance or franchise is alleged to be unconstitutional, 
the attorney general of the State shall also be 
served with a copy of the proceeding and be en- 
titled to be heard. (1931, c. 102, s. 8.) 

§ 1-261. Jury trial. — When a proceeding under 
this article involves the determination of an issue 
of fact, such issue may be determined in the same 
manner as issues of fact are tried and determined 
in other civil actions in the court in which the 
proceeding is pending. (1931, c. 102, s. 9.) 

§ 1-262. Hearing before judge where no issues 
of fact raised or jury trial waived; what judge 
may hear. — Proceedings under this article shall 
stand for trial at a term of court, as in other civil 
actions. If no issues of fact are raised, or if such 
issues are raised and the parties waive a jury 
trial, by agreement of the parties the proceedings 
may be heard before any judge of the Superior 
Court. If in such case the parties do not agree 
upon a judge for the hearing, then upon motion 
of the plaintiff the proceeding may be heard by 
the resident judge of the district, or the judge 
holding the courts of the district, or by any judge 
holding a term of the Superior Court within the 
district. Such motion shall be in writing, with 
ten days notice to the defendant, and the judge so 
designated shall fix a time and place for the hear- 

[ 



ing and notify the parties. Upon notice given, 
the Clerk of the Superior Court in which the ac- 
tion is pending ohall forward the papers in the 
proceeding to the judge designated. The hearing 
by t 1, e judge shall be governed by the practice 
for hearing in other civil actions before a judge 
without a jury. The term "Superior Court Judge" 
used in this section shall include emergency and 
special judges of the Superior Court. (1931, c. 
102, ;. 10.) 

§ 1-263. Costs. — In any proceeding under this 
article the court may make such award of costs as 
may seem equitable and just. (1931, c. 102, s. 11.) 

§ 1-264. Liberal construction and administra- 
tion. — This article is declared to be remedial; its 
purpose is to settle and to afford relief from un- 
certainty and insecurity with respeci to rights, 
status, and other legal relations, and it is to be 
liberally construed and administered. (1931, c. 
102, s. 12.) 

§ 1-265. Word "person" construed. — The word 
"person" wherever used in this article, shall be 
construed to mean any person, partnership, joint 
stock company, unincorporated association, or 
society, or municipal corporation or other cor- 
poration of any character whatsoever. (1931, c. 
102, o. 13.) 

§ 1-266. Uniformity of interpretation. — This 
article shall be so interpreted and construed as to 
effectuate its general purpose to make uniform 
the law of those states which enact it, and to 
harmonize, as far as possible, with Federal laws 
and regulations on the subject of declaratory 
judgments and decrees. (1931, c. 102, s. 15.) 

§ 1-267. Short title.— This article may be cited 
as the Uniform Declaratory Judgment Act. (1931, 
c. 102, s. 16.) 

SUBCHAPTER IX. APPEAL. 

Art. 27. Appeal. 

§ 1-268. Writs of error abolished. — Writs of er- 
ror in civil actions are abolished, and the only 
mode of reviewing a judgment, or order, in a 
civil action, is that prescribed by this chapter. 
(Rev., s. 583; Code, s. 544; C. C. P., s. 296; C. 
S. 629.) 

§ 1-269. Certiorari, recordari, and supersedeas. — 

Writs of certiorari, recordari, and supersedeas are 
authorized as heretofore in use The writs of 
certiorari and recordari, when used, ar, substitutes 
for an appeal, may issue when ordered upon the 
applicant filing a written undertaking for the 
costs only; but the supersedeas, to suspend exe- 
cution, shall not issue until an undertaking is filed 
or a deposit made to secure the judgment sought 
to be vacated, as in cases of appeal where execu- 
tion is stayed. (Rev., s. 584; Code, s. 545; 1874-5, 
c. 109; C. S. 630.) 

§ 1-270. Appeal to supreme court; security on 
appeal; stay. — Cases shall be taken to the su- 
preme court by appeal, as provided by law. All 
provisions in this article as to the security to be 
given upon appeals and as to the stay of pro- 
ceedings apply to appeals taken to the supreme 
court. (Rev., ss. 595, 1540; Code, ss. 561, 946; C. 
C. P., s. 312; C. S. 631.) 

§ 1-271. Who may appeal. — Any party aggrieved 
38 ] 



§ 1-272 



CH. 1. CIVIL PROCEDURE— APPEAL 



§ 1-282 



may appeal in the cases prescribed in this chap- 
ter. (Rev., s. 585; Code, s. 547; C. C. P., s. 298; 
C. S. 632.) 

§ 1-272. Appeal from clerk to judge. — Appeals 
lie to the judge of the superior court having juris- 
diction, either in term time or vacation, from 
judgments of the clerk of the superior court in 
all matters of law or legal inference. In case 
of such transfer or appeal neither party need give 
an undertaking for costs; and the clerk shall 
transmit, on the transfer or appeal, to the su- 
perior court, or to the judge thereof, the plead- 
ings, or other papers, on which the issues of fact 
or of law arise. An appeal must be taken with- 
in ten days after the entry of the order or judg- 
ment of the clerk upon due notice in writing to 
be served on the appellee and a copy of which 
shall be filed with the clerk of the superior court. 
But an appeal can only be taken by a party ag- 
grieved, who appeared and moved for, or op- 
posed, the order or judgment appealed from, or 
who, being entitled to be heard thereon, had no 
opportunity of being heard, which fact may be 
shown by affidavit or other proof. (Rev., ss. 586, 
610, 611; Code, ss. 116, 252, 253; C. C. P., ss. 109, 
492; 1927, c. 15; C. S. 633.) 

§ 1-273. Clerk to transfer issues of fact to civil 
issue docket. — If issues of law and of fact, or of 
fact only, are raised before the clerk, he shall 
transfer the case to the civil issue docket for 
trial of the issues at the next ensuing term of the 
superior court. (Rev., s. 588; Code, s. 256; C. C. 
P., s. 115; C. S. 634.) 

§ 1-274. Duty of clerk on appeal. — On such ap- 
peal the clerk, within three days thereafter, shall 
prepare and sign a statement of the case, of his 
decision and of the appeal, and exhibit such state- 
ment to the parties or their attorneys on request. 
If the statement is satisfactory, the parties or 
their attorneys must sign it. If either party ob- 
jects to the statement as partial or erroneous, he 
may put his objections in writing, and the clerk 
shall attach the writing to his statement, and 
within two days thereafter he shall send such 
statement, together with the objections, and 
copies of all necessary papers, by mail or other- 
wise, to the judge residing in the district, or in 
his absence to the judge holding the courts of 
the district, for his decision. (Rev., s. 612; Code, 
s. 254; C. C. P., s. 110; C. S. 635.) 

§ 1-275. Duty of judge on appeal. — It is the duty 
of the judge on receiving a statement of appeal 
from the clerk, or the copy of the record of an 
issue of law, to decide the questions presented 
within ten days. But if he has been informed in 
writing, by the attorney of either party, that he 
desires to be heard on the questions, the judge 
shall fix a time and place for the hearing, and 
give the attorneys of both parties reasonable no- 
tice. He must transmit his decision in writing, 
endorsed on or attached to the record, to the clerk 
of the court, who shall immediately acknowledge 
its receipt, and within three days after such re- 
ceipt notify the attorneys of the parties of the de- 
cision and, on request and the payment of his legal 
fees, give them a copy thereof, and the parties re- 
ceiving such notice may proceed thereafter accord- 
ing to law. (Rev., s. 613; Code, s. 255; C. C. P., 
s. 113; C. S. 636.) 

[ 39 



§ 1-276. Judge determines entire controversy; 
may recommit. — Whenever a civil action or 
special proceeding begun before the clerk of a 
superior court is for any ground whatever sent to 
the superior court before the judge, the judge has 
jurisdiction; and it is his duty, upon the request 
of either party, to proceed to hear and determine 
all matters in controversy in such action, unless 
it appears to him that justice would be more 
cheaply and speedily administered by sending 
the action back to be proceeded in before the 
clerk, in which case he may do so. (Rev., s. 614; 
1887, c. 276; C. S. 637.) 

§ 1-277. Appeal from superior court judge. — An 
appeal may be taken from every judicial order or 
determination of a judge of a superior court, upon 
or involving a matter of law or legal inference, 
whether made in or out of term, which affects a 
substantial right claimed in any action or pro- 
ceeding; or which in effect determines the action, 
and prevents a judgment from which an appeal 
might be taken; or discontinues the action, or 
grants or refuses a new trial. (Rev., s. 587; Code, 
s. 548; C. C. P., s. 299; 1818, c. 962, s. 4; C. S. 638.) 

§ 1-278. Interlocutory orders reviewed on appeal 
from judgment. — Upon an appeal from a judg- 
ment, the court may review any intermediate 
order involving the merits and necessarily affect- 
ing the judgment. (Rev., s. 589; Code, s. 562; C. 
C. P., s. 313; C. S. 640.) 

§ 1-279. When appeal taken. — The appeal must 
be taken from a judgment rendered out of term 
within ten days after notice thereof, and from a 
judgment rendered in term within ten days after 
its rendition, unless the record shows an appeal 
taken at the trial, which is sufficient, but execu- 
tion shall not be suspended until the giving by 
the appellant of the undertakings hereinafter re- 
quired. (Rev., s. 590; Code, s. 549; 1889, c. 161; 
C. C. P., s. 300; C. S. 641.) 

§ 1-280. Entry and notice of appeal. — Within 
the time prescribed in § 1-279, the appellant shall 
cause his appeal to be entered by the clerk on the 
judgment docket, and notice thereof to be given 
to the adverse party unless the record shows an 
appeal taken or prayed at the trial, which is suffi- 
cient. (Rev., s. 591; Code, s. 550; C. C. P., s. 301: 
C. S. 642.) 

§ 1-281. Appeals from judgments not in term 
time. — When appeals are taken from judgments 
of the clerk or judge not made in term time, the 
clerk is authorized to make any and all necessary 
orders for the perfecting of such appeals. (Ex. 
Sess. 1921, c. 92, s. 19a; C. S. 642(a).) 

§ 1-282. Case on appeal; statement, service, and 
return. — The appellant shall cause to be prepared 
a concise statement of the case, embodying the 
instructions of the judge as signed by him, if 
there be an exception thereto, and the request of 
the counsel of the parties for instructions if there 
be any exception on account of the granting or 
withholding thereof, and stating separately, in 
articles numbered, the errors alleged. A copy of 
this statement shall be served on the respondent 
within fifteen days from the entry of the appeal 
taken; within ten days after such service the re- 
spondent shall return the copy with his approval 
or specific amendments indorsed or attached; if 



§ 1-283 



CH. 1. CIVIL PROCEDURE— APPEAL 



§ 1-288 



the case be approved by the respondent, it shall in a civil cause or special proceeding, a written 

be filed with the clerk as a part of the record; if undertaking must be executed on the part of the 

not returned with objections within the time pre- appellant, with good and sufficient surety, in 

scribed, it shall be deemed approved: Provided, such sum as may be ordered by the court, not 

that the judge trying the case shall have the exceeding two hundred and fifty dollars, to the 

power, in the exercise of his discretion, to enlarge effect that the appellant will pay all costs 

the time in which to serve statement of case on awarded against him on the appeal, and this un- 

appeal and exceptions thereto or counter state- dertaking must be filed with the clerk by whom 

ment of case. (Rev., s. 591; Code, s. 550; C. C. the judgment or order was entered; or such sum 

P., s. 301; 1905, c. 448; 1921, c. 97; C. S. 643.) as is ordered by the court must be deposited 

§ 1-283. Settlement of case on appeal.-If the with the cl f rk by whom the judgment or order 

case on appeal is returned by the respondent with £*» entered to abide the_ event of the appeal. 

, . .. „ •< j .. „„„-n.,,,,. c.v,-,n ;m The undertaking or deposit may be waived by a 

objections as prescribed, the appellant snail lm- . , i , , 

mediately request the judge to fix a time and £" tten consent on the part of the respondent, 

place for settling the case before him. If the No a PP ea * sha11 b f dismissed in the supreme 

appellant delays longer than fifteen days after the court ° n the S round that the undertaking on ap- 



respondent serves his countercase, or exceptions, 



peal was not filed, or deposit made, earlier, if 



to request the judge to settle the case on appeal, the undertaking is filed or the deposit made be- 
Mid delavs for such period to mail the case and f°re the record of the case is transmitted by the 
countercase or exceptions to the judge, then the clerk of the superior court to the supreme court. 



When no undertaking on appeal has been filed, 
or deposit made before the record of the case is 
transmitted to the supreme court, the supreme 
court shall, upon good cause shown, on such 
terms as may be just, allow the appellant to file 
an undertaking or make the deposit. (Rev., ss. 
593, 595; Code, ss. 552, 561; C. C. P., ss. 303, 312; 



§ 1-286. Justification of sureties. — The under- 
taking on appeal must be accompanied by the 
affidavit of one of the sureties that he is worth 
double the amount specified therein. The re- 
spondent may except to the sufficiency of the 
sureties within ten days after the notice of ap- 
peal; and unless they or other sureties justify 
within ten days thereafter, the appeal shall be 



exceptions filed by the respondent shall be al- 
lowed, or the countercase served by him shall 
constitute the case on appeal; but the time may 
be extended by agreement. 

The judge shall forthwith notify the attorneys 
of the parties to appear before him for that pur- 
pose at a certain time and place, within the ju- 
dicial district, which time shall not be more than 1889, c. 135, s. 2; 1871-2, c. 31; C. S. 646.) 
twenty days from the receipt of the request. At 
the time and place stated, the judge shall settle 
and sign the case, and deliver a copy to the at- 
torney of each party, or, if the attorneys are not 
present, file a copy in the office of the clerk of 
the court. If the judge has left the district be- 
fore the notice of disagreement, he may settle the 
case without returning to the district. 

In settling the case, the written instructions , 

in =v» b i regarded as if no undertaking had been given. 

signed by the judge, and the written request for _° . .»«... . . J* .. % . 

f s . J ■ j i* *.i_ 1 j ii „u The justification must be upon a notice of not 

instructions signed by the counsel, and the writ- ^ g & Q 

ten exceptions, are deemed conclusive as to what g c 64 

these instructions, requests, and exceptions were. ' 

If a copy of the case settled was delivered to the § 1-287. Notice of motion to dismiss; new bond 

appellant, he shall within five days thereafter file or deposit. — Before the appellee is permitted to 

it with the clerk, and if he fails to do so, the re- move to dismiss an appeal, either for any ir- 

spondent may file his copy. regularity in the undertaking on appeal or for 

The judge shall settle the case on appeal with- f a n ure f sureties to justify, he must give writ- 

in sixty days after the termination of a special ten not i C e to the appellant of such motion at 

term or after the courts of the districts have j east twen ty days before the district from which 

ended, and if the judge in the meantime has gone the cause ; s sent up ; s ca n e d, and this notice 

out of office, he shall settle the case as if he were must state the groun d s upon which the motion 

still in office. Any judge failing to comply with ; g based At least five days before the district 

this section is liable to a penalty of five hundred from which the cause ; s sent up j s ca n e d, the 

dollars, for the use of anv person who sues for it. appe n ant may file with the clerk of the supreme 

(Rev., s. 591; Code, s. 550; C. C. P., s. 301; 1889, court a new bond j ust ified according to law and 

c. 161; 1907, c. 312; C. b. 644.) containing a penalty the same in amount as the 

§ 1-284. Clerk to prepare transcript.— The clerk penalty in the original bond, or he may deposit 

on receiving a copy of the cas^ settled, as re- with the said clerk a sum of money equal to the 

quired in the preceding sections, shall make a penalty in the original bond. When a new bond 

copy of the judgment roll and of the case, and has been thus filed or deposit made the cause 

within twenty days transmit the same, duly cer- stands as if the bond had been duly given or 

tified, to the clerk of the supreme court. The deposit duly made in the court below. (Rev., s. 

clerk, except in cases where parties are allowed to 596; 1887, c. 121; C. S. 648.) 

appeal without giving an undertaking en appeal, § j.ggg Appeals in forma pauperis; clerk's 

shall not be required to make the copy of the fees ._ When any party to a civil action tried 

record in the case for the supreme court until the and determined in the superior court at the time 

appellant has given the undertaking on appeal or of tHal de sires an appeal from the judgment 

made the deposit required. (Rev., s^592; Code, rende red in the action to the supreme court, and 

s. 551; 1889, c. 135; C. C. P., s. 302; C. S. 645.) j g unable> by reas0 n of his poverty, to make the 

§ 1-285. Undertaking on appeal; filing; waiver, deposit or to give the security required by law 

To render an appeal effectual for any purpose for said appeal, it shall be the duty of the judge 

[40] 



§ 1-289 



CH. l. CIVIL PROCEDURE— APPEAL 



§ 1-293 



or clerk of said superior court to make an order 
allowing said party to appeal from the judgment 
to the supreme court as in other cases of ap- 
peal, without giving security therefor. The 
party desiring to appeal from said judgment 
shall within five days make affidavit that he is 
unable by reason of his poverty to give the se- 
curity required by law, and that he is advised 
by counsel learned in the law that there is er- 
ror in matter of law in the decision of the su- 
perior court in said action. The affidavit must 
be accompanied by a written statement from a 
practicing attorney of said superior court that 
he has examined the affiant's case, and is of 
opinion that the decision of the superior court, 
in said action, is contrary to law. The appeal 
when passed upon and granted by the clerk 
shall be within ten days from the expiration by 
law of said term of court. The clerk of the su- 
perior court cannot demand his fees for the 
transcript of the record for the supreme court 
of a party appealing in forma pauperis, in case 
such appellant furnishes to the clerk two true 
and correctly typewritten copies of such rec- 
ords on appeal. Nothing contained in this sec- 
tion deprives the clerk of the superior court of 
his right to demand his fees for his certificate 
and seal as now allowed by law in such cases. 
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; C. S. 649.) 

§ 1-289. Undertaking to stay execution on 
money judgment. — If the appeal is from a judg- 
ment directing the payment of money, it does 
not stay the execution of the judgment unless 
a written undertaking is executed on the part 
of the appellant, by one or more sureties, to the 
effect that if the judgment appealed from, or 
any part thereof, is affirmed, or the appeal is 
dismissed, the appellant will pay the amount 
directed to be paid by the judgment, or the 
part of such amount as to which the judgment 
shall be affirmed, if affirmed only in part, and 
all damages which shall be awarded against the 
appellant upon the appeal. Whenever it is sat- 
isfactorily made to appear to the court that since 
the execution of the undertaking the sureties 
have become insolvent, the court may, by rule 
or order, require the appellant to execute, file 
and serve a new undertaking, as above. In 
case of neglect to execute such undertaking 
within twenty days after the service of a copy 
of the rule or order requiring it, the appeal 
may, on motion to the court, be dismissed with 
costs. Whenever it is necessary for a party to 
an action or proceeding to give a bond or an 
undertaking with surety or sureties, he may, in 
lieu thereof, deposit with the officer into court 
money to the amount of the bond or undertak- 
ing to be given. The court in which the action 
or proceeding is pending may direct what dis- 

[ 



position shall be made of such money pending 
the action or proceeding. In a case where, by 
this section, the money is to be deposited with 
an officer, a judge of the court, upon the appli- 
cation of either party, may, at any time before 
the deposit is made, order the money deposited 
in court instead of with the officer; and a de- 
posit made pursuant to such order is of the 
same effect as if made with the officer. The 
perfecting of an appeal by giving the undertak- 
ing mentioned in this section stays proceedings 
in the court below upon the judgment appealed 
from; except when the sale of perishable prop- 
erty is directed, the court below may order the 
property to be sold and the proceeds thereof 
to be deposited or invested, to abide the judg- 
ment of the appellate court. (Rev., s. 598; Code, 
S. 554; C. C. P, ss. 304, 311; C. S. 650.) 

§ 1-290. How judgment for personal property 
stayed. — If the judgment appealed from directs 
the assignment or delivery of documents or per- 
sonal property, the execution of the judgment 
is not stayed by appeal, unless the things re- 
quired to be assigned or delivered are brought 
into court, or placed in the custody of such of- 
ficer or receiver as the court appoints, or unless 
an undertaking be entered into on the part of 
the appellant, by at least two sureties, and in 
such amount as the court or a judge thereof 
directs, to the effect that the appellant will obey 
the order of the appellate court upon the ap- 
peal. (Rev., s. 599; Code, s. 555; C. C. P., s. 305; 
C. S. 651.) 

§ 1-291. How judgment directing conveyance 
stayed. — If the judgment appealed from directs 
the execution of a conveyance or other instru- 
ment, the execution of the judgment is not 
stayed by the appeal until the instrument has 
been executed and deposited with the clerk with 
whom the judgment is entered, to abide the 
judgment of the appellate court. (Rev., s. 600; 
Code, s. 556; C. C. P., s. 306; C. S. 652.) 

§ 1-292. How judgment for real property stayed. 
— If the judgment appealed from directs the 
sale or delivery of possession of real property, 
the execution is not stayed, unless a bond is 
executed on the part of the appellant, with one 
or more sureties, to the effect that, during his 
possession of such property, he will not com- 
mit, or suffer to be committed, any waste there- 
on, and that if the judgment is affrmed he will 
pay the value of the use and occupation of the 
property, from the time of the appeal until the 
delivery of possession thereof pursuant to the 
judgment, not exceeding a sum to be fixed by a 
judge of the court by which judgment was ren- 
dered and which must be specified in the un- 
dertaking. When the judgment is for the sale 
of mortgaged premises, and the payment of a 
deficiency arising upon the sale, the undertak- 
ing must also provide for the payment of this 
deficiency. (Rev., s. 601; Code, s. 557; C. C. P., s. 
307; C. S. 653.) 

§ 1-293. Docket entry of stay. — When an ap- 
peal from a judgment is pending, and the un- 
dertaking requisite to stay execution on the 
judgment has been given, and the appeal per- 
fected, the court in which the judgment was 
41] 



§ 1-294 



CH. 1. CIVIL PROCEDURE— EXECUTION 



§ 1-302 



recovered may, on special motion, after notice affirmed the court below shall direct the execu- 

to the person owning the judgment, on such tion thereof to proceed, and if the judgment is 

terms as it sees fit, direct an entry to be made modified, shall direct its modification and per- 

by the clerk on the docket of such judgment, formance. If a new trial is ordered the cause 

that the same is secured on appeal, and no exe- stands in its regular order on the docket for 

cution can issue upon such judgment during trial at such first term after the receipt of the 

the pendency of the appeal. (Rev., s. 621; Code, certificate from the supreme court. (Rev., s. 1526; 

s. 435; 1887, c. 192; C. C. P., s. 254; C. S. 654.) 1887, c. 192, s. 2; C. S. 659.) 

§ 1-254. Scope of stay; security limited for fi- § !- 2 99- Appeal from justice heard de novo; 

duciaries.— When an appeal is perfected as pro- judgment by default; appeal dismissed.— When 

vided by this article it stays all further pro- an appeal is taken from the judgment of a jus- 

ceedings in the court below upon the judgment tice of the P eac e to a superior court, it shall be 

appealed from, or upon the matter embraced therein reheard, on the original papers, and no 

therein; but the court below may proceed upon copy thereof need be furnished for the use of 

any other matter included in the action and not the appellate court. An issue shall be made 

affected by the judgment appealed from. The up and tried by a jury at the first term to which 

court below may, in its discretion, dispense with the case is returned, unless continued, and 

or limit the security required, when the appel- judgment shall be given against the party cast 

lant is an executor, administrator, trustee, or and his sureties. When the defendant defaults, 

other person acting in a fiduciary capacity, the plaintiff in actions instituted on a single 

It mav also limit such security to an amount bond, a covenant for the payment of money, 

not more than fifty thousand dollars, where it bill of exchange, promissory note, or a signed 



account, shall have judgment, and in other cases 
may have his inquiry of damages executed forth- 
with by a jury. If the appellant fails to have 
his appeal docketed as required by law, the ap- 
pellee may, at the term of court next succeed- 
ing the term to which the appeal is taken, have 



would otherwise exceed that sum. (Rev., s. 602; 
Code, s. 558; C. C. P., s. 308; C. S. 655.) 

§ 1-295. Undertaking in one or more instru- 
ments; served on appellee. — The undertakings 
may be in one instrument or several, at the op- 
tion of the appellant; and a copy, including the the case placed upon the docket, and upon 
names and residences of the sureties, must be motion the judgment of the justice shall be af- 
served on the adverse party, with the notice of firmed and judgment rendered against the ap- 
appeal, unless the required deposit is made and pellant, and for the costs of appeal and against 
notice thereof given. (Rev., s. 603; Code, s. 559; his sureties upon the undertaking, if there are 
C. C. P., s. 309; C. S. 656.) any, according to the conditions thereof. Noth- 

§ 1-296. Judgment not vacated by stay.— The in S herein prevents the granting the writ of 

stay of proceedings provided for in this article recordari in cases now allowed by law. (Rev., ss. 

shall not be construed to vacate the judgment 607 - 609 ; Code > ss - 565 > ^ 81 ' C - C - P > s - 54 °; 1889 ' 

appealed from, but in all cases such judgment c - 4-i3; P - ^-> c - 31 - s - 105 ! 1777, c. 115, s. 63; 1794, 

remains in full force and effect, and its lien re- c - il ' i ' ^~ S- 6G0 -) 

mains unimpaired, notwithstanding the giving L^ 31 Modification.— Transylvania : 1935, c. 32. 

of the undertaking or making the deposit re- § 1-300. Appeal from justice docketed for trial 

quired in this chapter, until such judgment is de novo.— When the return is made from the 

reversed or modified by the supreme court, justice's court the clerk of the appellate court 



(Rev., s. 604; 1887, c. 192; C. S. 657.) 

§ 1-297. Judgment on appeal and on undertak- 
ings; restitution. — Upon an appeal from a judg- 
ment or order, the appellate court may reverse, 
affirm or modify the judgment or order ap- 



shall docket the case on his trial docket for a 
new trial of the whole matter at the ensuing 
term of said court. (Rev., s. 608; Code, s. 880; 
C. C. P., s. 539; 1876-7, c. 251, s. 8; C. S. 661.) 

§ 1-301. Plaintiff's cost bond on appeal from 



pealed from, in the respect mentioned in the j ustice .— When a defendant appeals from the 

notice of appeal, and as to any or all of the j udgmen t of a justice of the peace to the su- 

parties, and may, if necessary or proper, order peHor courtj or when the judgment of the jus . 

a new trial When the judgment is reversed or tke ; s removed by the defendant, by recordari 

modified, the appellate court may make com- orotherwise? to a superior court> the court 

plete restitution of all property and rights lost haying cognizance of the appea i or recordari 

by the erroneous judgment. Undertakings for may> upon sufficient cause shown by affid avit, 

the prosecution of appeals and on writs of cer- CQ j the plaintiff t0 give an under taking, 

tioran shall make a part of the record sent up with sufficient surety> for payment of the costs 

to the supreme court on winch judgment may of the guit fa the eyent of his fa ; H tQ prQse . 

be entered against the appellant or person pros- cute the same with effect (R s 606; Code] s 



ecuting the writ of certiorari and his sureties 
in all cases where judgment is rendered against 
the appellant or person prosecuting the writ. 
(Rev., s. 605; Code, s. 563; C. C. P., s. 314; R. C, 
c. 4, s. 10; 1785, c. 233, s. 2; 1810, c. 793; 1831, c. 
46, s. 2; C. S. 658.) 

§ 1-298. Procedure after determination of ap- 
peal. — In civil cases, at the first term of the su- 
perior court after a certificate of the determina- 
tion of an appeal is received, if the judgment is execution, as provided in this article 

[42] 



564; R. C, c. 31, s. 104; 1831, c. 29; C. S. 662.) 
SUBCHAPTER X. EXECUTION. 
Art. 28. Execution. 

§ 1-302. Judgment enforced by execution. — 
Where a judgment requires the payment of 
money or the delivery of real or personal prop- 
erty it may be enforced in those respects by 

Where 



§ 1-303 



CH. l. CIVIL PROCEDURE— EXECUTION 



§ 1-313 



it requires the performance of any other act a 
certified copy of the judgment may be served 
upon the party against whom it is given, or 
upon the person or officer who is required 
thereby or by law to obey the same, and his 
obedience thereto enforced. If he refuses, he 
may be punished by the court as for contempt. 
(Rev., s. 615; Code, s. 441; C. C. P., s. 257; C. S. 
663.) 

§ 1-303. Kinds of; signed by clerk; when 
sealed. — There are three kinds of execution: 
one against the property of the judgment debt- 
or, another against his person, and the third for 
the delivery of the possession of real or per- 
sonal property, or such delivery with damages 
for withholding the same. They shall be deemed 
the process of the court, and shall be subscribed 
by the clerk, and when to run out of his county, 
must be sealed with the seal of his court. (Rev., 
s. 616; Code, s. 442; C. C. P., s. 258; C. S. 664.) 

§ 1-304. Against married woman. — An execu- 
tion may issue against a married woman, and 
it must direct the levy and collection of the 
amount of the judgment against her from her 
separate property, and not otherwise. (Rev., s. 
617; Code, s. 443; C. C. P., s. 259; C. S. 665.) 

§ 1-305. Clerk to issue, in six weeks; penalty. — 
The clerks of the superior court shall issue ex- 
ecutions on all judgments rendered in their 
respective courts, unless otherwise directed by 
the plaintiff, within six weeks of the rendition 
of the judgment, and must endorse upon the 
record the date of such issue. If the execu- 
tions issued are not returned satisfied to the 
courts to which they are made returnable, the 
clerks must issue alias executions, within six 
weeks thereafter, unless otherwise instructed as 
aforesaid. Every clerk who fails to comply 
with the requirements of this section is liable 
to be amerced in the sum of one hundred dol- 
lars for the benefit of the party aggrieved, un- 
der the same rules that are provided by law for 
amercing sheriffs, and is further liable to the 
party injured by suit upon his bond. (Rev., s. 
618; Code, s. 470; R. C, c. 45, s. 29; 1850, c. 17, 
ss. 1, 2, 3; C. S. 666.) 

§ 1-306. Enforcement as of course. — The 

party in whose favor judgment is given, and in 
case of his death, his personal representatives 
duly appointed, may at any time after the entry 
of judgment proceed to enforce it by execution, 
as provided in this article; Provided, however, 
that no execution upon any judgment which re- 
quires the payment of money or the recovery of 
personal property may be issued at any time after 
ten years from the date of the rendition thereof; 
but this proviso shall not apply to any execution 
issued solely for the purpose of enforcing the lien 
of a judgment upon any homestead, which has or 
shall hereafter be allotted within the ten years 
from the date of rendition of judgment, or any 
judgment directing the payment of alimony. 
(Rev., s. 619; Code, s. 437; C. C. P., s. 255; 1927, 
c. 24; 1935, c. 98; C. S. 667.) 

§ 1-307. Issued from and returned to court of 
rendition. — Executions and other process for 
the enforcement of judgments can issue only 
from the court in which the judgment for the 

[43 



enforcement of the execution or other final 
process was rendered; and the returns of execu- 
tions or other final process shall be made to the 
court of the county from which it issued. (Rev., 
s. 623; Code, s. 444; 1871-2, c. 74; 1881, c. 75; C. 
S. 669.) 

§ 1-308. To what counties issued. — When the 
execution is against the property of the judg- 
ment debtor it may be issued to the sheriff of 
any county where the judgment is docketed. No 
execution may issue from the superior court of 
any county upon a judgment until it is docketed 
in that county. When it requires the delivery of 
real or personal property it must be issued to the 
sheriff of the county where the property, or 
some part thereof, is situated. Executions may 
be issued at the same time to different counties. 
(Rev., s. 622; Code, s. 443; C. C. P., s. 259; 1871-2, 
c. 74; 1881, c. 75; 1905, c. 412; C. S. 670.) 

§ 1-309. Sale of land under execution. — Real 
property adjudged to be sold must be sold in the 
county where it lies, by the sheriff of the county 
or by a referee appointed by the court for that 
purpose; and thereupon the sheriff or referee 
must execute a conveyance to the purchaser, 
which conveyance shall be effectual to pass the 
rights and interests of the parties adjudged to be 
sold. (Rev., s. 622; Code, s. 443; C. C. P., s. 259; 
C. S. 671.) 

§ 1-310. When dated and returnable. — Execu- 
tions shall be dated as of the day on which they 
were issued, and shall be returnable to the court 
from which they were issued not less than 
forty nor more than ninety days from said date, 
and no executions against property shall issue 
until the end of the term during which judgment 
was rendered. (Rev., s. 624; Code, s. 449; 1903, 
c. 544; 1870-1, c. 42, s. 7; 1873-4, c. 7; 1927, c. 110; 
1931, c. 172; C. S. 672.) 

§ 1-311. Against the person. — If the action is 
one in which the defendant might have been ar- 
rested, an execution against the person of the 
judgment debtor may be issued to any county 
within the state, after the return of an execution 
against his property wholly or partly unsatisfied. 
But no execution shall issue against the person 
of a judgment debtor, unless an order of arrest 
has been served, as provided in the article Ar- 
rest and Bail, or unless the complaint contains a 
statement of facts showing one or more of the 
causes of arrest required by law, whether such 
statement of facts is necessary to the cause of ac- 
tion or not. (Rev., s. 625; Code, s. 447; 1891, c. 
541, s. 2; C. C. P., s. 260; C. S. 673.) 

§ 1-312. Rights against property of defendant 
dying in execution. — Parties at whose suit the 
body of a person is taken in execution for a judg- 
ment recovered, their executors or administrators, 
may, after the death of the person so taken and 
dying in execution, have the same rights against 
the property of the person deceased, as they 
might have had if that person had never been in 
execution. (Rev., s. 626; Code, s. 469; R. C, c. 
45, s. 28; 21 James I, s. 24; C. S. 674.) 

§ 1-313. Form of execution. — The execution 
must be directed to the sheriff, or coroner when 
the sheriff is a party or interested, subscribed by 
the clerk of the court, and must intelligibly re- 

] 



§ 1-314 



CH. 1. CIVIL PROCEDURE— EXECUTION 



§ 1-319 



fer to the judgment, stating the county where 
the judgment roll or transcript is filed, the 
names of the parties, the amount of the judg- 
ment, if it is for money, the amount actually due 
thereon, and the time of docketing in the county 
to which the execution is issued, and shall re- 
quire the officer substantially as follows: 

1. Against property — no lien on personal 
property until levy. — If it is against the prop- 
erty of the judgment debtor, it shall require the 
officer to satisfy the judgment out of his per- 
sonal property; and if sufficient personal prop- 
erty cannot be found, out of the real property 
belonging to him on the day when the judgment 
was docketed in the county, or at any time there- 
after; but no execution against the property of 
a judgment debtor is a lien on his personal prop- 
erty, as against any bona fide purchaser from 
him for value, or as against any other execution, 
except from the levy thereof. 

2. Against property in hands of personal rep- 
resentative.— If it is against real or personal 
property in the hands of personal representa- 
tives, heirs, devisees, legatees, tenants of real 
property or trustees it shall require the officer 
to satisfy the judgment out of such property. 

3. Against the person.— If it is against the 
person of the judgment debtor, it shall require 
the officer to arrest him, and commit him to the 
jail of the county until he pays the judgment or 
is discharged according to law. 

4. For delivery of specific property. — If it is 
for the delivery of the possession of real or per- 
sonal property, it shall require the officer to de- 
liver the possession of the same, particularly de- 
scribing it, to the party entitled thereto, and 
may at the same time require the officer to sat- 
isfy any costs, damages, rents, or profits recov- 
ered by the same judgment, out of the personal 
property of the party against whom it was ren- 
dered, and the value of the property for which 
the judgment was recovered, to be specified 
therein, if a delivery cannot be had; and if suffi- 
cient personal property cannot be found, then 
out of the real property belonging to him on the 
day when the judgment was docketed, or at any 
time thereafter, and in that respect is deemed an 
execution against property. 

5. For purchase money of land. — If the an- 
swer in an action for recovery of a debt con- 
tracted for the purchase of land does not deny, 
or if the jury finds, that the debt was so con- 
tracted, it is the duty of the court to have em- 
bodied in the judgment that the debt sued on 
was contracted for the purchase money of the 
land, describing it briefly; and it is also the duty 
of the clerk to set forth in the execution that the 
said debt was contracted for the purchase of the 
land, the description of which must be set out 
briefly as in the complaint. (Rev., s. 627; Code, 
ss. 234-238, 448; C. C. P., s. 261; 1868-9, c. 148; 
1879, c. 217; C. S. 675.) 

§ 1-314. Variance between judgment and execu- 
tion. — When property has been sold by an offi- 
cer by virtue of an execution or other process 
commanding sale, no variance between the exe- 
cution and the judgment whereon it was issued, 
in the sum due, in the manner in which it is due, 
or in the time when it is due, invalidates or af- 
fects the title of the purchaser of such property. 

[ 



(Rev., s. 628; Code, s. 1347; R. C, c. 44, s. 13; 
1848, c. 53; C. S. 676.) 

§ 1-315. Property liable to sale under execution. 
— The property of the judgment debtor, not ex- 
empted from sale under the constitution and 
laws of this state, may be levied on and sold un- 
der execution as hereinafter prescribed: 

1. Goods, chattels, and real property belong- 
ing to him. 

2. All leasehold estates of three years dura- 
tion or more, owned by him. 

3. Equitable and legal rights of redemption in 
personal and real property pledged or mortgaged 
by him. But when the equity of redemption in 
personal property is sold under execution, notice 
of the time and place of said sale shall be given 
the mortgagee. 

4. Real property or goods and chattels of 
which any person is seized or possessed in trust 
for him. 

But no execution shall be levied on growing 
crops until they are matured. (Rev., ss. 629, 632; 
Code, ss. 450, 453; R. C, c. 45, ss. 1-5, 11; 5 Geo. 
II, c. 7, s. 4; 1777, c. 115, s. 29; 1812, c. 830, ss. 
1, 2; 1822, c. 1172; 1844, c. 35; 1919, c. 30; C. S. 
677.) 

§ 1-316. Sale of trust estates; purchaser's title. 
— Upon the sale under execution of trust estates 
whereof the judgment debtor is beneficiary the 
sheriff shall execute a deed to the purchaser, and 
the purchaser thereof shall hold and enjoy the 
same freed and discharged from all encum- 
brances of the trustee. (Rev., s. 630; Code, s. 452; 
R. C, c. 45, s. 4; 1812, c. 830; C. S. 678.) 

§ 1-317. Sheriffs deed on sale of equity of re- 
demption. — The sheriff selling equitable and le- 
gal rights of redemption shall set forth in the 
deed to the purchaser thereof that the said es- 
tates were under mortgage at the time of judg- 
ment, or levy in the case of personal property 
and sale. (Rev., s. 631; Code, s. 451; R. C., c. 45, 
s. 5; 1812, c. 830, s. 2; 1822, c. 1172; C. S. 679.) 

§ 1-318. Forthcoming bond for personal prop- 
erty. — If a sheriff or other officer who has levied 
an execution or other process upon personal 
property permits it to remain with the possessor, 
the officer may take a bond, attested by a cred- 
ible witness, for the forthcoming thereof to an- 
swer the execution or process; but the officer re- 
mains, nevertheless, in all respects liable as here- 
tofore to the plaintiff's claim. (Rev., 633; Code, 
463; R. C, c. 45, s. 21; 1807, c. 731, s. 3; 1828, c. 
12, s. 2; C. S. 680.) 

§ 1-319. Procedure on giving bond; subsequent 
levies. — When the forthcoming bond is taken the 
officer must specify therein the property levied 
upon and furnish to the surety a list of the prop- 
erty in writing under his hand, attested by at 
least one credible witness, and stating therein the 
day of sale. The property levied upon is deemed 
in the custody of the surety, as the bailee of the 
officer. All other executions thereafter levied on 
this property create a lien on the same from and 
after the respectives levies, and shall be satisfied 
accordingly out of the proceeds of the sale of the 
property; but the officer thereafter levying shall 
not take the property out of the custody of the 
surety. But in all such cases sales of chattels shall 
44 ] 



§ L320 CH. 1. CIVIL PROCEDURE— JUDICIAL SALES § 1-327 

take place within thirty days after the first levy; officer authorized to make the sale, and the sale 
and if sale is not made within that time any other is made legally and in good faith, and the prop- 
officer who has levied upon the property may seize erty did not belong to the person against whose 
and sell it. (Rev., 634; Code, s. 464; R. C, c 45, estate the execution or decree was issued, by 
s 22- 1844 c. 34; 1846, c. 50; C. S. 682.) reason of which the purchaser has been deprived 

of the property, or been compelled to pay dam- 

§ 1-320. Summary remedy on forthcoming bond. ageg in j ieu thereof to the owner) the purchaser, 

—If the condition of such bond be broken, the hig executors or administrators, may sue the per- 

sheriff or other officer, on giving ten days pre- gon agamst wn0 m such execution or decree was 

vious notice in writing to any obligor therein, ; ssuedj or tbe person legally representing him, in 

may on motion have judgment against him m a a c j v jj act ; 0I1) and re cover such sum as he may 

summary manner, before the superior court or naye paid £ Qr the p r0 p erty) w jth interest from 

before a justice of the peace, as the case may be, the time of payment; but the property, if per- 

of the county in which the officer resides, for all gona i ; must be present at the sale and actually 

damages which the officer has sustained, or may Slivered to t h e purchaser. (Rev., s. 639; Code, s. 

be adjudged liable to sustain, not exceeding^ the 46g . R q c 45> g _ 2? . 1807) c 723; c g _ 6g5 y 
penalty of the bond, to be ascertained by a jury, 

under the direction of the court or justice. § 1-324. Costs on execution paid to clerk; pen- 

(Rev 635; Code, s. 465; R. C, c. 45, s. 23; 1822, alty. — The sheriff or other officer must pay the 

c 1141' C. S. 681.) costs on all executions which are satisfied in 

whole or in part, to the clerk of the court from 
§ 1-321. Entry of returns on judgment docket; whkh the execution issuedj and to no other per . 
penalty.— When an execution is returned, the re- SQn> Qn the second day of the term oi the court; 
turn of the sheriff or other officer must be noted and any such officer making de f au lt herein shall 
by the clerk on the judgment docket; and when forfeit and pay forty do i Iars for the bene fi t of 
it is returned wholly or partially satisfied it is the party aggr j e ved, under the same rules that 
the duty of the clerk of the court to which it is afe provided by j aw for ame rcing sheriffs, 
returned to send a copy of such last mentioned (Rey ^ g _ 640; Code; g _ 473; R s> c 76> g _ 5; 1833> 
return, under his hand, to the clerk of tne supe- c n4g . c g 6g6 ^ 
rior court of each county in which such judg- 
ment is docketed, who must note such copy in Art. 29. Execution and Judicial Sales, 
his judgment docket, opposite the judgment, and § 1325 Row adverrised- _ No real p rop erty 
file the copy with the transcript of the docket ot shaU be soM under executionf deed of trugtj mort . 
the judgment in his office. A clerk failing to gage or Qther contractgj excep t as provided in 
send a copy of the payments on the execution or other sections o{ this artide until notke of gak has 
judgment to the clerks of the superior court ot been pQgted a( . tfae courthouse door in the colmty 
the counties wherein a transcript of the judg- for thirty dayg immediately pre ceding the sale, 
ment has been docketed, and a clerk failing to and algQ published once a week for four success i ve 
note said payment on the judgment docket ot weekg [n gome newspaper pu bH s hed in the county, 
his court, shall, on motion, be fined one hundred . f a paper . g pubHshed in the county . p rov ided, 
dollars nisi, and the judgment shall be made at>- that ;f ther£ bg nQ newspaper published in said 
solute upon notice to show cause at the sue- county the notice of such ga]e mugt be posted at 
ceeding term of the superior court of his county. the courthouse door and three other public places 
(Rev., s. 636; Code, s. 445; 1871-2, c. 74, s. 2; jn thg county for tb ; rty days immediately preced- 
1881, c. 75; C. S. 683.) mg tbe sa i e (R ev ., s. 641; Code, s. 456; 1885, c. 
§ 1-322 Cost of keeping livestock; officer's ac- 38; 1905, c. 147; 1868-9, c. 237, s. 10; R. C, c. 45, s. 
count.— The court or justice shall make a rea- 16; 1881, c. 278; 1909, c. 705; 1927, c. 255, s. 1; C. 
sonable allowance to officers for keeping and S. 687.) 

maintaining horses, cattle, hogs, or sheep, and § j.ggg Advertisement of resale.— No real prop- 
all other property taken into their custody under erty ghall be gold under executiorlj deed of trust> 
legal process, the keeping of which is charge- mortgage or other contracts, except as provided 
able to them; and this allowance may be re- ^ ^ following gection unti] notice of sa , p hag 
tained by the officers out of the sales ot the bgen pogted ^ thg courthouse door in the county 
property, in preference to the satisfaction of the for ^ ^^ fifteen and pubIished at kagt 
process under which the property was seized or we£k success i ve weeks in some 
sold The officer must make out his account . . . 

, ., . , • it , j k<-„- ^^ v,,-o ,™t a newspaper, if a paper is published in the county 

and if reauired, give the debtor or his agent a * r ' ,. ,. 

ana, u reqmreu, g where ^ ^^ ]g made _ (lgl c _ 

copy of it, signed by his own hand, and must re- 

turn the account with the execution or other " 5J>3 > s- ■*. «~ »• <>»«.; 

process, under which the property has been § \-ZZT. Judicial foreclosure; notice of sale and 

seized or sold, to the justice or court to whom resale.— When any mortgage or deed of trust 

the excution or process is returnable, and shall on real property shall be foreclosed by ju- 

swear to the correctness of the several items set dic ; al proc eedings it may be provided in the de- 

forth; otherwise he shall not be permitted to re- cree of f orec losure that the advertisement of the 

tain the allowance. (Rev., ss. 637, 638; Code, ss. gale ghall be begun at any t j me a f ter the date of 

466, 467; R. C, c. 45, ss. 25, 26; 1807, c. 731; C. tne decree f foreclosure, and such real property 

S. 684.) shall then be sold under judicial foreclosure pro- 
§ 1-323. Purchaser of defective title; remedy ceedings only after notice of sale has been duly 
against defendant. — Where real or personal prop- posted at the courthouse door in the county for 
erty is sold on any execution or decree, by any thirty days immediately preceding the sale and 

[ 45 J 



1-328 



CH. 1. CIVIL PROCEDURE— JUDICIAL SALES 



§ 1-334 



also published at any time during such thirty day 
period once a week for four successive weeks of 
not less than twenty-one days in some newspaper 
published in the county if a newspaper is published 
in the county, but if there is no newspaper pub- 
lished in said county, the notice of such sale must 
be posted at the courthouse door and three other 
public places in the county for thirty days im- 
mediately preceding the sale: Provided, however, 
that in case a resale of such real property shall be- 
come necessary under such judicial foreclosure 
proceedings, that such real property shall then be 
Tesold only after notice of resale has been duly 
posted at the courthouse door in the county for 
fifteen days immediately preceding the resale and 
also published at any time during such fifteen day 
period once a week for two successive weeks of 
not less than seven days in some newspaper pub- 
lished in the county if a newspaper is published in 
the county, but if there be no newspaper published 
in said county, the notice of resale must be posted 
at the courthouse door and three other public 
places in the county for fifteen days immediately 
preceding the resale. (1929, c. 44, s. 1; 1933, c. 
96, s. 1.) 

Local Modification. — Stanley: Pub. Loc. 1933, c. 263. 

§ 1-328. Notice defined. — In any sale of real 
property under execution, deed of trust, mortgage 
or other contracts, wherever any statute calls for 
publication of notice in a newspaper for four suc- 
cessive weeks or for two successive weeks, the 
duration of said period shall be not less than 
twenty-one days for the one period of publication 
and not less than seven days for the period of 
the other publication. (1929, c. 44, s. 2; 1933, c. 
96, s. 2.) 

§ 1-329. Validation of certain sales. — All sales 
of real property under execution, deed of trust, 
mortgage or other contracts made since February 
21, 1929, where the original sale was published 
for four successive weeks, and any re-sale pub- 
lished for two successive weeks shall be and the 
same are in all respects validated as to publication 
of notice. (1933, c. 96, s. 3.) 

§ 1-330. Notice served on defendant; when on 
governor and attorney general. — In addition to 
the advertisement above required, the sheriff shall 
in every case, at least ten days before a sale of 
real property under execution, serve a copy of so 
much of the advertisement as relates to the real 
property of any defendant on him personally if he 
is found in the county, or on his agent if he lias a 
known agent therein, or if he cannot be found 
within the county and has no known agent there- 
in, but his address is known, by mail to such ad- 
dress; and the date of service shall be ascertained 
by the usual course of the mail from the place 
where sent to the place of its address. In case 
of the sale under execution, or under the order 
of any court, of any real or personal property in 
which the state is interested as a stockholder or 
otherwise, notice in writing must be served upon 
the governor and attorney general, at least thirty 
days before the sale, of the time and place of 
sale, and under what process it is made, other- 
wise the sale is invalid. (Rev., s. 642; Code, s. 457; 
1868-9, c. 237, s. 11; 1876-7, c. 224; C. S. 689.) 

§ 1-331. Sale days; place of sale; ratification of 
prior sales. — All real property sold under execu- 



tion shall be sold at the courthouse door of the 
county in which all or a part of the property is 
situated, on any day of the week or month except 
Sunday, after advertising as required by law. All 
sales of real property sold under order of court 
shall be sold at the courthouse door in the county 
in which all or any part of the property is situated 
on any day of the week or month except Sunday, 
unless in the order directing such sale some other 
place and time are designated and then it shall be 
sold as directed in such order on any day of the 
week or month except Sunday, after advertising 
as required by law. 

Sales and resales of real property under execu- 
tion, or by order of court, or under the power of 
foreclosure in any deed of trust or mortgage may 
be made on any day of any week or month, ex- 
cept Sunday. 

All sales made prior to March 2, 1939, under 
execution or by order of court on any day other 
than the first Monday in any month, or the first 
three days of a term of the superior court of said 
county are hereby validated, ratified and confirmed. 

All sales or resales of real property made prior 
to March 30, 1939, under order of court on the 
premises or at the courthouse door in the county 
in which all, or any part of the property, is situ- 
ated, on any day other than Monday in any 
month, are hereby validated, ratified and con- 
firmed. (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; 1939, cc. 71, 256; C. S. 690.) 

§ 1-332. Sales on other days validated. — All 

sales of real or personal property made prior to 
February 27, 1933, by a sheriff of any county in 
North Carolina, in the manner provided by law 
for sale of real or personal property under execu- 
tion, on any day other than the day now provided 
by law are hereby validated. 

All sales of real and personal property made 
prior to February 14, 1939, by a sheriff under 
execution, or by commissioner under order of 
court, in the manner provided by law for sale of 
real or personal property, on any day other than 
the days now provided by law are hereby vali- 
dated. 

All sales of real or personal property made 
prior to March 10, 1939, by a sheriff of any county 
in North Carolina, in the manner provided by 
law for sale of real or personal property under 
execution, on any day other than the day now 
provided by law, are hereby validated. (1933, c. 
79; 1939, cc. 24, 94.) 

§ 1-333. Sale hours. — No sale under an execu- 
tion or decree shall commence before ten o'clock 
in the morning, or continue after four o'clock in 
the afternoon, of the day on which the sale is to 
be made, except that in towns or cities of more 
than five thousand inhabitants public sales of 
goods, wares and merchandise may be continued 
until ten o'clock p. m. Provided, a certain hour 
for such sales shall be named and the sale shall 
begin within one hour after the time fixed, un- 
less postponed as provided by law, or delayed 
by other sales. (Rev., s. 644; Code, s. 459; R. C, 
c. 45, s. 17; 1794, c. 41; 1927, c. 19; C. S. 691.) 

§ 1-334. Postponement. — The sheriff or other 
person making the sale, for the absence of bid- 
ders or any other just cause, may postpone the 



[46] 



§ 1-335 



CH. 1. CIVIL PROCEDURE— BETTERMENTS 



§ 1-344 



sale from day to day, but not for more than six 
days in all, and upon postponement he must post 
a notice thereof on the courthouse door of his 
county. (Rev., s. 645; Code, s. 455; 1868-9, c. 237, 
s. 9; C. S. 692.) 

§ 1-335. Certain sales validated. — All sales of 
realty made under executions issued prior to 
March the fifteenth, one thousand nine hundred 
and one, on judgments regularly obtained in 
courts of competent jurisdiction, are hereby val- 
idated, whether such sales were continued from 
day to day or for a longer period, not exceeding 
ten days: Provided, that such executions and sales 
are in all other respects regular: Provided further, 
that purchasers and their assigns shall have held 
continuous and adverse possession under a sheriff's 
deed for three years: Provided further, that the 
rights of minors and married women shall in 
nowise be prejudiced hereby. (Rev., s. 646; 1901, 
c. 742; C. S. 693.) 

§ 1-336. Advertisement as to personal property. 
—No sale of personal property under execution 
may be made until it has been advertised for ten 
days at the door of the courthouse of the county 
in which it is to be sold, and at three other pub- 
lic places in the county, and the advertisement 
must designate the place and the time of sale. 
(Rev., s. 648; Code, s. 460; R. C, c. 45, s. 16; 1808, 
c. 753; 1820, c. 1066; C. S. 695.) 

§ 1-337. Penalty for selling contrary to law.— 
A sheriff or other officer who makes any sale con- 
trary to the true intent and meaning of this ar- 
ticle shall forfeit two hundred dollars to any 
person suing for it, one-half for his own use and 
the other half to the use of the county where the 
offense is committed. (Rev., s. 649; Code, s. 461; 
R. C, c. 45, s. 18; 1820, c. 1066, s. 2; 1822, c. 1153, 
s. 3; C. S. 696.) 

§ 1-338. Officer's return of no sale for want of 
bidders; penalty. — When a sheriff or other offi- 
cer returns upon an execution that he has made 
no sale for want of bidders, he must state in his 
return the several places he has advertised and 
offered for sale the property levied on; and an 
officer failing to make such statement is on mo- 
tion subject to a fine of forty dollars; and every 
constable, for a like omission of duty, is subject 
to a fine of ten dollars, for the use and benefit of 
the plaintiff in the execution; for which, on mo- 
tion of the plaintiff, judgment shall be granted 
by the court to which, or by justice to whom, the 
execution shall be returned. Nothing in, nor any 
recovery under, this section is a bar to any ac- 
tion for a false return against the sheriff or other 
officer. (Rev., s. 650; Code, s. 462; R. C, c. 45, s. 
19; 1815, c. 887; C. S. 697.) 

§ 1-339. Officer to prepare deed for property 
sold. — Sheriffs or other officers selling lands by 
authority of any execution or process shall, upon 
payment of the price, prepare, execute and de- 
liver to the purchaser a deed for the property 
purchased. The purchaser of land must furnish 
the officer with a description of it. (Rev., s. 651; 
Code, s. 471; R. C, c. 45, s. 30; 1848, c. 39; C. S. 
698.) 

Art. 30. Betterments. 

§ 1-340. Petition by claimant; execution sus- 

[ 47 



pended; issues found. — A defendant against 
whom a judgment is rendered for land may, at 
any time before execution, present a petition to 
the court rendering the judgment, stating that 
he, or those under whom he claims, while hold- 
ing the premises under a color of title believed 
to be good, have made permanent improvements 
thereon, and praying that he may be allowed for 
the improvements, over and above the value of 
the use and occupation of the land. The court 
may, if satisfied of the probable truth of the al- 
legation, suspend the execution of the judgment 
and impanel a jury to assess the damages of the 
plaintiff and the allowance to the defendant for 
the improvements. In any such action this in- 
quiry and assessment may be made upon the 
trial of the cause. (Rev., s. 652; Code, s. 473; 1871- 
2, c. 147; C. S. 699.) 

§ 1-341. Annual value of land and waste 
charged against defendant. — The jury, in assess- 
ing the damages, shall estimate against the de- 
fendant the clear annual value of the premises 
during the time he was in possession, exclusive 
of the use of the improvements thereon made by 
himself or those under whom he claims, and also 
the damages for waste or other injury to the 
premises committed by the defendant. The de- 
fendant is not liable for the annual value or for 
damages for waste or other injury for any 
longer time than three years before the suit, un- 
less he claims for improvements. (Rev., ss. 653, 
654; Code, ss. 474, 475; 1871-2, c. 147, ss. 2-3; C. 
S. 700.) 

§ 1-342. Value of improvements estimated. — If 
the jury is satisfied that the defendant, or those 
under whom he claims, made on the premises, 
at a time when there was reason to believe the 
title good under which he or they were holding 
the premises, permanent and valuable improve- 
ments, they shall estimate in his favor the value 
of the improvements made before notice, in writ- 
ing, of the title under which the plaintiff claims, 
not exceeding the amount actually expended in 
making them and not exceeding the amount to 
which the value of the premises is actually in- 
creased thereby at the time of the assessment. 
(Rev., s. 655; Code, s. 476; 1871-2, c. 147, s. 4; C. 
S. 701.) 

§ 1-343. Improvements to balance rents. — If the 
sum estimated for the improvements exceeds the 
damages estimated against the defendant as 
aforesaid, the jury shall then estimate against 
him for any time before the said three years the 
rents and profits accrued against or damages for 
waste or other injury done by him, or those un- 
der whom he claims, so far as is necessary to 
balance his claim for improvements; but the de- 
fendant in such case shall not be liable for the 
excess, if any, of such rents, profits, or damages 
beyond the value of improvements. (Rev., s. 656; 
Code, s. 477; 1871-2, c. 147, s. 5; C. S. 702.) 

§ 1-344. Verdict, judgment, and lien. — After off- 
setting the damages assessed for the plaintiff, 
and the allowances to the defendant for any im- 
provements, the jury shall find a verdict for the 
balance for the plaintiff or defendant, as the case 
may be, and judgment shall be entered therefor 
according to the verdict. Any such balance due 
to the defendant is a lien upon the land recov- 

] 



§ 1-345 



CH. 1. CIVIL PROCEDURE— SUPPLEMENTAL PROCEEDINGS 



§ 1-354 



ered by the plaintiff until it is paid. (Rev., ss. 
657, 658; Code, ss. 478, 479; 1871-2, c. 147, ss. 6, 
7; C. S. 703.) 

§ 1-345. Life tenant recovers from remainder- 
man. — If the plaintiff claims only an estate for 
life in the land recovered and pays any sum al- 
lowed to the defendant for improvements, he or 
his personal representative may recover at the 
determination of his estate from the remainder- 
man or reversioner, the value of the said im- 
provements as they then exist, not exceeding 
the amount as paid by him, and he has a lien 
therefor on the premises as if they had been 
mortgaged for the payment thereof, and may 
keep possession of said premises until it is paid. 
(Rev., s. 659; Code, s. 480; 1871-2, c. 147, s. 8; 
C. S. 704.) 

§ 1-346. Value of premises without improve- 
ments. — When the defendant claims allowance 
for improvements, the plaintiff may by entry on 
the record require that the value of his estate in 
the premises without the improvements shall 
also be ascertained. The value of the premises 
in such cases shall be estimated as it would have 
been at the time of the inquiry, if no such im- 
provements had been made by the tenant or any 
person under whom he claims, and shall be as- 
certained in the manner hereinbefore provided 
for estimating the value of improvements. 
(Rev., ss. 661, 662; Code, ss. 482, 483; 1871-2, c. 
147, ss. 10-11; C. S. 705.) 

§ 1-347. Plaintiff's election that defendant take 
premises. — The plaintiff in such case, if judg- 
ment is rendered for him, may, at any time dur- 
ing the same term, or before judgment is ren- 
dered on the assessment of the value of the im- 
provements, in person or by his attorney in the 
cause, enter on the record his election to relin- 
quish his estate in the premises to the defendant 
at the value as ascertained, and the defendant 
shall thenceforth hold all the estate that the 
plaintiff had therein at the commencement of the 
suit, if he pays therefor the said value with in- 
terest in the manner ordered by the court. 
(Rev., s. 663; Code, s. 484; 1871-2, c. 147, s. 12; 
C. S. 706.) 

§ 1-348. Payment made to court; land sold on 
default. — The payment must be made to the 
plaintiff, or into court for his use, and the land 
is bound therefor, and if the defendant fails to 
make the payment within or at the times limited 
therefor, the court may order the land sold and 
the proceeds applied to the payment of said 
value and interest, and any surplus to be paid to 
the defendant; but if the net proceeds are insuffi- 
cient to satisfy the said value and interest, the 
defendant is not bound for the deficiency. (Rev., 
s. 664; Code, s. 485; 1871-2, c. 147, s. 13; C. S. 
707.) 

§ 1-349. Procedure where plaintiff is under dis- 
ability. — If the party by or for whom the land 
is claimed in the suit is a married woman, minor, 
or insane person, such value is deemed to be real 
estate, and shall be disposed of as the court con- 
siders proper for the benefit of the persons inter- 
ested therein. (Rev., s. 665; Code, s. 486; 1871-2, 
c. 147, s. 14; C. S. 708.) 

§ 1-350. Defendant evicted, may recover from 

[ 48 



plaintiff. — If the defendant, his heirs or assigns, 
after the premises are so relinquished to him, is 
evicted by force of a better title than that of the 
original plaintiff, the person so evicted may re- 
cover from the plaintiff or his representatives the 
amount paid for the premises, as so much money 
had and received by the plaintiff in his lifetime 
for the use of such person, with lawful interest 
thereon from the time of the payment. (Rev., s. 
666; Code, s. 487; 1871-2, c. 147, s. 15; C. S. 709.) 

§ 1-351. Not applicable to suit by mortgagee. — 

Nothing in this article applies to any suit brought 
by a mortgagee or his heirs or assigns against a 
mortgagor or his heirs or assigns for the recov- 
ery of the mortgaged premises. (Rev., s. 660; 
Code, s. 481; 1871-2, c. 147, s. 9; C. S. 710.) 

Art. 31. Supplemental Proceedings. 

§ 1-352. Execution unsatisfied, debtor ordered to 
answer. — When an execution against property of 
a judgment debtor, or any one of several debtors 
in the same judgment, issued to the sheriff of the 
county where he resides or has a place of busi- 
ness, or if he does not reside in the state, to the 
sheriff of the county where a judgment roll or a 
transcript of a justice's judgment is filed, is re- 
turned wholly or partially unsatisfied, the judg- 
ment creditor at any time after the return, and 
within three years from the time of issuing the 
execution, is entitled to an order from the court 
to which the execution is returned or from the 
judge thereof, requiring such debtor to appear 
and answer concerning his property before such 
court or judge, at a time and place specified in the 
order, within the county to which the execution 
was issued. (Rev., s. 667; Code, s. 488, subsec. 1; 
C. C. P., s. 264; 1868-9, c. 95, s. 2; C. S. 711.) 

§ 1-353. Property withheld from execution; pro- 
ceedings. — After the issuing of an execution 
against property, and upon proof by affidavit of a 
party, his agent or attorney, to the satisfaction of 
the court or a judge thereof, that any judgment 
debtor residing in the judicial district where such 
judge or sheriff resides has property which he un- 
justly refuses to apply toward the satisfaction of 
the judgment, such court or judge may, by order, 
require the judgment debtor to appear at a spec- 
ified time and place, to answer concerning the 
same; and proceedings may thereupon be had for 
the application of the property of the judgment 
debtor towards the satisfaction of the judgment 
as provided upon the return of an execution, and 
the judgment creditor is entitled to the order of 
examination under this and the preceding section, 
although the judgment debtor has an equitable 
estate in land subject to the lien of the judgment, 
or choses in action, or other things of value un- 
affected by the lien of the judgment and inca- 
pable of levy. (Rev., s. 668; Code, s. 488, subsec. 
2; C. C. P., s. 264; 1868-9, c. 95, s. 2; C. S. 712.) 

§ 1-354. Proceedings against joint debtors. — 
Proceedings supplemental to execution may be 
taken upon the return of an execution unsatisfied, 
issued upon a judgment recovered in an action 
against joint debtors, in which some of the de- 
fendants have not been served with the summons 
by which the action was commenced, so far as re- 
lates to the joint property of such debtors; and all 
actions by creditors to obtain satisfaction of judg- 
] 



§ 1-355 



CH. 1. CIVIL PROCEDURE— SUPPLEMENTAL PROCEEDINGS 



§ 1-363 



merits out of the property of joint debtors are [subsec. 6], 494; C. C. P., s. 264; 18G8-9, c. 95 
maintainable in like manner and to the like effect. 
These provisions apply to all proceedings and ac- 



tions pending and to those terminated by final 
decree or judgment. (Rev., s. 669; Code, s. 490; 
C. C. P., s. 266; 1869-70, c. 79, s. 2; 1870-1, c. 245; 
C. S. 713.) 



s. 2; C. S. 717 

§ 1-359. Debtors of judgment debtor may satisfy 
execution. — After the issuing of an execution 
against property, all persons indebted to the 
judgment debtor, or to any one of several debtors 
in the same judgment, may pay to the sheriff the 



§ 1-355. Debtor leaving state, or concealing him- amount of their debt, or as much thereof as is 

self, arrested; bond. — Instead of the order requir- necessary to satisfy the execution; and the 

ing the attendance of the judgment debtor, the sheriff's receipt is a sufficient discharge for the 

court or judge may, upon proof by affidavit or amount paid. (Rev., s. 674; Code, s. 489; C. C. 

otherwise to his satisfaction that there is danger P., s. 265; C. S. 718.) 

of the debtor leaving the state or concealing him- § U3eQ Debtors of judgment debtor, sum- 
self, and that there is reason to believe that he has moned ._ After the issuing or return of an execu . 
property which he unjustly refuses _ to apply to t{on against property of the judgment debtor, or 
the judgment, issue a warrant requiring the sheriff of any Qne of seyeral debtors in the same judg . 
of any county where such debtor is to arrest him ment> and upon affidavit that any person or corpo . 
and bring him before the court or judge Upon ration hag property of said j udgmen t debtor, or is 
being brought before the court or judge, the indebted to him in an amount exceeding ten dol- 
debtor may be examined on oath, and, if it ap- lars> the court or judge may> by order> require such 
pears that there is danger of his leaving the state, person or corporation) or any officer or mem bers 
and that he has property which he has unjustly thereof! t0 appear at a specine d time and place, 
refused to apply to the judgment, he shall be or- and answ£r concerning the same , The court or 
dered to enter into an undertaking, with one or judge may algQ> Jn Jts Qr his discretion( require n0 _ 
more sureties, that he will, from time to time, at- tke of the proceed i ng to be given to any party to 



tend before the court or judge as directed, and 



the action, in such manner as seems proper. 



that he will not, during the pendency of the pro- (Rev ; s _ 675; Code> s 490; c c Pj s 266; 1869 . 

ceedmgs, dispose of any property not exempt 70j c 79) s _ g . 18 7 -l, c. 245; C. S. 719.) 
from execution. In default of entering into such 

undertaking, he may be committed to prison by § US61 - Where proceedings instituted and de- 
warrant of the court or judge, as for contempt, fendant examined.— Proceedings supplemental to 
(Rev., s. 671; Code, s. 488, subsec. 4; 1868-9, c. execution must be instituted in the county in 
148, s. 4; 1868-9, c. 277, s. 8; C. S. 714.) which the judgment was rendered; but the place 

designated where the defendant must appear and 

§ 1-356. Examination of parties and witnesses.— answer must be within the county where he re- 

On examination under this article either party may sides. (Rev., s. 677; C. S. 720.) 

examine witnesses in his behalf, and the judg- „ , _.„ .-. , . , , , _, 

ment debtor may be examined in the same man- § 1-362. Debtor s property ordered sold.-The 

ner as a witness; and the party or witnesses may co " n or J udge ma J order ™V P r °Perty, whether 

be required to appear before the court or judge, s " bje u Ct ° r n °\ t0 ^ S ° ld U " der executl0n (except 

or a referee appointed by either, and testify on tbe homestead and personal^ property exemptions 

any proceedings under this article in the same of . the J ud g me nt debtor), m the hands of the 

manner as upon the trial of an issue. If before a Judgment debt ° r ° r ° f any other person, or due to 

referee, the examination shall be taken by the the . Judgment debtor, to be applied towards the 

referee, and certified to the court or judge. All satisfaction of the judgment; except that the 

examinations and answers before a court or judge earnmgs_ of the debtor for his personal services, 

or referee under this article must be on oath, ex- at * ny tlme wl * hln slxt ydays next preceding the 

cept that when a corporation answers, the answer °' der ' f nn , ot b e so apphed when it appears, by 

shall be on the oath of an officer thereof. (Rev., the . debtor s affidav 't or otherwise, that these 

ss. 670, 676; Code, ss. 488 [subsec. 2], 491, 492; earnings are necessary for the use of a family 

C. C. P., ss. 264, 267, 268; 1868-9, c. 95, s. 2; 1871- su PP orted wholl y or P arth / b y his lab ° r - (Rev., 



2, c. 245; C. S. 715.) 

§ 1-357. Incriminating answers not privileged; 
not used in criminal proceedings. — No person, on 



s. 678; Code, s. 493; C. C. P., s. 269; 1870-1, c. 
245; C. S. 721.) 

§ 1-363. Receiver appointed.— The court or 
judge having jurisdiction over the appointment of 



examination pursuant to this article, is excused rpn „;, r(aro „,„„ „i c „ u„ ^ Aa ■ i;i a 

, . i . ,. ' , , receivers may also by order in like manner, and 

from answering any question on the ground that 

it will tend to convict him of the commission of 



a crime or that he has, before the examination, 



with like authority, appoint a receiver in proceed- 
ings under this article of the property of the 
judgment debtor, whether subject or not to be 



executed any conveyance, assignment or transfer sold under execution) t the homestead and 

of his property for any purpose, but his answer personal property exemptions _ But before the 



shall not be used as evidence against him in any 
criminal proceeding or prosecution. (Rev., s. 672; 
Code, s. 488, subsec. 5; C. C. P., s. 264; 1868-9, c. 
95, s. 2; C. S. 716.) 



appointment of the receiver, the court or judge 
shall ascertain if practicable, by the oath of the 
party or otherwise, whether any other supple- 
mentary proceedings are pending against the 
§ 1-358. Disposition of property forbidden. — The judgment debtor, and if so, the plaintiff therein 
court or judge may, by order, forbid a transfer shall have notice to appear before him, and shall 
or other disposition of, or any interference with, likewise have notice of all subsequent proceedings 
the property of the judgment debtor not exempt in relation to the receivership. No more than one 
from execution. (Rev., s. 673; Code, ss. 488 receiver of the property of a judgment debtor 

[49] 



§ 1-364 



CH. 1. CIVIL PROCEDURE— HOMESTEAD EXEMPTIONS 



§ 1-371 



shall be appointed. The title of the receiver re- 
lates back to the service of the restraining order, 
herein provided for. (Rev., s. 679; Code, s. 49-1; 
C. C. P., s. 270; 1870-1, c. 245; 1876-7, c. 223; 1879, 
c. 63; 1881, c. 51; C. S. 722.) 

§ 1-364, Filing and record of appointment; prop- 
erty vests in receiver. — When the court or a judge 
grants an order for the appointment of a receiver 
of the property of the judgment debtor, it shall 
be filed in the office of the clerk of the superior 
court of the county where the judgment roll in 
the action or transcript from justice's judgment, 
upon which the proceedings are taken, is filed; 
and the clerk shall record the order in a book to 
be kept for that purpose in his office, to be called 
Book of Orders Appointing Receivers of Judg- 
ment Debtors, and shall note the time of its filing 
therein. A certified copy of the order shall be 
delivered to the receiver named therein, and he is 
vested with the property and effects of the judg- 
ment debtor from the time of the service of the 
restraining order, if such restraining order has 
been made, and if not, from the time of the filing 
and recording of the order for the appointment 
of a receiver. The receiver of the judgment 
debtor is subject to the direction and control of 
the court in which the judgment was obtained 
upon which the proceedings are founded. (Rev., 
s. 680; Code, s. 495; C. C. P., s. 270; 1870-1, c. 
245; C. S. 723.) 

§ 1-365. Where order of appointment recorded. 

■ — Before the receiver is vested with any real prop- 
erty of the judgment debtor, a certified copy of 
the order of appointment must be filed and re- 
corded on the execution docket, in the office of 
the clerk of the superior court of the county in 
which any real estate of the judgment debtor is 
situated, and also in the office of the clerk of the 
superior court of the county in which the debtor 
resides. (Rev., s. 681; Code, s. 496; C. C. P., s. 
270; C. S. 724.) 

§ 1-366. Receiver to sue debtors of judgment 
debtor. — If it appears that a person or corporation 
alleged to have property of the judgment debtor, 
or indebted to him, claims an interest in the prop- 
erty adverse to him, or denies the debt, such in- 
terest or debt is recoverable only in an action 
against such person or corporation by the re- 
ceiver; but the court or judge may, by order, for- 
bid a transfer or other disposition of such prop- 
erty or interest till a sufficient opportunity is 
given to the receiver to commence and prose- 
cute the action to judgment and execution, but 
such order may at any time be modified or dis- 
solved by the court or judge having jurisdiction 
on such security as he directs. (Rev., s. 682; 
Code, s. 497; C. C. P., s. 271; 1870-1, c. 245; C. S. 
725.) 

§ 1-367. Reference. — The court or judge may, in 
his discretion, order a reference to a referee 
agreed upon by the parties, or appointed by him, 
to report the evidence or the facts. The appoint- 
ment of the referee may be made in the first order 
or at anv time. (Rev., s. 683; Code, s. 498; C. C. 
P., s. 272; C. S. 726.) 

§ 1-368. Disobedience of orders punished as for 
contempt, — Any person, party or witness, who 
disobeys an order of the court or judge or referee, 

[5 



duly served, may be punished by the judge as 
for a contempt. In all cases of commitment under 
this article the person committed may, in case 
of inability to perform the act required, or to 
endure the imprisonment, be discharged from 
imprisonment by the judge committing him, or 
the judge having jurisdiction, on such terms as 
are just. (Rev., s. 684; Code, s. 500; C. C. P., s. 
274; 1869-70, c. 79, s. 3; C. S. 727.) 

SUBCHAPTER XL HOMESTEAD AND 

EXEMPTIONS. 

Art. 32. Property Exempt from Execution. 

§ 1-369. Property exempted. — The homestead 
and personal property exemptions as defined and 
declared by the article of the state constitution 
entitled Homesteads and Exemptions are exempt 
from sale under execution and other final process, 
as provided in the state constitution: Provided, 
the allotment of the homestead shall, as to all 
property therein embraced, suspend the running 
of the statute of limitations on all judgments 
against the homesteader during the continuance of 
the homestead. (Rev., s. 685; Code, s. 501; 1885, 
c. 359; 1887, c. 17; 1895, c. 397; 1901, c. 612; 1879, 
c. 256; R. C, c. 45, s. 7; 1848, c. 38; R. C, c. 45, 
s. 8; 1844, c. 32; 1846 1 , c. 53: 1848, c. 38, s. 2; 1866- 
7, c. 61, s. 7; 1876-7, c. 263; C. S. 728.) 

§ 1-370. Conveyed homestead not exempt. — The 

allotted homestead is exempt from levy so long as 
owned and occupied by the homesteader or by any 
one for him, but when conveyed by him in the 
mode authorized by the constitution, article ten, 
section eight, the exemption ceases as to liens 
attaching prior to the conveyance. The home- 
steader who has conveyed his allotted homestead 
may have another allotted, and as often as is 
necessary. This section shall not have any re- 
troactive effect. (Rev., s. 686; 1905, c. Ill; C. S. 
729.) 

§ 1-371. Sheriff to summon and swear apprais- 
ers. — Before levying upon the real estate of any 
resident of this state who is entitled to a home- 
stead under this article, and the constitution of 
this state, the sheriff [or a deputy sheriff desig- 
nated by the sheriff, and who shall be twenty-one 
years of age or over], or other officer charged with 
the levy shall summon three discreet persons 
qualified to act as jurors, to whom he shall ad- 
minister the following oath: "I, A. B., do solemnly 
swear (or affirm) that I have no interest in the 
homestead exemption of C. D., and that I will 
faithfully perform the duties of appraiser (or as- 
sessor, as the case may be), in valuing and laying 
off the same. So help me, God." In cases where 
he deems it necessary he may summon the county 
surveyor or some other competent surveyor to 
assist in laying off the homestead by metes and 
bounds. The portions of this section in brackets 
shall apply to the following counties only: Guil- 
ford, Mecklenburg, Ashe, Jackson, Alamance, 
Martin, Brunswick, Davidson, Sampson, Davie, 
Randolph, Lenoir, Durham, Wilson, Cumberland, 
Scotland, New Hanover, Vance, Rowan, Hender- 
son, Cabarrus, Pitt, Rockingham, Chowan, Gates, 
Perquimans, Pasquotank, Camden, Currituck, 
Hertford, Edgecombe, Harnett, Forsyth, Iredell, 
Lincoln, Bertie, Caldwell, Wayne, Halifax, Bun- 

0] 



§ 1-372 



CH. 1. CIVIL PROCEDURE— HOMESTEAD EXEMPTIONS 



§ 1-380 



combe, Johnston, Moore, Duplin, Graham, Mar- 
tin, Onslow. (Rev., s. G87; Code, s. 502; 1893, c. 
58; 1868-9, c. 137, s. 2; 1931, c. 58; 1933, cc. 37, 
147; C. S. 730.) 

§ 1-372. Duty of appraisers; proceedings on re- 
turn. — The appraisers shall value the homestead 
with its dwelling and buildings thereon, and lay 
off to the owner or to any agent or attorney, in 
his behalf, such portion as he selects not exceed- 
ing in value one thousand dollars, and must fix 
and describe the same by metes and bounds. 
They must then make and sign in the presence 
of the officer a return of their proceedings, setting 
forth the property exempted, which shall be re- 
turned by the officer to the clerk of the court foi 
the county in which the homestead is situated and 
filed with the judgment roll in the action, and a 
minute of the same entered on the judgment 
docket, and a certified copy thereof under the 
hand of the clerk shall be registered in the office 
of the register of deeds for the county. The offi- 
cer must likewise make a transcript of the return 
over his hand and return it without delay to the 
clerk of the court of the county from whence the 
execution issued, and said clerk must likewise file 
and make minute of the same as above directed. 
In all judicial proceedings the original return or 
a certified copy may be read in evidence. (Rev., 
ss. 688, 689; Code, ss. 503-4; 1868-9, c. 137, ss. 
3-4; 1877, c. 272; C. S. 731.) 

§ 1-373. Reallotment for increase of value. — A 

judgment creditor of a debtor whose homestead 
has been allotted may apply in writing to the 
clerk of the superior court of the county in which 
the homestead lies for an order for its reallot- 
ment, if there is in the hands of the sheriff of that 
county an execution issued from the proper court 
against said debtor. The application must be ac- 
companied by the affidavits of three disinterested 
freeholders of the county in which the homestead 
lies, setting forth that, in their opinion, it has in- 
creased in value fifty per centum or more since 
the last allotment. Upon the filing of the appli- 
cation and affidavits the clerk shall issue notice 
to the judgment debtor to appear before him on 
a day not more than five days from the day of its 
service and show cause why his homestead 
should not be reallotted. The notice must state 
upon whose application it is issued. Upon the re- 
turn day of the notice the clerk shall consider the 
affidavits filed, as heretofore required, and any 
additional affidavits filed by either party, and if 
he is of opinion that the homestead has probably 
appreciated in value fifty per centum or more 
since the last allotment, he shall command the 
sheriff to reallot to the judgment debtor his 
homestead, in the same manner as if no home- 
stead had been allotted. If upon the reallotment 
any excess i-s found, it shall be disposed of by the 
sheriff as in ordinary cases of execution and levy. 
This section does not prevent the judgment cred- 
itor from resorting to the equity jurisdiction of 
the courts for a reallotment of the homestead of 
his judgment debtor in anv case (Rev s 691- 
1893, c. 149; C. S. 732.) 

§ 1-374. Appeal as to reallotment. — From the or- 
der of the clerk commanding or refusing a reallot- 
ment, either party may appeal to the judge res- 
ident in or holding the courts of the district, who 

[5 



shall hear the matter in chambers in any county 
of the judicial district to which belongs the 
county in which the proceedings were instituted. 
In other respects the proceedings upon such ap- 
peal are as now provided for appeals from the 
clerk on issues of law. (Rev., s. 691; 1893, c. 149; 
C. S. 733.) 

§ 1-375. Levy on excess; return of officer. — The 

levy may be made upon the excess of the home- 
stead, not laid off according to this chapter, and 
the officer shall make substantially the following 
return upon the execution: "A. B., C. D., and E. 
F., summoned and qualified as appraisers or as- 
sessors (as the case may be), who set off to X. Y. 
the homestead exempt by law. Levy made upon 
the excess." (Rev., s. 692; Code, s. 505; 1868-9, c. 
137, s. 5; C. S. 734.) 

§ 1-376. When appraisers select homestead. — 

If no selection is made by the owner, or any one 
acting in his behalf, of the homestead to be laid 
off as exempt, the appraisers shall make selection 
for him, including always the dwelling and build- 
ings used therewith. (Rev., s. 693; Code, s. 506; 
1868-9, c. 137, s. 6; C. S. 735.) 

§ 1-377. Homestead in tracts not contiguous. — 

Different tracts of land not contiguous may be in- 
cluded in the same homestead, when a home- 
stead of contiguous land is not of the value of one 
thousand dollars. (Rev., s. 694; Code, s. 509; 1868- 
9, c. 137, s. 15; C. S. 736.) 

§ 1-378. Personal property appraised on demand. 

— When the personal property of any resident of 
this state is levied upon by virtue of an execut'on 
or other final process issued for the collection of 
a debt, and the owner or an agent, or attorney in 
his behalf, demands that the same, or any part 
thereof, be exempt from sale under such execu- 
tion, the sheriff or other officer making the levy 
shall summon three appraisers, as heretofore pro- 
vided, who, having been first duly sworn, shall 
appraise and lay off to the judgment debtor such 
articles of personal property as he or another in 
his behalf selects and to which he is entitled under 
this article and the constitution of the state, in 
no case to exceed in value five hundred dollars, 
which articles are exempt from said levy, and re- 
turn thereof shall be made by the appraisers, as 
upon the laying off of a homestead exemption. 
(Rev., s. 695; Code, s. 507; 1868-9, c. 137, ss. 12, 
13; C. S. 737.) 

§ 1-379. Appraiser's oath and fees. — The persons 
summoned to appraise the personal property 
exemption must take the same oath and are en- 
titled to the same fees as the appraisers of the 
homestead, and when both exemptions are 
claimed by the judgment debtor, at the same time, 
one board of appraisers must lay off both, and 
are entitled to but one fee. (Rev., s. 696; Code, 
s. 508; 1868-9, c. 137, s. 14; C. S. 738.) 

§ 1-380. Returns registered. — It is the duty of 
the register of deeds to indorse on each of said 
returns the date when received for registration, and 
to cause the same to be registered without unnec- 
essary delay. He shall receive for registering the 
returns the same fees allowed him by law for 
other similar or equivalent services, which fees 
shall be paid by said resident applicant, his agent 
1] 



§ 1-381 



CH. l. CIVIL PROCEDURE— HOMESTEAD EXEMPTIONS 



§ 1-388 



or attorney, upon the reception of the returns by 
the register. (Rev., s. 698; Code, s. 513; 1868-9, 
c. 137, s. 9; C. S. 739.) 

§ 1-381. Exceptions to valuation and allotment; 
procedure. — If the judgment creditor for whom 
levy is made, or judgment debtor or other person 
entitled to homestead and personal property 
exemption, is dissatisfied with the valuation and 
allotment of the appraisers or assessors, he, with- 
in ten days thereafter, or any other creditor within 
six months and before sale under execution of 
the excess, may notify the adverse party and the 
sheriff having the execution in hand, and file with 
the clerk of the superior court of the county where 
the allotment is made a transcript of the return 
of the appraisers or assessors which they or the 
sheriff shall allow to be made upon demand, to- 
gether with his objections in writing to said return. 
Thereupon the said clerk shall put the same on 
the civil issue docket of the superior court for 
trial at the next term thereof as other civil ac- 
tions, and such issue joined has precedence over 
all other issues at that term. The sheriff 
shall not sell the excess until after the 
determination of said action. The ten days 
and six months respectively begin to run from 
the date of the filing of the return of the valua- 
tion and allotment of the appraisers or assessors 
by the officer with the clerk of the superior court 
of the county from whence the execution issued. 
(Rev., s. 699; Code, s. 519; 1887, c. 272, s. 2; 1883, 
c. 357; C. S. 740.) 

§ 1-382. Revaluation demanded; jury verdict; 
commissioners; report. — When an increase of the 
exemption or an allotment in property other than 
that set apart is demanded, the party demanding 
must in his exceptions specify the property from 
which the increase or reallotment is to be had. 
If the appraisal or assessment is reduced, the jury 
shall assess the value of the property embraced 
therein; if increased, the value of the property 
specified in the objections from which the in- 
crease is demanded shall also be assessed; but if 
the allotment is made in property other than that 
first set apart, the jury shall assess the value of 
the property so allotted. The court shall ap- 
point three disinterested commissioners to lay off 
and set apart the homestead and personal prop- 
erty exemption in accordance with the verdict of 
the jury and the judgment of the court, and in 
the manner prescribed by law. The commis- 
sioners, who shall be summoned by the sheriff, 
must meet upon the premises and, after being 
sworn by the sheriff or a justice of the peace to 
faithfully perform the duties of appraisers or 
assessors in allotting and laying off the home- 
stead or personal property exemption, or both, 
in accordance with the verdict and judgment 
aforesaid, must allot and lay off the same and file 
their report to the next term of the court, when 
it shall be heard by the court upon exceptions 
thereto. (Rev., s. 700; 1885, c. 347; C. S. 741.) 

§ 1-383. Undertaking of objector. — The creditor, 
debtor, or claimant objecting to the allotment 
made by the appraisers or assessors under execu- 
tion or petition must file with the clerk of the 
superior court an undertaking in the sum of one 
hundred dollars for the payment to the adverse 



party of such costs as are adjudged against him. 
(Rev., s. 701; Code, s. 522; C. S. 742.) 

§ 1-384. Set aside for fraud, or irregularity. — An 

appraisal or allotment by appraisers or assessors 
may be set aside for fraud, complicity, or other 
irregularity; but after an allotment or assessment 
is made or confirmed by the superior court at 
term time, as hereinbefore provided, the home- 
stead shall not thereafter be set aside or again 
laid off by any other creditor except for increase 
in value. (Rev., s. 702; Code, s. 523; C. S. 743.) 

§ 1-385. Return registered; original or copy evi- 
dence. — When the homestead and personal prop- 
erty exemption is decided by the court at term 
time the clerk of the superior court shall imme- 
diately file with the register of deeds of the 
county a copy of the same, which shall be regis- 
tered as deeds are registered; and in all judicial 
proceedings the original or a certified copy of 
the return may be introduced in evidence. (Rev., 
s. 703; Code, s. 524; C. S. 744.) 

§ 1-386. Allotted on petition of owner. — When 
any resident of this state desires to take the bene- 
fit of the homestead and personal property 
exemption as guaranteed by article ten of the 
state constitution, or by this article, such resident, 
his agent or attorney, must apply to a justice of 
the peace of the county in which he resides, who 
shall appoint as assessors three disinterested per- 
sons, qualified to act as jurors, residing in said 
county. The jurors, on notice by the order of 
the justice, shall meet at the applicant's residence, 
and, after taking the oath prescribed for apprais- 
ers before some officer authorized to administer 
an oath, lay off and allot to the applicant a home- 
stead with metes and bounds, according to the 
applicant's direction, not to exceed one thousand 
dollars in value, and make and sign a descriptive 
account of the same and return it to the office 
of the register of deeds. 

Said assessors shall set apart of the personal 
property of said applicant, to be by him selected, 
articles of personalty to which he is entitled under 
this chapter, not exceeding in value the sum of 
five hundred dollars, and make, sign and return 
a descriptive list thereof to the register of deeds. 
(Rev., ss. 697, 704; Code, ss. 511, 512; 1868-9, c. 
137, ss. 7, 8; C. S. 745.) 

§ 1-387. Advertisement of petition; time of hear- 
ing. — When a person entitled to a homestead and 
personal property exemption files the petition be- 
fore a justice of the peace to have the same laid 
off and set apart under the preceding sections, 
the justice shall make advertisement in some 
newspaper published in the county, for six succes- 
sive weeks, and if there is no newspaper in the 
county, then at the courthouse door of the county 
in which the petition is filed, notifying all credi- 
tors of the applicant of the time and place for 
hearing the petition. The petition shall not be 
heard nor any decree made in the cause in less 
than six nor more than twelve months from the 
day of making advertisement as above required. 
(Rev., s. 705; Code, s. 515; 1868-9, c. 137, s. 11; 
C. S. 746.) 

§ 1-388. Exceptions, when allotted on petition. 
— When the homestead or personal property ex- 
emption is allotted on the petition of the person 



[52] 



§ 1-389 



CH. 1. CIVIL PROCEDURE— HOMESTEAD EXEMPTIONS 



§ 1-392 



entitled thereto, any creditor may, within six and personal property exemption of A. B., of 

months from the time of the assessment or Township, County, by C. D., 

appraisal, and upon ten days notice to the peti- Sheriff (or constable or deputy) of said county, 
tioner, file his objections with the register of do hereby make the following return: We have 
deeds of the county in which the premises are viewed and appraised the homestead of the said 
situated, and the register of deeds shall return the A. B., and the dwellings and buildings thereon, 
same to the clerk of the superior court of that owned and occupied by said A. B. as a home- 
county, who shall place them on the civil issue stead, to be one thousand dollars (or any less 
docket, and they shall be tried as provided for sum) and that the entire tract, bounded by the 

homestead and personal property exemptions set lands of and is therefore exempted 

off under execution. (Rev., s. 706; Code, s. 520; from sale under execution according to law. At 
C. S. 747.) the same time and place we viewed and appraised 
§ 1-389. Allotted to widow or minor children at the y aIues annexed the following articles of 
on death of homesteader.— If a person entitled to personal property, selected by said A. B. (here 
a homestead exemption dies without the homestead fP^ * h f artlcle ^ . and thelr value > to b e selected 
having been set apart, his widow, if he leaves no £ y th ^ debt ° r or hls a e ent )> which we declare to 
children, or his child or children under the age of be a fair valuatl ° n > and that the said articles are 
twenty-one years, if he leaves such, may proceed e *empt under sald execution. We hereby certify 
to have the homestead exemption laid off by peti- ™ at . we are not related by blood or marriage to 
tion. If the widow or children have failed to have ™? judgment debtor or the judgment creditor in 
the exemption set apart in the manner provided, thls execution, and have no interest, near or re- 
then in an action brought by his personal repre- mote ' m the above exemptions. 



sentatives to subject the realty of the decedent to 
the payment of debts and charges of administra- 
tion, it is the duty of the court to appoint three 
disinterested freeholders to set apart to such 
widow, child or children a homestead exemption 
under metes and bounds in the lands of the 
decedent. The freeholders shall under their hands mv presence, day and date above given. 



Given under our hands and seals, this 

day of 19 

O. K [L. S.] 

L. M [L. S.] 

R. S [L. S.] 

The above return was made and subscribed in 



and seals make return of the same to the court 
which shall be registered in the same manner as 
homestead exemptions. (Rev., s. 707; Code, s. 514; 
1868-9, c. 137, s. 10; 1893, c. 332; C. S. 748.) 

§ 1-390. Liability of officer as to allotment, re- 
turn and levy. — Any officer making a levy, who 
refuses or neglects to summon and qualify ap 



C D , (Sheriff or Constable.) 

[No. 2] 

Petition for Homestead before a Justice 
of the Peace. 

Before , J. P. 

County. 



praisers as heretofore provided, or fails to make . ? Matter of A. B. 

due return of his proceedings, or levies upon the ™" °- respectfully shows that he (she or they, 

homestead set off by appraisers or assessors ex- as tne case ma y be ) is (or are) entitled to a 

cept as herein provided, is guilty of a misde- hom estead exempt from execution in certain real 

meanor, and he and his sureties are liable to the estate m said county, and bounded and described 

owner of the homestead for all costs and damages as follow s: (Here describe the property). The 

in a civil action. (Rev., ss. 708, 3584; Code, s. true ^ alue °* which he (she or they, as the case 

516; 1868-9, c. 137, s. 17; C. S. 749.) ™ ay . be ) b elieves to be one thousand dollars, in- 

r 1 ooi t • u-iv t cc ■ eluding the dwelling, and buildings thereon He 

§ 1-391. Liability of officer appraiser, or asses- (she or they) further h * (she or' they 

sor, for conspiracy or fraud -Any officer, ap- as the case may be) js ( a entit ed to a pS 

praiser, or assessor _ who willfully or corruptly SO nal property exemption from execution to 

conspires with a judgment debtor, judgment the value of (here state the value), consisting of 

creditor, or other person, to undervalue or to the following property: (Here spec fy ) He (she 



overvalue the 
exemptio 



■. the homestead or personal property or they, as the case may be) therefore prays you 
n of a debtor or applicant, or assigns worship t0 appoint three disinterested oerson 



rested persons 



false metes and bounds, or makes or procures Qualified to art a ,,,,■ 

to be made a false and fraudulent return thereof, the prtisVlllS STJT £?£%o ur J£ 

is guilty of a misdemeanor and is liable to the tioner his homestead and personal property exemp- 

party injured thereby for all costs and damages tion, and report according to law 

in a civil action. (Rev., ss. 690, 3585, 3586; Code, 



ss. 517, 518; 1888-9, c. 137, ss. 18, 19; C. S. 750.) 

§ 1-392. Forms. — The following forms must be 
substantially followed in proceedings under this 
article: 

[No. 1] 

Appraisers' Return. 



ig to law. 

[No. 3] 

Form for Appraisal of Personal Prop- 
erty Exemption. 



The undersigned having been duly summoned 
and sworn to act as appraisers of the personal 
property of A. B, of Township 

When the homestead is valued a, .ess than one £?££? 5 c" d! W^ef ™LS 

thousand dollars, and personal property 
also appraised. 

The undersigned having been duly summoned 



of said county, do hereby make and subscribe the 
following return: 

We viewed and appraised at the values an- 
and sworn to act as appraisers of the homestead nexed, the following articles of personal property 

[53] 



§ 1-393 



CH. l. CIVIL PROCEDURE— SPECIAL PROCEEDINGS 



§ 1-400 



selected by the said A. B., to wit: which 

we declare to be a fair valuation, and that said 
articles are exempt under said execution. 

We hereby certify, each for himself, that we 
are not related by blood or marriage to the judg- 
ment debtor or judgment creditor in this execu- 
tion, and have no interest, near or remote, in the 
above exemptions. 

Given under our hands and seals 
day of 19 



O. K.. 

L. M.. 
R. S.. 



The above return was made and subscribed in 
my presence, day and date above given. 

C. D , (Sheriff or Constable.) 

[No. 4] 



not in a civil action. The manner of service, 
whether by the sheriff or by publication, shall be 
as is prescribed for summons in civil actions by 
§ 1-89: Provided, however, that in special pro- 
ceedings before the clerk, the plaintiff or petitioner 
shall not be required to serve a copy of the peti- 
tion or complaint upon each of the defendants, as 
required in civil actions, but in lieu thereof such 

this petitioner or petitioners may deliver to the clerk 

at the time of the issuance of the summons copies 
(not to exceed three) of the petition or complaint 
for the use of the defendants. Provided, further, 
where the defendant is an agency of the state the 
time for filing answer or other plea shall be not 
less than thirty (30) days after the date of service. 
(Rev., ss. 711, 712; Code, ss. 279, 287; 1868-9, c. 
93, s. 4; 1927, c. 66, s. 5; 1929, cc. 50, 237, s. 3; 
1939, c. 49, s. 2; 1939, c. 143; C. S. 753.) 



, . [L. S.] 

..[L. S.] 
.[L. S.] 



Certificate of Qualification to Be Endorsed 
on Return by Sheriff. 

The within named B. F., G. H., and J. R. were 
summoned and qualified according to law, as ap- 
praisers of the exemption of the said A. 

B., under an execution in favor of X. Y., this 

day of , 19 

C. D (Sheriff). 

[No. 5] 



X 



Minute on Execution Docket. 
.. Y 



A B 

Execution issued , 19 

Homestead appraised and set off and return made 

19 (Rev., s. 709; Code, s. 524; 

C. S. 751.) 

SUBCHAPTER XII. SPECIAL PRO- 
CEEDINGS. 

Art. 33. Special Proceedings. 

§ 1-393. Chapter applicable to special proceed- 
ings. — The provisions of this chapter on civil 
procedure are applicable to special proceedings, 
except as otherwise provided. (Rev., s. 710; Code, 
s. 278; C. S. 752.) 

§ 1-394. Contested special proceedings; com- 
mencement; summons. ■ — Special proceedings 
against adverse parties shall be commenced as 
is prescribed for civil actions. The summons shall 
command the officer to summons the defendant or 
defendants to appear and answer the complaint, 
or petition, of the plaintiff within ten days after 
its service upon the defendant or defendants, and 
must contain a notice stating in substance that 
if the defendant or defendants fail to answer the 
complaint, or petition, within the time specified, 
plaintiff will apply to the court for the relief de- 
manded in the complaint, or petition. The sum- 
mons must run in the name of the state, be signed 
by the clerk of the superior court having jurisdic- 
tion in the special proceeding, and be directed to 
the sheriff or other proper officers of the county, 
or counties, in which the defendant, or defendants, 
or any of them reside or may be found, and must 
be returnable before the clerk. The clerk shall in- 
dicate on the summons by appropriate words that 
the summons is issued in a special proceeding and 



§ 1-395. Return of summons. — The officer to 
whom the summons is addressed shall note on it 
the day of its delivery to him, and, if required by 
the plaintiff, shall execute it immediately. When 
executed, he shall immediately return the sum- 
mons with the date and manner of its execution, 
by mail or otherwise, to the clerk of the court 
issuing it. (Rev., s. 713; Code, s. 280; C. C. P., 
S. 75; C. S. 754.) 

§ 1-396. When complaint filed.— The plaintiff 
must file his complaint or petition with the clerk 
of the court to which the summons is returnable, 
at the time of issuing the summons or within ten 
days thereafter. (Rev., s. 714; Code, s. 281; C. 
C. P., s. 76; 1876-7, c. 241, s. 4; C. S. 755.) 

§ 1-397. Nonsuit for failure to file. — If the plain- 
tiff fails to file his complaint or petition within 
the time limited by the summons for the appear- 
ance and answer of the defendant, the defendant 
may demand judgment of nonsuit against the 
plaintiff. (Rev., s. 715; Code, s. 282; C. C. P., s. 
78; C. S. 756.) 

§ 1-398. Filing time enlarged. — The time for fil- 
ing the complaint, petition, or any pleading may 
be enlarged by the court for good cause shown 
by affidavit, but may not be enlarged by more 
than ten additional days, nor more than once, un- 
less the default was occasioned by accident over 
which the party applying had no control, or by 
the fraud of the opposing party. (Rev., s. 716; 
Code, s. 283; C. C. P., s. 79; C. S. 757.) 

§ 1-399. Defenses pleaded; transferred to civil 
issue docket; amendments. — In special proceed- 
ings a defendant or other party thereto may plead 
any equitable or other defense, or ask any equi- 
table or other relief in the pleadings which it 
would be competent to ask in a civil action; and 
when such pleas are filed the clerk shall transfer 
the cause to the civil issue docket for trial during 
term upon all issues raised by the pleadings. 
The trial judge may, with a view to substantial 
justice between the parties, allow amendments to 
the pleadings and interpleas in behalf of any per- 
son claiming an interest in the property. (Rev., s. 
717; 1903, c. 566; C. S. 758.) 

§ 1-40O. Ex parte; commenced by petition. — If 

all the parties in interest join in the proceeding 
and ask the same relief, the commencement of 
the proceedings shall be by petition, setting forth 



[54] 



§ 1-401 



CH. 1. CIVIL PROCEDURE— ARREST AND BAIL 



§ 1-409 



the facts entitling the petitioners to relief, and 
the nature of the relief demanded. (Rev., s. 718; 
Code, s. 284; 1868-9, c. 93; C. S. 759.) 

§ 1-401. Clerk acts summarily; authority from 
nonresident. — In cases under § 1-400, if all persons 
to be affected by the decree, or their attorney, have 
signed the petition and are of full age, the clerk 
of the superior court has power to hear and decide 
the petition summarily. If any of the petitioners 
reside out of the state, an authority from them, to 
the attorney, in writing, must be filed with the 
clerk before he may make any order or decree to 
prejudice their rights. (Rev., s. 719; Code, s. 285; 
1868-9, c. 93, s. 2; C. S. 760.) 

§ 1-402. Judge approves when petitioner is in- 
fant. — If any petitioner is an infant, or the guard- 
ian of an infant, acting for him, no final order or 
judgment of the clerk, affecting the merits of the 
case and capable of being prejudicial to the in- 
fant, is valid, unless submitted to and approved 
by the judge resident or holding court in the dis- 
trict. (Rev., s. 720; Code, s. 286; 1887, c. 61; C. 
C. P., s. 420; 1868-9, c. 93, s. 3; C. S. 761.) 

§ 1-403. Orders signed by judge. — Every order 
or judgment in a special proceeding required to 
be made by a judge of the superior court, in or 
out of term, must be authenticated by his signa- 
ture. (Rev., s. 722; Code, s. 288; 1868-9, c. 93, s. 
5; 1872-3, c. 100; C. S. 762.) 

§ 1-404. Reports of commissioners and jurors.— 

Every order or judgment in a special proceeding 
imposing a duty on commissioners or jurors must 
prescribe the time within which the duty must be 
performed, except in cases where the time is pre- 
scribed by statute. The commissioners or jurors 
shall within twenty days after the performance 
of the duty file their report with the clerk of the 
superior court, and if no exception is filed to it 
within twenty days, the court may proceed to con- 
firm the same on motion of any party and without 
special notice to the other parties. (Rev., s. 723; 
1893, c. 209; C. S. 763.) 

§ 1-405. No report set aside for trivial defect. — 

No report or return made by any commissoners 
may be set aside and sent back to them 
or others for a new report because of any 
defect or omission not affecting the substantial 
rights of the parties, but the defect or omission 
may be amended by the court, or by the commis- 
sioners with permission of the court. (Rev., s. 
724; Code, s. 289; 1868-9, c. 93, s. 7; C. S. 764.) 

§ 1-406. Commissioner of sale to account in 
sixty days. — In all actions or special proceedings 
when a person is appointed commissioner to sell 
real or personal property, he shall, within sixty 
days after the maturity of the note or bond for the 
balance of the purchase money of said property, or 
the payment of the amount of the bid when the 
sale is for cash, file with the clerk of the superior 
court a final account of his receipts and disburse- 
ments on account of the sale; and the clerk must 
audit the account and record it in the book in 
which the final settlements of executors and ad- 
ministrators are recorded. If any commissioner 
appointed in any action or special proceeding be- 
fore the clerk fails, refuses or omits to file a final 
account as prescribed in this section, or renders 

[5 



an insufficient or unsatisfactory account, the clerk 
of the superior court shall forthwith order such 
commissioner to render a full and true account, as 
required by law, within twenty days after service 
of the order. Upon return of the order, duly 
served, if such commissioner shall fail to appear or 
refuse to exhibit such account, the clerk of the 
superior court may issue an attachment against 
said commissioner for a contempt and commit him 
till he exhibits such account, or files a bond for the 
amount held or unaccounted for as is prescribed 
by law for administrators, the premium for which 
is to be deducted from the commissioner's fee, 
earned by said commissioner in said action or 
special proceeding. (Rev., s. 725; 1901, c. 614, ss. 
1, 2; 1933, c. 98; C. S. 765.) 

§ 1-407. Commissioners selling land for rein- 
vestment, etc., to give bond. — Whenever in any 
cause or special proceeding there is a sale of real 
estate for the purpose of a reinvestment of the 
money arising from such sale or for any other 
purpose, and the proceeds from such sale are 
held by a commissioner or other officer desig- 
nated by the court to receive such money, for 
purposes of reinvestment or otherwise, the com- 
missioner or officer so receiving same shall exe- 
cute a good and sufficient bond, to be approved 
by the court, in an amount at least equal to the 
corpus of the fund, and payable to the state of 
North Carolina for the protection of the fund and 
the parties interested therein, and conditioned 
that such custodian of the money shall faithfully 
comply with all the orders of the court made or 
to be thereafter made concerning the handling of 
reinvestment of said funds and for the faithful 
and final accounting of the same to the parties 
interested; but the court in its discretion may 
waive the requirement of such bond in those 
cases where the court requires the funds or pro- 
ceeds from such sale to be paid by the purchaser 
fir purchasers direct to the court. The premium 
for any such bond shall be paid from the corpus 
of the fund intended to be thereby protected. 
(1919, c. 259; 1935, c. 45; C. S. 766.) 
Local Modification. — Duplin: 1935, c. 45. 

§ 1-408. Action in which clerk may allow 
fees of commissioners; fees taxed as costs. — In 
al! civil actions and special proceedings instituted 
in the superior court in which a commissioner, or 
commissioners, are appointed under a judgment 
by the clerk of said court, said clerk shall have 
full power and authority and he is hereby author- 
ized and empowered to fix and determine and 
allow to such commissioner or commissioners a 
reasonable fee for their services performed under 
such order, decree or judgment, which fee shall 
be taxed as a part of the costs in such action or 
proceeding, and any dissatisfied party shall have 
the right of appeal to the judge, who shall hear 
the same de novo. (1923, c. 66, s. 1; C. S. 766(a).) 

SUBCHAPTER XIII. PROVISIONAL 
REMEDIES. 

Art. 34. Arrest and Bail. 

§ 1-409. Arrest only as herein prescribed.- — No 
person may be arrested in a civil action except as 
prescribed by this article, but this provision shall 
not apply to proceedings for contempt. (Rev., s. 
726; Code, s. 290; C. C. P., s. 148; C. S. 767.) 
51 



§ 1-410 



CH. 1. CIVIL PROCEDURE— ARREST AND BAIL 



§ 1-420 



§ 1-410. In what cases arrest allowed. — The de- 
fendant may be arrested, as hereinafter pre- 
scribed, in the following cases: 

1. In an action for the recovery of damages on 
a cause of action not arising out of contract, 
where the defendant is not a resident of the state, 
or is about to remove therefrom, or where the 
action is for injury to person or character, or for 
injuring, or for wrongfully taking, detaining or 
converting real or personal property. 

2. In an action for a fine or penalty, for seduc- 
tion, for money received, for property embezzled 
or fraudulently misapplied by a public officer, 
attorney, solicitor, or officer or agent of a corpo- 
ration or banking association in the course of his 
employment, or by any factor, agent, broker or 
other person in a fiduciary capacity, or for any 
misconduct or neglect in office, or in a profes- 
sional employment. 

3. In an action to recover the possession of per- 
sonal property, unjustly detained, where all or 
any part of the property has been concealed, 
removed, or disposed of, so that it cannot be 
found or taken by the sheriff and with the in- 
tent that it should not be so found or taken, or 
with the intent to deprive the plaintiff of the 
benefit thereof. 

4. When the defendant has been guilty of a 
fraud in contracting the debt or incurring the 
obligation for which the action is brought, in 
concealing or disposing of the property for the 
taking, detention or conversion of which the 
action is brought, or when the action is brought 
to recover damages for fraud or deceit. 

5. When the defendant has removed, or dis- 
posed of his property, or is about to do so, with 
intent to defraud his creditors. 

No woman shall be arrested in any action ex- 
cept for a willful injury to person, character or 
property, and no person shall be arrested on Sun- 
day. (Rev., s. 727; Code, s. 291; C. C. P., s. 149;. 
1869-70, c. 79; R. C, c. 31, s. 54; 1777, C. 118, s. 
6; 1891, c. 541; C. S. 768.) 

§ 1-411. Order and affidavit. — An order for the 
arrest of the defendant must be obtained from the 
court in which the action is brought or a judge 
thereof, and may be made where it appears to 
the court or judge, by affidavit of the plaintiff or 
of any other person, that a sufficient cause of 
action exists and that the case is one of those 
provided for in this article. (Rev., ss. 728, 729; 
Code, ss. 292, 293; C. C. P., ss. 150, 151; C. S. 769.) 

§ 1-412. Undertaking before order. — Before 
making the order the court or judge shall require 
a written undertaking on the part of the plaintiff 
of at least one hundred dollars, with sufficient 
surety, payable to the defendant, to the effect 
that if the defendant recovers judgment the 
plaintiff will pay all damages which he sustains 
by reason of the arrest, not exceeding the sum 
specified in the undertaking. (Rev., s. 730; Code, 
s. 294; C. C. P., s. 152; 1868-9, c. 277, s. 7; C. S. 
770.) 

§ 1-413. Issuance and form of order. — The order 
may be made to accompany the summons, or to 
issue at any time afterwards, before judgment. 
It shall require the sheriff of the county where 
the "defendant may be found forthwith to arrest 
him and hold him to bail in a specified sum, and 



to return the order at a place and time therein 
mentioned to the clerk of the court in which the 
action is brought. Notice of the return must be 
served on the plaintiff or his attorney as pre- 
scribed by law for the service of other notices. 
(Rev., s. 731; Code, s. 295; C. C. P., s. 153; C. S. 
771.) 

§ 1-414. Copies of affidavit and order to defend- 
ant. — The affidavit and order of arrest shall be 
delivered to the sheriff, who, upon arresting the 
defendant, shall deliver him a copy thereof. (Rev., 
s. 732; Code, s. 296; C. C. P., s. 154; C. S. 772.) 

§ 1-415. Execution of order. — The sheriff shall 
execute the order by arresting the defendant and 
keeping him in custody until discharged by law. 
The sheriff may call the power of the county to 
his aid in the execution of the arrest. (Rev., s. 
733; Code, s. 297; C. C. P., s. 155; C. S. 773.) 

§ 1-416. Vacation of order for failure to serve. — 

The order of arrest is of no avail, and shall be 
vacated or set aside on motion, unless it is served 
upon the defendant, as provided by law, before 
the docketing of any judgment in the action. 
(Rev., s. 734; Code, s. 295; C. C. P., s. 153; C. 
S. 774.) 

§ 1-417. Motion to vacate order; jury trial. — A 

defendant arrested may at any time before judg- 
ment apply on motion to vacate the order of 
arrest or to reduce the amount of bail. He may 
deny upon oath the facts alleged in the affidavit 
of the plaintiff on which the order of arrest was 
granted, and demand that the issue so raised by 
the plaintiff's affidavit and the defendant's denial 
be submitted to the jury and tried in the same 
manner as other issues. If the issues are found by 
the jury in favor of the defendant, judgment shall 
be rendered discharging him from arrest 
and vacating the order of arrest, and he 
shall recover of the plaintiff all costs of the pro- 
ceeding in such arrest incurred by him in defend- 
ing the action. (Rev., s. 735; Code, s. 316; 1889, 
c. 497; C. C. P., s. 174; C. S. 775.) 

§ 1-418. Counter affidavits by plaintiff. — If the 
motion is made upon affidavits on the part of 
the defendant, but not otherwise, the plaintiff 
may oppose the same by affidavits, or other proof, 
in addition to those on which the order of arrest 
was made. (Rev., s. 736; Code, s. 317; C. C. P., 
s. 175; C. S. 776.) 

§ 1-419. How defendant discharged. — The de- 
fendant, at any time before execution, shall be 
discharged from the arrest, either upon giving 
bail or upon depositing the amount mentioned 
in the order of arrest, as provided in this article. 
(Rev., s. 737; Code, s. 298; C. C. P., s. 156; C. 
S. 777.) 

§ 1-420. Defendant's undertaking. — The defend- 
ant may give bail by causing a written under- 
taking, payable to the plaintiff, to be executed 
by sufficient surety to the effect that the defend- 
ant shall at all times render himself amenable to 
the process of the court, during the pendency of 
the action, and to such as may be issued to en- 
force the judgment therein, or if he is arrested 
in an action to recover the possession of personal 
property unjustly claimed, an undertaking to the 
same effect as that provided by law to be given 



[56] 



§ 1-421 



CH. l. CIVIL PROCEDURE— ARREST AND BAIL, 



§ 1-433 



by defendant for the retention of property, under 
the article entitled Claim and Delivery. (Rev., s. 
738; Code, s. 299; C. C. P., s. 157; C. S. 778.) 

§ 1-421. Defendant's undertaking delivered to 
clerk; exception.— Within the time limited for 
that purpose, the sheriff shall deliver the order 
of arrest to the clerk of the court in which the 
suit is brought, with his return endorsed, and a 
certified copy of the undertaking of the bail, and 
notify the plaintiff or his attorney thereof. The 
plaintiff, within ten days thereafter, may serve 
upon the sheriff a notice that he does not accept 
the bail, or he is deemed to have accepted it and 
the sheriff is exonerated from the liability. (Rev., 
s. 739; Code, s. 304; C. C. P., s. 162; C. S. 779.) 

§ 1-422. Notice of justification; new bail. — On 
the receipt of notice of exception to the bail, the 
sheriff or defendant may, within ten days there- 
after, give to the plaintiff or his attorney notice 
of the justification of the same or other bonds- 
men (specifying the places of residence and 
occupation of the latter) before the court, justice 
of the peace, or judge, at a specified time and 
place; the time to be not less than five nor more 
than ten days thereafter. In case other bonds- 
men are given, there must be a new bond, in the 
form hereinbefore prescribed. (Rev., s. 741; Code, 
s. 305; C. C. P., s. 163; C. S. 780.) 

§ 1-423. Qualifications of bail.— The qualifica- 
tions of bail must be as follows: 

1. Each of them must be a resident and free- 
holder within the state. 

2. They must each be worth the amount 
specified in the order of arrest, exclusive of prop- 
erty exempt from execution; but the judge, on 
justification, may allow more than two bail to 
justify severally in amounts less than that ex- 
pressed in the order, if the whole justification is 
equivalent to that of two sufficient bail. (Rev., s. 
740; Code, s. 306; C. C. P., s. 164; C. S. 781.) 

§ 1-424. Justification of bail. — For the purpose 
of justification, each of the bail shall attend be- 
fore the court or judge, or a justice of the peace, 
at the time and place mentioned in the notice, 
and may be examined on oath, on the part of the 
plaintiff, touching his sufficiency, in such manner 
as the court, judge or justice of the peace, in his 
discretion, may think proper. The examination 
must be reduced to writing and subscribed by 
the bail, if required by the plaintiff. (Rev., s. 742; 
Code, s. 307; C. C. P., s. 165; C. S. 782.) 

§ 1-425. Allowance of bail. — If the court, judge 
or justice of the peace finds the bail sufficient, he 
shall annex the examination to the undertaking, 
endorse his allowance thereon, and cause them to 
be filed with the clerk. The sheriff is then exon- 
erated from liability. (Rev., s. 743; Code, s. 308; 
C. C. P., s. 166; C. S. 783.) 

§ 1-426. Deposit in lieu of bail. — The defendant 
may, at the time of his arrest, instead of giving 
bail, deposit with the sheriff the amount men- 
tioned in the order. The sheriff shall then give 
a certificate of the deposit to the defendant, who 
shall be discharged from custody. (Rev., s. 744; 
Code, s. 309; C. C. P., s. 167; C. S. 784.) 

§ 1-427. Deposit paid into court; liability on 
sheriff's bond. — Within four days after the de- 

[ 



posit the sheriff must pay it into court, and 
take from the officer receiving it two certificates 
of such payment, one of which he must deliver 
to the plaintiff, and the other to the defendant. 
For any default in making such payment, the 
same proceedings may be had on the official bond 
of the sheriff, to collect the sum deposited, as in 
other cases of delinquency. (Rev., s. 745; Code, 
s. 310; C. C. P., s. 168; C. S. 785.) 

§ 1-428. Bail substituted for deposit. — If money 
is deposited, as provided in §§ 1-426 and 1-427, 
bail may be given and justified upon notice ac- 
cording to law at any time before judgment. 
Thereupon the judge, court or justice of the peace 
shall direct, in the order of allowance, that the 
money deposited be refunded by the sheriff or 
other officer to the defendant, and it shall be re- 
funded accordingly. (Rev., s. 746; Code, s. 311; , 
C. C. P., s. 169; C. S. 786.) 

§ 1-429. Deposit applied to plaintiff's judgment. 
— When money has been deposited, and remains 
on deposit at the time of an order or judgment 
for the payment of money to the plaintiff, the 
clerk or other officer shall, under the direction of 
the court, apply the same in satisfaction thereof, 
and after satisfying the judgment shall refund 
any surplus to the defendant. If the judgment 
is in favor of the defendant the clerk or other of- 
ficer shall refund to him the whole sum deposited 
and remaining unapplied. (Rev., s. 747; Code, s. 
312; C. C. P., s. 170; C. S. 787.) 

§ 1-430. Defendant in jail, sheriff may take bail. 

— If a person for want of bail is lawfully com- 
mitted to jail, at any time before final judgment, 
the sheriff, or other officer having him in custody, 
may take bail and discharge him; and the bail 
bond shall be regarded in every respect as other 
bail bonds, and shall be returned and sued on in 
like manner; and the officer taking it shall make 
special return thereof, with the bond, at the first 
court which is held after it is taken. (Rev., s. 748; 
Code, s. 318; R. C, c. 11, s. 8; C. S. 788.) 

§ 1-431. When sheriff liable as bail. — If, after 
arrest, the defendant escapes, or is rescued, or bail 
is not given or justified, or a deposit is not made 
instead thereof, the sheriff is himself liable as 
bail. But he may discharge himself from such 
liability by the giving and justification of bail at 
any time before process against the person of the 
defendant to enforce an order or judgment in the 
action. (Rev., s. 749; Code, s. 313; C. C. P., s. 
171; C. S. 789.) 

§ 1-432. Action on sheriff's bond. — If a judg- 
ment is recovered against the sheriff, upon his 
liability as bail, and an execution thereon is re- 
turned wholly or partly unsatisfied, the same pro- 
ceedings may be had on the official bond of the 
sheriff, to collect the deficiency, as in other cases 
of delinquency. (Rev., s. 750; Code, s. 314; C. C. 
P., s. 172; C. S. 790.) 

§ 1-433. Bail exonerated. — At any time before 
final judgment against them, the bail may be ex- 
onerated, either by the death of the defendant or 
his imprisonment in a state prison, or by his legal 
discharge from the obligation to render himself 
amenable to the process, or by his surrender to 
the sheriff of the county where he was arrested, 
57 ] 



§ 1-434 CH. 1. CIVIL PROCEDURE— ATTACHMENT § 1-444 

in execution of the judgment. (Rev., s. 751; Code, one or more defendants in an action may be 

s. 303; C. C. P., s. 161; C. S. 791.) granted upon the application of the plaintiff, as 

§ 1-434. Surrender of defendant.-At any time specified in this article, when the action is to re- 

before final judgment against them, the bail may cover a su f ° f f m ° ne y onI y> or damages for one 

surrender the defendant in their exoneration, or or m ° re °[ th £ e following causes: _ 

he may surrender himself to the sheriff of the *• B r r each °\ contract, express or implied, 

countv where he was arrested, in the following 2 - Wrongful conversion of personal property, 

manner- **■ Any other injury to real or personal property, 

1. A' certified copy of the undertaking of the in consequence of negligence, fraud, or other 
bail shall be delivered to the sheriff, who shall wrongful act. 

detain the defendant in his custody thereon, as 4 - An V in J ur y *° the P^ son > caused h ^ J ne g h " 

upon an order of arrest, and acknowledge the gence or wrongful act. (Rev., s. 758; Code, s. 

surrender by a certificate in writing. 347; C C. P., s. 197; 1893, c. 77; 1901, c. 740; C. 

2. Upon the production of a copy of the under- ^ - ' 98 --> 

taking and sheriff's certificate, the court or judge § 1-441. Affidavit must show what. — To entitle 

may, upon a notice to the plaintiff of ten days, the plaintiff to a warrant of attachment he must 

with a copy of the certificate, order that the bail show by affidavit to the satisfaction of the court 

be exonerated, and on filing the order and papers as follows: 

used on said application they shall be exonerated i. That one of the causes of action specified in 

accordingly. But this section does not apply to § 1-440 exists against the defendant. If the action 

an arrest in an action to recover the possession is to recover damages for breach of contract, the 

of personal property unjustly detained, so as to affidavit must show that the plaintiff is entitled to 

discharge the bail from an undertaking given to recover a sum stated therein, over and above all 

the effect provided by law to be given by defend- counterclaims known to him. 

ant for the retention of property, under the article 2. That the defendant is either a foreign corpo- 

entitled Claim and Delivery. (Rev., s. 752; Code, ration or a nonresident of the state, or a domestic 

s. 300; C. C. P., s. 158; C. S. 792.) corporation none of whose officers can be found in 

§ 1-435. Bail may arrest defendant.— For the the state after due diligence; or, if he is a natural 
purpose of surrendering the defendant, the bail, P erson and a resident of the state, that he has de- 
at any time or place, before they are finally P arted therefrom, or keeps himself concealed 
Charged, may themselves arrest him, or by a writ- therein > wlth intent t0 defraud h>s creditors or to 
ten authority endorsed on a certified copy of the a ™id service of summons; or, if the defendant is 
undertaking may empower any person over a natural person or a domestic corporation, that 
twenty-one years of age to do so. (Rev., s. 753; he or it has removed, or is about to remove prop- 
Code, s. 301; C. C. P., s. 159; C. S. 793.) erty from the state, with intent to defraud his or 

its creditors; or has assigned, disposed of, or se- 

§ 1-436. Proceedings against bail by motion. — creted, or is about to assign, dispose of, or secrete, 

In case of failure to comply with the undertaking property with like intent. (Rev., s. 759; Code, s. 

the bail may be proceeded against by motion in 349; C. C. P., s. 201; 1897, c. 476; C. S. 799.) 

the cause on ten days' notice to them. (Rev., s. , 

754; Code, s. 302; C. C. P., s. 3 60; C. S. 794.) § i" 442 - Affidavit to be filed.— It is the duty of 

the plaintiff procuring a warrant of attachment, 

§ 1-437. Liability of bail to sheriff. — The bail within ten days from its issuance, to file the affi- 

taken upon the arrest are, unless they justify, or davit on which it was granted in the office of the 

other bail are given or justified, liable to the sher- clerk of the superior court to which, or with the 

iff by action for damages which he may sustain justice of the peace before whom, the process is 

by reason of such omission. (Rev., s. 755; Code, returnable. (Rev., s. 760; Code, s. 355; C. C. P., 

s. 315; C. C. P.. s. 173; C. S. 795.) s . 2 01; C. S. 800.) 

§ 1-438. When bail to pay costs. — When a notice § 1-443. By whom granted. — If the action is 

issues against a person, as the bail of another, no t founded on a contract, or if founded on 

and the bail, at or before the term of the court at a contract and the sum demanded exceeds 

which he is bound to appear, or ought to plead, two hundred dollars, a warrant of attachment 

is not discharged from his liability by the death ma y be obtained from the judges of the dis- 

or surrender of his principal or otherwise, he is trict embracing the county in which the action 

liable for all costs which accrue on said notice, wa s begun, or from the clerk of the superior court 

notwithstanding he may be afterwards dis- f r0 m which the summons in the action issued; 

charged, by the death or surrender of the princi- a nd it may be issued to any county in the state 

pal, or otherwise. (Rev., s. 756; Code, s. 319; R. w here the defendant has property, money, effects, 

C. c. 11, s. 10; C. S. 796.) choses in action, or debts due him, and shall be 

§ 1-439. Bail not discharged by amendment.— made returnable before the clerk at the same time 

No amendment of process or pleading discharges and place to which the summons is returnable, 

the bail of the partv arrested thereon, unless it (Rev., s. 761; Code, s. 351; C. C. P., s 199; 1869- 

enlarges the sum demanded beyond the sum ex- 70. c. 147; 1870-1, c. 166, ss. 1, 3; 1874-5, c. Ill; 

pressed in the bail bond. (Rev., s. 757; Code, s. 1876-7, c. 251; Ex. Sess. 1921, c. 92, s. 17; U b. 

320; R. C, c. 11, s. 11; C. S. 797.) 801.) 

§ 1-444. Time of issuance; service of summons. — 

Art. 35. Attachment. The warrant f attachment may be granted to 

§ 1-440. In what actions attachment granted. — accompany the summons, or at any time there- 

A warrant of attachment against the property of after. Personal service of the summons must be 

[58 1 



§ 1-445 



CH. 1. CIVIL PROCEDURE— ATTACHMENT 



§ 1-452 



made upon the defendant against whose prop- 
erty the attachment is granted, within thirty 
days after its granting, or else, upon the ex- 
piration of the same time, service of summons 
by publication must be commenced pursuant to 
an order obtained therefor, and if publication has 
been or is thereafter commenced, the service must 
be made complete by the continuance thereof. 
(Rev., s. 762; Code, s. 348; C. C. P., s. 197; C. S. 
802.) 

§ 1-445. Undertaking. — The officer, before issu- 
ing the warrant, must require a written under- 
taking on the part of the plaintiff, with sufficient 
surety, to the effect that if the defendant recovers 
judgment, or the attachment is set aside by order 
of the court, the plaintiff will pay all costs that 
are awarded to the defendant, and all damages 
which he sustains by reason of the attachment, 
not exceeding the sum specified in the undertak- 
ing, which must be at least two hundred dollars. 
(Rev., s. 763; Code, s. 356; C. C. P., s. 202; C. S. 
803.) 

§ 1-446. Validity of undertaking. — It is not a de- 
fense to an action upon an undertaking, given upon 
granting a warrant of attachment, that the warrant 
was granted improperly, for want of jurisdiction, 
or for any other cause. (Rev., s. 764; Code, s. 
358; C. S. 804.) 

§ 1-447. To whom warrant directed; duty of 
officer. — The warrant shall be directed to the 
sheriff of any county in which the property of 
the defendant is located, or, in case it is issued by 
a justice of the peace, to the sheriff or any con- 
stable of such county, and shall require the sheriff 
or constable to attach and safely keep all the prop- 
erty of the defendant within his county, or so 
much thereof as is sufficient to satisfy the plaintiff's 
demand, the amount of which must be stated in 
conformity with the complaint, together with costs 
and expenses; it must also state when and where 
it shall be returned. Several warrants may be 
issued at the same time to the sheriffs of different 
counties, but where the warrant is issued by a 
justice of the peace to another county than his 
own, the clerk of the superior court of his county 
must certify that he is a justice of the peace and 
that the signature to the warrant is in the hand- 
writing of the justice. (Rev., s. 765; Code, s. 357; 
1895, c. 435, s. 1; C. C. P., s. 203; C. S. 805.) 

§ 1-448. Notice; service and content. — When the 
warrant of attachment is taken out at the time of 
issuing the summons, and the summons is to be 
served by publication, the order shall direct that 
notice be given in the publication to the defend- 
ant of the issuing of the attachment. When the 
warrant of attachment is obtained after the issu- 
ing of the summons, the defendant must be noti- 
fied by publication of the fact for four successive 
weeks in some newspaper published in the county 
to which it is returnable, or if none, then in one 
published in the judicial district including said 
county. The publication shall state the names 
of the parties, the amount of the claims, and in 
a brief way the nature of the demand and the 
time and place to which the warrant is return- 
able. In proceedings by attachment begun be- 
fore justices of the peace, advertisement in a 
newspaper is not necessary, but advertisement at 

[ 59 



the courthouse door and four other public places 
in the county for four successive weeks is suffi- 
cient publication, both as to the summons and 
warrant of attachment. (Rev., s. 766; Code, s. 
352; 1893, c. 363; 1870-1, c. 166, s. 3; 1874-5, c. 
Ill, s. 2; C. S. 806.) 

§ 1-449. Execution, levy, and lien.— The officer 
to whom the warrant of attachment is directed and 
delivered shall seize and take into his possession 
the tangible personal property of the defendant or 
so much as is necessary, and he is liable for the 
care and custody of such property, as if it had 
been seized under execution. He shall levy on 
the real estate of the defendant as prescribed for 
executions; he shall make and return with the 
warrant an inventory of the property seized or 
levied on, and, subject to the direction of the 
court, shall collect all debts owing to the defend- 
ant, and take such legal proceedings in his own 
name or in that of the defendant as are necessary 
for that purpose. Where the sheriff or other 
officer levies an attachment upon real estate, he 
must certify the levy to the clerk of the superior 
court of the county where the land lies, with the 
names of the parties, and the clerk must note the 
same on his judgment docket and index it on the 
index to judgments, and the levy is a lien only 
from the date of entry by the clerk, except 
that if it is so docketed and indexed within five 
days after being made it is a lien from the time 
it was made. (Rev., s. 767; Code, s. 359; 1895, c. 
435, s. 2; C. C. P., s. 204; C. S. 807.) 

§ 1-450. Return of warrant by sheriff. — The 

sheriff shall return the warrant of attachment, and 
the undertakings provided for in this article, with 
a statement of his proceedings thereon, at the 
time and place at which it is on its face return- 
able, and upon, or at any time after, the return, 
he may obtain from the court to which the war- 
rant was returnable a certified copy thereof, 
which, for the purpose of giving him authority, is 
the same as the original, and when the warrant 
has been fully executed or discharged, the sheriff 
shall return it, with his proceedings, to said court. 
(Rev., s. 768; Code, s. 376; C. C. P., s. 214; C. S. 
808.) 

§ 1-451. When granted by justice of peace. — If 

the action is not founded on contract and the 
value of the property in controversy does not 
exceed the sum of fifty dollars, the warrant of 
attachment may, or if the action is founded on 
contract and the sum demanded does not exceed 
two hundred dollars, the warrant of attachment 
must be obtained from and made returnable be- 
fore a justice of the peace of a county to the su- 
perior court of which it would have been return- 
able had the sum demanded exceeded two hun- 
dred dollars, or had the action not been founded 
on contract. (Rev., s. 769; Code, s. 353; C. C. P., 
s. 200; 1876-7, c. 251; C. S. 809.) 

§ 1-452. Publication in justice's court. — The 

plaintiff, within thirty days after obtaining a war- 
rant of attachment from a justice of the peace, 
must cause publication thereof to be made for 
four successive weeks at the courthouse door and 
four other public places in the county where the 
warrant is returnable. (Rev., s. 770; Code, s. 350; 

] 



§ 1-453 



CH. l. CIVIL PROCEDURE— ATTACHMENT 



§ 1-459 



C. C. P., s. 198; 1868-9, c. 95, s. 3; 1870-1, c. 166, 
s. 4; 1874-5, c. Ill; C. S. 810.) 

§ 1-453. Justice's attachment against land. — If 

the attachment is levied on real property, the jus- 
tice shall proceed to try the action, but may not 
issue an execution to sell the real property, and 
shall return the papers in the case to the office of 
the clerk of the superior court of his county, where 
the judgment shall be docketed. The levy of the 
attachment, however, is a lien on the real estate, 
when the provisions of the section as to execution 
and levy of attachment are complied with. (Rev., 
s. 771; Code, s. 354; 1868-9, c. 95, s. 4; C. S. 811.) 

§ 1-454. Sale of attached property pending litiga- 
tion — If any property seized under attachment is 
perishable, or of a character to materially deteri- 
orate in value pending litigation, or of such charac- 
ter that the expense of keeping it until the deter- 
mination of the suit would be likely to exceed one- 
fifth of its value, or if any part of it consists of a 
vessel, or of any share or interest therein, and the 
person to whom it belongs, or his agent, does not 
within ten days after the serving of the attach- 
ment reclaim the same, the sheriff or other officer 
having possession shall apply to the court for 
authority to sell the property, stating the circum- 
stances. The property shall then be sold, under 
the order and direction of the court, and the pro- 
ceeds are liable to the judgment obtained upon 
the attachment, and shall be retained by the sher- 
iff or other officer to await the judgment. (Rev., 
772; Code, s. 360; C. C. P., s. 205; R. C, c. 7, s. 
6; 1777, c. 115, s. 28; C. S. 812.) 

§ 1-455. Replevy by defendant; undertaking.— 

The person owning the property advertised to be 
sold according to the provisions of this article, 
or his agent or attorney, may, at any time before 
sale, replevy the same, by giving an undertak- 
ing in double the amount of the value of the 
property, with sufficient surety, to the effect that 
he will return the property to the sheriff or other 
officer, if its return is adjudged by the court, and 
pay all costs that are awarded against him; and 
if return of the property cannot be had, then that 
he will pay plaintiff its value, and all costs and 
damages that are awarded against him. Upon the 
execution of this undertaking, the sheriff, or other 
officer, shall deliver the property to the person 
owning it. (Rev., s. 773; Code, s. 361; R. C, c. 7, 
s. 5; 1777, c. 115, s. 28; C. S. 813.) 

§ 1-456. Defendant may apply for discharge and 
delivery of property. — When the defendant has 
appeared in such action, he may apply to the court 
in which it is pending, or to the judge thereof, for 
an order to discharge the attachment; and if the 
order is granted, all the proceeds of sale, and 
moneys collected in the action, and all property 
attached remaining in the hands of any officer of 
the court, under any process or order in the ac- 
tion, shall be delivered or paid to the defendant 
or his agent, and released from the attachment. 
Where there is more than one defendant, and the 
several property of one of them has been seized 
by virtue of the order of attachment, the defend- 
ant whose several property was seized may apply 
in like manner for relief. (Rev., s. 774; Code, s. 
373; C. C. P., s. 212; C. S. 814.) 

§ 1-457. Defendant's undertaking. — Upon the 

[ 60 



application provided for in § 1-456 the defend- 
ant must deliver to the court an undertaking 
in at least double the amount claimed by the 
plaintiff in his complaint, executed by two sure- 
ties residing in this state, approved by the court, 
to the effect that the surety will, on demand, pay 
to the plaintiff the amount of judgment that may 
be recovered against the defendant in the action, 
not exceeding the sum specified in the undertak- 
ing. If it appears by affidavit that the property 
attached is of less value than the amount claimed 
by the plaintiff, the court or judge may order it 
to be appraised, and the amount of the under- 
taking shall then be double the amount 
so appraised. Where there is more than one 
defendant, and the several property of one of 
them has been seized by virtue of the order of 
attachment, the defendant whose several prop- 
erty was seized may deliver to the court an under- 
taking, in accordance with this section, to the 
effect that he will, on demand, pay to the plaintiff 
the amount of judgment that may be recovered 
against him, and all of this section, applicable to 
such an undertaking, shall be applied thereto. 
(Rev., s. 775; Code, s. 374; C. C. P., s. 213; C. S. 
815.) 

§ 1-458. All property liable to attachment. — The 

rights or shares of the defendant in the stock of 
any association or corporation, with the interest 
and profits thereon, and all other property in this 
state of the defendant, are liable to be attached, 
levied on, and sold to satisfy the judgment and 
execution. (Rev., s. 776; Code, s. 362; C. C. P., 
s. 206; C. S. 816.) 

§ 1-459. Levy on intangible property. — The exe- 
cution of the attachment upon any such rights, 
shares, or any debts or other property incapable 
of manual delivery to the sheriff, shall be made 
by leaving a certified copy of the warrant of at- 
tachment with the president or ether head of the 
association or corporation, or with the debtor or 
individual holding such property, with a notice 
showing the property levied on. This certified 
copy must be furnished to the sheriff by the plain- 
tiff, and the certification must be by the clerk of 
the court from which the warrant was issued, or 
by the justice of the peace who issued it. A per- 
son receiving or collecting moneys within this 
state on behalf of any corporation of this or any 
other state or government is deemed a local agent 
for the purpose of this section. Such service can 
be made in respect to a foreign corporation only 
when it has property within this state, or the cause 
of action arose or the plaintiff resides in the state, 
or when the service can be made within the state 
personally upon the president, treasurer or secre- 
tary thereof. Whenever a writ of attachment 
may be sued out against a nonresident debtor 
owning shares of stock in a resident corpora- 
tion, and no officer of said resident corpo- 
ration may be found in the county of its 
principal office upon whom service of said attach- 
ment may be made, said writ may be served by 
leaving a certified copy of the warrant of attach- 
ment with the person in charge of the property of 
said corporation in said county, together with a 
notice showing the stock levied upon. Provided, 
however, no attachment or levy upon shares of 
stock for which a certificate is outstanding shall 

] 



§ 1-460 



CH. 1. CIVIL PROCEDURE— ATTACHMENT 



§ 1-465 



be valid until such certificate be actually seized judgment should not be entered against him. 
by the officer making the attachment or levy, or Upon due execution of the notice, if the garnishee 
be surrendered to the corporation which issued it, fails to appear at the time and place named, and 
or its transfer by the holder be enjoined. (Rev., discover on oath in the manner aforesaid' the 
s. 777; Code, s. 363; C. C. P., s. 207; 1905, c. 294; court shall confirm the judgment and award' exe- 
1921, c. 94; 1941, c. 353, s. 24^; C. S. 817.) cation for the plaintiff's whole judgment and 
§ 1-460. Certificate of defendant's interest to be costs. Upon examination of the garnishee, if it 
furnished to sheriff.— When the sheriff or other appears to the court that there is any of the de- 
officer, with a warrant of attachment or execution, Pendant's property in the hands of a person who 
applies to a president or other head or director, has not been summoned, the court, upon motion 
secretary, cashier or managing agent of any asso- of the plaintiff, shall grant a judicial attachment, 
ciation or corporation, or to any debtor or indi- t0 be levied in the hands of every such person 
vidual, for the purpose of attaching or levying on having any of the property of the defendant in his 
the property of the defendant in such warrant, such custody or possession, who must appear and an- 
officer, debtor or individual must furnish him with swer and be liable as other garnishees. (Rev., s. 
a certificate under his hand, designating the num- 780 ; Code, s. 365; R. C, c. 7, s. 8; 1777, c. 115, s. 
ber of rights or shares of the defendant in the 28; 1838, c. 2; C. S. 820.) 

association or corporation, with any dividend or o , „„„ ,-, . , , . , , . . . , 

, K "i , , § 1-463. Garnishee denying debt; issue tried. — 

any incumbrance thereon, or the amount and de- ,, r , • . , • ,, , , , 

. . , .. i u . i • i- When a garnishee denies that he owes to, or has 

scnption of the property held by such association, ... ° . . , ., , ', , . 

.,;.,,.-'., . r in his possession any property of, the defendant, 
corporation, or individual, for the benefit of, or , .. ^ , . ,.~ J ., .. 

, , . . it , , ' , ,, ., r ~ and the plaintiff on oath suggests to the court 

debt owing to, the defendant. If the officer, ., * , . , . , 

, , , : ... ., , , . . . the contrary, or when a garnishee makes such a 

debtor or individual refuses to do so, he may be , i i. i »i. , a j 

. , , ., . , A , , statement of facts that the court cannot proceed 

required by the court or judge to appear before ... ... ., , ,\ , 

,. , , . , .. , to give judgment thereon, the court shall order 



him, and be examined on oath concerning the 
matter, and obedience to this order may be en- 
forced by attachment. (Rev., s. 778; Code, s. 369; 
C. C. P., s. 208; C. S. 818.) 

§ 1-461. Proceedings against garnishee. — When 
the sheriff or other officer serves an attachment 



an issue to be made up, which must be tried by a 
jury, and on their verdict judgment shall be 
rendered. In a court of a justice of the peace, 
he may try such issue, unless a jury is demanded, 
and then proceedings are to be conducted, in 
all respects, as in jury trials before justices of 



on any person supposed to be indebted to, or to the peace. (Rev., s. 781; Code, s. 366; R. C, c. 7, 
have any property of the defendant in the attach- s . 9; 1793, c. 389, s. 2; C. S. 821.) 
ment, he shall at the same time summon in writ- 
ing such person as a garnishee. The summons and § 1 " 464 - Property with garnishee valued; gar- 
notice shall be issued by the clerk of the superior mshee exonerated.— When a garnishee on oath 
court, or justice of the peace, at the request of confesses that he has in his hands any property 
the plaintiff, to appear at the court to which the of the defendant of a specific nature, or is in- 
attachment is returnable, or if issued by a justice debted to him by any security or promise for 
of the peace, at a place and time named in the the delivery of any specific article, except as 
notice, not exceeding twenty days from date of hereinafter excepted, the court shall immediately 
notice, to answer upon oath what he owes to the ord er a jury to be impaneled and sworn to in- 
defendant and what property of the defendant he q uire into th e value of such specific property, 
has in his hand and had at the time of serving the and the verdict of the jury subjects the gar- 
attachment, and to his knowledge and belief what nishee to the payment of the valuation, or as 
effects or debts of the defendant there are in the much of it as is sufficient to satisfy the debt or 
hands of any other, and what person. When an damages and costs of the plaintiff. In a court 
attachment is served on a garnishee in the above of a justice of the peace, he may try such issue, 
manner, upon his appearance and examination, unless a jury is demanded, and then proceed- 
judgment may be entered up and execution ings are to be conducted in all respects as in 
awarded for the plaintiff against the garnishee, Jury trials before justices of the peace. If the 
for all sums of money due the defendant from garnishee states in his answer that the specific 
him, and for all property of any kind belonging property was left with him by the defendant as 
to the defendant, in his possession or custody, for a bailment, or that he has tendered said specific 
the use of the plaintiff, or so much thereof as will articles according to contract, and that they were 
satisfy the debt and costs and all charges inci- refused by the defendant, and that he then was 
dent to levying the same. All property whatso- and always had been ready to deliver the same; 
ever in the hands of any garnishee belonging to or that he' had such specific articles at the time 
the defendant is liable to satisfy the plaintiff's and place specified in such covenant or agree- 
judgment, and must be delivered to the sheriff ment ready to be delivered, and is still ready to 



or other officer serving the attachment. (Rev., s. 
779; Code, s. 364; R. C, c. 7, s. 7; 1777, c. 115, s. 
28; C. S. 819.) 

§ 1-462. Failure of garnishee to appear. — When 
a garnishee is summoned and fails to appear and 
discover on oath as directed, the court, after sol- 
emnly calling the garnishee, shall enter a condi- 
tional judgment against him, and thereupon a no- 
tice shall issue against him returnable to the 

court having jurisdiction, to show cause why final nishee. — When a garnishee declares in his an- 

[61] 



deliver them; and such statement is admitted by 
the plaintiff or found by a jury or the court, then 
in any such case the garnishee shall be exonerated 
by the delivery of such specific articles to the 
sheriff, who shall proceed as if the attachment 
had been orginally levied on the property. (Rev., 
s. 782; Code, s. 367; R. C, c. 7, s. 11; 1793, c. 389; 
1794, c. 424; C. S. 822.) 

§ 1-465. Conditional judgment against gar- 



§ 1-466 



CH. 1. CIVIL PROCEDURE— CLAIM AND DELIVERY 



§ 1-473 



swer that the money or specific article due by 
him will become payable or deliverable at a 
future day, and this is admitted by the plaintiff or 
found by a jury or the court, a conditional judg- 
ment shall be entered against the garnishee, and 
the plaintiff may obtain judgment against the 
defendant for his demand, but may not take final 
judgment against the garnishee without notice 
to show cause. (Rev., s. 783; Code, s. 368; R. C, 
c. 7, s. 12; 1794, c. 424, s. 2; C. S. 823.) 

§ 1-466. Satisfaction of judgment. — If judgment 
is entered for the plaintiff in the action, the sher- 
iff shall satisfy the same out of the property at- 
tached by him, if it is sufficient for that purpose — 

1. By paying over to the plaintiff the pro- 
ceeds of all property sold and debts or credits 
collected by him, or so much as is necessary to 
satisfy the judgment. 

2. If any balance remains due, and an execu- 
tion has been issued on the judgment, he shall 
sell under the execution as much of the attached 
rea! or personal property, except as provided in 
subdivision four of this section, as is necessary 
to satisfy the balance, if enough for that purpose 
remains in his hands. In case of the sale of any 
rights or shares in the stock of a corporation or 
association, the sheriff shall execute to the pur- 
chaser a certificate of sale, and the purchaser 
has all the rights and privileges in respect there- 
to which were had by the defendant. 

3. If any of the attached property belonging to 
the defendant has passed out of the hands of 
the sheriff without having been sold or con- 
verted into money, he shall repossess himself 
of the same, and for that purpose has all the au- 
thority which he had to seize it under the attach- 
ment. A person who willfully conceals or with- 
holds such property from the sheriff is liable to 
double damages at the suit of the party injured. 

4. Until the judgment against the defendant 
is paid, the sheriff may collect the notes and 
other evidences of debt, and the debts that were 
seized or attached, under the warrant of attach- 
ment, and prosecute any bond he has taken in 
the course of such proceedings, and apply the 
proceeds to the payment of the judgment. 

At the expiration of six months from the dock- 
eting of the judgment the court has power, upon 
petition of the plaintiff, accompanied by an affi- 
davit setting forth fully all the proceedings 
which have been had by the sheriff since the 
service of the attachment, the property attached, 
and the disposition thereof, also the affidavit of the 
sheriff that he has used due diligence, and endeav- 
ored to collect the evidences of debt in his hands 
so attached, and that there remains uncollected of 
the same any part or portion thereof, to order the 
sheriff to sell the same upon such terms and in 
such manner as is deemed proper. Notice of this 
application must be given to the defendant or to 
his attorney, if the defendant has appeared in the 
action. If the summons has not been personally 
served on the defendant, the court shall make 
such rule or order, as to service of notice and 
time of service, as is deemed just. When the 
judgment and all costs of the proceedings have 
been paid, the sheriff, upon reasonable demand, 
shall deliver over to the defendant the residue 
of the attached property or the proceeds thereof. 

[ 62 



(Rev., s. 784; Code, s. 370; C. C. P., s. 209; C. S. 
824.) 

§ 1-467. Plaintiff may sue on defendant's bond. 
— The actions herein authorized to be brought 
by the sheriff may be prosecuted by the plain- 
tiff, or under his direction, upon the delivery by 
him to the sheriff of an undertaking executed by 
two sufficient sureties, to the effect that the 
plaintiff will indemnify the sheriff from all 
damages, costs and expenses on account there- 
of, not exceeding two hundred and fifty dollars 
in any one action. The sureties must in all 
cases, when required by the sheriff, justify by 
making an affidavit that each is a freeholder, 
and worth double the amount of the penalty of 
the bond, over and above all demands, liabilities 
and exemptions. (Rev., s. 785; Code, s. 371; C. 
C. P., s. 210; C. S. 825.) 

§ 1-468. On defendant's recovery, bonds and 
property delivered to him. — If the foreign cor- 
poration, or the absent, absconding, or concealed 
defendant, recovers judgment against the plain- 
tiff in such action, any bond taken upon the is- 
suing of the warrant of attachment, and any 
bond taken by the sheriff, except such as are 
mentioned in § 1-467, all the proceeds of sales and 
moneys collected by him, and all the property at- 
tached remaining in his hands, shall be delivered 
by him to the defendant or to his agent, on re- 
quest, and the warrant shall be discharged and 
the property released. (Rev., s. 786; Code, s. 372; 
C. C. P., s. 211; C. S. 826.) 

§ 1-469. Motion to vacate or increase security. 

— The defendant, or person who has acquired a 
lien upon, or interest in, his property before or 
after it was attached, may at any time before the 
actual application of the attached property, or 
the proceeds thereof, to the payment of a judg- 
ment recovered in the action, apply to the court 
having jurisdiction to vacate or modify the war- 
rant, or to increase the security given by the 
plaintiff, or for one or more of those forms of 
relief, together or in the alternative, as in cases 
of other provisional remedies. (Rev., s. 787; Code, 
s. 377; C. S. 827.) 

§ 1-470. Exceptions to and justification of 
sureties. — The sureties to all undertakings in all 
proceedings for attachment may be excepted to, 
and justified as prescribed in respect to bail upon 
an order of arrest. (Rev., s. 788; Code, s. 378; C. 
S. 828.) 

§ 1-471. Intervention. — When the property at- 
tached is claimed by any other person, the 
claimant may intervene, as provided for interven- 
tion in claim and delivery. (Rev., s. 789; Code, s. 
375; R. C, c. 7, s. 10; 1793, c. 389, s. 3; C. S. 829.) 

Art. 36. Claim and Delivery. 

§ 1-472. Claim for delivery of personal prop- 
erty. — The plaintiff in an action to recover the 
possession of personal property may, at the time 
of issuing the summons or at any time before 
answer, claim the immediate delivery of the 
property as provided in this article. (Rev., s. 790; 
Code, s. 321; C. C. P., s. 176; C. S. 830.) 

§ 1-473. Affidavit and requisites. — Where a de- 
livery is claimed, an affidavit must be made be- 

] 



§ 1-474 



CH. 1. CIVIL PROCEDURE— CLAIM AND DELIVERY 



§ 1-480 



fore the clerk of the court in which the action the sureties. If he fails to do so, he is deemed 

is required to be tried or before some person to have waived all objection to them. When the 

competent to administer oaths, by the plaintiff, defendant excepts, the sureties must justify on 

or some one in his behalf, showing — notice, in like manner as upon bail on arrest. 

1. That the plaintiff is the owner of the prop- The sheriff is responsible for the sufficiency of 
erty claimed (particularly describing it), or is the sureties until the objection to them is either 
lawfully entitled to its possession by virtue of waived as above provided, or until they justify, 
a special property therein, the facts in respect to or until new sureties are substituted and justify, 
which must be set forth. If the defendant excepts to the sureties he can- 

2. That the property is wrongfully detained by not reclaim the property as provided in the suc- 
the defendant. ceeding section. (Rev., s. 794; Code, s. 325; C. C. 

3. The alleged cause of the detention, accord- P., s. 180; C. S. 835.) 



ing to his best knowledge, information and be- 
lief. 

4. That the property has not been taken for 



1-478. Defendant's undertaking for replevy. 

-At any time before the delivery of the prop- 



tax,' assessment or fine, pursuant to a statute; or f to the plaintiff the defendant may if he 



seized under an execution or attachment against 



does not except to the sureties of the plaintiff, 



the property of the plaintiff; or, if so seized, that f^ ulre the return th f. eof ' HPongmng to the sher- 

it is, by statute, exempt from such seizure; and, lff a WT ' n f n undertaking, payable^ to the plaintiff, 

5. The actual value of the property. (Rev., s. executed by one or more sufficient sureties, to 

791; Code, s. 322; C. C. P., s. 177; 1831, c. 134; C. the eff r ec * that the y are bound in double the r 

c gqi \ value of the property, as stated in the affidavit of 

the plaintiff, for the deliver}'' thereof to the plain- 
§ 1-474. Order of seizure and delivery to plain- tiff> with damages for its deterioration and de- 
tiff.— The clerk of the court shall, thereupon, tent ion, and the costs, if delivery can be had, and if 
and upon the giving by the plaintiff of the un- delivery cannot be had, for the payment to him of 
dertaking prescribed in the succeeding section, such sum as may be recovered against the defend- 
by an indorsement in writing upon the affidavit, ant for the value of the pr0 perty at the time of the 
require the sheriff of the county where the wrongful taking or detention, with interest there- 
property claimed is located, to take it from the on> as damages for such taking and detention, to- 



defendant and deliver it to the plaintiff. (Rev., s 
792; Code, s. 323; C. C. P., s. 178; C. S. 832.) 

§ 1-475. Plaintiff's undertaking. — The plain- 
tiff must give a written undertaking payable to 
the defendant, executed by one or more suffi- 
cient sureties, approved by the sheriff, to the ef- 



gether with the costs of the action. If a return of 
the property is not so required, within three days 
after the taking and service of notice to the de- 
fendant, it must be delivered to the plaintiff, un- 
less it is claimed by an interpleader. 

The defendant's undertaking shall include lia- 
feet i!. i; they are bound ,i double the value of ^ ^ costs as provided in this section, only 
the property, as stated in the affidavit for the where the undertaking is given in actions in- 
prosecution of the action, for the return of the :i ! 

property to the defendant, with damages for its 



deterioration and detention if return can be had, 
and if for any cause return cannot be had, for 
the payment to him of such sum as may be re- 
covered against the plaintiff for the value of the 
property at the time of the seizure, with inter- 



s. 326; 1885, c. 50, s. 2; C. C. P., s. 181; 1911, c. 
17; C. S. 836.) 



§ 1-479. Qualification and justification of de- 
fendant's sureties. — The qualification of the de- 
fendant's sureties, and their justification, is as 
prescribed in respect to bail upon an order of 



est thereon as damages for such seizure and de- arres t. The defendant's sureties, upon notice tc 



tention. (Rev., s. 793; Code, s. 324; 1885, c. 50; 
C. C. P., s. 179; C. S. 833.) 



the plaintiff of not less than two nor more than 
six days, shall justify before the court, a judge or 



§ 1-476. Sheriff's duties.— Upon the receipt of justice of the peace, and upon this justification the 
the order from the clerk with the plaintiff's un- sheriff must deliver the property to the defendant, 
dertaking, the sheriff shall forthwith take the The sheriff is responsible for the defendant's sure- 
property described in the affidavit, if it is in the ties until justification is completed or expressly 
possession of the defendant or his agent, and re- waived, and he may retain the property until that 
tain it in his custody. He shall also, without de- time; but if they, or others in their place, fail to 
lay, serve on the defendant a copy of the affidavit, justify at the time and place appointed, he must 
notice, and undertaking, by delivering the same deliver the property to the plaintiff. (Rev., ss. 796, 
to him personally, if he can be found, or to his ^97; Code, ss. 327, 328; C. C. P., ss. 182, 183; C. 



agent, from whose possession the property is 
taken; or, if neither can be found, by leaving 
them at the usual place of abode of either, with 
some person of suitable age and discretion. 
(Rev., s. 793; Code, s. 324; C. C. P., s. 179; 1885, 
c. 50; C. S. 834.) 



S. 837.) 

§ 1-480. Property concealed in buildings. — If 

the property, or any part of it, is concealed in a 
building or enclosure, the sheriff shall publicly de- 
mand its delivery. If it is not delivered he must 
cause the building or enclosure to be broken open, 



§ 1-477. Exceptions to undertaking; liability of and take the property into his possession. If neces- 

sheriff. — The defendant may, within three days sary, he may call to his aid the power of his 

after the service of a copy of the affidavit and county, and if the property is upon the person the 

undertaking, notify the sheriff personally, or by sheriff or other officer may seize the person, and 

leaving a copy at his office in the county-seat of search for and take it. (Rev., s. 798; Code, s. 

the county, that he excepts to the sufficiency of 329; C. C. P., s. 184; C. S. 838.) 

[63] 



§ 1-481 



CH. 1. CIVIL PROCEDURE— INJUNCTION 



§ 1-488 



§ 1-481. Care and delivery of seized property. — 

When the sheriff has taken property, as provided 
in this article, he must keep it in a secure place, 
and deliver it to the party entitled thereto, upon 
receiving his lawful fees for taking and his neces- 
sary expenses for keeping it. (Rev., s. 799; Code, 
s. 330; C. C. P., s. 185; C. S. 839.) 

§ 1-482. Property claimed by third person; pro- 
ceedings. — When the property taken by the sher- 
iff is claimed by any person other than the plain- 
tiff or defendant the claimant may intervene upon 
filing an affidavit of his title and right to the pos- 
session of the property, stating the grounds of 
such right and title, and upon his delivering to the 
sheriff an undertaking in an amount double the 
value of the property specified in his affidavit, for 
the delivery of the property to the person entitled 
to it, and for the payment of all such costs and 
damages as may be awarded against him, this un- 
dertaking to be executed by one or more sufficient 
sureties, accompanied by their affidavits that they 
are each worth double the value of the property. 
A copy of this undertaking and accompanying affi- 
davit shall be served by the sheriff on the plaintiff 
and defendant at least ten days before the return 
day of the summons in the action, when the court 
trying it shall order a jury to be impaneled to in- 
quire in whom is the right to the property specified 
in plaintiff's complaint. The finding of the jury is 
conclusive as to the parties then in court, and the 
court shall adjudge accordingly, unless it is re- 
versed upon appeal. In a court of a justice of the 
peace he may try such issue unless a jury is de- 
manded, and then proceedings are to be conducted 
in all respects as in jury trials before justices of 
the peace. In a court of a justice of the peace an 
intervener shall not be required to serve on the 
plaintiff and defendant the affidavits and bonds 
required by this section, ten days before return 
day; but if said bond and affidavit are filed by any 
person owning the property when such case is 
called for trial, he shall be allowed to intervene: 
Provided that this section shall not be construed 
to prevent any such intervener or third person 
from intervening and asserting his claim to the 
property, or any part thereof, without giving bond 
as herein required, where such intervener or other 
third person does not ask for possession of the 
property pending the trial of the issue. (Rev., s. 
800; Code, s. 331; C. C. P., s. 186; R. C, c. 7, s. 
10; 1793, c. 389, s. 3; 1913, c. 188; 1933, c. 131; C. 
S. 840.) 

§ 1-483. Delivery of property to intervener. — 
Upon the filing by the claimant of the undertak- 
ing set forth in § 1-482, the sheriff is not bound 
to keep the property, or to deliver it to the plain- 
tiff; but may deliver it to the claimant, unless the 
plaintiff executes and delivers to him a similar 
undertaking to that required of claimant; and not- 
withstanding such claim, when so made, the sheriff 
may retain the property a reasonable time to de- 
mand such indemnity. (Rev., s. 801; Code, s. 332; 
R. C, c. 7, s. 10; 1793, c. 389, s. 3; C. S. 841.) 

§ 1-484. Sheriff to return papers in ten days. 
— The sheriff must return the undertaking, notice 
and affidavit, with his proceedings thereon, to the 
court in which the action is pending within ten 
days after taking the property mentioned therein. 
(Rev., s. 802; Code, s. 133; C. C. P., s. 187; C. S. 
842.) 



Art. 37. Injunction. 

§ 1-485. When temporary injunction issued. — A 

temporary injunction may be issued by order in 
accordance with the provisions of this article. 
The order may be made by any judge of the su- 
perior court in the following cases, and shall be 
issued by the clerk of the court in which the 
action is required to be tried: 

1. When it appears by the complaint that the 
plaintiff is entitled to the relief demanded, and 
this relief, or any part thereof, consists in re- 
straining the commission or continuance of some 
act the commission or continuance of which, dur- 
ing the litigation, would produce injury to the 
plaintiff; or, 

2. When, during the litigation, it appears by 
affidavit that a party thereto is doing, or threatens 
or is about to do, or is procuring or suffering 
some act to be done in violation of the rights of 
another party to the litigation respecting the 
subject of the action, and tending to render the 
judgment ineffectual; or, 

3. When, during the pendency of an action, it 
appears by affidavit of any person that the defend- 
ant threatens or is about to remove or dispose of 
his property, with intent to defraud the plaintiff. 
(Rev., s. 806; Code, ss. 334, 338; C. C. P., ss. 188, 
189; C. S. 843.) 

§ 1-486. When solvent defendant restrained. — 

In an application for an injunction to enjoin a 
trespass on land it is not necessary to allege 
the insolvency of the defendant when the tres- 
pass complained of is continuous in its nature, or 
is the cutting or destruction of timber trees. 
(Rev., s. 807; 1885, c. 401; C. S. 844.) 

§ 1-487. Timber lands, trial of title to.— In all 

actions to try title to timber lands and for trespass 
thereon for cutting timber trees, when the court 
finds as a fact that there is a bona fide contention 
on both sides based upon evidence constituting 
a prima facie title, no order shall be made pend- 
ing such action, permitting either party to cut 
said timber trees, except by consent, until the 
title to said land or timber trees is finally deter- 
mined in the action. In all cases where the title 
to any timber or trees, or the right to cut and re- 
move the same during a term of years, is claimed 
by any party to such action, and the fee of the soil 
or other estate in the land by another, whether 
party to the action or not, the time within which 
such timber or trees may be cut or removed by 
the party claiming the same, and all other rights 
acquired in connection therewith, shall not be 
affected or abridged, but the running of the term 
is suspended during the pendency of the action. 
(Rev., s. 808; 1901, c. 666, s. 1; 1903, c. 642; C. S. 
845.) 

§ 1-488. When timber may be cut. — In any 

action specified in § 1-487, when the judge finds 
as a fact that the contention of either party is not 
in good faith and is not based upon evidence 
constituting a prima facie title, upon motion of 
the other party, who may satisfy the court of the 
bona fides of his contention and who may produce 
evidence showing a prima facie title, the court 
may allow such party to cut the timber trees by 
giving bond as required by law. Nothing in this 
section affects the right of appeal, and when any 



[64] 



§ 1-489 



CH. 1. CIVIL PROCEDURE— INJUNCTION 



§ 1-498 



party to such action has been enjoined, a sufficient 
bond must be required to cover all damages that 
may accrue to the party enjoined by reason of the 
injunction as now required by law. (Rev., s. 809; 
1901, c. 666, ss. 2, 3; C. S. 846.) 

§ 1-489. Time of issuing. — The injunction may 
be granted when or at any time after commencing 
the action, before judgment, upon its appearing 
satisfactorily to the judge, by affidavit of the 
plaintiff or of any other person, that sufficient 
grounds exist therefor. A copy of the affidavit 
must be served with the injunction. (Rev., s. 810; 
Code, s. 339; C. C. P., s. 190; C. S. 847.) 

§ 1-490. Not issued for longer than twenty days 
without notice. — No restraining order, or order to 
stay proceedings, for a longer time than twenty 
days shall be granted by a judge out of court, 
except upon due notice to the adverse party; but 
the order shall continue and remain in force until 
vacated after notice, to be fixed by the court, of 
not less than two nor more than ten days. (Rev., 
s. 811; Code, s. 346; C. C. P., s. 345; 1905, c. 26; 
C. S. 848.) 

§ 1-491. Issued after answer, only on notice. — 

An injunction shall not be allowed after the de- 
fendant has answered, except upon notice, or 
upon an order to show cause; but in such case 
the defendant may be restrained until the decision 
of the judge granting or refusing the injunction. 
(Rev., s. 812; Code, s. 340; C. C. P., s. 191; C. S. 
849.) 

§ 1-492. Order to show cause. — If the judge 
deems it proper that the defendant, or any of sev- 
eral defendants, should be heard before granting 
an injunction, an order may be made requiring 
cause to be shown, at a specified time and place, 
why the injunction should not be granted; and 
the defendant may, in the meantime, be re- 
strained. (Rev., s. 813; Code, s. 342; C. C. P., s. 
193; C. S. 850.) 

§ 1-493. What judges have jurisdiction. — The 
judges of the superior court have jurisdiction to 
grant injunctions and issue restraining orders in 
all civil actions and proceedings. A judge hold- 
ing a special term in any county may grant an in- 
junction, or issue a restraining order, returnable 
before himself, in any case which he has juris- 
diction to hear and determine under the commis- 
sion issued to him, and the same is returnable as 
directed in the order. (Rev., s. 814; Code, s. 335; 
1876-7, c. 223, ss. 1, 2; 1879, c. 63, ss. 1, 3; C. S. 
851.) 

§ 1-494. Before what judge returnable. — All re- 
straining orders and injunctions granted by any of 
the judges of the superior court, except one 
holding a special term in any county, shall be 
made returnable before the resident judge of the 
district, or the judge assigned to the district, or 
holding by exchange the courts of the district 
where the civil action or special proceeding is 
pending, within twenty days from date of order. 
If the judge before whom the matter is returned 
fails, for any reason, to hear the motion and 
application, or to continue them to some other 
time and place, any judge resident in, or assigned 
to hold the courts of, some adjoining district may 
hear and determine the said motion and applica- 
tion, after giving ten days notice to the parties 

-3 [ 



interested in the application or motion, upon its 
being satisfactorily shown to him by affidavit or 
otherwise that the judge before whom the matter 
was returnable failed to act upon or to continue 
the same to some other time and place. This re- 
moval continues in force the motion and applica- 
tion theretofore granted, till they can be heard 
and determined by the judge having jurisdiction. 
(Rev., s. 815; Code, s. 336; 1876, c. 223, s. 2; 1879, 
c. 63, ss. 2, 3; 1881, c. 51; C. S. 852.) 

§ 1-495. Stipulation as to judge to hear. — By a 

stipulation in writing, signed by all the parties to 
an application for an injunction order, or their at- 
torneys, to the effect that the matter may be 
heard before a judge designated in the stipulation, 
the judge before whom the restraining order is 
returnable by law, or who is by law the judge to 
hear the motion for an injunction order, shall, 
upon receipt of the stipulation forward it and 
all the papers to the judge designated, whose 
duty it then is to hear and decide the matter, and 
return all the papers to the court out of which 
they issued, the necessary postage or expressage 
money to be furnished to the judge. (Rev., s. 816; 
Code, s. 337; 1883, c. 33; C. S. 853.) 

§ 1-496. Undertaking. — Upon granting a re- 
straining order or an order for an injunction, 
the judge shall require as a condition prece- 
dent to the issuing thereof that the clerk shall 
take from the plaintiff a written undertaking, 
with sufficient sureties, to be justified before, 
and approved by, the clerk or judge, in an 
amount to be fixed by the judge, to the effect 
that the plaintiff will pay to the party enjoined 
such damages, not exceeding an amount to be 
specified, as he sustains by reason of the injunc- 
tion, if the court finally decides that the plaintiff 
was not entitled to it. (Rev., s. 817; Code, s. 341; 
C. C. P., s. 192; C. S. 854.) 

§ 1-497. Damages on dissolution. — A judg- 
ment dissolving an injunction carries with it 
judgment for damages against the party procuring 
it and the sureties on his undertaking without the 
requirement of malice or want of probable cause 
in procuring the injunction, which damages may 
be ascertained by a reference or otherwise, as 
the judge directs, and the decision of the court is 
conclusive as to the amount of damages upon all 
the persons who have an interest in the undertak- 
ing. (Rev., s. 818; Code, s. 341; 1893, c. 251; C. 
S. 855.) 

§ 1-498. Issued without notice; application to 
vacate. — If the injunction is granted without 
notice, the defendant, at any time before the 
trial, may apply, upon notice to be fixed by the 
court of not less than two nor more than ten 
days, to the judge having jurisdiction, to vacate 
or modify the same, if he is within the district 
or in an adjoining district, but if out of the dis- 
trict and not in an adjoining district, then be- 
fore any judge who is at the time in the district, 
and if there is no judge in the district, before 
any judge in an adjoining district. The applica- 
tion may be made upon the complaint and the 
affidavits on which the injunction was granted, 
or upon the affidavits on the part of the defend- 
ant, with or without answer. If no such ap- 
plication is made, the injunction continues in 
65 ] 



§ 1-499 



CH. l. CIVIL PROCEDURE— RECEIVERS 



§ 1-506 



force until such application is made and deter- 
mined by the judge, and a verified answer has 
the effect only of an affidavit. (Rev., s. 819; Code, 
s. 344; C. C. P., s. 195; 1905, c. 26; C. S. 856.) 

§ 1-499. When opposing affidavits admitted. — 

If the application is made upon affidavits on the 
part of the defendant, the plaintiff may oppose 
the same by affidavits or other proof, in addition 
to those on which the injunction was granted. 
(Rev., s. 820; Code, s. 345; C. C. P., s. 196; C. S. 
857.) 

§ 1-500. Restraining orders and injunctions 
in effect pending appeal; indemnifying bond. — 

Whenever a plaintiff shall appeal from a judg- 
ment rendered at chambers, or in term, either 
vacating a restraining order theretofore granted, 
or denying a perpetual injunction in any case 
where such injunction is the principal relief 
sought by the plaintiff, and where it shall ap- 
pear that vacating said restraining order or de- 
nying said injunction will enable the defendant 
to consummate the threatened act, sought to be 
enjoined, before such appeal can be heard, so 
that the plaintiff will thereby be deprived of the 
benefits of any judgment of the supreme court, 
reversing the judgment of *-he lower court, then 
in such case the original restraining order 
granted in the case shall in the discretion of the 
trial judge be and remain in full force and effect 
until said appeal shall be finally disposed of: 
Provided, the plaintiff shall forthwith execute 
and deposit with the clerk a written undertak- 
ing with sufficient surety, approved by the clerk 
or judge, in an amount to be fixed by the judge 
to indemnify the party enjoined against all loss, 
not exceeding an amount to be specified, which 
he may suffer on account of continuing such re- 
straining order as aforesaid, in the event that the 
judgment of the lower court is affirmed by the 
supreme court. (1921, c. 58; C. S. 858(a).) 

Art. 38. Receivers. 

§ 1-501. What judge appoints. — Any judge of 
the superior court with authority to grant re- 
straining orders and injunctions has like juris- 
diction in appointing receivers, and all motions 
to show cause are returnable as is provided for 
injunctions. (Rev., s. 846; Code, s. 379; C. C. P., 
s. 215; 1876-7, c. 223; 1879, c. 63; 1881, c. 51; C. 
S. 859.) 

§ 1-502. In what cases appointed. — A receiver 
may be appointed — 

1. Before judgment, on the application of 
either party, when he establishes an apparent 
right to property which is the subject of the 
action and in the possession of an adverse party, 
and the property or its rents and profits are in 
danger of being lost, or materially injured or im- 
paired; except in cases where judgment upon 
failure to answer may be had on application to 
the court. 

2. After judgment, to carry the judgment into 
effect. 

3. After judgment, to dispose of the property 
according to the judgment, or to preserve it dur- 
ing the pendency of an appeal, or when an exe- 
cution has been returned unsatisfied, and the 
judgment debtor refuses to apply his property in 



satisfaction of the judgment. 

4. In cases provided in chapter entitled Cor- 
porations in the article Receivers; and in like 
cases, of the property within this state of foreign 
corporations. 

The article Receivers, in the chapter entitled 
Corporations, is applicable, as near as may be, 
to receivers appointed hereunder. (Rev., s. 847; 
Code, c. 379; C. C. P., s. 215; 1876-7, c. 223; 1879, 
c. 63; 1881, c. 51; C. S. 860.) 

§ 1-503. Appointment refused on bond's being 
given. — In all cases where there is an application 
for the appointment of a receiver, upon the 
ground that the property or its rents and profits 
are in danger of being lost, or materially injured 
or impaired, or that a corporation defendant is 
insolvent or in imminent danger of insolvency, 
and the subject of the action is the recovery of 
a money demand, the judge before whom the ap- 
plication is made or pending shall have the dis- 
cretionary power to refuse the appointment of a 
receiver if the party against whom such relief is 
asked, whether a person, partnership or corpora- 
tion, tenders to the court an undertaking pay- 
able to the adverse party in an amount double the 
sum demanded by the plaintiff, with at least 
two sufficient and duly justified sureties, con- 
ditioned for the payment of such amount as may 
be recovered in the action, and summary judgment 
may be taken upon the undertaking. In the prog- 
ress of the action the court may in its discretion 
require additional sureties on such undertaking. 
(Rev., s. 848; 1885, c. 94; C. S. 861.) 

§ 1-504. Receiver's bond. — A receiver appointed 
in an action or special proceeding must, be- 
fore entering upon his duties, execute and file 
with the clerk of the court in which the action is 
pending an undertaking payable to the adverse 
party with at least two sufficient sureties in a 
penalty fixed by the judge making the appoint- 
ment, conditioned for the faithful discharge of 
his duties as receiver. And the judge having 
jurisdiction thereof may at any time remove the 
receiver, or direct him to give a new undertaking, 
with new sureties, and on the like condition. 
This section does not apply to a case where 
special provision is made by law for the security 
to be given by a receiver, or for increasing the 
same, or for removing a receiver. (Rev., s. 849; 
Code, s. 383; C. S. 862.) 

§ 1-505. Sale of property in hands of receiver. 
— The resident judge or the judge assigned to 
hold any of the courts in any judicial district of 
North Carolina shall have power and authority to 
order a sale of any property, real or personal, in 
the hands of a receiver duly and regularly ap- 
pointed by the Superior Court of North Carolina 
upon such terms as appear to be to the best in- 
terests of the creditors affected by said receiver- 
ship. (1931, c. 123, s. 1.) 

§ 1-506. Confirmation of sales outside county 
of action; notice to creditors. — Any sale made by 
a receiver may be confirmed outside of the county 
in which said action is pending, either by the resi- 
dent iudge or the judge assigned to hold any of 
the courts of the district in which said sale is 
made, upon proof of written notice to each credi- 
tor who has filed his claim with said receiver of 



[66 1 



§ 1-507 



CH. 1. CIVIL PROCEDURE— QUO WARRANTO 



§ 1-517 



at least ten days prior to the date of confirmation, judgment establishing what part of said judgment, 

The said notice shall specify the time and place if any, remains unpaid, what resources, if any, are 

when application for confirmation shall be made, available for the satisfaction of the judgment, in- 

and an affidavit of the receiver showing that no- eluding the actual value of all property sought to 

tice was mailed to each creditor at his last known be subjected to additional taxation and the neces- 

post office address shall be sufficient proof of no- sity for the issuing of such writ. (Rev., s. 823; 

tice to said creditors. (1931, c. 123, s. 2; c. 267.) Code, s. 623; 1871-2, c. 75, s. 2; 1933, c. 349; C. S. 

§ 1-507. Validation of sales made outside county 867 -) 
of action. — All receiver's sales made prior to § 1-513. For other relief returnable in vaca- 
March 16, 1931, where orders were made and con- tion; issues of fact. — When the plaintiff seeks 
firmation decreed or where either orders were relief other than the enforcement of a money de- 
made or confirmation decreed outside the county mand, the summons must be made returnable be- 
in which said actions were pending by a resident fore a judge of the superior court at chambers, 
judge or the judge assigned to hold the courts of r in term at a day specified in the summons, 



the district are hereby validated, ratified and con- 
firmed. (1931, c. 123, s. 3.) 

Art. 39. Deposit or Delivery of Money or 
Other Property. 

§ 1-508. Ordered paid into court. — When it is 
admitted by the pleading or examination of a party 
that he has in his possession or under his con- 



not less than ten days after the service of the 
summons and complaint upon the defendant; at 
which time the court, except for good cause 
shown, shall hear and determine the action, both 
as to law and fact. However, when an issue of 
fact is raised by the pleading, it is the duty of the 
court, upon the motion of either party, to con- 
tinue the action until the issue of fact can be de- 
trol any money or other thing capable of de- cided by a j ury at trie next regular term of the 



livery, which, being the subject of the litigation, 
is held by him as trustee for another party, or s 3. C. S. 868.) 
which belongs or is due to another party, the 
judge may order it deposited in court, or de- 
livered to such party with or without security, 
subject to the further direction of the judge. 



court. (Rev., s. 824; Code, s. 623; 1871-2, c. 75, 



Art. 41. Quo Warranto. 

1-514. Writs of sci. fa. and quo warranto 
abolished. — The writs of scire facias and of quo 



(Rev., s. 850; Code, s. 380; C. C. P., s. 215; C. S. warrant0) and proceedings by information in the 

' nature of quo warranto, are abolished; and the 

§ 1-509. Ordered seized by sheriff.— When, in the remedies obtainable in those forms may be ob- 

exercise of his authority, a judge has ordered the tained by civil actions under this article. (Rev., 

deposit, delivery or conveyance of money or other s . 826; Code, s. 603; C. C. P., s. 362; R. C, c. 26, 



property, and the order is disobeyed, the judge, 
besides punishing the disobedience as for con- 
tempt, may make an order requiring the sheriff 
to take the money or property, and deposit, de- 
liver, or convey it, in conformity with the di- 
rection of the judge. (Rev., s. 851; Code, s. 381; 
C. C. P., s. 215; C. S. 864.) 



ss. 5, 25; C. S. 869.) 

§ 1-515. Action by attorney-general. — An ac- 
tion may be brought by the attorney-general in 
the name of the state, upon his own information 
or upon the complaint of a private party, against 
the parties offending, in the following cases: 
1. When a person usurps, intrudes into, or un- 
§ 1-510. Defendant ordered to satisfy admitted lawfully holds or exercises any public office, civil 
sum.— When the answer of the defendant ex- or military, or any franchise within this state, 
pressly, or by not denying, admits part of the or ally office ; n a corporation created by the au- 
plaintiff's claim to be just, the judge, on motion, thority of this state; or, 
may order the defendant to satisfy that part of 2 _ when a public' officer, civil or military, has 



the claim, and may enforce the order as it en- 
forces a judgment or provisional remedy. (Rev., 
s. 852; Code, s. 382; C. C. P., s. 215; C. S. 865.) 

SUBCHAPTER XIV. ACTIONS IN PAR- 
TICULAR CASES. 

Art. 40. Mandamus. 
§ 1-511. Begun by summons and verified corn- 



done or suffered an act which, by law, makes a 
forfeiture of his office. 

3. When any person, natural or corporate, has 
or claims to have or hold any rights or franchises 
by reason of a grant or otherwise, in violation of 
the provisions of § 146-14. (Rev., s. 827; Code, s. 
607; C. C. P., s. 386; 1911, cc. 195, 201; C. S. 870.) 

§ 1-516. Action by private person with leave, 
plaint. — All applications for writs of mandamus — When application is made to the attorney-gen- 
must be made by summons and complaint, which e ral by a private relator to bring such an action, 



must be duly verified. (Rev., s. 822; Code, s. 622; 
1871-2, c. 75; C. S. 866.) 

§ 1-512. For money demand. — In applications 
for a writ of mandamus when the plaintiff seeks 
to enforce a money demand, the summons, plead- 
ings and practice are the same as prescribed for 
civil actions. Provided that in all applications seek- 
ing a writ of mandamus to enforce a money de- 
mand on actions ex contractu against any county, 



he shall grant leave that it may be brought in 
the name of the state, upon the relation of such 
applicant, upon the applicant tendering to the at- 
torney-general satisfactory security to indemnify 
the state against all costs and expenses which 
may accrue in consequence of the action. (Rev., 
s 828; Code, s. 608; 1874-5, c. 76; 1881, c. 330; C. 
S. 871.) 

§ 1-517. Solvent sureties required. — The at- 



city, town or taxing district within the state, the torney-general, before granting leave to a private 
applicant shall allege and show in the complaint relator to bring a suit to try the title to an office, 
that the claim or debt has been reduced to a final may require two sureties to the bond required 

[67] 



§ 1-518 



CH. 1. CIVIL PROCEDURE— QUO WARRANTO 



§ 1-527 



by law to be filed to indemnify the state against 
costs and expenses, and require such sureties 
to justify, and may require such proof and 
evidence of the solvency of the sureties as is 
satisfactory to him. (Rev., s. 829; 1901, c. 595, s. 
2; C. S. 872.) 

§ 1-518. Leave withdrawn and action dis- 
missed for insufficient bond. — When the attorney- 
general has granted leave to a privr.te relator to 
bring an action in the name of the state to try 
the title to an office, and it afterwards is shown 
to the satisfaction of the attorney-general that 
the bond filed by the private relator is insuffi- 
cient, or that the sureties are insolvent, the at- 
torney-general may recall and revoke such leave, 
and upon a certificate of the withdrawal and 
revocation by the attorney-general to the clerk of 
the court of the county where the action is pend- 
ing, it is the duty of the presiding judge, upon 
motion of the defendant, to dismiss the action. 
(Rev., s. 830; 1891, c. 595; C. S. 873.) 

§ 1-519. Arrest and bail of defendant usurping 
office. — When action is brought against a person 
for usurping an office, the attorney-general, in 
addition to the statement of the cause of action, 
may set forth in the complaint the name of 
the person rightfully entitled to the office, with 
a statement of his right thereto; and in such case, 
upon proof by affidavit that the defendant has re- 
ceived fees or emoluments belonging to and by 
means of his usurpation of the office, an order 
shall be granted by a judge of the superior court 
for the arrest of the defendant, and holding him 
to bail; and thereupon he shall be arrested and 
held to bail in the same manner, and with the 
same effect, and subject to the same rights and li- 
abilities, as in other civil actions where the defend- 
ant is subject to arrest. (Rev., s. 831; Code, s. 
609; C. C. P., s. 369; 1883, c. 102; C. S. 874.) 

§ 1-520. Several claims tried in one action. — ■ 

Where several persons claim to be entitled to the 
same office or franchise, one action may be 
brought against all of them, in order to try their 
respective rights to the office or franchise. (Rev., 
s. 832; Code, s. 614; C. C. P., s. 374; C. S. 875.) 

§ 1-521. Trials expedited. — All actions to try the 
title or right to any state, county or municipal 
office stand for trial at the return term of the sum- 
mons, if a copy of the complaint was served with 
the summons at least thirty days before the return 
day thereof; and it is the duty of the judges to ex- 
pedite the trial of these actions, and to give 
them precedence over all others, civil or criminal. 
It is unlawful to appropriate any public funds to 
the payment of counsel fees in any such action. 
(Rev., s. 833; Code, s. 616; 1901, c. 42; 1874-5, c. 
173; C. S. 876.) 

§ 1-522. Time for bringing action. — All actions 
brought by a private relator, upon the leave of the 
attorney-general, to try the title to an office must 
be brought, and a copy of the complaint served on 
the defendant, within ninety days after his induc- 
tion into the office to which the title is to be tried; 
and when it appears from the papers in the cause, 
or is otherwise shown to the satisfaction of the 
court, that the summons and complaint have not 
been served within ninety days, it is the duty of 
the judge upon motion of defendant to dismiss the 

[6 



action at any time before the trial, at the cost of 
the plaintiff. (Rev., s. 834; 1901, c. 519; 1903 c 
556; C. S. 877.) 

§ 1-523. Defendant's undertaking before answer. 

— Before the defendant may answer or demur to 
the_ complaint he must execute and file in the su- 
perior court clerk's office of the county wherein the 
suit is pending, an undertaking, with good and 
sufficient surety, in the sum of two hundred dol- 
lars, which may be increased from time to time in 
the discretion of the judge, to be void upon condi- 
tion that the defendant pays to the plaintiff all 
such costs and damages, including damages for the 
loss of such fees and emoluments as may or 
ought to have come into the hands of the defend- 
ant, as the plaintiff may recover. (Rev., s 835" 
1895, c. 105; C. S. 878.) 

§ 1-524. Possession of office not disturbed pend- 
ing trial. — In any civil action pending in any of 
the courts of this state in which the title to an 
office is involved, the defendant being in the pos- 
session of the office and discharging the duties 
thereof shall continue therein pending the action, 
and no judge shall make a restraining order in- 
terfering with or enjoining such officer in the 
premises. The officer shall, notwithstanding any 
such order, continue to exercise the duties of the 
office pending the litigation, and receive the 
emoluments thereof. (Rev., s. 836; 1899, c 33- 
C. S. 879.) 

§ 1-525. Judgment by default and inquiry on 
failure of defendant to give bond. — At any time 
after a duly verified complaint is filed alleging facts 
sufficient to entitle plaintiff to the office, whether 
this complaint is filed at the beginning of the ac- 
tion or later, the plaintiff may, upon ten days no- 
tice to the defendant or his attorney of record, 
move before the judge resident in or riding the 
district, at chambers, to require the defendant to 
give the undertaking specified in § 1-523. It is 
the duty of the judge to require the defendant to 
give the undertaking within ten days, and if it 
is not so given, the judge shall render judgment 
in favor of plaintiff and against defendant for the 
recovery of the office and the costs, and a judg- 
ment by default and inquiry to be executed at a 
term for damages, including loss of fees and 
salary. Upon the filing of the judgment for the 
recovery of such office with the clerk, it is his duty 
to issue and the sheriff's duty to serve the neces- 
sary process to put the plaintiff into possession of 
the office. If the defendant shall gi^e the undertak- 
ing, the court, if judgment is rendered for plaintiff, 
shall render judgment against the defendant and 
his sureties for costs and damages, including loss 
of fees and salary. Nothing herein prevents the 
judge's extending, for cause, the time in which to 
give the undertaking. (Rev., s. 837; 1899, c. 49; 
1895, c. 105, s. 2; C. S. 880.) 

§ 1-526. Service of summons and complaint. — ■ 

The service of the summons and complaint as here- 
inbefore provided may be made by leaving a copy 
at the last residence or business office of the de- 
fendant or defendants, and service so made shall 
be deemed a legal service. (Rev., s. 838; 1899, c. 
126; C. S. 881.) 

§ 1-527. Judgment in such actions. — In every 
such case judgment shall be rendered upon the 

] 



§ 1-528 



CH. 1. CIVIL PROCEDURE— COMPROMISE 



§ 1-54C 



right of the defendant, and also upon the right of 
the party alleged to be entitled, or only upon the 
right of the defendant, as justice requires. When 
the defendant, whether a natural person or corpo- 
ration, against whom the action has been brought, 
is adjudged guilty of usurping or intruding into, 
or unlawfully holding or exercising any office, 
franchise or privilege, judgment shall be rendered 
that the defendant be excluded from such office, 
franchise or privilege, and also that the plaintiff 
recover costs against him. The court may also, 
in its discretion, fine the defendant a sum not ex- 
ceeding two thousand dollars. (Rev., ss. 839, 840; 
Code, ss. 610, 615; R. C, c. 95; C. C. P., ss. 370, 
375; Const., Art. IX, s. 5; C. S. 882.) 

§ 1-528. Mandamus to aid relator. — In any civil 

action brought to try the title or right to hold any 
office, when the judgment of the court is in favor 
of the relator in the action, it is the duty of the 
court to issue a writ of mandamus or such other 
process as is necessary and proper to carry the 
judgment into effect, and to induct the party en- 
titled into office. (Rev., s. 841; 1885, c. 406, s. 1; 
C. S. 883.) 

§ 1-529. Appeal; bonds of parties. — No appeal 
by the defendant to the supreme court from the 
judgment of the superior court in such action shall 
stay the execution of the judgment, unless a justi- 
fied undertaking is executed on the part of the 
appellant by one or more sureties, in a sum to be 
fixed by the court, conditioned that the appellant 
will pay to the party entitled to the same the sal- 
ary, fees, emoluments and all moneys whatsoever 
received by the appellant by virtue or under color 
of the office. In no event shall the judgment be 
executed pending appeal, unless a justified under- 
taking is executed on the part of the appellee by 
one or more persons in a sum to be fixed by the 
court, conditioned that the appellee will pay to 
the party entitled to the same the salary, fees, 
emoluments and all moneys whatsoever received 
by the appellee by virtue or under color of 
office during his occupancy thereof. (Rev., s. 842; 
1885, c. 406, s. 2; C. S. 884.) 

§ 1-530. Relator inducted into office; duty. — 
If the judgment is rendered in favor of the per- 
son alleged to be entitled, he shall be entitled, 
after taking the oath of office and executing 
such official bond as may be required by law, 
to take upon himself the execution of the office. 
It is his duty, immediately thereafter, to demand 
of the defendant in the action all the books and 
papers in his custody, or within his power, be- 
longing to the office from which he has been ex- 
cluded. (Rev., ss. 843, 844; Code, ss. 611, 613; C. 
C. P., ss. 371, 373; C. S. 885.) 

§ 1-531. Refusal to surrender official papers mis- 
demeanor. — If a person against whom a judgment 
has been rendered in an action brought to recover 
a public office shall fail or refuse to turn over, on 
demand, to the person adjudged to be entitled to 
such office, all papers, documents and books be- 
longing to such office, he shall be guilty of a mis- 
demeanor. (Rev., s. 3601; Code, s. 612; C. C. P., 
372; C. S. 886.) 

§ 1-532. Action to recover property forfeited to 
state. — When any property, real or personal, is 
forfeited to the state, or to any officer for its use, 

[ 



an action for the recovery of such property, alleg- 
ing the grounds of the forfeiture, may be brought 
by the proper officer in any superior court. (Rev. h 
s. 845; Code, s. 621; C. C. P., s. 381; C. S. 887.) 

Art. 42. Waste. 

§ 1-533. Remedy and judgment. — Wrongs, re- 
mediable by the old action of waste, are subjects 
of action as other wrongs; and the judgment may 
be for damages, forfeiture of the estate of the 
party offending, and eviction from the premises. 
(Rev., s. 853; Code, s. 624; C. C. P., s. 383; C. S. 
888.) 

§ 1-534. For and against whom action lies. — In 

all cases of waste, an action lies in the superior 
court at the instance of him in whom the right is, 
against all persons committing the waste, as well 
tenant for term of life as tenant for term of years 
and guardians. (Rev., s. 854; Code, s. 625; R. C, 
c. 116, s. 1; 52 Hen. Ill, c. 23; 6 Edw. I, c. 5; 20 
Edw. I, st. 2; 11 Hen. VI, c. 5; C. S. 889.) 

§ 1-535. Tenant in possession liable. — Where a 
tenant for life or years grants his estate to an- 
other, and still continues in the possession of the 
lands, tenements, or hereditaments, an action lies 
against the said tenant for life or years. (Rev., s. 
855; Code, s. 626; R. C, c. 116, s. 2; 11 Hen. VI, 
c. 5; C. S. 890.) 

§ 1-536. Action by tenant against cotenant. — 
Where a joint tenant or a tenant in common com- 
mits waste, an action lies against him at the in- 
stance of his cotenant or joint tenant. (Rev., s. 
856; Code, s. 627; R. C, c. 116, s. 4; 13 Edw. I, 
c. 22; C. S. 891.) 

§ 1-537. Action by heirs. — Every heir may bring 
action for waste committed on lands, tenements, 
or hereditaments of his own inheritance, as well 
in the time of his ancestor as in his own. (Rev., 
s. 857; Code, s. 628; R. C, c. 116, s. 5; 6 Edw. I, 
c. 5; 20 Edw. I, st. 2; 11 Hen. VI, c. 5; C. S. 892.) 

§ 1-538. Judgment for treble damages and pos- 
session. — In all cases of waste, when judgment is 
against the defendant, the court may give judg- 
ment for treble the amount of the damages as- 
sessed by the jury, and also that the plaintiff re- 
cover the place wasted, if the damages are not 
paid on or before a day to be named in the judg- 
ment. (Rev., s. 858; Code, s. 629; R. C, c. 116, s. 
3; 6 Edw. I, c. 5; 20 Edw. I, st. 2; C. S. 893.) 

Art. 43. Nuisance. 

§ 1-539. Remedy for nuisance. — Injuries remedi- 
able by the old writ of nuisance are subjects of 
action as other injuries; and in such action there 
may be judgment for damages, or for the removal 
of the nuisance, or both. (Rev., s. 825; Code, s. 
630; C. C. P., s. 387; C. S. 894.) 

SUBCHAPTER XV. INCIDENTAL PROCE- 
DURE IN CIVIL ACTIONS. 

Art. 44. Compromise. 

§ 1-540. By agreement receipt of less sum is 
discharge. — In all claims, or money demands, of 
whatever kind, and howsoever due, where an agree- 
ment is made and accepted for a less amount than 
that demanded or claimed to be due, in satisfac- 
69 ] 



§ 1-541 



CH. 1. CIVIL PROCEDURE— ARBITRATION AND AWARD 



§ 1-549 



tion thereof, the payment of the less amount ac- 
cording to such agreement in compromise of the 
whole is a full and complete discharge of the same. 
(Rev., s. 859; Code, s. 574; 1874-5, c. 178; C. S. 
895.) 

§ 1-541. Tender of judgment. — The defendant, 
at any time before the trial or verdict, may serve 
upon the plaintiff an offer in writing to allow 
judgment to be taken against him for the sum 
or property, or to the effect therein specified, 
with costs. If the plaintiff accepts the offer, and 
gives notice thereof in writing within ten days, 
he may file the summons, complaint, and offer, 
with an affidavit of notice of acceptance, and the 
clerk must thereupon enter judgment accord- 
ingly. If the notice of acceptance is not given, 
the offer is deemed withdrawn, and cannot be 
given in evidence; and if the plaintiff fails to ob- 
tain a more favorable judgment he cannot re- 
cover costs, but must pay the defendant's costs 
from the time of the offer. If the defendant sets 
up a counterclaim in his answer to an amount 
greater than the plaintiff's claim, or sufficient to 
reduce the plaintiff's recovery below fifty dol- 
lars, then the plaintiff may serve upon the de- 
fendant an offer in writing to allow judgment to 
be taken against him for the amount specified, 
or to allow the counterclaim to the amount speci- 
fied, with costs. If the defendant accepts the offer, 
and gives notice thereof in writing within ten 
days, he may enter judgment as above for the 
amount specified, if the offer entitles him to 
judgment, or if the amount specified in the of- 
fer is allowed hi-rn in the trial of the action. If 
the notice of acceptance is not given, the offer 
is deemed withdrawn, and cannot be given in evi- 
dence; and if the defendant fails to recover a 
more favorable judgment, or to establish his 
counterclaim for a greater amount than is specified 
in the offer, he cannot recover costs, but must 
pay the plaintiff's costs from the time of the of- 
fer. (Rev., s. 860; Code, s. 573; C. C. P., s. 328; 
C. S. 896.) 

§ 1-542. Conditional tender of judgment for 
damages. — In an action arising on contract, the 
defendant ma}\ with his answer, serve upon the 
plaintiff an offer in writing, that if he fails in his 
defense, the damages be assessed at a specified 
sum; and if the plaintiff signifies his acceptance 
thereof in writing, ten days before the trial, and 
on the trial has a verdict, the damages shall be 
assessed accordingly. If the plaintiff does not 
accept the offer, he must prove his damages, as 
if it had not been made, and may not introduce 
it in evidence. If the damages assessed in his 
favor do not exceed the sum mentioned in the of- 
fer, the defendant shall recover his expenses in- 
curred in consequence of any necessary prepara- 
tion or defense in respect to the question of 
damages. This expense shall be ascertained at 
the trial. (Rev., ss. 861, 862; Code, ss. 575, 576; 
C. C. P., ss. 329, 330; C. S. 897.) 

§ 1-543. Disclaimer of title in trespass; tender 
of judgment. — In actions of trespass upon real 
estate, the defendant in his answer may disclaim 
any title or claim to the lands on which the tres- 
pass is alleged by the complaint to be done, may 
allege that the trespass was by negligence or 
involuntary, and may make a tender or offer of 

[70 



sufficient amends for the trespass. If the plain- 
tiff controverts such answer or a part thereof, 
and at the trial verdict is found for the defend- 
ant, or if the plaintiff is nonsuited, he is barred 
from the said action and all other suits concerning 
the same. (Rev., s. 863; Code, s. 577; Rev. Code, 
c. 31, s. 79; 1715, c. 2, s. 7; C. S. 898.) 

Art. 45. Arbitration and Award. 

§ 1-544. Agreement for arbitration. — Two or 

more parties may agree in writing to submit to 
arbitration, in conformity with the provisions of 
this article, any controversy existing between 
them at the time of the agreement to submit. 
Such an agreement shall be valid and enforceable, 
and neither party shall have the power to revoke 
the submission without the consent of the other 
party or parties to the submission save upon 
such grounds as exist in law or equity for the 
rescission or revocation of any contract. (1927, c. 
94, s. 1.) 

§ 1-545. Statement of questions in contro- 
versy. — The arbitration agreement must state the 
question or questions in controversy with suffi- 
cient definiteness to present one or more issues 
or questions upon which an award may be based. 
(1927, c. 94, s. 2.) 

§ 1-546. "Court" denned. — The term "court" 
when used in this article means a court having 
jurisdiction of the parties and of the subject 
matter. (1927, c. 94, s. 3.) 

§ 1-547. Cases where court may appoint arbi- 
trator; number of arbitrators. — Upon the applica- 
tion in writing of any party to the arbitration 
agreement and upon notice to the other parties 
thereto, the court shall appoint an arbitrator or 
arbitrators in any of the following cases: 

(a) When the arbitration agreement does not 
prescribe a method for the appointment of arbi- 
trators, in which case the arbitration shall be by 
three arbitrators. 

(b) When the arbitration agreement does pre- 
scribe a method for the appointment of arbitra- 
tors, and the arbitrators, or any of them, have not 
been appointed and the time within which they 
should have been appointed has expired. 

(c) When any arbitrator fails or is otherwise 
unable to act, and his successor has not been ap- 
pointed in the -manner in which he was appointed. 

Arbitrators appointed by the court shall have 
the same power as though their appointment had 
been made in accordance with the agreement to 
arbitrate. (1927, c. 94, s. 4.) 

§ 1-548. Application in writing; hearing. — Any 

application made under authority of this article 
shall be made in writing and heard in a summary 
way in the manner and upon the notice provided 
by law or rules of court for the making and hear- 
ing of motions, except as otherwise herein ex- 
pressly provided. (1927, c. 94, s. 5.) 

§ 1-549. Notice of time and place of hearing. — 

The arbitrators shall appoint a time and place for 
the hearing, and notify the parties thereof, and 
may adjourn the hearing from time to time as 
may be necessary, and, on application of either 
party, and for good cause, may postpone the hear- 
ing to a time not extending beyond the date fixed 
for making the award. (1927, c. 94, s. 6.) 

] 



§ 1-550 



CH. 1. CIVIL PROCEDURE— ARBITRATION AND AWARD 



§ 1-560 



§ 1-550. Hearing if party fails to appear. — If 

any party neglects to appear before the arbitra- 
tors after reasonable notice the arbitrators may 
nevertheless proceed to hear and determine the 
controversy upon the evidence which is produced 
before them. (1927, c. 94, s. 7.) 

§ 1-551. Award within sixty days. — If the time 
within which the award shall be made is not 
fixed in the arbitration agreement, the award must 
be made within sixty days from the time of the 
appointment of the arbitrators, and an award 
made after the lapse of sixty days shall have no 
legal effect unless the parties extend the time in 
which said award may be made, which extension 
or ratification shall be in writing. (1927, c. 94, 
s. 8.) 

§ 1-552. Representation before arbitrators. — No 

one other than a party to said arbitration, or 
a person regularly employed by such party for 
other purposes, or a practicing attorney-at-law, 
shall be permitted by the arbitrator or arbitrators 
to represent before him or them any party to 
the arbitration. (1927, c. 94, s. 9.) 

§ 1-553. Requirement of attendance of wit- 
nesses. — The arbitrator or arbitrators, or a major- 
ity of them, may require any person to attend 
before him or them as a witness, and to bring 
with him any book or writing or other evidence. 

The fees for such attendance shall be the same 
as the fees of witnesses in the Superior Court. 

Subpoenas shall issue in the name of the arbi- 
trator or arbitrators, or a majority of them, and 
shall be signed by the arbitrator or arbitrators, or 
a majority of them, and shall be directed to the 
person and shall be served in the same manner as 
subpoenas to testify before a court of record in 
this State; if any person so summoned to testify 
shall refuse or neglect to obey such subpoenas, 
upon petition the court may compel the attend- 
ance of such person before the said arbitrator 
or arbitrators, or punish said person for contempt 
in the same manner now provided for the attend- 
ance of witnesses or the punishment of them in 
the courts of this State. (1927, c. 94, s. 10.) 

§ 1-554. Depositions. — Depositions may be 
taken with or without a commission in the same 
manner and for the same reasons as provided by 
law for the taking of depositions in suits pending 
in the courts of record in this State. (1927, c. 94, 
s. 11.) 

§ 1-555. Orders for preservation of property. 
— At any time before final determination of the 
arbitration the court may upon application of a 
party to the submission make such order or de- 
cree or take such proceeding as it may deem nec- 
essary for the preservation of the property or for 
securing satisfaction of the award. (1927, c. 94, 
s. 12.) 

§ 1-556. Questions of law submitted to court; 
form of award. — The arbitrators may, on their 
own motion, and shall by request of a party to 
the arbitration, 

(a) At any stage of the proceedings submit any 
question of law arising in the course of the hear- 
ing for the opinion of the court, stating the facts 
upon which the question arises, and such opinion 
when given shall bind the arbitrators in the mak- 
ing of their award: 

[71 



(b) State their final award in the form of a con- 
clusion of fact for the opinion of the court on the 
questions of law arising on the hearing. (1927, c. 
94, s. 13.) 

§ 1-557. Award in writing and signed by ar- 
bitrators. — The award of the arbitrators, or a 
majority of them, shall be drawn up in writing 
and signed by the arbitrators or a majority of 
them; the award shall definitely deal with all 
matters of difference in the submission requiring 
settlement, but the arbitrators may, in their dis- 
cretion, first make a partial award which shall 
be enforceable in the same manner as the final 
award; upon the making of an award, the arbi- 
trators shall deliver a true copy thereof to each of 
the parties thereto, or their attorneys, without 
delay. (1927, c. 94, s. 14.) 

§ 1-558. Time for application for confirmation. 
■ — At any time within three months after the 
award is made, unless the parties shall extend the 
time in writing, any party to the arbitration may 
apply to the court for an order confirming the 
award, and the court shall grant such an order 
unless the award is vacated, modified, or cor- 
rected, as provided in §§ 1-559 and 1-560. No- 
tice in writing of the motion must be served 
upon the adverse party, or his attorney, five days 
before the hearing thereof. (1927, c. 94, s. 15.) 

§ 1-559. Order vacating award. — In any of 
the following cases the court shall after notice 
and hearing make an order vacating the award, 
upon the application of any party to the arbitra- 
tion: 

(a) Where the award was procured by corrup- 
tion, fraud or other undue means. 

(b) Where there was evident partiality or cor- 
ruption in the arbitrators, or either of them. 

(c) Where the arbitrators were guilty of mis- 
conduct, in refusing to postpone the hearing, 
upon sufficient cause shown, or in refusing to 
hear evidence pertinent and material to the con- 
troversy; or of any other misbehavior, by which 
the rights of any party have been prejudiced. 

(d) Where the arbitrators exceeded their powers 
or so imperfectly executed them that a mutual, 
final, and definite award upon the subject matter 
submitted was not made. 

Where an award is vacated and the time, within 
which the agreement required the award to be 
made, has not expired, the court may, in its dis- 
cretion, direct a rehearing by the arbitrators. 
(1927, c. 94, s. 16.) 

§ 1-560. Order modifying or correcting award. 
—In any of the following cases the court shall, 
after notice and hearing make an order modifying 
or correcting the award, upon the application of 
any party to the arbitration: 

(a) Where there was an evident miscalculation 
of figures, or an evident mistake in the descrip- 
tion of any person, thing or property, referred 
to in the award. 

(b) Where the arbitrators have awarded upon 
a matter not submitted to them. 

(c) Where the award is imperfect in a matter 
of form, not affecting the merits of the contro- 
versy. 

The order must modify and correct the award, 
so as to effect the intent thereof. (1927, c. 94, 
s. 17.) 

] 



§ 1-561 



CH. 1. CIVIL PROCEDURE— EXAMINATION OF PARTIES 



§ 1-575 



§ 1-561. Notice of motion to vacate, modify 
or correct award within three months, — Notice of 
a motion to vacate, modify or correct an award 
shall be served upon the adverse party, or his at- 
torney, within three months after an award is filed 
or delivered, as prescribed by law for service of 
notice of a motion in an action. For the purposes 
of the motion any judge who might make an order 
to stay the proceedings, in an action brought in 
the same court, may make an order to be served 
with the notice of motion, staying the proceedings 
of the adverse party to enforce the award. (1927, 
c. 94, s. 18.) 

§ 1-562. Judgment or decree entered. — Upon 
the granting of an order, confirming, modifying, 
correcting or vacating an award, judgment or de- 
cree shall be entered in conformity therewith. 
(1927, c. 94, s. 19.) 

§ 1-563. Papers to be filed on motion relating 
to award. — The party moving for an order con- 
firming, modifying, correcting or vacating an 
award, shall at the time such motion is filed with 
the clerk, file, unless the same have theretofore 
been filed, the following papers with the clerk: 

(a) The written contract or a verified copy 
thereof containing the agreement for the submis- 
sion; the selection or appointment of the arbitra- 
tor or arbitrators, and each written extension of 
the time, if any within which to make the award. 

(b) The award. 

(c) Every notice, affidavit and other paper used 
upon an application to confirm, modify, correct or 
vacate the award, and each order made upon 
such an application. 

The judgment or decree shall be entered (or 
docketed) as if it were rendered in an action. 
(1927, c. 94, s. 20.) 

§ 1-564. Force and effect of judgment or de- 
cree. — The judgment or decree so entered (or 
docketed) shall have the same force and effect, in 
all respects, as, and be subject to all the provisions 
of law relating to a judgment or decree; and it 
may be enforced, as if it had been rendered in the 
court in which it is entered. (1927, c. 94, s. 21.) 

§ 1-565. Appeal. — An appeal may be taken 
from the final judgment or decree entered by the 
court. (1927, c. 94, s. 22.) 

§ 1-566. Uniformity of interpretation — In- 
terpretation of article. — This article shall be so 
interpreted and construed as to effectuate its 
general purpose to make uniform the law of those 
states which enact it. (1927, c. 94, s. 23.) 

§ 1-567. Citation of article. — This article may 
be cited as the uniform arbitration act. (1927, c. 
94, s. 24.) 

Art. 46. Examination of Parties. 
§ 1-568. Action for discovery abolished. — No 
action to obtain discovery under oath, in aid of 
the prosecution or defense of another action, shall 
be allowed, nor shall any examination of a party 
be had on behalf of the adverse party, except in 
the manner prescribed by this article. (Rev., s. 
864; Code, s. 579; C. C. P., s. 332; C. S. 899.) 

§ 1-569. Adverse party examined. — A party to 
an action may be examined as a witness at the 
instance of any adverse party, and for that pur- 

[7 



pose may be compelled, in the same manner and 
subject to the same rules of examination as any 
other witness, to testify, either at the trial or con- 
ditionally or upon commission. Where a cor- 
poration is a party to the action, this examina- 
tion may be made of any of its officers or agents. 
(Rev., s. 865; Code, s. 580; C. C. P., s. 333; 1907, 
c. 799; C. S. 900.) 

§ 1-570. Before trial in his own county. — The 

examination, instead of being had at the trial, as 
provided in § 1-569, may be had at any time be- 
fore the trial, at the option of the party claiming 
it, before a judge, commissioner duly appointed 
to take depositions, or clerk of the court, on a 
previous notice to the party to be examined, and 
any other adverse party, of at least five days, un- 
less for good cause shown the judge or court 
orders otherwise. (Rev., s. 866; Code, s. 581; 
1893, c. 114; C. C. P., s. 334; 1899, c. 65, s. 1; C. 
S. 901.) 

§ 1-571. Compelling attendance of party for 
examination before trial. — The party to be 
examined, as provided in § 1-570, may be com- 
pelled to attend in the same manner as a witness 
who is to be examined conditionally; but he shall 
not be compelled to attend in any county other 
than that of his residence or where he may be 
served with a summons for his attendance. The 
examination shall be taken and filed by the judge, 
clerk or commissioner, as in case of witnesses 
examined conditionally, and may be read by either 
party on the trial. (Rev., ss. 866, 867; Code, ss. 
581, 582; C. C. P., ss. 334, 335; 1899, c. 65, s. 2; 
C. S. 902.) 

§ 1-572. Party's refusal to testify; penalty. — If 

a party refuses to attend and testify, as provided 
in the preceding sections, he may be punished as 
for a contempt, and his pleadings may be stricken 
out. (Rev., s. 869; Code, s. 584; C. C. P., s. 337; 
C. S. 903.) 

§ 1-573. Rebuttal of party's testimony. — The 

examination of the party thus taken may be 
rebutted by adverse testimony. (Rev., s. 868; 
Code, s. 583; C. C. P., s. 336; C. S. 904.) 

§ 1-574. Irresponsive answers may be met by 
party's own testimony. — A party examined by 
an adverse party, as provided in this article, may 
be examined in his own behalf, subject to the 
same rules of examination as other witnesses. 
But if he testifies to any new matter, not respon- 
sive to the inquiries put to him by the adverse 
party, or necessary to explain or qualify his an- 
swers thereto or to discharge himself when his 
answers would charge himself, the adverse party 
may offer himself and must be received as a wit- 
ness in his own behalf in respect to the new 
matter, subject to the same rules of examina- 
tion as other witnesses. (Rev., s. 870; Code, ss. 
583, 585; C. C. P., ss. 336, 338; C. S. 905.) 

§ 1-575. Real party in interest examined. — A 

person for whose immediate benefit the action 
is prosecuted or defended, though not a party 
to the action, may be examined as a witness, in 
the same manner, and subject to the same rules 
of examination, as if he was named as a party. 
(Rev., s. 871; Code, s. 586; C. C. P., s. 339; C. S. 
906.) 
2] 



§ 1-576 



CH. l. CIVIL PROCEDURE— NOTICES 



§ 1-589 



§ 1-576. Examination of coplaintiff or code- 
fendant. — A party may be examined on behalf of 
his coplaintiff or codefendant as to any matter in 
which he is not jointly interested or liable with 
such coplaintiff or codefendant, and as to which 
a separate and not joint verdict or judgment can 
be rendered. He may be compelled to attend in 
the same manner as at the instance of an adverse 
party; but the examination thus taken cannot 
be used in behalf of the party examined. When 
one of several plaintiffs or defendants who are 
joint contractors, or are united in interest, is 
examined by the adverse party, the other of such 
plaintiffs or defendants may offer himself, and 
must be received, as a witness to the same cause 
of action or defense. (Rev., s. 873; Code, s. 587; 
C. C. P., s. 340; C. S. 907.) 

Art. 47. Motions and Orders. 

§ 1-577. Definition of order. — Every direction 
of a court or judge, made or entered in writing, 
and not included in a judgment, is an order. 
(Rev., s. 873; Code, s. 594; C. C. P., ss. 344, 345; 
C. S. 908.) 

§ 1-578. Motions; when and where made. — An 

application for an order is a motion. Motions 
may be made to a clerk of a superior court, or to 
a judge out of court, except for a new trial on 
the merits. Motions must be made within the 
district in which the action is triable. A motion 
to vacate or modify a provisional remedy, and 
an appeal from an order allowing a provisional 
remedy, have preference over all other motions. 

(Rev., s. 874; Code, s. 594; C. C. P., ss. 344, 345; 

C. S. 909.) 

§ 1-579. Affidavit for or against, compelled. — 

When a party intends to make or oppose a mo- 
tion in a court of record, and it is necessary for 
him to have the affidavit of any person who has 
refused to make it, the court may, by order, ap- 
point a referee to take the affidavit or deposition 
of such person. The person may be subpoenaed 
and compelled to attend and make an affidavit 
before such referee, as before a referee to whom 
an issue is referred for trial. (Rev., s. 875; Code, 
s. 594; C. C. P., ss. 344, 345; C. S. 910.) 

§ 1-580. Motions determined in ten days. — ■ 

When a motion is made in a cause or proceeding 
in any of the courts to obtain an injunction order, 
order of arrest, or warrant of attachment, granted 
in any such case or proceeding, or to vacate or 
modify the same, it is the duty of the judge be- 
fore whom the motion is made to render his deci- 
sion within ten days after the day on which the 
motion was submitted to him for decision. (Rev., 
s. 876; Code, s. 594; C. C. P., ss. 344, 345; C. S. 
911.) 

§ 1-581. Notice of motion. — When notice of a 
motion is necessary, it must be served ten days 
before the time appointed for the hearing; but 
the court or judge may, by an order to show 
cause, prescribe a shorter time. (Rev., s. 877; 
Code, s. 595; C. C. P., s. 346; C. S. 912.) 

§ 1-582. Orders without notice, vacated. — An 

order made out of court, without notice to the ad- 
verse party, may be vacated or modified without 
notice by the judge who made it, or may be va- 
cated or modified on notice, in the manner in 



which other motions are made. (Rev., s. 514; 
Code, s. 546; C. C. P., s. 297; C. S. 913.) 

§ 1-583, Orders by clerk on motion to re- 
move; right of appeal; notice. — All motions to 
remove as a matter of right shall be made before 
the clerk, who is authorized to make all neces- 
sary orders, and an appeal shall lie from such or- 
der upon such motion to the judge at chambers, 
or at the next term, who shall hear and pass upon 
such motion de novo. But no such motion shall 
be heard until ten days notice thereof shall first 
have been given to the opposing party or his 
attorney. (Ex. Sess. 1921, c. 92, s. 15; 1925, c. 
282, s. 1; C. S. 913(a).) 

§ 1-584. Motions to remove to federal court; 
notice. — Motions to remove to the federal court 
shall be made before the clerk, and an appeal shall 
lie from his order to the judge at chambers, or at 
the next term, who shall hear and pass upon such 
motion de novo. But no such motion shall be 
heard until ten days notice thereof shall first 
have been given to the opposing party or his at- 
torney. (Ex. Sess. 1921, c. 92, s. 16; 1925, c. 282, 
s. 2; C. S. 913(b).) 

Art. 48. Notices. 

§ 1-585. Form and service. — All notices must be 
in writing, and notices and other papers may be 
served on the party or his attorney personally, 
where not otherwise provided in this chapter. 
(Rev., ss. 878, 879; Code, s. 597; C. C. P., ss. 349, 
353; C. S. 914.) 

§ 1-586. Service upon attorney. — Notice upon an 
attorney may be served during his absence from 
his office, by leaving a copy of the paper with his 
clerk, or a person having charge of the office; or, 
when there is no person in the office, by leaving 
it, between the hours of six a. m. and nine p. m., 
in a conspicuous place in the office; or, if it is not 
open so as to admit of such service, then by 
leaving it at the attorney's residence with some 
person of suitable age and discretion. (Rev., s. 
880; Code, s. 597; C. C. P., ss. 349, 353; C. S. 915.) 

§ 1-587. Service upon a party.— Notice upon a 
party may be served by leaving a copy of the 
paper at his residence, between the hours of six 
a. m. and nine p. m., with some person of suitable 
age and discretion." (Rev., s. 881; Code, s. 597; 
C. C. P., ss. 349, 353; C. S. 916.) 

§ 1-588. Service by publication. — Notice upon a 
person who cannot be found after due diligence, 
or who is not a resident of this state, may be served 
by its publication once a week for four suc- 
cessive weeks in a newspaper published in the 
county from which the notice is issued; and if no 
newspaper is published therein, then in some 
newspaper published within the judicial district; 
and the proof of service is the same as is required 
by law in the case of service of summons by pub- 
lication. (Rev., s. 882; Code, s. 597; C. C. P., ss. 
349. 353; C. S. 917.) 

§ 1-589. Service by telephone or registered mail 
on witnesses and jurors. — Sheriffs, constables 
and other officers charged with service of such 
process may serve subpoenas for witnesses and 
summonses for jurors by telephone or by reg- 
istered mail, and such service shall be valid and 
binding on the person served. When such process 



[73] 



§ 1-590 



CH. l. CIVIL PROCEDURE— LEGAL ADVERTISING 



§ 1-598 



is served by telephone the return of the officer 
serving it shall state it is served by telephone. 
When served by registered mail a copy shall be 
mailed and a written receipt demanded and such 
receipt shall be filed with the return and be a 
necessary part thereof. (1915, c. 48; 1925, c. 98; 
C. S. 918.) 

§ 1-590. Subpoena, service and signature. — 
Service of a subpoena for witnesses may be made 
by a sheriff, coroner or constable, and proved by 
the return of such officer, or the service may be 
made by any person not a party to the action, 
and proved by his oath. A subpoena for witnesses 
need not be signed by the clerk of the court, 
and is sufficient if subscribed by the party or by 
his attorney. (Rev., s. 884; Code, s. 597; C. C. P., 
ss. 349, 353; C. S. 919.) 

§ 1-591. Application of this article. — This arti- 
cle does not apply to the service of a summons, 
or other process (except summonses for jurors, 
as provided in § 1-589), or of any paper to bring 
a party into contempt. (Rev., s. 885; Code, s. 597; 
C. C. P., ss. 349, 353; C. S. 920.) 

§ 1-592. Officer's return evidence of service. — 

When a notice issues to the sheriff, his return 
thereon that the same has been executed is suffi- 
cient evidence of its service. (Rev., ss. 886, 1529; 
Code, s. 940; R. C, c. 31, s. 123; 1799, c. 537; C. 
S. 921.) 

Art. 49. Time. 

§ 1-593. How computed. — The time within 
which an act is to be done, as provided by law, 
shall be computed by excluding the first and in- 
cluding the last day. If the last day is Sunday or 
a legal holiday, it must be excluded. (Rev., s. 887; 
Code, s. 596; C. C. P., s. 348; C. S. 922.) 

§ 1-594. Computation in publication. — The time 
for publication of legal notices shall be computed 
so as to exclude the first day of publication and 
include the day on which the act or event of 
which notice is given is to happen, or which 
completes the full period required for publica- 
tion. (Rev., s. 888; Code, s. 602; C. C. P., s. 359; 
C. S. 923.) 

Art. 50. General Provisions as to Legal 
Advertising. 

§ 1-595. Advertisement of public sales. — When 
a statute or written instrument stipulates that an 
advertisement of a sale shall be made for any cer- 
tain number of weeks, a publication once a week 
for the number of weeks so indicated is a suffi- 
cient compliance with the requirement, unless 
contrary provision is expressly made by the 
terms of the instrument. (1909, cc. 794, 875; C. S. 
924.) 

§ 1-596. Charges for legal advertising. — The 

publication of all advertising required by law to 
be made in newspapers in this state shall be paid 
for at not to exceed the local commercial rate of 
the newspaper selected. Any public or municipal 
officer of board created by or existing under the 
laws of this state that is now or may hereafter be 
authorized by law to enter into contracts for the 
publication of legal advertisements is hereby au- 
thorized to pay therefor prices not exceeding said 
rates. Nothing herein shall apply to contracts or 

[3 



agreements for legal advertising in this state 
existing at the time this section takes effect. 

No newspaper in this state shall accept or print 
any legal advertising until said newspaper shall 
have first filed with the clerk of the superior court 
of the county in which it is published a sworn 
statement of its current commercial rate for the 
several classes of advertising regularly carried by 
said publication, and any owner or manager of a 
newspaper violating the provisions of this section 
shall be guilty of a misdemeanor. (1919, c. 45, ss. 
1, 2; C. S. 2586.) 

§ 1-597. Regulations for newspaper publication 
of legal notices, advertisements, etc. — Whenever a 
notice or any other paper, document or legal ad- 
vertisement of any kind or description shall be 
authorized or required by any of the laws of the 
state of North Carolina, heretofore or hereafter 
enacted, or by any order or judgment of any court 
of this state to be published or advertised in a 
newspaper, such publication, advertisement or no- 
tice shall be of no force and effect unless it shall 
be published in a newspaper with a general cir- 
culation to actual paid subscribers which news- 
paper at the time of such publication, advertise- 
ment or notice, shall have been admitted to the 
United States mails as second class matter in the 
county or political subdivision where such publi- 
cation, advertisement or notice is required to be 
published, and which shall have been regularly 
and continuously issued in the county in which 
the publication, advertisement or notice is au- 
thorized or required to be published, at least one 
day in each calendar week for at least twenty-five 
of the twenty-six consecutive weeks immediately 
preceding the date of the first publication of such 
advertisement, publication or notice; provided that 
in the event that a newspaper otherwise meeting 
the qualifications and having the characteristics 
prescribed by §§ 1-597 to 1-599, should fail for a 
period not exceeding four weeks in any calendar 
year to publish one or more of its issues such 
newspaper shall nevertheless be deemed to have 
complied with the requirements of regularity and 
continuity of publication prescribed herein. Pro- 
vided further, that where any city or town is lo- 
cated in two or more adjoining counties, any 
newspaper published in such city or town shall, 
for the purposes of §§ 1-597 to 1-599, be deemed 
to be admitted to the mails, issued and published 
in all such counties in which such town or city of 
publication is located, and every publication, ad- 
vertisement or notice required to be published in 
any such city or town or in any of the counties 
where such city or town is located shall be valid 
if published in a newspaper published, issued and 
admitted to the mails anywhere within any such 
city or town, regardless of whether the news- 
paper's plant or the post office where the news- 
paper is admitted to the mails is in such county 
or not, if the newspaper otherwise meets the 
qualifications and requirements of §§ 1-597 to 1-599. 
This provision shall be retroactive to May first, 
one thousand nine hundred and forty, and all 
publications, advertisements and notices published 
in accordance with this provision since May first, 
one thousand nine hundred and forty, are hereby 
validated. (1939, c. 170, s. 1; 1941, c. 96.) 

§ 1-598. Annual statements filed with clerk; 
violation a misdemeanor. — Every newspaper in 

4] 



CHAPTER 2. CLERK OF SUPERIOR COURT 



this state which shall publish any such legal notice 
or other legal advertisement, as mentioned in § 
1-597, shall, in each calendar year, file with the 
clerk of the superior court of the county in which 
it is published a sworn statement that such news- 
paper is a newspaper meeting the qualifications of 
§§ 1-597 to 1-599, which sworn statement, when 
filed, shall be prima facie evidence of the qualifi- 
cation of such newspaper under §§ 1-597 to 1-599 
during such calendar year, and any such legal 
notice or other legal advertisement published in 
any such newspaper filing such sworn statement as 
herein provided shall be valid; and any owner, 
publisher or manager of a newspaper who shall 
violate the provisions of this section, or any per- 



son who shall make or file a statement as re- 
quired by this section which shall be false at the 
time of such statement, shall be guilty of a mis- 
demeanor. (1939, c. 170, s. V/2.) 

§ 1-599. Application of two preceding sections. 

—The provisions of §§ 1-597 to 1-599 shall not 
apply in counties wherein only one newspaper 
is published, although it may not be a newspaper 
having the qualifications prescribed by § 1-597; 
nor shall the provisions of §§ 1-597 to 1-599 apply 
in any county wherein none of the newspapers 
published in such county has the qualifications 
and characteristics prescribed by § 1-597. (1939, 
C. 170, SS. 2, 4^; 1941, c. 49.) 



Chapter 2. Clerk of Superior Court. 

Art. 1. The Office. 



Sec. 

2-1. Judge of probate abolished; clerk acts as 

judge. 
2-2. Election; term of office. 
2-3. Clerk's bond. 
2-4. Clerk's bond; approval, acknowledgments and 

custody. 
2-5. Oath of office. 
2-6. Vacancy; judge of district fills. 
2-7. Removal for cause. 
2-8. Office and equipment furnished. 
2-9. Solicitor to examine and report on office. 

Art. 2. Assistant Clerks. 

2-10. Appointment; oath; powers and jurisdiction; 

responsibility of clerks. 
2-11. Certificate of appointment; confirmation; 

revocation of appointment; compensation. 
2-12. Clerks not relieved from duties; deputies. 

Art. 3. Deputies. 

2-13. Appointment. 

2-14. Record of appointment and discharge; copies. 

2-15. Responsibility of clerk for deputy's acts. 

Art. 4. Powers and Duties. 

2-16. Powers enumerated. 

2-17. Disqualification to act. 

2-18. Prior orders and judgments validated. 

2-19. Waiver of disqualification. 

2-20. Disqualification unwaived; cause removed or 
judge acts. 

2-21. Disqualification at time of election; judge 
acts. 

2-22. Custody of records and property of office. 

2-23. Unperformed duties of outgoing clerk. 

2-24. Location of and attendance at office. 

2-25. Obtaining leave of absence from office. 

2-26. Fees of clerk of superior court. 

2-27. Local modifications as to clerk's fees. 

2-28. Fees for probating and recording federal 
crop liens and chattel mortgages. 

2-29. Advance court costs. 

2-30. Advance costs on appeal from justice of the 
peace. 

2-31. Fee for cross-indexing names of parties. 

2-32. Fee for docketing judgment. 

2-33. Fee for auditing annual accounts of receiv- 
ers, executors, etc. 

[ 



Sec. 
2-34. 

2-35. 



2-36. 

2-37. 
2-38. 

2-39. 
2-40. 

2-41. 
2-42. 
2-43. 



2-44. 
2-45. 



2-46. 

2-47. 

2-48. 
2-49. 
2-50. 

2-51. 
2-52. 

2-53. 

2-54. 

2-55. 

2-56. 
2-57. 

2-58. 

2-59. 
2-60. 

5] 



Fee for auditing final accounts of receivers, 
executors, etc. 

Fee for auditing final accounts of trustees, 
etc., selling real estate under foreclosure 
proceedings. 

Certain counties not subject to sections 
2-29—2-35. 

To keep fee bill posted. 

To furnish blank process, bonds and under- 
takings. 

To file papers in proceedings. 

To keep records of his office; obtaining orig- 
inals or copies. 

To endorse date of issuance on process. 

To keep books; enumeration. 

To notify commissioners of insolvency of 
surety company in which county officer 
bonded. 

Art. 5. Reports. 

List of justices to secretary of state. 

List of attorneys-at-law to commissioner of 
revenue. 

Art. 6. Money in Hand; Investments. 

Public funds to be reported to county commis- 
sioners. 

Approval, registration, and publication of re- 
port. 

Report compelled by commissioners. 

Payment to persons entitled. 

Unclaimed fees of jurors and witnesses paid 
to school fund. 

Use by public until claimed. 

Payment of sum due minor insurance bene- 
ficiary. 

Payment of money for indigent children and 
persons non compos mentis. 

Limitation on investment of funds in clerk's 
hands. 

Investments prescribed; use of funds in man- 
agement of lands of infants, incompetents. 

Securing bank deposits. 

Inspection of records by local government 
commission; report to solicitor of mis- 
management. 

Inspection and audit by county auditors or 
accountants; reports of audits. 

Liquidation of present funds within year. 

Violation of sections 2-54 to 2-59 a misde- 
meanor. 



§ 2-1 



CH. 2. CLERK OF SUPERIOR COURT— ASSISTANT CLERKS 



§ 2-10 



Art. 1. The Office. 

§ 2-1. Judge of probate abolished; clerk acts 
as judge. — The office of probate judge is abolished, 
and the duties heretofore pertaining to clerks of 
the superior court as judges of probate shall be 
performed by the clerks of the superior court as 
clerks of said court. (Rev., s. 889; Code, s. 102; 
C. S. 925.) 

§ 2-2. Election; term of office. — A clerk of the 
superior court for each county shall be elected by 
the qualified voters thereof, at the time and in the 
manner prescribed by law for the election of mem- 
bers of the general assembly. Clerks of the su- 
perior court shall hold office for four years. (Rev., 
s. 890; Const., Art. 4, ss. 16, 17; C. S. 926.) 

§ 2-3. Clerk's bond. — At the first meeting of 
the board of commissioners of each county after 
the election or appointment of any clerk of a su- 
perior court it is the duty of the clerk to deliver to 
such commissioners a bond with sufficient sureties, 
to be approved by them, in a penalty of not less 
than ten thousand dollars, and not more than 
twenty-five thousand dollars, payable to the state 
of North Carolina, and with a condition to be 
void if he shall account for and pay over, accord- 
ing to law, all moneys and effects which have 
come or may come into his hands, by virtue or 
color of his office, or under an order or decree of 
a judge, even though such order or decree be void 
for want of jurisdiction or other irregularities, 
and shall diligently preserve and take care of all 
books, records, papers and property which have 
come or may come into his possession, by virtue 
or color of his office, and shall in all things faith- 
fully perform the duties of his office as they are 
or thereafter shall be prescribed by law. (Rev., s. 
295; Code, s. 72; C. C. P., s. 137; 1889, c. 7; 1891, 
c. 385; 1895, cc. 270, 271; 1899, c. 54, s. 52; 1901, c. 
32; 1903, c. 747; 1931, c. 170; C. S. 927.) 

Local Modification— Camden, Hyde, Tyrrell: 1939, c. 30; 
Carteret, Currituck, Pamlico: C. S. 929; Chowan: 1939, c. 
299; Jones: 1925, c. 10; Mecklenburg: 1925, c. 184; Wash- 
ington: Pub. Loc. 1935, c. 6. 

§ 2-4. Clerk's bond; approval, acknowledgments 
and custody. — The approval of said bond by 
the board of commissioners, or a majority of 
them, shall be recorded by their clerk. The said 
bond shall be acknowledged by the parties there- 
to, or proved by a subscribing witness, before the 
clerk of said board of commissioners, or their pre- 
siding officer, registered in the register's office in 
a separate book to be kept by him for the regis- 
tration of official bonds; and the original, with the 
approval thereof endorsed, deposited with the reg- 
ister for safe keeping. The like remedies shall be 
had upon said bond as are or may be given by law 
on official bonds. (Rev., s. 296; Code, s. 73; C. 
C. P., s. 138; C. S. 928.) 

§ 2-5. Oath of office. — The clerks of the su- 
perior court, before entering on the duties of their 
office, shall take and subscribe before some officer 
authorized by law to administer an oath, the oaths 
prescribed by law, and file such oaths with the 
register of deeds for the county. (Rev., 891; Code, 
s. 74; C. C. P., s. 139; C. S. 930.) 

§ 2-6. Vacancy; judge of district fills. — 1. 

Otherwise than by expiration. In case the office 



of clerk of a superior court for a county becomes 
vacant otherwise than by the expiration of the 
term, and in case of a failure by the people to 
elect, the judge of the superior court for the county 
shall appoint to fill the vacancy until an election 
can be regularly held. 

2. Failure to qualify. In case any clerk fails 
to give bond and qualify as required by law, the 
presiding officer of the board of commissioners 
of his county shall immediately inform the resi- 
dent judge of the judicial district thereof, who 
shall thereupon declare the office vacant and fill 
the same, and the appointee shall give bond and 
qualify. 

3. Resignations. Any clerk of the superior 
court may resign his office to the judge of the su- 
perior court residing in the district in which is sit- 
uated the county of which he is clerk, and said 
judge shall fill the vacancy. (Rev., ss. 892, 893, 
895; Code, ss. 76, 78; C. C. P., s. 140; Const., Art. 
4, s. 29; C. S. 931.) 

§ 2-7. Removal for cause. — Upon the convic- 
tion of any clerk of the superior court of an infa- 
mous crime, or of corruption and malpractice in 
office, he shall be removed from office, and he 
shall be disqualified from holding or enjoying 
any office of honor, trust or profit under this state. 
(Rev., s. 894; Code, s. 123; 1868-9, c. 201, s. 53; 
C. S. 932.) 

§ 2-8. Office and equipment furnished. — The 

requisite stationery, records, furniture and filing 
cases and devices for official use must be fur- 
nished to the clerk by the board of commissioners; 
and to each of such books there must be attached 
an alphabetical index securely bound in the vol- 
ume, referring to the entries therein by the page 
of the book, unless there is a cross-index of such 
book required by law to be kept. These books 
must, at all proper times, be open to the inspec- 
tion of any person. (Rev., s. 896; Code, ss. 82, 
84, 113; C. C. P., s. 428; C. S. 933.) 

§ 2-9. Solicitor to examine and report on office. 

— The Solicitor of the Judicial District shall in- 
spect the office of the clerk as often as he shall 
deem it necessary, and shall make written report 
of his inspection to the court. (Rev., s. 897; 
Code, s. 88; C. C. P., s. 147; 1917, c. 81, s. 1; 1935, 
c. 423; C. S. 934.) 

Art. 2. Assistant Clerks. 

§ 2-10. Appointment; oath; powers and juris- 
diction; responsibility of clerks. — Each clerk of 
the superior court, by and with the written con- 
sent and approval of the superior court judge 
resident in his district, may appoint an assistant 
clerk of the superior court, who before entering 
upon his duties shall take and subscribe the oath 
prescribed for clerks: Provided, that no more 
than one such assistant clerk shall hold office in 
any county at one time. Upon compliance with 
the provisions of this article such assistant clerk 
shall be as fully authorized and empowered to per- 
form all the duties and functions of the office of 
clerk of the superior court as the clerk himself, 
and all the acts, orders, and judgments of such 
assistant clerk shall be entitled to the same faith 
and credit as those of such clerk. Such assistant 
clerks shall be subject in all respects to all laws 



[76 1 



§ 2-11 



CH. 2. CLERK OF SUPERIOR COURT— POWERS AND DUTIES 



§ 2-16 



which apply to the clerks. The several clerks of 
the superior court shall be held responsible for 
the acts of their assistant clerks, and the official 
bonds of such clerks as now provided by law shall 
be written to and shall cover the acts of their as- 
sistant clerks. (1921, c. 32, s. 1; C. S. 934(a).) 

Local Modification.— Forsyth: 1937, c. 331; Guilford: 1937, 
c. 331; 1941, c. 91. 

§ 2-11. Certificate of appointment; confirma- 
tion; revocation of appointment; compensation. — 

Any clerk of the superior court desiring to appoint 
such an assistant clerk shall present a formal 
written certificate of such appointment to 
the superior court judge residing in his district, 
and such judge, if he concurs in and approves such 
appointment, shall in writing enter his consent 
and approval upon such certificate and confirm 
such appointment. Said certificate of appoint- 
ment, and approval of the judge, together with the 
oath subscribed by .the appointee, shall thereupon 
be entered in full upon the minute docket of the 
court, and shall be recorded and cross-indexed in 
the office of the register of deeds for such county. 
The appointment of any such assistant clerk may 
be revoked at any time by the clerk who appointed 
him or by the superior court judge resident in the 
district, by the entry of the word "revoked" and 
the date thereof, with the signature of such clerk 
or judge, upon the margin of the records of such 
appointment in the offices of the clerk of the su- 
perior court and the register of deeds; and all 
such appointments shall expire by limitation when 
the clerk making same ceases to hold office. Noth- 
ing in this article shall increase the fees or com- 
pensation now allowed by law to the clerks or dep- 
uty clerks of the superior court of the several 
counties of the state. (1921, c. 32, s. 2; C. S. 
934(b).) 

§ 2-12. Clerks not relieved from duties; dep- 
uties. — This article shall not in anywise excuse 
or relieve the clerk of the superior court from giv- 
ing to the performance of his duties the same time, 
care, and attention as is now required of such 
clerks by law, nor shall it change or amend the 
present laws with reference to deputy clerks of 
the superior court: Provided, that one person 
may be appointed both as assistant clerk and as 
deputy. (1921, c. 32, s. 3; C. S. 934(c).) 

Art. 3. Deputies. 

§ 2-13. Appointment. — Clerks of the superior 
court may appoint deputies, who shall take and 
subscribe the oath prescribed for clerks. (Rev., s. 
898; Code, s. 75; R. C, c. 19, s. 15; 1777, c. 115, s. 
86; C. S. 935.) 

§ 2-14. Record of appointment and discharge; 
copies. — Each clerk of a superior court shall make 
a record of the appointment of each deputy he 
may appoint, on the special proceedings docket 
of his court, giving the name of such appointee 
and the date of such appointment, and make a 
cross-index of the same, and shall furnish to the 
register of deeds of his county a transcript of such 
record; and such register of deeds shall record the 
same in the records of deeds in his office and make 
a cross-index thereof on the general index in his of- 
fice. When any such deputy clerk is removed from 
his office the clerk of the superior court by whom 
he was appointed shall write on the margin of 

[ 



the record of such appointment in his office, and on 
the margin of the record of such appointment in 
the office of the register of deeds, the word "Re- 
voked" and the date of such revocation, and sign 
his name thereto. A duly certified copy of such ap- 
pointment and of such revocation, under the hand 
and official seal of the register of deeds, shall be 
deemed prima facie evidence of the regularity of 
such appointment and revocation, and shall be 
admitted as evidence in all the courts. (Rev., s. 899; 
1899, c. 235, s. 3; C. S. 936.) 

§ 2-15. Responsibility of clerk for deputy's acts. 
— The several clerks of the superior court shall 
be held responsible for the acts of their deputies. 
Deputies shall be subject in all respects to all laws 
which apply to the clerks. (Rev., s. 900; 1899, c. 
235, s. 2; C. S. 937.) 

Art. 4. Powers and Duties. 
§ 2-16. Powers enumerated. — Every clerk has 
power — 

1. To issue subpoenas to compel the attend- 
ance of any witness residing or being in the state, 
or to compel the production of any bond or paper, 
material to any inquiry pending in his court. 

2. To administer oaths and take acknowledg- 
ments, whenever necessary, in the exercise of 
the powers and duties of his office. 

3. To issue commissions to take the testimony 
of any witness within or without this state. 

4. To issue citations and orders to show cause 
to parties in all matters cognizable in his court, 
and to compel the appearance of such parties. 

5. To enforce all lawful orders and decrees, 
by execution or otherwise, against those who fail 
to comply therewith or to execute lawful process. 
Process may be issued by the clerk, to be exe- 
cuted in any county of the state, and to be re- 
turned before him. 

6. To exemplify, under seal of his court, all 
transcripts of deeds, papers or proceedings there- 
in, which shall be received in evidence in all the 
courts of the state. 

7. To preserve order in his court and to pun- 
ish contempts. 

8. To adjourn any proceeding pending before 
him from time to time. 

9. To open, vacate, modify, set aside, or enter 
as of a former time, decrees or orders of his 
court, in the same manner as courts of general 
jurisdiction. 

10. To enter judgment in any suit pending in 
his court in the following instances: judgment of 
voluntary nonsuit in any case where judgment is 
permitted by law; and judgment in any suit by 
consent of parties. 

11. To award costs and disbursements as pre- 
scribed by law, to be paid personally, or out of 
the estate or fund, in any proceeding before him. 

12. To compel the return to his office by each 
justice of the peace, on the expiration of the 
term of office of such justice, or, if the justice be 
dead, by his personal representative, of all rec- 
ords, papers, dockets and books held by such jus- 
tice by virtue or color of his office, and to deliver 
the same to the successor in office of such justice. 

13. To take proof of deeds, bills of sale, offi- 
cial bonds, letters of attorney, or other instru- 
ments permitted or required by law to be reg- 
istered. 

77 ] 



§ 2-17 



CH. 2. CLERK OF SUPERIOR COURT— POWERS AND DUTIES 



§ 2-23 



14. To take proof of wills and grant letters 
testamentary and of administration. 

15. To revoke letters testamentary and of ad- 
ministration. 

16. To appoint and remove guardians of in- 
fants, idiots, inebriates and lunatics. 

17. To audit the accounts of executors, ad- 
ministrators, collectors, receivers, commis- 
sioners and guardians. 

18. To exercise jurisdiction conferred on 
him in every other case prescribed by law. (Rev., s. 
901; Code, ss. 103, 108; C. C. P., ss. 417, 418, 442; 
1901, c. 614, s. 2; 1919, c. 140; C. S. 938.) 

§ 2-17. Disqualification to act. — No clerk can 
act as such in relation to any estate, proceeding 
or civil action — 

1. If he has, or claims to have, an interest by 
distribution, by will, or as creditor, or otherwise. 

2. If he is so related to any person having or 
claiming such interest that he would, by reason of 
such relationship, be disqualified as a juror; but 
the disqualification on this ground ceases unless 
the objection is made at the first hearing of the 
matter before him. 

3. If he or his wife is a party or a subscribing 
witness to any deed of conveyance, testamentary 
paper or nuncupative will; but this disqualifica- 
tion ceases when such deed, testamentary paper, 
or will has been finally admitted to or refused 
probate by another clerk, or before the judge of 
the superior court. 

4. If he or his wife is named as executor or 
trustee in any testamentary or other paper; but 
this disqualification ceases when the will or other 
paper is finally admitted to or refused probate by 
another clerk, or before the judge of the superior 
court. 

5. If he shall renounce the executorship and 
endorse the same on the will or on some paper 
attached thereto, before it is propounded for pro- 
bate, in which case the renunciation must be re- 
corded with the will if admitted to probate. 
(Rev., s. 902; Code, s. 104; C. C. P., s. 419; 1871- 
2, c. 196; 1935. c. 110, s. 1; C. S. 939.) 

§ 2-18. Prior orders and judgments validated. — 

In all cases where the Clerk was disqualified to 
act in relation to a civil action, in which the 
procedure as prescribed and set out by §§ 2-19, 
2-20 and 2-21 was followed, all Orders and Judg- 
ments rendered in such civil actions by the Judge 
or other Clerk are hereby validated as fully and 
to the same extent as if this section had at such 
time been in force; Provided, this section shall not 
apply in such cases if an action has prior to 
March 20, 1935, been instituted attacking such 
Order or Judgment. (1935, c. 110, s. 3.) 

§ 2-19. Waiver of disqualification. — The par- 
ties may waive the disqualification specified in 
subdivisions one, two, three and five of section 
2-17 and upon filing in the office such waiver in 
writing, the clerk shall act as in other cases. 
(Rev., s. 903; Code, s. 105; C. C. P., s. 420; C. 
S. 940.) 

§ 2-20. Disqualification unwaived; cause re- 
moved or judge acts. — When any of the disquali- 
fications specified in this chapter exist, and there 
is no waiver thereof, or when the disqualification 
docs not permit of waiver, any party in interest 

[ 78 



may apply to the judge of the district or to the 
judge holding the courts of such district for an 
order to remove the proceedings to the clerk of 
the superior court of an adjoining county in the 
same district; or may apply to the judge to make 
and render either in vacation or term time all 
necessary orders and judgments in any proceed- 
ing where the clerk is disqualified, and the judge 
in such cases is hereby authorized and em- 
powered to make and render any and all neces- 
sary orders and judgments as if he had the same 
original jurisdiction as the clerk over such pro- 
ceeding. (Rev., s. 904; Code, s. 106; C. C. P., s. 
421; 1913, c. 70, s. 1; C. S. 941.) 

§ 2-21. Disqualification at time of election; 
judge acts. — In all cases where the clerk of the 
superior court is executor, administrator, col- 
lector or guardian of any estate at the time of his 
election to office, in order to enable him to settle 
such estate, the judge of the superior court men- 
tioned in the preceding section is empowered to 
make such orders as may be necessary in the set- 
tlement of the estate; may audit the accounts 
or appoint a commissioner to audit the ac- 
counts of such executor or administrator, and 
report to either of said judges for his approval, 
and when the accounts are so approved, it is his 
duty to order the proper record to be made by 
the clerk, and the accounts to be filed in court. 
(Rev., s. 905; Code, s. 107; 1871-2, c. 197; C. S. 
942.) 

§ 2-22. Custody of records and property of of- 
fice. — 1. Receipt from Predecessor. — Immedi- 
ately after he has given bond and qualified, the 
clerk shall receive from the late clerk of the su- 
perior court all the records, books, papers, 
moneys and property of his office, and give re- 
ceipts for the same, and if any clerk refuses or 
fails within a reasonable time after demand to 
deliver such records, books, papers, moneys and 
property, he is liable on his official bond for the 
value thereof. 

2. Transfer to Successor; Penalty. — Upon go- 
ing out of office for any reason, any clerk of the 
superior, inferior, or criminal court shall transfer 
and deliver to his successor (or to such person, 
before his successor in office may be appointed, as 
the court may designate) all records, documents, 
papers, and money belonging to the office. And 
the judge appointing any clerk to a vacancy in 
the clerkship of the superior court may give to 
such person an order for the delivery to him, by 
the person having the custody thereof, of the rec- 
ords, documents, papers and moneys belonging 
to the office, and he shall deliver the same in 
obedience to such order. In case any clerk go- 
ing out of office as aforesaid, or other person 
having the custody of such records, documents, 
papers, and money as aforesaid, fails to transfer 
and deliver them as herein directed, he shall for- 
feit and pay to the state one thousand dollars, 
which shall be sued for by the prosecuting of- 
ficer of that court. (Rev., ss. 906, 907; Code. e«. 
81, 124; C. C. P., s. 142; R. C, c. 19, s. 14; C. S. 
943.) 

§ 2-23. Unperformed duties of outgoing clerk. 
— 1. Performance Secured. — When, upon the 
death or resignation, removal from office, or at 
the expiration of his term of office, any clerk has 

] 



§ 2-24 



CH. 2. CLERK OF SUPERIOR COURT— POWERS AND DUTIES 



§ 2-26 



failed to discharge any of the duties of his office, 
the court, if practicable, shall cause the same to 
be performed by another person, who shall re- 
ceive for such services, and as a compensation 
therefor, the fees allowed by law to the clerk. 

2. Liability on Outgoing Clerk's Bond. — 
Such portion thereof as may be paid by the 
county may be recovered by the county, by suit 
on the official bond of the defaulting clerk, to be 
brought on the relation of the board of commis- 
sioners of the county. (Rev., s. 908; Code, s. 87; R. 
C, C 19, s. 19; 1844, c. 5, s. 6; C. S. 944.) 

§ 2-24. Location of and attendance at office. — 

The clerk shall have an office in the courthouse 
or other place provided by the board of commis- 
sioners, in the county town of his county. He 
shall give due attendance, in person or by deputy, 
at his office daily, Sundays and holidays ex- 
cepted, from nine o'clock a. m. to three o'clock p. 
m., and longer when necessary for the dispatch of 
business; and personally every Monday for the 
transaction of probate business, and on each suc- 
ceeding day till such matters are disposed of; and 
upon his failure to do so, unless caused by sick- 
ness or other urgent necessity or unless leave of 
absence is obtained by law, he shall forfeit an 
amount not exceeding two hundred dollars, said 
amount to be fixed and determined by the resident 
judge of his district or the judge presiding in 
said district upon the complaint of any citizen. 
Provided, however, that the board of county com- 
missioners of each county may fix by order to be 
entered on their records at what hours of each 
Saturday of each week, (in no event to be less 
than three hours nor more than nine hours on 
said day, holidays excepted) the clerk of the su- 
perior court of their respective counties shall at- 
tend at his office in person or by assistant or by 
deputy, and he or his assistant or deputy shall 
give his attendance accordingly. (Rev., s. 909; 
Code, ss. 80, 114, 115; C. C. P., s. 141; 1871-2, c. 
136; 1939, c. 82; 1941, c. 329; C. S. 945.) 

Local Modification.— Currituck, Moore, Richmond: 1939, c. 

82. s. 3. 

§ 2-25. Obtaining leave of absence from office. 

— Upon application of any clerk of the superior 
court to the judge of the superior court residing in 
the district in which the clerk resides, the judge 
of the superior court riding the district or judge of 
superior court presiding in the county of said 
clerk, showing good and sufficient reason for the 
clerk to absent himself from his office, the judge 
may issue an order allowing him to absent him- 
self from his office for such time as the judge may 
deem proper. But he shall at all times leave a 
competent deputy in charge of his office during 
his absence. The order of the judge granting 
leave of absence shall be filed and recorded in the 
office of the clerk of the county in which the clerk 
resides. (Rev., s. 910; 1903, c. 467; 1935, c. 348; 
C. S. 946.) 

§ 2-26. Fees of clerk of superior court. — The 
fees of the clerk of the superior court shall be the 
following, and no other, namely: 

Advertising and selling under mortgage in lieu 
of bond, two dollars for sales of real estate and 
one dollar for sales of personal property. 

Affidavit, including jurat and certificate, 
twenty-five cents. 

[ 79 



Appeal from justice of the peace, fifty cents. 

Appeal from the clerk to the judge, fifty cents. 

Appeal to the supreme court, including cer- 
tificate and seal, two dollars. 

Appointing and qualifying justices of the peace, 
to be paid by the justice, twenty-five cents. 

Apprenticing infant, including indenture, one 
dollar. 

Attachment, order in, fifty cents. 

Auditing account of receiver, executor, admin- 
istrator, guardian or other trustee, required to 
render accounts, if not over three hundred dol- 
lars, fifty cents; if over three hundred dollars and 
not exceeding one thousand dollars, eighty cents; 
if over one thousand dollars, one dollar. 

Auditing final settlement of receiver, executor, 
administrator, guardian or other trustee, required 
to render accounts, one-half of one per cent of 
the amount on which commissions are allowed 
to such trustee, for all sums not exceeding one 
thousand dollars, and for all sums over one thou- 
sand dollars; one-tenth of one per cent on such 
excess; but such fees shall not exceed fifteen dol- 
lars, unless there be a contest, when the clerk 
shall have one per cent on the said excess over 
one thousand dollars; but in no instance shall 
his fees exceed twenty-five dollars. 

Auditing and recording the final account of 
commissioners appointed to sell real estate, one- 
half of the fees allowed for auditing and record- 
ing final accounts of executors. 

Bill of costs, preparing same, twenty-five 
cents. 

Bond or undertaking, including justification, 
sixty cents. 

Canceling notice of lis pendens, twenty-five 
cents. 

Capias, each defendant, one dollar. 

Capias, when the defendant is not arrested 
thereunder, shall be such sum as the commission- 
ers of his county may allow. 

Caveat to a will, entering and docketing same 
for trial, one dollar. 

Certificate, except where it is a charge against 
the county, twenty-five cents; and where it is a 
charge against the county, the fee shall be such 
sum not exceeding twenty-five cents as the board 
of commissioners shall allow. 

Commission, issuing, seventy-five cents. 

Continuance, thirty cents. 

Docketing ex parte proceedings, fifty cents. 

Docketing indictment, twenty-five cents. 

Docketing liens, twenty-five cents. 

Docketing judgment, twenty-five cents. 

Docketing summons, twenty-five cents. 

Execution and return thereon, including 
docketing, fifty cents; and certifying return to 
clerk of any county where judgment is docketed, 
twenty-five cents. 

Filing all papers, ten cents for each case. 

Guardian, appointment of, including taking 
bond and justification, one dollar. 

Impaneling jury, ten cents. 

Indexing judgment on cross-index book, ten 
cents for the judgment, regardless of number of 
parties. 

Indexing liens on lien book, ten cents. 

Indictment, each defendant in the bill, sixty 
cents. 

] 



§ 2-26 



CH. 2. CLERK OF SUPERIOR COURT— POWERS AND DUTIES 



§ 2-27 



Injunction, order for, including taking bond or porations, three dollars, 

undertaking and justification, one dollar. Recording names of jurors as required by law, 

Judgment, final, in term-time, civil action, one five cents for each name, 

dollar. Resignation of guardian, relinquishment of 

Judgment, final, against each defendant, in right to administer, or to qualify as executor, re- 
criminal actions, one dollar. ceiving, filing and noting same, twenty-five 

Judgment, final, before the clerk, fifty cents. cents. 



Judgment by confession, without notice, all 
services, three dollars. 

Judgment in favor of widow for year's support, 
fifty cents. 



Seal of office, when necessary, twenty-five 
cents. 

Subpoena, each name, fifteen cents. 

Summons, in civil actions or special proceed- 



Judgment nisi, entering against a defaulting ings, including all the names therein, one dollar, 

witness or juror, on bail bond or recognizance, and for every copy thereof, twenty-five cents. 

twenty-five cents. Transcript of judgment, twenty-five cents. 

Juror ticket, including jurat, ten cents. Transcript of any matter of record or papers 

Justification of sureties on any bond or under- on file, per copy-sheet, ten cents, 

taking, except as otherwise provided, fifty cents. Trial of any cause, or stating an account, as 

Letters of administration, including bond and referee, pursuant to order of the judge, such al- 

justification of sureties, one dollar. lowance as the judge may make. 

Motions, entry and record of, twenty-five cents. Witness ticket, including jurat, ten cents. 



Notices, twenty-five cents, and for each name 
over one in same paper, ten cents additional. 

Notifying solicitors of removal of guardian. 
one dollar. 

Order enlarging time for pleading, and all in- 
terlocutory orders, in special proceedings and 
civil actions, twenty-five cents. 

Order of arrest, one dollar, 



Five per cent commissions shall be allowed the 
clerk on all fines, penalties, amercements and 
taxes paid the clerk by virtue of his office; and 
three per cent on all sums of money not exceed- 
ing five hundred dollars placed in his hands by 
virtue of his office, except on judgments, decrees, 
executions, and deposits under article three of 
chapter fifty-four; and upon the excess over five 



Order for appearance of apprentice, on com- hundred dollars of such sums, one per cent 

plaint of master, one dollar; for appearance of Provided, that in such counties of the State 

master on complaint of apprentice, one dollar. where the clerk of superior court is now or may 

Order for the registration of a deed or other hereafter be paid a salary in lieu of fees, that 

writing, which has been proved or acknowledged such clerk of superior court shall not charge and 

in another county, or before a judge, justice, collect a fee for juror ticket, including jurat, or 

notary or other officer, except a chattel mortgage, wltne ss ticket, including jurat, as herein pre- 

twenty-five cents. scribed. (Rev., s. 2773; Code, ss. 229, 1789, 3109, 

Postage, actual amount necessarily expended. 3739 : 1885 > c - 199 ; 1893 > c. 52, s. 4; 1897, c. 68; 

Presentment, each person presented, ten cents. 1899 > c - 17 > s - 2; 1899, c. 247, s. 3; 1899, cc. 578, 

Probate of a deed or other writing, proved by 261 = 1901 > c - 121 > 1901 . c . 614 > s. 3; 1903, c. 359, s. 

a witness, including the certificate, twenty-five 6; 1905 > c - 360 > s - 3 J 1917 > c - 198 > s. 6; 1919, c. 329; 



cents. 

Probate of a deed or other writing, acknowl- 
edged by the signers or makers, including all ex- 
cept married women, who acknowledged at the 
same time, with the certificate thereof, twenty- 
five cents. 



1927, c. 247; 1929, cc. 45, 214; 1933, c. 91; C. S. 
3903.) 

Local Modification. — Franklin: 1927, c. 137; Harnett: 1933, 
c. 75; Northampton: 1931, c. 11; Wilson: 1935, c. 241. 

§ 2-27. Local modifications as to clerk's fees. 
—For the probate of a short-form lien bond, or lien 

Probate of a deed, or other writing, executed bond and chattel mortgage combined, the clerk 

by a married woman, for her acknowledgment shall receive ten cents in the following counties: 

and private examination, with the certificate Alamance, Alleghany, Ashe, Beauford, Bladen, 

thereof, twenty-five cents. Brunswick, Buncombe, Burke, Carteret, Caswell, 

Probate of limited partnership, fifty cents. Catawba, Chatham, Chowan, Cleveland, Colum- 

Probate of will in common form and letters bus, Craven, Cumberland, Davie, Duplin, Dur- 
testamentary, one dollar. ham, Edgecombe, Forsyth, Gaston, Gates, Gran- 
Qualifying justice of the peace, to be paid by ville, Greene, Harnett, Iredell, Johnston, Jones, 
the justice, twenty-five cents. Lenoir, Lincoln, Martin, McDowell, Mecklenburg, 

Qualifying members of the board of commis- Moore, Nash, New Hanover, Onslow, Pamlico, 
sioners, to be paid by the commissioners, twenty- Pender, Perquimans, Person, Pitt, Polk, Rich- 
five cents. mond, Robeson, Rockingham, Rowan, Rutherford, 

Recognizance, each party where no bond is Sampson, Scotland, Union, Vance, Warren, Wash- 
taken, twenty-five cents. ington, Watauga, Wayne, Wilson. (Rev., s. 2773; 

Recording and copying papers, per copy-sheet, 1907, c. 717; 1909, c. 502; P. L. 1917, c. 182; 1933, 

ten cents. c. 84; C. S. 3904.) 

Recording appointment of process agent for In Anson, this fee is twenty cents. (P. L 1913, 

nonresident, fifty cents. c. 49; C. S. 3904.) 

Recording names, qualification, and expiration In Bertie county the clerk of the superior 

of term of office of justices of the peace, five court shall collect the sum of fifteen cents for 

cents for each name. each crop lien or lien bond probated by him for 

Registering trained nurses, including certificate registration in Bertie county, including all serv- 

of registration, fifty cents. ices connected therewith, (P. L. 1915, c. 163; C. 

Recording certificates of incorporation of cor- S, 3904.) 

[80] 



§ 2-28 



CH. 2. CLERK OF SUPERIOR COURT— POWERS AND DUTIES 



§ 2-35 



In Forsyth county the clerk shall receive fif- in appeals from justices of the peace court to the 

teen cents for the probate of a deed or other superior court four dollars as advance cost to be 

writing, acknowledged by the signers or makers, applied on the court cost including the process 

including all except married women who ac- tax. (1935, c. 379, s. 1.) 

knowledge at the same time, with the certificate § 2-31. Fee for cross-indexing names of parties, 

thereof. He shall also receive fifteen cents for — The fee for cross-indexing the name of each 

the probate of a deed or other writing, proved by party to any action or proceeding required to be 

a witness, including the certificate. (P. L. 1913, cross-indexed by law shall be ten cents for each 

c. 626; C. S. 3904.) name entered upon the cross-index records. (1935, 

In Jackson county, in addition to the fees now c . 379, s. 3.) 

allowed by law, the clerk shall receive the sum § 2 -32. Fee for docketing judgment.— The fee 



of five dollars for writing up the minutes of each 
day's session of the superior court of the county, 
to be paid by the county. (P. L. 1913, c. 182; C. 
S. 3904.) 

In Robeson county the board of county com- 
missioners may make an allowance to the clerk 
of the superior court for keeping the records of 
the court and transcribing the minutes, to be 
paid out of the general county fund. (Rev., s. 
2773; C. S. 3904.) 

From and after February 27, 1923, it shall be 
unlawful for the clerks of the superior courts of 
Vance, Warren, Northampton, Wayne and Ber- 
tie counties to charge fees for witness and juror 
tickets issued by them. (1923, c. 92; C. S. 3904.) 

In Mitchell county, the clerk of superior court 
shall receive double the amount of fees and com- 
missions as provided in § 2-26 of this chapter. 
(1931, c. 53, s. 1.) 
Local Modification. — Harnett: 1935, c. 75. 

§ 2-28. Fees for probating and recording fed- 
eral crop liens and chattel mortgages. — The fee 

to be charged by the clerk of the superior 



for docketing any judgment shall be ten cents per 
copy sheet, minimum charge twenty-five cents. 
(1935, c. 379, s. 4.) 

§ 2-33. Fee for auditing annual accounts of re- 
ceivers, executors, etc. — For auditing annual ac- 
counts of receivers, executors, guardians, ad- 
ministrators, administrators with will annexed, 
trustees for incompetents, trustees under wills, sur- 
viving partner, where the total receipts and dis- 
bursements do not exceed eleven thousand dollars, 
the fee shall be twenty-five cents for each one 
hundred dollars on receipts and disbursements or 
a fraction thereof through one thousand dollars. 
If the receipts and disbursements exceed one 
thousand dollars, the fee shall be for the receipts 
and disbursements above one thousand dollars five 
cents on each one hundred dollars or a fraction 
thereof through eleven thousand dollars. When 
the receipts and disbursements exceed eleven thou- 
sand dollars, the fee for the amount of same above 
eleven thousand dollars shall be one-tenth of one 
per cent on the amount of receipts and disburse- 
ments in excess of eleven thousand dollars, but in 



court for the probate of a federal crop lien or a no event shall the fee be less than one dollar nor 
federal chattel mortgage given to secure a seed more than twenty-five dollars. (1935, c. 379, s. 5.) 
and fertilizer loan from the United States govern- . 

ment, or crop production loans, live stock loans, ? 2 " 3<L Fee for auditing final accounts of re- 
and/or other loans made by the regional agricul- ceivers > executors, etc.— For auditing final ac- 
ture credit corporation of Raleigh, North Carolina counts of receivers, executors, administrators, ad- 
and/or production credit associations in North numerators with will annexed, collectors, trustees 
Carolina as provided for by the Farm Credit Act ±or incompetents, trustees under wills, guardians 
of Congress of one thousand nine hundred and ° r su ™ving partner, the fee shall be fifty cents 
thirty-three, or the North Carolina Rural Rehabil- *° r < ; ach on f hundred dollars or a fraction thereof 
itation Corporation or other relief organizations of the , total recel P ts an d disbursements through 
by relief clients, shall be limited to twenty-five one thousand dollars, and ten cents per each 
cents for each probate; and the fee of the register ° ne hundred dollars or a fraction thereof on every- 
of deeds for registering said instrument shall be "" n f aD °7 one thousand dollars, but in no event 
limited to fifty cents for each lien or chattel mort- s £ a11 the fee be less than two dollars: Provided, 
gage: Provided that this section shall not apply tnat when st °cks, bonds or any other personal 
to Brunswick, Caswell, Harnett, Haywood. Hert- P r °P ert y is delivered to any heir or distributee 

without converting the same into cash, these fees 
shall be computed and charged on the same just 
as though they had been converted into cash; the 
value of said stocks, bonds, etc., to be fixed as of 
the date of death, or qualification of the fiduciary 
(1935, c. 379, s. 6.) 
Local Modification. — Beaufort: 1939, c. 103. 

§ 2-35. Fee for auditing 'final accounts of trus- 
tees, etc., selling real estate under foreclosure 



Richmond, 
(1933, cc. 
514; 1935, 

Perquimans, 
Stanly: 1935, 



ford, Macon, Moore, Person, Polk 
Stokes, Surry and Wilson counties. 
160, 176, 266, 281, 326, 393, 429, 479,. 
cc. 120, 260, 369; 1939, c. 211.) 

Local Modification. — Gates, Jones, Moore, 
Richmond, Rowan, Wilson: 1935, c. 120, s. 2; 
c. 260; Wilson: 1935, c. 388. 

§ 2-29. Advance court costs. — The clerk of the 
superior court is hereby authorized to collect as 

advance court cost on all suits started in any proceedings.— For aVditing'nnal TccountT ofTrus- 

court the sum of seven dollars and fifty cents teeSj mortgagees, commissioners, or other persons 

($7.50) for one defendant, and one dollar and a firmS) or corporations selling real estate under' 

half for each additional defendant, which fees foreclosure proceeding required to render such 

shall include any process tax or tax on suits and final repor t, the fee shall be twenty-five cents on 

sheriff fees. (1935, c. 379, s. 2.) each one hundred dollars of receipts and disburse- 

Local Modification.-Catawba: 1939, c. 62. ments through one thousand dollars and ten cents 

§ 2-30. Advance costs on appeal from justice of on each one hundred dollars for everything above 

the peace.. — The clerk of the superior court is au- one thousand dollars, provided that the minimum 

thorized to collect from the appellant in all cases fee shall be one dollar and fifty cents and the 

[81] 



§ 2-36 



CH. 2. CLERK OF SUPERIOR COURT— POWERS AND DUTIES 



§ 2-42' 



maximum fee shall not exceed twenty-five dol- 
lars. (1935, c. 379, s. 7.) 

§ 2-36. Certain counties not subject to sections 
2-29 — 2-35. — Sections 2-29 — 2-35 shall not apply to 
the counties of: Cabarrus, Chowan, Cleveland, 
Columbus, Franklin, Iredell, Lincoln, Martin, 
Mecklenburg, Montgomery, Moore, New Han- 
over, Pitt, Richmond, Robeson, Rockingham, 
Surry, Union, Jackson, Swain, Buncombe, Rowan, 
Orange, Avery, Wayne, Nash, Wilson, Bladen, 
Cumberland, Ashe, Edgecombe, Tyrrell, Person, 
Duplin, Vance, Davie, Guilford, Onslow, Wash- 
ington, Alleghany, Haywood, Davidson, Burke, 
Stokes, Franklin, Catawba, Lenoir, Jones, Pam- 
lico, Caldwell, Caswell. Provided, that section 
2-29 shall apply to Iredell county. (1935, c. 379, s. 
8; 1935, c. 494; 1937, cc. 148, 149, 290.) 

§ 2-37. To keep fee bill posted. — Every clerk 
shall keep posted in his office in some conspicuous 
place the fee bill, for public inspection and refer- 
ence, under a penalty of one hundred dollars for 
such neglect, to be paid to any person who will 
sue for same. (Rev., s. 2774; Code, s. 3740; C. S. 
947.) 

§ 2-38. To furnish blank process, bonds and 
undertakings. — Clerks of courts shall furnish to 
parties printed copies of the formal parts of all 
process required to be issued by them, with con- 
venient blank spaces for the insertion of written 
matter; and also the blank forms of such bonds 
and undertakings as are required to be taken by 
them. (Rev., s. 911; Code, s. 3761; C. C. P., s. 
559; 1868-9, c. 279, s. 558; C. S. 948.) 

§ 2-39. To file papers in proceedings. — The 

clerk must file and preserve all papers in pro- 
ceedings before him, or belonging to the court; 
and shall keep the papers in each action in a sep- 
arate roll or bundle, and at its termination attach 
them together, properly labeled, and file them in 
the order of the date of the final judgment. All 
such papers and the books kept by him belong to, 
and appertain to, his office, and must be de- 
livered to his successor. (Rev., s. 912; Code, ss. 
86, 111; C. C. P., ss. 146, 426; C. S. 949.) 

§ 2-40. To keep records of his office; obtaining 
originals or copies. — He shall keep in bound vol- 
umes a complete and faithful record of all his 
official acts, and give copies thereof to all per- 
sons desiring them, on payment of the legal fees. 
He shall be answerable for all records belonging 
to his office, and all papers filed in the court, and 
they shall not be taken from his custody, unless 
by special order of the court, or on the written 
consent of the attorneys of record of all the par- 
ties; but parties may at all times have copies up- 
on paying the clerk therefor. (Rev., s. 913; 
Code, s. 82; C. C. P., s. 143; 1868-9, c. 159, s. 4; 
C. S. 950.) 

§ 2-41. To endorse date of issuance on process. 
— The clerk shall note on all precepts, process 
and executions the day on which the same shall be 
issued: and the sheriff or other officer receiving 
the same for execution shall in like manner note 
thereon the day on which he shall have received 
it, and the day of the execution; and every clerk, 
sheriff or other officer neglecting so to do shall 
forfeit and pay one hundred dollars. (Rev., s. 
914; Code, s. 100; C. S. 951.) 

[S 



§ 2-42. To keep books; enumeration. — Each 
clerk shall keep the following books, which shall 
be open to the inspection of the public during 
regular office hours: 

1. Summons docket, which shall contain a 
docket of all writs, summonses or other original 
process issued by him, or returned to his office, 
which are made returnable to a regular term of 
the superior court; this docket shall contain a 
brief note of every proceeding whatever in 
each action, up to the final judgment inclusive. 

2. Judgment docket, which shall contain a 
note of the substance of every judgment and 
every proceeding subsequent thereto. 

3. Civil issue docket, which shall contain a 
docket of all issues of fact joined upon the 
pleadings, and of all other matters for hearing 
before the judge at a regular term of the court, a 
copy of which shall be furnished to the judge at 
the commencement of each term. 

4. Cross-index to judgments, which shall 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. 

5. Cross-index of Parties to Actions. — The 
clerk shall keep an alphabetical index and cross- 
index of all parties to all actions and special pro- 
ceedings. Upon the issuance of summons or 
commencement of an ex parte proceeding he 
shall forthwith index and cross-index the names 
of all parties to such action or proceeding. 
When an order is made that any new or addi- 
tional party be brought into an action or pro- 
ceeding his name shall forthwith be indexed and 
cross-indexed by the clerk. The index shall be 
so arranged that beside each name shall appear 
a reference to the book and page whereon the 
action or proceeding will be found upon the sum- 
mons docket, civil issue docket, special proceed- 
ing docket, and judgment docket, or such of said 
dockets as carry reference to said action or pro- 
ceeding; and immediately upon said action or 
proceeding being entered upon any of said dock- 
ets the clerk shall cause said index to carry 
reference thereto upon the index and cross-in- 
dex as to every party. 

6. Record of lis pendens, which shall contain 
the names of the parties to the action, place where 
such notice, whether formal or in the pleadings, 
is filed, the object of the action, the date of in- 
dexing, and a sufficient description of the land to 
be affected, and which shall be cross-indexed. 

2] 



§ 2-42 



CH. 2. CLERK OF SUPERIOR COURT— POWERS AND DUTIES 



§ 2-42 



7. Criminal docket, which shall contain a note 
of every proceeding in each criminal action. 

8. Minute docket of superior court, which shall 
contain a record of all proceedings had in the court 
during term, in the order in which they occur, and 
such other entries as the judge may direct to be 
made therein. 

9. Special proceedings docket, which shall 
contain a docket of all writs, summonses, peti- 
tions, or other original process issued by him, or 
returnable to his office, and not returnable to a reg- 
ular term; this docket shall contain a brief note of 
every proceeding, up to the final judgment inclu- 
sive. 

10. Minute docket of proceedings before clerk, 
which shall contain a record of all proceedings 
had before the clerk, in actions or proceedings 
not returnable to a regular term of the court. 

11. Record of wills, which shall contain a rec- 
ord of all wills, with the certificate of probate 
thereof. 

12. Record of appointments, which shall con- 
tain a record of appointments of executors, ad- 
ministrators, guardians, and collectors, with rev- 
ocations of all such appointments; and on which 
shall be noted all subsequent proceedings relating 
thereto. 

13. Record of orders and decrees, which shall 
contain a record of all orders and decrees passed 
in his office, which he is required to make in writ- 
ing, and not required to be recorded in some other 
book. 

14. Record of accounts, which shall contain 
a record of accounts, in which must be recorded 
inventories and annual accounts of executors, ad- 
ministrators, collectors, trustees under assignments 
for creditors, and guardians, as audited by him 
from time to time. 

15. Record of settlements, which shall contain 
a record of settlements, in which must be entered 
the final settlements of executors, administrators, 
collectors, commissioners, trustees under assign- 
ments for creditors, and guardians. 

16. Record of jurors, which shall contain a 
list of all persons who serve as grand, petit, and 
tales jurors in his court; which shall be properly 
indexed. 

17. Record of justices of the peace, which shall 
contain a complete list of the justices of the peace 
of the county, by townships, giving the date of 
election or appointment, qualification, and expira- 
tion of term of office of each; and whenever a va- 
cancy occurs it shall be noted therein. These books 
shall at all times show a complete list of the jus- 
tices of the peace of the county and who was the 
predecessor of each justice and the succession in 
office. 

18. Record of books, which shall contain the 
date of delivery to each justice of the peace of any 
dockets, records, and books; and the date of the re- 
ceipt by him to any justice of the peace, or to the 
personal representative of a deceased justice of the 
peace, for any dockets, records, and books re- 
turned to him. 

19. Cross-index of wills, which shall contain 
a general alphabetical cross-index of all wills filed 
or recorded in the office of the clerk of the superior 
court, and devising real estate or any interest 
therein, whether such devise appears on the face 
of said will or not, showing the full name of each 

[ 83 



devisor, and all devisees as tohey are given in the 
will, together with the date of the probate of such 
will. 

20. Cross-index of executors and administra- 
tors, which shall contain a general alphabetical 
cross-index of the appointment of all executors 
and administrators made by the courts of their 
county, showing the name of the appointee, the 
name of the decedent, and date of appointment. 

21. Cross-index of guardians, which shall con- 
tain a general alphabetical cross-index of the ap- 
pointment of all guardians made by the courts of 
their county, showing the name of the guardian, 
the names of the wards, and date of appointment. 

22. Record of fines and penalties, which shall 
contain an itemized and detailed statement of 
the respective amounts received by him in the 
way of fines, penalties and forfeitures, and paid 
over to the county treasurer. 

23. Lien docket, which shall contaiin a record 
of all notices of liens filed in his office, properly 
indexed, showing the names of the lienor and 
lienee. 

24. Record of appointment of receivers, which 
shall contain a record of all appointments of re- 
ceivers, and all inventories, reports, and accounts 
filed by them; which shall be properly indexed. 

25. Record of corporations, which shall con- 
tain a record of the certificate of incorporation 
of all corporations charted under general law, 
with principal office or place of business in his 
county. 

26. Accounts of indigent orphans, which shall 
contain a record of all receipts from persons for 
money paid for indigent children. 

27. Register of physicians and surgeons, which 
shall contain a list of the names and places of res- 
idence, with date of registration, of all persons 
registered by him as physicians and surgeons. 

28. Register of dentists, which shall contain a 
registration of certificates of all persons entitled 
to practice dentistry in his county. 

29. Register of chiropodists, which shall con- 
tain a list of the names and places of residence, 
with date of certificate, of all persons registered 
by him as chiropodists. 

30. Register of trained nurses, which shall con- 
tain the name, residence and date of registration 
of all trained nurses duly licensed in his county. 

31. Permanent roll of registered voters, which 
shall contain an alphabetical list by townships of 
all persons entitled to permanent registration, giv- 
ing the name and age of each, the name of the 
person from whom he was descended, unless he 
himself was a voter on July 1, 1867, or prior there- 
to, the state in which he was such voter and the 
date he applied for registration. 

32. Lunacy docket, which shall contain a rec- 
ord of all the examinations of persons alleged 
to be insane, a brief summary of the proceedings, 
and his findings, and a record of all proceedings 
in lunacy transmitted to him by justices of the 
peace. 

33. Record of county treasurer's report, which 
shall contain an itemized statement of all fines and 
penalties paid to the county treasurer; which said 
itemized statement of fines and penalties received 
by the county treasurer shall be by him reported 
to the clerk on the first day of January, April, July 
and October, respectively, of each and every year. 
] 



§ 2-43 



CH. 2. CLERK OF SUPERIOR COURT— INVESTMENTS 



§ 2-49 



34. Nol. pros, with leave record, which shall 
contain A record of all cases in which a nolle pros- 
equi with leave is entered in criminal actions, with 
the term of court at which the order is made, and 
which shall he cross-indexed. 

35. Record of permits to purchase weapons, 
which shall contain the name, date, place of res- 
idence, age, former place of residence, etc., of 
each person, firm or corporation to whom or 
which a permit is issued to purchase deadly weap- 
ons. (Rev., s. 915; Code, ss. 83, 95, 96, 97, 112, 
1789; 1887, c. 178, s. 2; 1889, c. 181, s. 4; 1893, c. 
52; 1899, c. 1, s. 17; 1899, cc. 82, 110; 1901, c. 2, 
s. 9; 1901, c. 89, s. 13; 1901, c. 550, s. 3; 1903, c. 
51; 1903, c. 359, s. 6; 1905, c. 360, s. 2; 1919, c. 78, 
s. 7; 1919, cc. 152, 314; 1919, c. 197, s. 4; 1937, c. 
93; C. S. 952.) 

Local Modification.— Caldwell : Pub. Loc. 1927, c. 43; Dur- 
ham: 1929, c. 88. 

§ 2-43. To notify commissioners of insolvency 
of surety company in which county officer bonded. 
— Every clerk of the superior court shall furnish 
the chairman of the board of county commission- 
ers with all notifications furnished him, in accord- 
ance with § 58-117 under the article Fidelity 
Insurance of the Chapter Insurance, by the in- 
surance commissioner, that any surety company 
in which any officer of the county is bonded is in- 
solvent or in imminent danger of insolvency. 
(Rev., 295; C. S. 953.) 

Art. 5. Reports. 

§ 2-44. List of justices to secretary of state. — 

The clerk of the superior court of each county in 
which justices of the peace are not elected by the 
qualified voters thereof on the first Monday in 
January preceding each regular session of the 
general assembly shall certify to the secretary of 
state a correct list of all justices of the peace in 
office in his county, the township in which each 
resides, the term of office of each, time of elec- 
tion or appointment, and when the respective 
terms of office of each expire. He shall also re- 
port the names of those elected or appointed jus- 
tices of the peace, but who have failed to qualify, 
and when their terms of office began and the 
length thereof. (Rev., s. 916; Code, s. 89; 1901, 
c. 37, s. 2; 1881, c. 326; C. S. 954.) 

§ 2-45. List of attorneys-at-law to commis- 
sioner of revenue. — It shall be the duty of the 
Clerk of the Superior Court in each county of the 
State on or before the first day of May of each 
year to certify to the Commissioner of Revenue 
of the State of North Carolina the names and 
addresses of all Attorneys-at-Law located within 
the county and engaged in the practice of law. 
(1931, c. 290.) 

Art. 6. Money in Hand; Investments. 

§ 2-46. Public funds to be reported to county 
commissioners. — On the first Monday in Decem- 
ber of each and every year, or oftener, if required 
by order of the board of commissioners or any 
other lawful authority upon ten days' written 
notice, clerks of the superior courts shall make 
an annual report of all public funds which may 
be in their hands. The report shall be made 
to the board of county commissioners and 
addressed to the chairman thereof. It shall give 

[ 84 



an itemized statement of said funds so held, the 
date and source from which they were received, 
the person to whom due, how invested and where, 
in whose name deposited, the date of any certificate 
of deposit, the rate of interest the same is draw- 
ing, and other evidence of investment of said 
fund; and it shall include a statement of all funds 
in their hands by virtue or color of their office, and 
which may belong to persons or corporations. 
The report shall be subscribed and verified by the 
oath of the party making it before any person al- 
lowed to administer oaths. (Rev., s. 918; 1891, c. 
580; 1931, c. 156; C. S. 956.) 

Local Modification. — Bertie: Pub. Loc. 1941, c. 39; Carteret, 
Union: 1941, c. 316; Forsyth: 1941, c. 109; Wayne: 1939, c. 
92; 1941, c. 316. 

§ 2-47. Approval, registration, and publication 
of report. — The board of commissioners shall re- 
fer all itemized statements made by the clerks of 
the superior courts to a special committee of their 
board, who shall compare the same with the rec- 
ords of the clerk's office from which the report is 
made and certify the same to the board as cor- 
rect, and if approved the board shall cause the 
same to be registered in the office of the register 
of deeds, in a book to be furnished to said regis- 
ter by the board of county commissioners, which 
book shall be styled Record of Official Reports, 
with a proper index of all reports recorded there- 
in, and each original report shall, if approved by 
the chairman of the board, be endorsed with the 
word "Approved," the date of approval and the 
endorsement signed by the chairman, and when 
recorded by the register of deeds he shall endorse 
thereon the date of registration, the page of the 
Record of Official Reports upon which the same 
is registered, sign the same and file it in his of- 
fice. The register shall also cause a copy of the 
report to be published one time in some news- 
paper of general circulation published in the 
county of the register and also posted at the 
courthouse door within twenty days after filing 
the reports; and if no newspaper is published in 
the county the posting of the report at the 
courthouse door shall be a sufficient publication. 
The cost of publishing the report shall be paid 
by the county. (Rev., s. 919; Code, s. 90; 1891, 
c. 580, s. 3; 1893, c. 14, s. 3; 1874-5, c. 151; 1876-7, 
c. 276; C. S. 957.) 

§ 2-48. Report compelled by commissioners. — 
If any clerk fails to report, or if after a report 
has been made the board of county commis- 
sioners have reason to believe that any report is in- 
correct, the board shall take legal steps to compel 
a proper report to be made by suit on the bond of 
such clerk, or by reporting the fact to the solici- 
tor of the district to which the county of said board 
may belong for his action. (Rev., s. 920; Code, s. 
92; 1891, c. 580, s. 2; 1874-5, c. 151, s. 3; 1876-7, c. 
276; C. S. 958.) 

§ 2-49. Payment to persons entitled. — The said 
clerks shall, on or before the first day of January 
in every year after the statements required in the 
foregoing sections are made, account with and 
pay to the persons entitled to receive the same all 
such balances reported as aforesaid to be in their 
hands. (Rev., s. 921; Code, s. 1865; R. C, c. 73, 
s. 2; 1823, c. 1186, s. 2; 1831, c. 3, ss. 1, 3; 1893, c. 
14, s. 1; C. S. 959.) 

] 



§ 2-50 



CH. 2. CLERK OF SUPERIOR COURT— INVESTMENTS 



§ 2-56 



§ 2-50. Unclaimed fees of jurors and witnesses 
paid to school fund. — All moneys due jurors and 
witnesses which remain in the hands of any clerk 
of the superior court on the first day of January 
after the publication of a third annual report of 
the said clerk showing the same shall be turned 
over to the county treasurer for the use of the 
school fund of the county, and it is the duty of 
said clerk to indicate in his report any moneys 
so held by him for a period embracing the two an- 
nual reports. (Rev., s. 922; 1891, c. 580, s. 4; 
1893, c. 14, s. 3; C. S. 960.) 
Local Modification.— Wayne: 1941, c. 70. 

§ 2-51. Use by public until claimed. — The 
money aforesaid, while held by the clerks, shall 
be paid, on application, to the person entitled 
thereto; and after it ceases to be so held, it may 
be used as other revenue, subject, however, to 
the claim of the rightful owner. (Rev., s. 923; 
Code, s. 1869; R. C, c. 73, s. 6; 1828, c. 41, s. 1; 
C. S. 961.) 

§ 2-52. 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.) 

§ 2-53. Payment of money for indigent children 
and persons non compos mends. — When any 
moneys in the amount of three hundred dollars or 
less are paid into court for any minor, indigent or 
needy child or children for whom no one will be- 
come guardian, upon satisfactory proof of the ne- 
cessities of such minor, child or children, the clerk 
may upon his own motion or order pay out the 
same in such sum or sums at such time or times 
as in his judgment is for the best interest of said 
child or children, or to some discreet and solvent 
neighbor of said minor, to be used and faithfully 
applied for the sole benefit and maintenance of such 
minor indigent and needy child or children. The 
clerk shall take a receipt from the person to whom 
any such sum is paid and shall require such person 
to render an account of the expenditure of the 
sum or sums so paid, and shall record the receipt 
and the accounts, if any are rendered by order of 
the clerk, in a book entitled, Record of Amounts 
Paid for Indigent Children, and such receipt shall 
be a valid acquittance for the clerk. In all 
cases where a minor child is now or may hereaf- 
ter be the beneficiary of any policy of life insurance 
and the sum due to said minor child by virtue of 
any such policy does not exceed three hundred 
dollars ; the insurance company which issued said 
policy may pay the sum due thereunder to the 
clerk of the superior court of the county where 
said minor child resides whose duty it shall be to 
receive it, and said clerk shall issue and deliver to 
such insurance company his receipt for the sum so 
paid, which shall be a complete release and dis- 

[ 



charge of said company from any and all liability 
to said minor child under and by virtue of any 
such policy of insurance. Moneys so paid to said 
clerk shall be held and disbursed by him in the 
manner and subject to the limitations provided by 
this section. This section shall also apply to in- 
competent or insane persons, and it shall be the 
duty of any person or corporation having in its 
possession $300.00 or less for any minor child or 
indigent child, or incompetent or insane person 
to pay same in the office of the clerk of the su- 
perior court, and the clerk of the superior court is 
hereby authorized and empowered to disburse the 
sum thus paid into his office, upon his own mo- 
tion or order, without the appointment of a guard- 
ian. (Rev., s. 924; 1899, c. 82; 1911, c. 29, s. 1; 
1919, c. 91; Ex. Sess. 1924, c. 1, s. 1; 1927, c. 76; 
1929, c. 15; 1933, c. 363; C. S. 962.) 

§ 2-54. Limitation on investment of funds in 
clerk's hands. — It shall be unlawful for the clerk 
of the superior court of any county in the State 
of North Carolina receiving any money by color 
of his office to apply or invest any of said money 
except as specifically authorized by law. (1931, 
c. 281, s. 1.) 
Local Modification. — Cleveland: 1933, c. 110. 

§ 2-55. Investments prescribed; use of funds in 
management of lands of infants, incompetents. — 

The clerk of the superior court of any county 
in the State may in his discretion invest moneys 
secured by color of his office or as receiver in any 
of the following securities: 

(a) By loaning the same upon real estate 
security, such loans not to exceed fifty per cent 
(50%, of the assessed tax value; and said loans 
when made to be evidenced by a note, or notes, 
of the borrower and secured by first mortgage or 
deed of trust. 

(b) United States Government bonds. 

(c) United States Government Postal Savings 
Certificates. 

(d) North Carolina State bonds. 

(e) North Carolina county or municipal bonds 
which are approved by the Local Government 
Commission. 

(f) Certificates of deposit for time deposit 
or savings accounts with any bank or trust com- 
pany where such protection is furnished as re- 
quired in § 2-56. 

(g) When the clerk of the superior court as 
receiver or trustee for any infant or non compos 
mentis shall come into the possession of any lands 
for the use of such person and it shall be neces- 
sary to make investments of the funds of such 
person to manage or cultivate said lands, the 
clerk may make such investments as are neces- 
sary for said purposes: Provided, the same is ap- 
proved by the resident judge of the superior court 
or the judge holding the court of the district. 
(1931, c. 281, s. 2; 1937, c. 188; 1939, c. 110.) 

Local Modification.— Cleveland : 1933, c. 110. 

§ 2-56. Securing bank deposits. — It shall be 
the duty of the clerk of the superior court of any 
county in the State to require of any bank or 
trust company, wherein he may deposit money 
placed with him in trust, a corporate surety bond 
in an amount sufficient to protect such deposits, 
but in lieu of such corporate surety bond, the 
clerk may require such bank to furnish bonds of 
85 ] 



CHAPTER 3. COMMISSIONERS OF AFFIDAVITS AND DEEDS 



the United States Government, North Carolina 
State bonds, or North Carolina county or munic- 
ipal bonds which have been approved by the 
Sinking Fund Commission; provided, however, 
that to the extent of the amount which may be 
insured by the federal deposit insurance corpora- 
tion or other federal agency insuring bank de- 
posits the said insurance shall be deemed and 
considered ample security, and the clerk of the 
superior court shall not require corporate surety 
bond or any of the bonds above specified for that 
amount of the deposit insured by deposit insur- 
ance. (1931, c. 281, s. 3; 1939, c. 86.) 

§ 2-57. Inspection of records by local govern- 
ment commission; report to solicitor of misman- 
agement). — The Local Government Commission, 
or its successors, is hereby authorized and em- 
powered to inspect the records of any clerk of the 
superior court in the State for the purpose of as- 
certaining that such clerk is complying with the 
requirements of §§ 2-54 to 2-60 and if, in the 
course of such inspection, it is found that such 
clerk has failed to comply with the requirements 
of §§ 2-54 to 2-60, it shall be the duty of the 
Local Government Commission, or its successors, 
to report such findings to the solicitor of the 
district in which the county is located and said 
solicitor shall proceed to prosecute as hereinafter 
provided. (1931, c. 281, s. 4; c. 60.) 

§ 2-58. Inspection and audit by county audi- 
tors or accountants; reports of audits. — It shall be 
the duty of the County Auditor or County Ac- 
countant of any county to inspect and audit the 



records and accounts of the Clerk of the Superior 
Court of the county for the purpose of ascertain- 
ing that such clerk is complying with the require- 
ments of §§ 2-54 to 2-60 and that such clerk 
is properly safeguarding and accounting for all 
funds of every nature and character which have 
come into his hands by virtue of his office; such 
audits to be made and a report thereof made by 
the County Auditor or County Accountant to the 
board of county commissioners of the county and 
to the Local Government Commission or such 
other governmental agency as shall succeed to 
the rights and duties of the Local Government 
Commission. (1931, c. 281, ss. 6, 60.) 

§ 2-59. Liquidation of present funds within 
year. — It shall be the duty of the clerk of the 
superior court of any county in the State, who 
shall :iave funds invested other than as provided 
for in §§ 2-54 to 2-60 to liquidate same with- 
in one year from the passage of §§ 2-54 to 
2-60: Provided, however, that upon approval of 
the resident judge of his district, the clerk may 
extend from time to time, the time for sale or col- 
lection of any such investments; that no one ex- 
tension shall be made to cover a period of more 
than one year from the time the extension is 
made. (1931, c. 281, s. 7.) 

§ 2-60. Violation of §§ 2-54 to 2-59 a misde- 
meanor. — The clerk of the superior court of any 
county in the State who shall have violated the 
provisions of §§ 2-54 to 2-59 shall be guilty of a 
misdemeanor, punishable by fine or imprisonment 
or both in the discretion of this court. (1931, c. 
281, s. 5.) 



Chapter 3. Commissioners of Affidavits and Deeds. 



Sec. 

5-1. Appointment by governor; term; oath. 

3-2. Record of appointments; certified copies evi- 
dence. 

3-3. List of appointments prepared and published 
by secretary of state. 



Sec. 

3-4. Published list conclusive. 

3-5. Powers of such commissioners. 

3-6. Fees of commissioners of affidavits. 

3-7. Powers of clerks of courts in other states. 

3-8. Clerks and notaries to take affidavits. 



§ 3-1. Appointment by governor; term; oath. 

— The governor is authorized to appoint and 
commission one or more commissioners in any 
foreign country, state or republic, and in such of 
the states of the United States, or in the Dis- 
trict of Columbia, or any of the territories, col- 
onies or dependencies as he may deem expedi- 
ent, who shall continue in office for two years 
from the date of their appointment, unless 
sooner removed by the governor. Before such 
commissioner proceeds to perform any duty by 
virtue of this chapter, he shall take and sub- 
scribe an oath before a justice of the peace in the 
city or county in which he resides well and faith- 
fully to execute and perform all the duties of 
such commissioner, according to the laws of 
North Carolina; which oath shall be filed in the 
office of the secretary of state. (Rev., ss. 926, 
927; Code, ss. 632, 633; C. S. 963.) 

§ 3-2. Record of appointments; certified copies 
evidence. — It is the duty of the governor to cause 
to be recorded by the secretary of state the 
names of the persons who are appointed and 

[ 



qualified as commissioners, and for what state, 
territory, county, city, or town; and the secre- 
tary of state, when the oath of the commissioner 
is filed in his office, shall forthwith certify the ap- 
pointment to the several clerks of the superior 
courts of the state, who shall record the certifi- 
cate of the secretary at length. All removals of 
commissioners by the governor, and the names 
of all commissioners whose commissions have 
expired by law, and which have not been renewed, 
shall be recorded and certified in like manner. A 
certified copy thereof from the clerk, or a certifi- 
cate of the appointment or removal aforesaid 
from the secretary of state, shall be sufficient evi- 
dence of the appointment or removal of such 
commissioner. (Rev., s. 928; Code, s. 634; C. S. 
964.) 

§ 3-3. List of appointments prepared and pub- 
lished by secretary of state. — The secretary of 
state shall prepare and cause to be printed in 
each volume of the public laws a list of all per- 
sons who since the preceding publication in the 
public laws have been appointed commissioners 
86 ] 



CHAPTER 4. COMMON LAW— CHAPTER 5. CONTEMPT 



of affidavits and to take the probate of deeds in 
any foreign country and in the several states and 
territories of the United States and in the Dis- 
trict of Columbia, under this chapter, setting 
forth the state, territory or district or foreign 
country for which such persons were appointed 
and the dates of their respective appointments 
and term of office; and he shall add to each of 
said lists a list of all those persons whose ap- 
pointments have been renewed, revoked, or have 
resigned, removed or died since the date of the 
list previously published, as far as the same may 
be known to him, with the dates of such revoca- 
tion, resignation, removal or death. (Rev., s. 
929; Code, ss. 635, 636, 637, 639; C. S. 965.) 

§ 3-4. Published list conclusive. — The list of 
commissioners so published in any volume of the 
public laws shall be conclusive evidence in all 
courts of the appointments therein stated, and of 
the dates thereof. (Rev., s. 930; Code, s. 638; C. 
S. 966.) 

§ 3-5. Powers of such commissioners. — The 
commissioners have authority to take the ac- 
knowledgment or proof of any deed, mortgage, 
or other conveyance of lands, tenements, or 
hereditaments lying in this state, and to take the 
private examination of married women, parties 
thereto, or any other writings to be used in this 
state. Such acknowledgment or proof, taken or 
made in the manner directed by the laws of this 
state, and certified by the commissioner, shall 
have the same force and effect for all purposes 
as if made or taken before any competent au- 
thority in this state. The commissioners also 



have full power and authority to administer an 
oath or affirmation to any person willing or de- 
sirous to make it before him, to take depositions, 
and to examine the witnesses under any commis- 
sion emanating from the courts of this state, re- 
lating to any cause depending or to be brought in 
said courts. Every deposition, affidavit, or af- 
firmation made before him is as valid as if taken 
before any proper officer in this state. (Rev., ss. 
926, 927; Code, ss. 632, 633; C. S. 967.) 

§ 3-6. Fees of commissioners of affidavits. — 

Commissioners of affidavits, and those who are 
authorized by law to act as such, shall receive the 
following fees, and no other, namely: for an 
affidavit taken and certified, forty cents; affixing 
his official seal, twenty-five cents. (Rev., s. 2796; 
Code, s. 3741; C. S. 3924.) 

§ 3-7. Powers of clerks of courts in other 

states. — Every clerk of a court of record in any 
other state has full power as a commissioner of 
affidavits and deeds as is vested in regularly ap- 
pointed commissioners of affidavits and deeds for 
this state. (Rev., s. 931; Code, s. 640; C. S. 968.) 

§ 3-8. Clerks and notaries to take affidavits. — 

The clerks of the supreme and superior courts 
and notaries public are authorized to take and 
certify affidavits to be used before any justice of 
the peace, judge or court of the state; and the af- 
fidavits so taken by a clerk shall be certified un- 
der the hands of the said clerk, and if to be used 
out of the county where taken, also under the 
seal of the court of which they are respectively 
clerks, and, if by a notary, under his notarial 
seal. (Rev., s. 925; Code, s. 631; C. S. 969.) 



Chapter 4. Common Law. 

Sec. 

4-1. Common law declared to be in force. 

§ 4-1. Common law declared to be in force. — of government therein established, and which has 

All such parts of the common law as were here- not been otherwise provided for in whole or in 

tofore in force and use within this state, or so part, not abrogated, repealed, or become obsolete, 

much of the common law as is not destructive of, are hereby declared to be in full force within this 

or repugnant to, or inconsistent with, the free- state. (Rev., s. 932; Code, s. 641; R. C, c. 22; 

dom and independence of this state and the form 1715, c. 5, ss. 2, 3; 1778, c. 133; C. S. 970.) 



Chapter 5. 



Sec. 

5-1. Contempts enumerated; common law re- 
pealed. 

5-2. Appeal from judgment of guilty. 

5-3. Solicitor or attorney-general to appear for the 
court. 

5-4. Punishment. 



Contempt. 

Sec. 

5-5. Summary punishment for direct contempt. 
5-6. Courts and officers empowered to punish. 
5-7. Indirect contempt; order to show cause. 
5-8. Acts punishable as for contempt. 
5-9. Trial of proceedings in contempt. 



§ 5-1. Contempts enumerated; common law re- ceedings, or to impair the respect due to its au- 

pealed. — Any person guilty of any of the follow- thority. 

ing acts may be punished for contempt: 2 . Behavior of the like character committed in 

1. Disorderly, contemptuous, or insolent be- the presence of any referee or referees, while 

havior committed during the sitting of any court actually engaged in any trial or hearing pursuant 

of justice, in immediate view and presence of the to the order of any court, or in the presence of 

court, and directly tending to interrupt its pro- any jury while actually sitting for the trial of a 

[87] 



§ 5-2 



CH. 5. CONTEMPT 



§ 5-8 



cause, or upon any inquest or other proceeding 
authorized by law. 

3. Any breach of the peace, noise or other dis- 
turbance directly tending to interrupt the pro- 
ceedings of any court. 

4. Willful disobedience of any process or order 
lawfully issued by any court. 

5. Resistance willfully offered by any person 
to the lawful order or process of any court. 

6. The contumacious and unlawful refusal of 
any person to be sworn as a witness, or, when so 
sworn, the like refusal to answer any legal and 
proper interrogatory. 

7. The publication of grossly inaccurate re- 
ports of the proceedings in any court, about any 
trial, or other matter pending before said court, 
made with intent to misrepresent or to bring into 
contempt the said court; but no person can be pun- 
ished as for a contempt in publishing a true, full 
and fair report of any trial, argument, decision or 
proceeding had in court. 

8. Misbehavior of any officer of the court in 
any official transaction. 

The several acts, neglects and omissions of 
duty, malfeasances, misfeasances, and nonfeas- 
ances, above specified and described, shall be the 
only acts, neglects and omissions of duty, mal- 
feasances, misfeasances and nonfeasances which 
shall be the subject of contempt of court. And if 
there are any parts of the common law now in 
force in this state which recognized other acts, 
neglects, omissions of duty, malfeasances, mis- 
feasances and nonfeasances besides those speci- 
fied and described above, the same are hereby re- 
pealed and annulled. (Rev., s. 939; Code, s. 648; 
1905, c. 449; C. S. 978.) 

§ 5-2. Appeal from judgment of guilty. — Any 

person adjudged guilty of contempt under the 
preceding section has the right to appeal to 
the supreme court in the same manner as is 
provided for appeals in criminal actions, except 
for the contempts described and defined in sub- 
sections one, two, three, and six. Nor shall the 
right of appeal lie under subsections four and five 
if such contempt is committed in the presence of 
the court. (Rev., s. 939; Code, s. 648; 1905, c. 449; 
C. S. 979.) 

§ 5-3. Solicitor or attorney-general to appear 
for the court. — In all cases where a rule for con- 
tempt is issued by any court, referee, or other of- 
ficer, the solicitor shall appear for the court or 
other officer issuing the rule, and in case of ap- 
peal to the supreme court, the attorney-general 
shall appear for the court or other officer by 
whom the rule was issued. (Rev., s. 939; Code, 
s. 648; 1905, c. 449; C. S. 980.) 

§ 5-4. Punishment. — Punishment for contempt 
for matters set forth in the preceding sections 
shall be by fine not to exceed two hundred and 
fifty dollars, or imprisonment not to exceed 
thirty days, or both, in the discretion of the 
court. (Rev., s. 940; Code, s. 649; C. S. 981.) 

§ 5-5. Summary punishment for direct con- 
tempt. — Contempt committed in the immediate 
view and presence of the court may be punished 
summarily, but the court shall cause the particu- 
lars of the offense to be specified on the record, 
and a copy of the same to be attached to every 

I 



committal, attachment or process in the nature 
of an execution founded on such judgment or 
order. (Rev., s. 941; Code, s. 650; C. S. 982.) 

§ 5-6. Courts and officers empowered to pun- 
ish. — Every justice of the peace, referee, com- 
missioner, clerk of the superior court, inferior 
court, criminal court, or judge of the superior 
court, or justice of the supreme court, or board of 
commissioners of each county, or the utilities 
commission, has power to punish for contempt 
while sitting for the trial of causes or engaged in 
official duties. (Rev., s. 942; Code, ss. 651, 652; 
1933, c. 134, s. 8; 1941, c. 97; C. S. 983.) 

§ 5-7. Indirect contempt; order to show cause. 
— When the contempt is not committed in the 
immediate presence of the court, or so near as to 
interrupt its business, proceedings thereupon 
shall be by an order directing the offender to ap- 
pear, within reasonable time, and show cause why 
he should not be attached for contempt. At the 
time specified in the order the person charged 
with the contempt may appear and answer, and, 
if he fail to appear and show good cause why he 
should not be attached for the contempt charged, 
he shall be punished as provided in this chapter. 
(Rev., s. 943; Code, s. 653; C. S. 984.) 

§ 5-8. Acts punishable as for contempt. — 
Every court of record has power to punish as for 
contempt when the act complained of was such 
as tended to defeat, impair, impede, or prejudice 
the rights or remedies of a party to an action 
then pending in court — 

1. Any clerk, sheriff, register, solicitor, attor- 
ney, counselor, coroner, constable, referee, or any 
other person in any manner selected or appointed 
to perform any ministerial or judicial service, fort 
any neglect or violation of duty or any miscon- 
duct by which the rights or remedies of any 
party in a cause or matter pending in such court 
may be defeated, impaired, delayed, or prejudiced, 
for disobedience of any lawful order of any court 
or judge, or any deceit or abuse of any process or 
order of any such court or judge. 

2. Parties to suits, attorneys, and all other per- 
sons for the nonpayment of any sum of money 
ordered by such court, in cases where execution 
cannot be awarded for the collection of the same. 

3. All persons for assuming to be officers, at- 
torneys or counselors of the court, and acting as 
such without authority, for receiving any prop- 
erty or person which may be in custody of any 
officer by virtue of any order or process of the 
court, for unlawfully detaining any witness or 
party to any suit, while going to, remaining at, or 
returning from the court where the same may be 
set for trial, or for the unlawful interference with 
the proceedings in any action. 

4. All persons summoned as witnesses in re- 
fusing or neglecting to obey such summons to at- 
tend, be sworn, or answer, as such witness. 

5. Parties summoned as jurors for impropriety, 
conversing with parties or others in relation to 
an action to be tried at such court or receiving 
communication therefrom. 

6. All inferior magistrates, officers and tri- 
bunals for disobedience of any lawful order of the 
court, or for proceeding in any matter or cause 
contrary to law, after the same shall have been re- 
moved from their jurisdiction. 

8] 



CHAPTER 6. COSTS 



7. All other cases where attachments and pro- 
ceedings as for contempt have been heretofore 
adopted and practiced in courts of record in this 
state to enforce the civil remedies or protect the 
rights of any party to an action. (Rev., s. 944; 
Code, ss. 654, 656; C. S. 985.) 

§ 5-9. Trial of proceedings in contempt. — Pro- 
ceedings as for contempt shall be prosecuted and 
carried on as provided in provisional remedies. In 
all proceedings for contempt and in proceedings 
as for contempt, the judge or other judicial officer 
who issues the rule or notice to the respondent 
may make the same returnable before some other 



judge or judicial officer. When the personal 
conduct of the judge or other judicial officer or 
his fitness to hold his judicial position is involved, 
it is his duty to make the rule or notice returnable 
before some other judge or officer. Nothing 
herein contained shall apply to any act or con- 
duct committed in the presence of the court 
and tending to hinder or delay the due adminis- 
tration of the law, nor to proceedings for the 
disobedience of a judicial order rendered in any 
pending action. (Rev., s. 945; Code, s. 655; 1915, 
c. 4; C. S. 986.) 



Chapter 6. Costs. 



Art. 1. Generally. 



Sec. 
6-1. 
6-2. 
6-3. 

6-4. 



6-5. 


6-6. 


6-7. 


6-8. 


6-9. 


6-10. 


6-11. 


6-12. 



6-13. 

6-14. 
6-15. 
6-16. 

6-17. 

6-18. 
6-19. 

6-20. 
6-21. 

6-22. 
6-23. 

6-24. 

6-25. 

6-26. 
6-27. 

6-28. 

6-29, 
6-30. 

6-31. 



Items allowed as costs. 

Summary judgment for official fees. 

Sureties on prosecution bonds liable for 
costs. 

Execution for unpaid fees; itemized bill of 
costs to be annexed. 

Jurors' tax fees. 

In criminal cases, not demandable in ad- 
vance. 

Clerk to state in detail in entry of judgment. 

Clerk to itemize bills of criminal costs; ap- 
proval of solicitor. 

Justice required to itemize costs. 

Justice of the peace refusing to furnish bill 
of costs. 

Bills of costs open to the public. 
Clerks to tax solicitors fees; paid to school 
fund. 

Art. 2. When State Liable for Costs. 

Civil actions by the state; joinder of private 
party. 

Civil action by and against state officers. 

Actions by state for private persons, etc. 

Costs of county in certain bribery prosecu- 
tions to be a charge against state. 

Costs of state on appeals to federal courts. 

Art. 3. Civil Actions and Proceedings. 

When costs allowed as of course to plaintiff. 

When costs allowed as of course to defend- 
ant. 

Costs allowed or not, in discretion of court. 

Costs allowed either party or apportioned in 
discretion of court. 

Petitioner to pay costs in certain cases. 

Defendant unreasonably defending after no- 
tice of no personal claim to pay costs. 

Suits in forma pauperis; no costs unless re- 
covery. 

Party seeking recovery on usurious con- 
tracts; no costs. 

Costs in special proceedings. 

Fees and disbursements in supplemental pro- 
ceedings. 

Costs of laying off homestead and exemp- 
tion. 

Costs of reassessment of homestead. 

Costs against infant plaintiff; guardian re- 
sponsible. 

Costs where executor, administrator, trustee 

[8' 



Sec. 

of express trust, or person authorized by 

statute a party. 
6-32. Costs against assignee after action brought. 

Art. 4. Costs on Appeal. 

6-33. Costs on appeal generally. 

6-34. Costs of transcript on appeal taxed in su- 
preme court. 

6-35. Costs on appeal from justices of the peace. 

Art. 5. Liability of Counties in Criminal Actions. 

6-36. County to pay costs in certain cases; if ap- 
proved, audited and adjudged. 

6-37. Local modification as to counties paying 
costs. 

6-38. Liability of county when defendant acquit- 
ted in supreme court. 

6-39. County where offense committed liable for 
costs. 

6-40. Liability of counties, where trial removed 
from one county to another. 

6-41. Statement of costs against county to be filed 
with commissioners. 

6-42. Expenses in conveying prisoner to another 
county; provision for payment. 

6-43. Cost of investigating lynchings. 

6-44. Costs due credited on taxes due by payee. 

Art. 6. Liability of Defendant in Criminal Actions. 

6-45. Costs against defendant convicted, confess- 
ing, or submitting. 

6-46. Defendant imprisoned not discharged until 
costs paid. 

6-47. Judgment confessed; bond given to secure 
fine and costs. 

6-48. Arrest for nonpayment of fine and costs. 

Art. 7. Liability of Prosecutor for Costs. 

. Prosecutor liable for costs in certain cases; 
court determines prosecutor. 
Imprisonment of prosecutor for nonpayment 
of costs, if prosecution frivolous. 

Art. 8. Fees of Witnesses. 

6-51. Not entitled to fees in advance. 

6-52. Fees and mileage of witnesses. 

6-53. Witness to prove attendance; action for fees. 

6-54. Witness tickets to be filed; only two wit- 
nesses for single fact. 

6-55. Fees of witnesses before jury of view, com- 
missioner, etc. 

6-56. Fees of witnesses before grand jury 

n 



6-49 
6-50 



§ 6-1 



CH. 6. COSTS— GENERALLY 



§ 6-9 



Sec. 
6-57. 
6-58. 

6-59. 

6-60. 

6-61. 

6-62. 



Pay of state's witnesses. 

County to pay state's witnesses in certain 
cases. 

County to pay defendant's witnesses in cer- 
tain cases. 

Fees of state witnesses; two only in misde- 
meanors; one fee for day's attendance. 

On appeal from justice only two witnesses 
bound over. 

Solicitor to announce discharge of state's 
witnesses. 



Sec. 

6-63. Witnesses not paid without certificate; 
court's discretion. 

Art. 9. Criminal Costs before Justices, Mayors, 
County or Recorder's Courts. 

6-64. Liability for criminal costs before justice, 
mayor, county or recorder's court. 

6-65. Imprisonment of defendant for nonpayment 
of fine and costs. 



Art. 1. Generally. 
§ 6-1. Items allowed as costs. — To either party 
for whom judgment is given there shall be al- 
lowed as costs his actual disbursements for fees 
to the officers, witnesses, and other persons en- 
titled to receive the same. (Rev., s. 1249; Code, 
S. 528; C. S. 1225.) 

§ 6-2. Summary judgment for official fees. — If 

any officer, to whom fees are payable by any 
person, fails to receive them at the time the serv- 
ice is performed, he may have judgment therefor 
on motion to the court in which the action is or 
was pending, upon twenty days' notice to the per- 
son to be charged, at any time within one year 
after the termination of the action in which the 
same was performed. If the motion for judg- 
ment be in behalf of the clerk of the superior 
court, it shall be made to the judge of the court 
in or out of term. (Rev., s. 1250; Code, s. 3760; 
1868-9, c. 279, s. 561; C. S. 1226.) 

§ 6-3. Sureties on prosecution bonds liable for 
costs. — When an action is brought in any court 
in which security is given for the prosecution 
thereof, or when any case is brought up to a 
court by an appeal or otherwise, in which 
security for the prosecution of the suit has been 
given, and judgment is rendered against the plain- 
tiff for the costs of the defendant, the appellate 
court shall also give judgment against the surety 
for said costs, and execution may issue jointly 
against the plaintiff and his surety. (Rev., s. 1251; 
Code, s. 543; R. C, c. 31, s. 126; R. S., c. 31, s. 
133; 1831, c. 46; 1913, c. 189, s. 1; C. S. 1227.) 

§ 6-4. Execution for unpaid fees; itemized bill 
of costs to be annexed — The clerks of the su- 
preme, superior and criminal courts, where suits 
are determined and the fees are not paid by the 
party from whom they are due, shall sue out exe- 
cutions, directed to the sheriff of any county in 
the state, who shall levy them as in other cases; 
and to the said execution shall be annexed a bill 
of costs, written in words so as plainly to show 
each item of costs and on what account it is 
taxed; and all executions for costs, issuing with- 
out such a bill annexed, shall be deemed irregular, 
and may be set aside as to the costs, at the returr: 
term, at the instance of him against whom it is 
issued. (Rev., s. 1252; Code, s. 3762; R. C, c. 102, 
s. 24; C. S. 1228.) 

§ 6-5. Jurors' tax fees. — On every indictment 
or criminal proceeding, tried or otherwise dis- 
posed of in the superior or criminal courts, the 
party convicted, or adjudged to pay the costs, 
shall pay a tax of four dollars. In every civil ac- 
tion in any court of record the party adjudged to 
pay the costs shall pay a tax of five dollars; but 



this tax shall not be charged unless a jury shall 
be impaneled. Said tax fees shall be charged by 
the clerk in the bill of costs, and collected by the 
sheriff, and by him paid into the county treasury. 
And the fund thus raised in any county shall be 
set apart for the payment of the jurors attending 
the courts thereof. (Rev., s. 1253; Code, s. 732; R. 
C, c. 28; 1830, c. 1; 1879, c. 325; 1881, c. 249; 
1905, c. 348; 1909, c. 1; 1919, c. 319; C. S. 1229.) 
Local Modification. — Harnett: 1933, c. 75, s. 1(c); Wayne: 
1927, c. 156; 1937, c. 120; 1941, c. 88. 

§ 6-6. In criminal cases, not demandable in 
advance. — In all cases of criminal complaints be- 
fore justices of the supreme court, judges of the 
superior and criminal courts, justices of the peace 
and other magistrates having jurisdiction of such 
complaints, the officers entitled by law to receive 
fees for issuing or executing process are not en- 
titled to demand them in advance. Such officers 
shall indorse the amounts of their respective fees 
on every process issued or executed by them, and 
return the same to the court to which it is re- 
turnable. (Rev., s. 1254; Code, s. 1173; 1868-9, 
c. 178, subch. 3, s. 40; C. S. 1230.) 

§ 6-7. Clerk to state in detail in entry of judg- 
ment. — The clerk shall insert in the entry of judg- 
ment the allowances for costs allowed by law, and 
the necessary disbursements, including the fees 
of officers and witnesses, and the reasonable com- 
pensation of referees and commissioners in taking 
depositions. The disbursements shall be stated 
in detail. When it is necessary to adjust costs in 
any interlocutory proceedings, or in any special 
proceedings, the same shall be adjusted by the 
clerk of the court to which the proceedings were 
returned, except in those matters in which the 
allowance is required to be made by the judge. 
(Rev., s. 1255; Code, s. 532; C. S. 1231.) 

§ 6-8. Clerk to itemize bills of criminal costs; 
approval of solicitor. — It is the duty of the clerks 
of the several courts of record, at each term of 
the court, to make up an itemized statement of 
the bill of costs in every criminal action tried or 
otherwise disposed of at said term, which shall 
be signed by the clerk and approved by the solic- 
itor. (Rev., s. 1256; Code, s. 733; 1873-4, c. 110; 
1879, c. 264; C. S. 1232.) 
Local Modification.— Harnett : 1933, c. 75, s. 3. 

§ 6-9. Justice required to itemize costs. — In all 

trials before justices of the peace any party, 
plaintiff or defendant, may demand of the justice 
of the peace before whom the trial is held an 
itemized statement of the costs of the action. Up- 
on such demand it shall be the duty of the justice 
to furnish the statement demanded. No person 
shall be compelled to pay any cost in any trial be- 
fore a justice of the peace until an itemized state- 



90 ] 



§ 6-10 



CH. 6. COSTS— WHEN STATE LIABLE FOR COSTS 



§ 6-17 



ment of the costs has been made out and given to 
the party charged. It shall be the duty of the 
justice to insert in the entry of the judgment in 
every criminal action tried or otherwise disposed 
of by him a detailed statement of the different 
items of cost, and to whom due. (Rev., ss. 1257, 
2789; Code, s. 734; 1887, c. 297; C. S. 1233.) 

§ 6-10. Justice of the peace refusing to furnish 
bill of costs. — If any justice of the peace before 
whom any trial is held shall refuse to furnish an 
itemized bill of costs, when demanded by the 
plaintiff or defendant, he shall be guilty of a 
misdemeanor, and upon conviction shall be pun- 
ished at the discretion of the court. (Rev., s. 
3588; Code, s. 734; 1887, c. 297; C. S. 1234.) 

§ 6-11. Bills of costs open to the public. — Every 
bill of costs shall at all times be open to the in- 
spection of any person interested therein. (Rev., 
s. 1258; Code, s. 735; 1873-4, c. 116; C. S. 1235.) 

§ 6-12. Clerks to tax solicitors fees; paid to 
school fund. — The clerks of the superior courts of 
the several counties of the state shall, in comput- 
ing bills of costs in criminal cases, tax against the 
party convicted the solicitors fees hereinafter set 
forth. The solicitors fees shall be collected by the 
clerks and paid into the school funds of the re- 
spective counties: Provided, that no such fees 
which are now required by law to be paid by the 
county shall be taxed in the bills of costs, nor 
shall any such fees be taxed in said bills of costs 
in cases where the defendants are assigned to 
work on the public roads of the state, or on any 
county properties. 

The solicitors fees are as follows: 

(a) For every conviction under an indictment 
charging a capital crime, whether by plea or 
verdict, forty dollars. 

(b) For perjury, forgery, passing or attempting 
to pass or sell any forged or counterfeited paper, 
or evidence of debt; maliciously injuring or at- 
tempting to injure any railroad or railroad car, or 
any person traveling on such railroad car; stealing 
or obliterating records; maliciously burning or at- 
tempting to burn houses or bridges; seduction; 
slander of an innocent woman, and embezzlement; 
breaking into houses otherwise than burglariously; 
assault with intent to commit rape; larcenies from 
the person; false pretense, and secret assault; in 
each of the above cases, twenty dollars. 

(c) For larceny, receiving stolen goods, frauds, 
maims, deceits, escapes, and other felonies, fifteen 
dollars. 

(d) For disturbing religious and other public 
meetings; for all violations of the prohibition law 
as to intoxicating liquors and narcotics; for forni- 
cation and adultery and resisting an officer, twelve 
dollars. 

(e) For all other offenses, eight dollars. 

No larger fee than ten dollars shall be taxed for 
the solicitor in an indictment against the justices 
of the peace of any county, as justices, when there 
are more than three justices who are found guilty. 

The solicitors of the several judicial districts 
and criminal courts shall prosecute all penalties 
and forfeited recognizances entered in their courts 
respectively, and a sum to be fixed by the court, 
not to exceed ten per centum of the amount col- 
lected upon such penalty or forfeited recognizance, 
shall be taxed in such prosecutions. 

[91 



For the performance of the solicitors duties for 
the appointment of a receiver of an estate of a 
minor, there shall be taxed a sum to be fixed by 
the judge, not to exceed ten dollars; for passing 
on the returns of the receiver in such cases, where 
the estate of the infant does not exceed five hun- 
dred dollars, a sum not to exceed five dollars, and 
where the estate exceeds five hundred dollars, a 
sum to be fixed by the judge, not to exceed ten 
dollars; and in each case such sums taxed shall be 
paid out of the fund. (Rev., s. 2768; Code, s. 3737; 
1873-4, c. 170; 1885, c. 130; 1895, c. 14; 1901, c. 4, 
s. 5; 1915, c. 86; Ex. Sess. 1920, c. 97; Ex. Sess. 
1921, c. 75; 1923, c. 157; C. S. 1235(a), 3891.) 

Art. 2. When State Liable for Costs. 

§ 6-13. Civil actions by the state; joinder of 
private party. — In all civil actions prosecuted 
in the name of the state, by an officer duly au- 
thorized for that purpose, the state shall be liable 
for costs in the same cases and to the same ex- 
tent as private parties. If a private person be 
joined with the state as plaintiff, he shall be liable 
in the first instance for the defendant's costs, 
which shall not be recovered of the state till after 
execution is issued therefor against such private 
party and returned unsatisfied. (Rev., s. 1259; 
Code, s. 536; C. S. 1236.) 

§ 6-14. Civil action by and against state officers. 
— In all civil actions depending, or which may be 
instituted, by any of the officers of the state, or 
which have been or shall be instituted against 
them, when any such action is brought or de- 
fended pursuant to the advice of the attorney- 
general, and the same is decided against such 
officers, the cost thereof shall be paid by the 
state treasurer upon the warrant of the auditor 
for the amount thereof as taxed. (Rev., s. 1260; 
Code, s. 3373; 1874-5, c. 154; C. S. 1237.) 

§ 6-15. Actions by state for private persons, 
etc. — In an action prosecuted in the name of the 
state for the recovery of money or property, or 
to establish a right or claim for the benefit of any 
county, city, town, village, corporation or person, 
costs awarded against the plaintiff shall be a 
charge against the party for whose benefit the ac- 
tion was prosecuted, and not against the state. 
(Rev., s. 1261; Code, s. 537; C. S. 1238.) 

§ 6-16. Costs of county in certain bribery 
prosecutions to be a charge against state. — The 
expenses incurred by any county in investigating 
and prosecuting any charge of bribery or attempt 
to bribe any state officer or member of the gen- 
eral assembly within said county, and of receiv- 
ing bribes by any state officer or member of the 
general assembly in said county, shall be a charge 
against the state, and the properly attested claim 
of the county commissioners shall be paid by the 
treasurer of the state. (Rev., s. 1262; Code, s. 
742; 1868-9, c. 176, s. 6; 1874-5, c. 5; C. S. 1239.) 

§ 6-17. Costs of state on appeals to federal 
courts. — In all cases, whether civil or criminal, to 
which the state of North Carolina is a party, and 
which are carried from the courts of this state, or 
from the district court of the United States, by 
appeal or writ of error, to the United States cir- 
cuit court of appeals, or to the supreme court of 
the United States, and the state is adjudged to 



§ 6-18 



CH. 6. COSTS— CIVIL ACTIONS AND PROCEEDINGS 



§ 6-24 



pay the costs, it is the duty of the attorney-gen- 
eral to certify the amount of such costs to the 
auditor, who shall thereupon issue a warrant for 
the same, directed to the treasurer, who shall pay 
the same out of any moneys in the treasury not 
otherwise appropriated. (Rev., s. 1263; Code, s. 
538; 1871-2, c. 26; C. S. 1240.) 

Art. 3. Civil Actions and Proceedings. 

§ 6-18. When costs allowed as of course to 
plaintiff. — Costs shall be allowed of course to the 
plaintiff, upon a recovery, in the following cases: 

1. In an action for the recovery of real prop- 
erty, or when a claim of title to real property 
arises on the pleadings, or is certified by the court 
to have come in question at the trial. 

2. In an action to recover the possession of per- 
sonal property. 

3. In actions of which a court of a justice of the 
peace has no jurisdiction, unless otherwise pro- 
vided by law. 

4. In an action for assault, battery, false im- 
prisonment, libel, slander, malicious prosecution, 
criminal conversation or seduction, if the plain- 
tiff recovers less than fifty dollars damages, he 
shall recover no more costs than damages. 

5. When several actions are brought on one 
bond, recognizance, promissory note, bill of ex- 
change or instrument in writing, or in any other 
case, for the same cause of action against several 
parties who might have been joined as defend- 
ants in the same action, no costs other than dis- 
bursements shall be allowed to the plaintiff in 
more than one of such actions, which shall be at 
his election, provided the party or parties pro- 
ceeded against in such other action or actions were 
within the state and not secreted at the com- 
mencement of the previous action or actions. 
(Rev., s. 1264; Code, s. 525; 1874-5, c. 119; R. C, 
c. 31, s. 78; C. S. 1241.) 

§ 6-19. When costs allowed as of course to de- 
fendant. — Costs shall be allowed as of course to 
the defendant, in the actions mentioned in the 
preceding section, unless the plaintiff be entitled 
to costs therein. In all actions where there are 
several defendants not united in interest, and mak- 
ing separate defenses by separate answers, and the 
plaintiff fails to recover judgment against all, the 
court may award costs to such of the defendants 
as have judgment in their favor or any of them. 
(Rev., s. 1266; Code, ss. 526, 527; C. C. P., s. 277; 
C. S. 1242.) 

§ 6-20. Costs allowed or not, in discretion of 
court. — In other actions, costs may be allowed or 
not, in the discretion of the court, unless other- 
wise provided by law. (Rev., s. 1267; Code, s. 
527; C. S. 1243.) 

§ 6-21. Costs allowed either party or appor- 
tioned in discretion of court. — Costs in the follow- 
ing matters shall be taxed against either party, 
or apportioned among the parties, in the discre- 
tion of the court: 

1. Application for year's support, for widow or 
children. 

2. Caveats to wills. 

3. Habeas corpus; and the court shall direct 
what officer shall tax the costs thereof. 

4. In actions for divorce or alimony; and the 

[92 



court may both before and after judgment make 
such order respecting the payment of such costs 
as may be incurred by the wife, either by the hus- 
band or by her from her separate estate, as may 
be just. 

5. Application for the establishment, alteration 
or discontinuance of a public road, cartway or 
ferry. The board of county commissioners may 
order the costs incurred before them paid in their 
discretion. 

6. The compensation of referees and commis- 
sioners to take depositions. 

7. All costs and expenses incurred in special 
proceedings for the division or sale of either real 
estate or personal property under the chapter en- 
titled Partition. 

8. In all proceedings under the chapter entitled 
Drainage, except as therein otherwise provided. 

9. In proceedings for reallotment of homestead 
for increase in value, as provided in the chapter, 
Civil Procedure. 

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; C. S. 1244.) 

Local Modification.— Nash: 1939, c. 46; 1941, c. 18. 

§ 6-22. Petitioner to pay costs in certain cases. 
— The petitioner shall pay the costs in the follow- 
ing proceedings: 

1. In petitions for draining or damming low- 
lands. 

2. In petitions for condemnation of water mill- 
sites when the petitioner is allowed to erect the 
mill; but when he is not allowed to erect the mill, 
the costs shall be paid by the person who is al- 
lowed to do so. 

3. In petitions for condemnation of land for 
railroads, street railways, telegraph, telephone or 
electric power or light companies, or for water 
supplies for public institutions, or for the use of 
other quasi-public or municipal corporations; un- 
less in the opinion of the superior court the de- 
fendant improperly refused the privilege, use or 
easement demanded, in which case the costs must 
be adjudged as to the court may appear equitable 
and just. 

4. When the petition is refused. (Rev., s. 1269; 
Code, ss. 1299, 1855, 2013; 1893, c. 63; 1903, c. 
562; C. S. 1245.) 

§ 6-23. Defendant unreasonably defending after 
notice of no personal claim to pay costs. — In case 
of a defendant, against whom no personal claim is 
made, the plaintiff may deliver to such defendant 
with the summons, a notice subscribed by the 
plaintiff or his attorney, setting forth the general 
object of the action, a brief description of the 
property affected by it, if it affects real or per- 
sonal property, and that no personal claim is 
made against such defendant. If a defendant on 
whom such notice is served unreasonably defends 
the action, he shall pay costs to the plaintiff. 
(Rev., s. 1270; Code, s. 216; C. S. 1246.) 

§ 6-24. Suits in forma pauperis; no costs unless 
recovery. — When any person sues as a pauper, 
no officer shall require of him any fee, and he 
shall recover no costs, except in case of recovery 

] 



§ 6-25 



CH. 6. COSTS— COUNTY LIABILITY 



§ 6-37 



by him. (Rev., s. 1265; Code, s. 212; 1895, c. 149; erty of a person not a party to the action such 

1868-9, c. 96, s. 3; C. S. 1247.) person shall be liable for the costs in the' same 

§ 6-25. Party seeking recovery on usurious con- rn anner as if he were a party. (Rev., s. 1278; 

tracts; no costs.— No costs shall be recovered by ^ ode > s - 539 ; C. S. 1255.) 



any party, whether plaintiff or defendant, who 
may endeavor to recover upon any usurious con- 
tract. (Rev., s. 1271; 1895, c. 69; C. S. 1248.) 

§ 6-26. Costs in special proceedings. — The costs 



Art. 4. Costs on Appeal. 

§ 6-33. Costs on appeal generally.— On an ap- 
peal from a justice of the peace to a superior 
, . . court, or from a superior court or a judge 

in spe C1 al proceedings shall be as allowed in civil thereof to the supreme court . f the J ,, * t 

nod.li recover tne costs of the appellate court 

§ 6-27. Fees and disbursements in supplemental and those he ought to have recovered below 

proceedings. — The court or judge may allow to had the judgment of that court been correct, 

the judgment creditor, or to any party examined and also restitution of any costs of the court ap- 

in proceedings supplemental to execution, whether pealed from which he has paid under the errone- 

a party to the action or not, witnesses' fees and ous judgment of 'such court. If in any court oi 

disbursements. (Rev., s. 1273; Code, s. 499; C. appeal there is judgment for a new trial, or for 

C. P., s. 273; C. S. 1250.) a new jury, or if the judgment appealed 'from is 

§ 6-28. Costs of laying off homestead and ex- "°' , wh ?" y ffi feV f 8 2?' but partly affirmed and 

emption.-The costs and expenses of appraising ^etL nf^l ' th ,? f costs "^ ^ " the d,S - 

and laying off the homestead or personal prop- Code s. 540 C Sl""^ C ° Urt (ReV - S " 1279; 

erty exemptions, when the same is made under ' '' 

execution, shall be charged and included in the § 6_ 34. Costs of transcript on appeal taxed in 

officer's bill of fees upon such execution or other supreme court. — When an appeal is taken from 

final process; and when made upon the petition of tne superior court to the supreme court, the clerk 

the owner, they shall be paid by such owner, and of the superior court, when he sends up the trans- 

the latter costs shall be a lien on said homestead. cn Pt, shall send therewith an itemized statement 

(Rev., s. 1274; Code, s. 510; C. S. 1251.) of the costs of making up the transcript on ap- 

§ 6-29. Costs of reassessment of homestead— ??& a " d * he , co t s u ts thereof sha » b e taxed as a part 

If the superior court at term shall confirm the ap- JJoa J c. 456- C '57 C ° Urt (ReV - S " 1280; 

praisal or assessment, or shall increase the ex- ' < • ■ .) 

emption allowed the debtor or claimant, the levy § 6-35. Costs on appeal from justices of the 

shall stand only upon the excess remaining, and peace.— 1. After an appeal from the judgment of 

the creditor shall pay all the costs of the pro- a justice of the peace is filed with a clerk of a 

ceeding in court. If the amount allowed the debtor superior court, the costs in all subsequent stages 

or claimant is reduced, the costs of the pro- shall be as herein provided for actions originally 

ceeding in court shall be paid by the debtor or brought to the superior court. 

claimant, and the levy shall cover the excess then 2. If, on appeal from a justice of the peace 

remaining. (Rev., s. 1275; Code, s. 521; C. S. judgment is entered for the plaintiff, and he shali 

1252 -) not recover on his appeal a greater sum than was 

§ 6-30. Costs against infant plaintiff; guardian rec °vered before the justice, besides interest ac- 

responsible.— When costs are adjudged against C f U f. Slnce the rendition of the judgment, he 

an infant plaintiff, the guardian by whom he ap- , . " ot recov er the costs of the appeal, but shall 

peared in the action shall be responsible therefor. _„ ^„ at the discretion of the court to pay the 



same. (Rev., ss. 1281, 1282; Code, ss. 542, 566- 
R. U, C. 31, s. 106; 1794, c. 414, s. 17; C. S. 1258.) 



(Rev., s. 1276; Code, s. 534; C. S. 1253.) 

§ 6-31. Costs where executor, administrator, 

trustee of express trust, or person authorized by Art. 5 - Liability of Counties in Criminal Actions 
statute a party. — In an action prosecuted or de- & c.qc rmmt,, +~ ~„ j. ■ 

fended hv an executor administrator trusts of j bounty to pay costs in certain cases; if 

tended by an executor, administrator, trustee oi approved, audited and adjudged —If there 

an express trust, or a person expressly author- prosecutor in a criminal action, anr the defendant 

ized by statute, costs shall be recovered as in an is acquitted) or evicted and unable to pay the 

action by and against a person prosecuting or de- costs or a nnii. ^ ,-„<.«>„ • • , . p y 

fending in his own right; but such costs fhall be arreted th countv 3 " ^ °f JUd u gment 

chargeable only upon or collected out of the constables ,S ? f *? ^^ ^"^ 

party represented, unless the f™ .f fee's- excen w>tnesses one-half their 

„__ ^ u :.t u.. iL . _,_•_..•/! lawtul tees, except in capital cases and in prose- 
cutions for forgery, perjury, or conspiracy, whe 



estate, fund or 

court directs the same to be paid by the plaintiff 

or defendant, personally, for mismanagement or thpv ck-TlT'.. n 

t, 1 c -it. • u i.- 1 j- a j , ey sna11 receive fun fees. No countv shall n5 „ 

bad faith in such action or defense. And when *„„ „„„i» __„ A . . UUIIly snaI1 Pay 



uau lawi in sucn acnon or aeiense. Ana wnen anv a„ r u . Acfc „„i»„ <.. ' ■ J 

1 • • 4. 1 j <■ 1 y sucn costs unless the same are aonrovprl m, 

any claim against a deceased person is referred, dited and adJnrl™,, »~*i * X approved, au- 

the prevailing party shall be entitled to recover t^£^^ a .^£?*&£ *£«*£ 



the fees of referees and witnesses, and other nec- 
essary disbursements, to be taxed according to 
law. (Rev., s. 1277; Code, s. 535; C. S. 1254.) 

§ 6-32. Costs against assignee after action c - 183; Swain: 1935, c. 210. 
brought.— In actions in which the cause of action § 6-37. Local modification 
becomes by assignment after the commencement ing costs.— In the following c 
of the action, or in any other manner, the prop- shall pay one-half the fees specified when "not a 

[93] 



739; R. C, c. 28, s. 8; R. S., c. 28, s. 1 
247; C. S. 1259.) ' ' C ' 

Local Modification.-Hertford: 1933, c. 68; Johnston: 1939, 

as to counties pay- 



§ 6-38 



CH. 6. COSTS— COUNTY LIABILITY 



§ 6-42 



true bill" is found: Alexander, Alleghany, Ashe, 
Avery, Bertie, Brunswick, Burke, Caldwell, Cas- 
well, Catawba, Chatham, Clay, Craven, Davie, 
Duplin, Gaston, Granville, Greene, Guilford, 
Haywood, Henderson, Iredell, Jackson, John- 
ston, Jones, Lenoir, Lincoln, Macon, Madi- 
son, McDowell, Mecklenburg, Mitchell, Mont- 
gomery, Northampton, Onslow, Orange, Pamlico, 
Pender, Person, Pitt, Polk, Richmond, Robeson, 
Rowan, Rutherford, Sampson, Scotland, Stanly, 
Stokes, Surry, Swain, Transylvania, Wake, Wa- 
tauga, Wilkes, Yadkin, Yancey. Provided, that 
Haywood County shall only be liable for one-half 
fee to clerks, constables and sheriffs serving 
process. (Rev., s. 1283; Code, ss. 733, 739; 1907, 
cc. 94, 162, 208, 606, 627, 695; 1909, cc. 50, 107; 
Pub. Loc. 1911, cc. 76, 167; Pub. Loc. 1915, c. 22; 
1931, cc. 135, 187; 1933, c. 366; C. S. 1260.) 

In Bladen County, where in a criminal pro- 
ceeding before the grand jury a "true bill" is not 
found, the county shall pay one-half fees to 
clerks, sheriffs, officers, or constables who served 
any process in such proceeding. (1909, c. 183; C. 
S. 1260.) 

In Brunswick and Catawba counties the county 
shall not be liable for any part of the costs of jus- 
tices of the peace, when "not a true bill" is found. 
(Rev., s. 1283; 1905, c. 598; 1909, c. 107; C. S. 
1260.) 

In Montgomery County, in criminal cases, 
where the defendant is convicted in superior court, 
justices of the peace are entitled to full fees, if any 
are legallv taxed in the bill of costs. (1909, c. 223; 
C. S. 1260.) 

In New Hanover County, in a criminal action, if 
there is no prosecutor, and the defendant is con- 
victed and serves out his sentence on the public 
roads of the county, the county shall pay one-half 
fees as provided in the first sentence of this sec- 
tion. (Rev., s. 1283; 1905, c. 511; C. S. 1260.) 

In Northampton count}' 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.) 

§ 6-38. Liability of county when defendant ac- 
quitted in supreme court. — If, on appeal to the 
supreme court in criminal actions, the defendant 
is successful, the county from which the appeal 
was taken shall pay one-half the costs of the 
appeal, and shall also pay all such sums as have 
been properly expended by the defendant for the 
transcript of the record and printing done under 
the rules of the court. (Rev., s. 1284; C. S. 1261.) 

§ 6-39. County where offense committed liable 
for costs. — In all cases where the county is liable 
to pay costs, that county wherein the offense is 
alleged to have been committed shall be adjudged 
to pay them. (Rev., s. 1285; 3889, c. 354; C. S. 
1262.) 

§ 6-40. Liability of counties, where trial re- 
moved from one county to another. — The costs 
taxed in any case removed from another county 
for trial shall include the fees and expenses al- 
lowed for summoning the special venire, if one is 



ordered in the case, and the per diem and mileage 
of jurors who are impaneled to try the case, to- 
gether with all other costs and expenses of the 
trial of the case, the amount of which, if not pro- 
vided for by law, to be fixed by the presiding 
judge, so as to fully relieve the county in which 
the trial is had of all costs and expenses thereof. 
All fines, forfeitures, penalties and amercements 
imposed or levied in the case shall belong to the 
county from which the case was removed and be 
paid to the treasurer of said county. When a pris- 
oner is sent from one county to another to be 
held for trial, or for any other cause or purpose, 
the county from which he is sent shall pay his 
prison expenses, unless the same is collected from 
him, on or before the first Monday in each month, 
and upon a failure to do so, it shall be the duty 
of the county to which he is sent to pay the same 
to the sheriff or jailer entitled to receive it at the 
same rate and under the same regulations as its 
own prison expenses are paid; and the county 
liable shall repay the same within thirt}' days 
after demand, and upon failing to do so the 
county to which the money is due shall be en- 
titled to recover in the superior court, or, if the 
amount be within its jurisdiction, the court of 
justice of the peace of its own county, the amount 
due, with ten per cent additional, together with 
eight per cent interest on the sum due; and said 
courts of said county shall have full jurisdiction 
to hear, try and determine all actions and pro- 
ceedings that may be brought for the purpose of 
enforcing the collection of the same. When the 
county to which such prisoner has been sent has 
paid the prison expenses and has made demand 
therefor upon the county liable as above provided 
and such demand be not complied with within 
ten days, the sheriff or jailer shall at once return 
such prisoner to the county from which such pris- 
oner was sent, and deliver him to the sheriff 
or jailer thereof. (Rev., s. 1285; 1889, c. 354; 1901, 
c. 718; C. S. 1263.) 

§ 6-41. Statement of costs against county to be 
filed with commissioners. — In all criminal actions 
where the county is liable in whole or in part for 
costs, it is the duty of the clerks of the courts to 
make out a statement of such costs from the 
record or docket, within thirty days after the 
hearing, trial, determination, or other disposition 
thereof, and file the same with the board of com- 
missioners of the county. (Rev., s. 1286; Code, 
s. 736; 1873-4, c. 116, s. 3; C. S. 1264.) 

§ 6-42. Expenses in conveying prisoner to an- 
other county; provision for payment. — When a 
sheriff or other officer arrests a person under a 
capias or other legal process, which requires him 
to have the person arrested before a court or 
judge of another county, and such sheriff or 
other officer is obliged to incur expense in the 
safe delivery of such p'-'son by reason of his fail- 
ing to give bond for his appearance, or if tne 
sheriff or other officer of the county to which 
the prisoner is to be carried incurs any expense 
in going for and conveying said prisoner to his 
county, then in either case the sheriff or other 
officer shall file with the court or judge issuing 
the capias or other legal process and with the 
register of deeds an itemized and sworn account 
of such expenses, which shall be presented by the 



[94] 



§ 6-43 



CH. 6. COSTS— FEES OF WITNESSES 



§ 6-51 



register to the board of commissioners at their 
next regular meeting, to be audited by them. 
Such sworn statement shall be received by the 
said board as prima facie correct. Upon such 
auditing the board of commissioners shall cause 
to be issued to such sheriff or other officer an 
order on the county treasurer for the amount so 
audited and allowed by them, and shall notify the 
court or judge of their action, to the end that the 
amount so allowed shall be taxed in the custs to 
the use of the county. (Rev., s. 1287; 1885, c. 
262; 1901, c. 64; C. S. 1265.) 

§ 6-43. Cost of investigating lynchings. — In all 

cases of investigation and trial of the crime of 
lynching, the entire cost incurred in the prosecu- 
tion, unless paid by the person or persons con- 
victed, shall be paid by the county wherein the 
crime shall have been committed. (Rev., s. 1288; 
1893, c. 461, s. 6; C. S. 1266.) 

§ 6-44. Costs due credited on taxes due by 
payee. — Whenever a bill of costs in a criminal ac- 
tion is presented to any board of county commis- 
sioners in any county of the state for payment, as 
provided in this chapter and article, and the said 
bill is ordered to be paid by the said county com- 
missioners, it shall be the duty of the clerk of said 
board, before issuing any orders for payment of 
the sum set out in said bill, to ascertain whether 
any person to whom any amount is due on said 
bill of costs, is indebted to the county for taxes, 
and if said person to whom said order is payable is 
so indebted, the order shall state in its face, "Pay- 
able only on taxes due County," 

and upon presentation of such order to the sheriff 
or tax collector, said sheriff or tax collector shall 
give said taxpayer credit for the sum designated 
in said order, and the said sheriff or tax collector 
shall be entitled to receive credit for said sum 
so paid in his settlement for taxes. 

It shall be unlawful for any board of county 
commissioners to pay to any person who is in- 
debted to the county for taxes any money pay- 
able out of the revenues of the county on account 
of costs in a criminal case, which is payable by 
the county, except as provided in paragraph one 
above. (1933, c. 245.) 

Local Modification. — Alamance: 1935, c. 319, ss. 1, 2; Cra- 
ven: 1933, c. 426; Granville: 1933, c. 426; Wilson: 1933, c. 
501. 

Art. 6. Liability of Defendant in Criminal Actions. 

§ 6-45. Costs against defendant convicted, con- 
fessing, or submitting. — Every person convicted 
of an offense, or confessing himself guilty, or sub- 
mitting to the court, shall pay the costs of prose- 
cution. (Rev., s. 1291; Code, s. 1211; R. C, c. 35, 
S. 46; C. S. 1267.) 

§ 6-46. Defendant imprisoned not discharged 
until costs paid — If the sentence be that the 
guilty person be imprisoned for a time certain, 
and that he pay the costs, there shall be added 
to it that he shall remain in prison, after the ex- 
piration of the fixed time for his imprisonment, 
until the costs shall be paid, or until he shall other- 
wise be discharged according to law. (Rev., s. 
1292; Code, s. 905; 1868-9, c. 178; C. S. 1268.) 

§ 6-47. Judgment confessed; bond given to 
secure fine and costs. — In cases where a court, 
mayor, or a justice of the peace permits a defend- 

[ 95 



ant convicted of any criminal offense to give bond 
or confess judgment, with sureties to secure the 
fine and costs which may be imposed, the ac- 
ceptance of such security shall be upon the condi- 
tion that it shall not operate as a discharge of the 
original judgment against the defendant nor as a 
discharge of his person from the custody of the 
law until the fine and costs are paid. (Rev., s. 
1293; Code, s. 749; 1885, c. 364; 1879, c. 264; C. 
S. 1269.) 

§ 6-48. Arrest for nonpayment of fine and costs. 

— In default of payment of such fine and costs, it 
is the duty of the court at any subsequent term 
thereof, on motion of the solicitor of the state, 
to order a capias to issue to the end that such de- 
fendant may be again arrested and held for the 
fine and costs until discharged according to law; 
and a justice of the peace or mayor may at any 
subsequent time arrest the defendant and hold him 
for the fine and costs until discharged according to 
law. (Rev., s. 1294; Code, s. 750; 1885, c. 364; 
1879, C. 264; C. S. 1270.) 

Art. 7. Liability of Prosecutor for Costs. 

§ 6-49. Prosecutor liable for costs in certain 
cases; court determines prosecutor. — In all crimi- 
nal actions, if the defendant is acquitted, nolle 
prosequi entered, judgment against him arrested, 
or if the defendant is discharged from arrest for 
want of probable cause, the costs, including the 
fees of all witnesses summoned for the accused, 
whom the judge, court or justice of the peace be- 
fore whom the trial took place shall certify 
to have been proper for the defense, shall be paid 
by the prosecutor, whether marked on the bill or 
warrant or not, whenever the judge, court or jus- 
tice is of opinion that there was not reasonable 
ground for the prosecution, or that it was not re- 
quired by the public interest. And every judge, 
court or justice is hereby fully authorized to de- 
termine who the prosecutor is at any stage of a 
criminal proceeding, whether before or after the 
bill of indictment has been found, or the defendant 
acquitted: Provided, that no person shall be made 
a prosecutor after the finding of the bill, unless 
he shall have been notified to show cause why he 
should not be made the prosecutor of record, 
(Rev., s. 1295; Code, s. 737; 1889, c. 34; R. C, c. 
35, s. 37; 1799, c. 4, s. 19; 1800, c. 558; 1868-9, c. 
277; 1874-5, c. 151; 1879, c. 49; C. S. 1271.) 

§ 6-50. Imprisonment of prosecutor for non- 
payment of costs, if prosecution frivolous. — 

Every such prosecutor may be adjudged not only 
to pay the costs, but he shall also be imprisoned 
for the nonpayment thereof, when the judge, 
court, or justice of the peace before whom the 
case was tried shall adjudge that the prosecution 
was frivolous or malicious. (Rev., s. 1297; Code, 
s. 738; R. C, c. 35, s. 37; 1800, c. 558; 1879, c. 49; 
1881, c. 176; C. S. 1272.) 

Art. 8. Fees of Witnesses. 

§ 6-51. Not entitled to fees in advance. — Wit- 
nesses are not entitled to receive their fees in ad- 
vance; but no witness in a civil action or special 
proceeding, unless summoned on behalf of the 
state or a municipal corporation, shall be com- 
pelled to attend more than one day, if the party 
by or for whom he was summoned shall, after 

] 



§ 6-52 



CH. 6. COSTS— FEES OF WITNESSES 



§ 6-56 



one day's attendance, on request and presenta- 
tion of a certificate, fail or refuse to pay what 
then may be due for traveling to the place of ex- 
amination and for the number of days of attend- 
ance. (Rev., s. 1298; Code, s. 1368; 1868-9, c. 279, 
subch. 11, s. 3; C. S. 1273.) 

§ 6-52. Fees and mileage of witnesses. — The 

fees of witnesses, whether attending at a term of 
court or before the clerk, or a referee, or commis- 
sioner, or arbitrator, shall be such amount per 
day as the board of commissioners of the respec- 
tive counties may fix, to be not less than one dol- 
lar per day and not more than three dollars per 
day, except in the counties of Union, Nash, Bruns- 
wick, Randolph, Haywood, Polk, Surry, Swain, 
Alleghany, Anson, Graham, Ashe, Dare, Alexan- 
der, Cleveland, Clay, Transylvania, Harnett, 
Stanly, Mitchell, Burke, Franklin, Greene, John- 
ston, and Henderson, in which counties the fees 
shall be one dollar per day. They shall also re- 
ceive mileage, to be fixed by the county commis- 
sioners of their respective counties, at a rate not 
to exceed five cents per mile for every mile nec- 
essarily traveled from their respective homes in 
going to and returning from the place of examina- 
tion by the ordinary route, and ferriage and toll 
paid in going and returning. If attending out of 
their counties, they shall receive one dollar per 
day and five cents per mile going and returning 
by the ordinary route, and toll and ferriage ex- 
penses: Provided, that witnesses before courts of 
justices of the peace shall receive fifty cents per 
day in civil cases, and in criminal actions of which 
justices of the peace have final jurisdiction, wit- 
nesses attending the courts of the justices of the 
peace, under subpoena, shall receive fifty cents 
per day, and in hearings before coroners witnesses 
shall receive fifty cents per day and no mileage; 
but the party cast shall not pay for more than two 
witnesses subpoenaed to prove any one material 
fact, and no prosecutor or complainant shall pay 
any costs, unless the justice shall find that the 
prosecution was malicious and frivolous: Provided 
further, that experts, when compelled to attend 
and testify, shall be allowed such compensation 
and mileage as the court may in its discretion or- 
der. Witnesses attending before the utilities com- 
mission shall receive two dollars per day and five 
cents per mile traveled by the nearest practicable 
route: Provided further, that any sheriff, deputy 
sheriff, chief of police, police, patrolman, state 
highway patrolman, and/or any other law enforce- 
ment officer who receives a salary or compensa- 
tion for his services from any source or sources 
other than the collection of fees, shall prove no 
attendance, and shall receive no fee as a witness 
for attending at any superior or inferior criminal 
court sitting within the territorial boundaries in 
which such officer has authority to make an ar- 
rest: Provided, further, that in all criminal cases 
tried in the state where the crime charged is of 
the grade of a felony, all witnesses who have been 
held in jail incommunicado pending the trial of 
such case shall be paid witness fees for each such 
day which such witness is so held in jail, in addi- 
tion to the witness fees provided by law in crim- 
inal actions. (Rev., s. 2803; Code, ss. 2860, 3756; 
1891, c. 147; 1905, cc. 279, 522; P. E. 1911, c. 402; 
Ex. Sess. 1920, c. 61, ss. 2, 3; 1921, c. 62, s. 2; 1933, 
c. 40; 1941, c. 171; C. S. 3893.) 

[ 96 



Local Modification.— Alamance : 1935, c. 264; Beaufort: 1931, 
c. 54; Cleveland, Henderson, McDowell, Polk, Rutherford: 
1933, c. 495; Craven: 1935, c. 209; Duplin: 1935, c. 247; For- 
syth: 1935, c. 333; Franklin: C. S. 3893; 1935, c. 93; Guilford: 
1935, cc. 93, 185; Iredell: 1937 c. 240; New Hanover: 1935, c. 
237; Pitt, Richmond, Rowan, Wayne: 1935, c. 93. 

§ 6-53. Witness to prove attendance; action 
for fees. — Every person summoned, who shall at- 
tend as a witness in any suit, shall, before the 
clerk of the court, or before the referee or officer 
taking the testimony, ascertain by his own oath 
or affirmation the sum due for traveling to and 
from court, attendance and ferriage, which shall 
be certified by the clerk; and on failure of the 
party, at whose instance such witness was sum- 
moned (witnesses for the state and municipal 
corporations excepted), to pay the same previous 
to the departure of the witness from court, such 
witness may at any time sue for and recover the 
same from the party summoning him; and the 
certificate of the clerk shall be sufficient evidence 
of the debt. Where recovery may be had before 
a justice of the peace on a witness ticket, the 
justice shall deface it by writing the word judg- 
ment, and deliver the same to the person of whom 
it is recovered. (Rev., s. 1299; Code, s. 1369; R. 
C, c. 31, s. 73; 1777, c. 115, s. 46; 1796, c. 458; 
1868-9, c. 279, subch. 11, ss. 2, 4; C. S. 1274.) 

§ 6-54. Witness tickets to be filed; only two 
witnesses for single fact. — At the court where 
the cause is finally determined the party recover- 
ing judgment shall file in the clerk's office the 
witness tickets; the amount whereof shall be 
taxed in the bill of costs, to be levied and recov- 
ered for the benefit of said party. The party cast 
shall not be obliged to pay for more than two 
witnesses to prove a single fact. (Rev., s. 1300; 
Code, s. 1370; R. C, c. 31, s. 74; 1783, c. 189, s. 3; 
1796, C 458, s. 2; C. S. 1275.) 

Local Modification. — Anson, Buncombe, Columbus, Forsyth, 
Gaston, Richmond, Robeson, Rutherford, Surry: C. S. 1276. 

§ 6-55. Fees of witnesses before jury of view, 
commissioner, etc. — Witnesses summoned to ap- 
pear at any survey, or before any jury of view, or 
before any commissioner, arbitrator, referee, or 
other person authorized to require their attend- 
ance, shall be entitled to the same fees as for 
similar attendance at the court of the county, 
and may prove, by their own oath, their attend- 
ance, mileage, and ferriage before such person, 
who is hereby authorized to administer the oath; 
and when they shall attend on any commission 
issuing from without the state, they may recover 
the fees for attendance against the party sum- 
moning them, or his agent or attorney directing 
them to be summoned; and when they shall attend 
under a commission or authority from any court 
in this state, the fees for attendance shall be 
proved as aforesaid, and be certified to the proper 
court and taxed among the costs of the cause, as 
if the witness had attended the court; but never- 
theless, such fees may be immediately recovered 
against the party summoning. (Rev., s. 1301; 
Code, s. 1365; R. C., c. 31, s. 67; 1805, c. 685; 1848, 
c. 66; 1850, c. 188, s. 3; C. S. 1277.) 

§ 6-56. Fees of witnesses before grand jury. — 
No witness shall receive pay for attendance in a 
criminal case before a grand jury, unless such 
witness has been summoned by direction in writ- 
] 



§ 6-57 



CH. 6. COSTS— CRIMINAL COSTS 



§ 6-64 



ing of the foreman of the grand jury, or of the No person shall receive pay as a witness for the 

solicitor prosecuting, addressed to the clerk of state on the trial of any criminal action unless 

the court, commanding him to summon such wit- such person was summoned by the clerk under 

ness, stating the name of the parties against the direction of the solicitor prosecuting in the 

whom his testimony may be needed, or unless he court in which the action originated, or in which it 

has been bound or recognized by some justice of shall be tried if removed; and no solicitor shall di- 

the peace to appear before the grand jury. (Rev., rect that more than two witnesses shall be sum- 

s. 1302; Code, s. 743; 1879, c. 264; C. S. 1278.) moned for the state in any prosecution for a mis- 



Local Modification.— Martin, Moore, Wayne: C. S. 1279. 

§ 6-57. Pay of state's witnesses. — All witnesses 
summoned or recognized in behalf of the state 
shall be allowed the same pay for their daily at- 
tendance, ferriage and mileage as is allowed to 



demeanor, nor shall any county or defendant in 
any such prosecution be liable for or taxed with the 
fees of more than two witnesses, unless the 
court, upon satisfactory reasons appearing, other- 
wise directs. And no witness summoned in a 



witnesses attending in civil suits; and such fees criminal action or proceeding shall be paid by the 

for attendance shall be paid by the defendant county f or attendance in more than one case for 

only upon conviction, confession or submission; an ^ one da -y'' nor sha11 the county be required to 

and if the defendant is acquitted on anv charge P ay an y such witness if his attendance shall be 

of an inferior nature, or a nolle prosequi be taxed ln more than ° n e case on the same day. 

entered thereto, the court shall order the prose- ( Rev - s - 1303 '^ Code > s - 744 ; 1871-2, c. 186; 1879, 

cution to pay the cost, if such prosecution c " ~ 64 ' ^" "■ 12 ° 4 -) 

appears to have been frivolous or malicious; but § 6-61. On appeal from justice only two wit- 
if the court is of opinion that such prose- nesses bound over. — When the defendant ap- 
cution was neither frivolous nor malicious, and peals from the judgment of the justice of the 
a greater number of witnesses have been sum- peace, in any criminal action, it is the duty of 
moned than were, in the opinion of the court, such justice of the peace to select and bind over 
necessary to support the charge, the court may, on behalf of the state not more than two wit- 
nevertheless, order the prosecutor to pay the at- nesses, and neither the county nor the defendant 
tendance of such unnecessary witnesses, if it ap- shall be liable for the fees of more than two wit- 
pear that they were summoned at his special re- nesses on such appeal, unless additional witnesses 
quest. (Rev., s. 1296; Code, s. 1204; R. C, c. 35, are summoned by order of the appellate court as 
s. 37; 1800, c. 558, s. 1; 1879, c. 49; 1879, c. 92, s. provided in the preceding section. (Rev s 
3; 1881, c. 176; C. S. 1280.) 1304; Code, s. 745; 1879, c. 264; C. S. 1285.) 

§ 6-58. County to pay state's witnesses in cer- § 6-62. Solicitor to announce discharge of state's 
tain cases. — Witnesses summoned or recognized witnesses. — It is the duty of all solicitors prose- 
on behalf of the state to attend on any criminal cuting in the several courts, as each criminal 
prosecution in the superior or criminal courts prosecution is disposed of by trial, removal, con- 
where the defendant is insolvent, or by law is not tinuance or otherwise, to call, in open court, and 
bound to pay the same, and the court does not ann °unce the discharge of witnesses for the state, 
order them to be paid by the prosecutor, shall be either finally or otherwise as the disposition of the 
paid by the county in which the prosecution was case ma y require, and thereupon the clerk of the 
commenced. And in all cases wherein witnesses superior court shall enter such announcement of 
may be summoned or recognized to attend any discharge, with the names of the witnesses dis- 



charged, in his minutes. (Rev., s. 1305; Code, s. 
746; 1879, c. 264; 1881, c. 312; 1935, c 26- CS 
1286.) 

§ 6-63. Witnesses not paid without certificate; 



such court to give evidence on behalf of the 
state, and the defendant is discharged, and in 
cases where the defendant breaks jail and is not 
afterwards retaken, the court shall order the wit- 
nesses to be paid. (Rev., s. 1289; Code, s. 740; R. court's discretion. — No county, prosecutor or de- 
C, c. 28, s. 9; 1804, c. 665; 1819, c. 1008; 1824, c. fendant shall be liable to pay any witness, nor 
1253; C. S. 1281.) shall his fees be embraced in the bill of costs to 
Local Modification— Durham, Wilkes: C. S. 1282; Wake: be made up as hereinbefore provided unless his 
C. S. 1282; 1929, c. 102; 1931, c. 201. name is certified to the clerk by the solicitor, or 
§ 6-59. County to pay defendant's witnesses included in the order of the court. And the judge 
in certain cases. — When the defendant is ac- or J ust ice may, in his discretion, for satisfactory 
quitted, a nolle prosequi entered, or judgment cause appearing, direct that the witnesses, or any 
against him arrested, and it is made to appear to °* tnem > shall receive no pay, or only a portion of 
the court, by certificate of counsel or otherwise, the compensation authorized by law. The court, 
that said defendant had witnesses, duly sub- at any tlme wltm '_ n one year after judgment, may 
poenaed, bound or recognized, in attendance, and order that an y witness may be paid who for any 
that they were necessary for his defense, it is the good r , eason satisfactory to the court failed to 
duty of the court, unless the prosecutor is ad- have hls fees included in the original bill of costs, 
judged to pay the costs, to make and file an order ( Rev -> s - 13 °6; Code, ss. 733, 748; 1879, c. 264; 
in the cause directing that said witnesses be paid 1881 > c - 312; C. S. 1287.) 
by the county in such manner and to such extent Art . 9 . Criminal Costs before Justi 
as is authorized by law for the payment of state's Count or Recorder - s J Courts ' may ° rs ' 
witnesses in like cases. (Rev., s. 1290; Code, s. 

747; 1879, c. 264; 1881, c. 312; C. S. 1283.) . § 6 " 64 - Liability for criminal costs before jus- 
tice, mayor, county or recorder's court. — The party 

§ 6-60. Fees of state witnesses; two only in convicted in a criminal action or proceeding with- 

misdemeanors; one fee for day's attendance. — in the jurisdiction of a justice of the peace, before 
—4 [ 97 ] 



CHAPTER 7. COURTS 



any justice, mayor, county or recorder's court, 
shall always be adjudged to pay the costs, and 
if the party charged be acquitted, the complain- 
ant shall be adjudged to pay the costs, and may 
be imprisoned for the nonpayment thereof, if the 
justice, mayor, county or recorder's court shall 
adjudge that the prosecution was frivolous or 
malicious. But in no action or proceeding in 
which a justice of the peace has final jurisdiction, 
commenced or tried in a court of a justice of the 
peace, mayor, county or recorder's court shall 
the county be liable to pay any costs: any de- 
fendants or prosecuting witness shall have the 
right of appeal to the superior court. (Rev., 1307; 



Code, s. 895; 1868-9, c. 178; 1879, c. 92, s. 3; 1881, 
C. 176; 1931, c. 252; C. S. 1288.) 



Local Modification. — Jackson : 
20; Swain: 1935, c. 84. 



1933, c. 225; Martin: 1935, c. 



§ 6-65. Imprisonment of defendant for non- 
payment of fine and costs. — If the justice sen- 
tences the party found by him to be guilty to pay 
a fine and costs, and the same are not immediately 
paid, the justice shall commit the guilty person to 
the county jail until the same are paid, or until he 
is otherwise discharged according to law. (Rev., 
s. 1308; Code, s. 904; 1868-9, c. 178, subchap. 4, s. 
15; C. S. 1289.) 



Chapter 7. Courts. 

SUBCHAPTER I. SUPREME COURT. 
Art. 1. Organization and Terms. 



Sec. 
7-35 



Sec. 

7-1. Number of justices. 

7-2. Election and term of office. 

7-3. Salaries of supreme court justices. 

7-4. Oath of office. 

7-5. Name of court; where records to be kept. 

7-6. Quorum. 

7-7. Terms of court. 

Art. 2. Jurisdiction. 

7-8. Original jurisdiction. 

7-9. Procedure to enforce claims against the 
state. 

7-10. Appellate jurisdiction. 

7-11. Power to render judgment and issue execu- 
tion. 

7-12. No judgment on interlocutory order; opin- 
ion certified. 

7-13. Power of amendment and to require further 
testimony. 

7-14. Proof of exhibits. 

7-15. Opinions and judgments to be in writing. 

7-16. Certificates to superior courts; execution 
for costs; penalty. 

7-17. Appeals dismissed. 

7-18. Petition to rehear; execution restrained. 

7-19. Records to be made. 

7-20. Power to make rules of court. 

7-21. Supreme court to prescribe rules; rules to 
conform to law. 

Art. 3. Officers of Court. 

7-22. The court may appoint acting attorney-gen- 
eral. 
7-23. Reporter. 

7-24. Supreme court reporter; salary; offices. 
7-25. Clerk. 

7-26. Clerk of supreme court; salary; fees. 
7-27. Clerk's bond and oath of office. 
7-28. Clerk to report money on hand. 
7-29. Marshal; librarian. 

Art. 4. Supreme Court Library. 

7-30. Location. 

7-31. Trustees; powers; duties. 

7-32. Library hours; night use. 

7-33. Appropriation. 

Art. 5. Supreme Court Reports. 

7-34. Supreme court reports; contract for print- 
ing. 



7-37. 
7-38. 
7-39. 



7-40. 

7-41. 
7-42. 
7-43. 
7-44. 
7-45. 
7-46. 
7-47. 



Supreme court reports; number printed. 
Art. 6. Salaries of Supreme Court Employees. 

7-36. Governor and council to fix certain salaries. 
Limit of salary; certificate and payment. 
Proceedings and reports. 

Employment of additional assistants; com- 
pensation. 

SUBCHAPTER II. SUPERIOR COURTS. 

Art. 7. Organization. 

Number of judges and solicitors. 

Election and term of office of judges. 

Salaries of superior court judges. 

Election and term of office of solicitors. 

Solicitors; general compensation. 

Appropriation for expenses of solicitor. 

Residence and rotation of judges. 

Oath of office. 

Vacancies filled. 

When judge may discharge solicitor. 

Emergency judges; duties; compensation. 

Salaries of resigned or retired justices of 
supreme court and judges of superior 
courts. 

Jurisdiction and powers of emergency 
judges. 

Orders returnable to another judge; notice. 

Governor to make appointment of four spe- 
cial judges. 

Time for appointment. 

Further appointments. 

Extent of authority. 

Jurisdiction as of regular judges. 

Salary, expenses; terms; practice of law. 

Powers after commission expires. 

Effect on sections 7-50 and 7-51. 

Disposition of motions where judge dis- 
qualified. 

Art. 8. Jurisdiction. 

Original jurisdiction. 
Concurrent jurisdiction. 
Jurisdiction in vacation or at term. 
Appellate jurisdiction. 

Transfer of cases pending in abolished in- 
ferior court. 

Art. 9. Judicial Districts and Terms of Court. 

7-68. Number of districts. 

7-69. Eastern and western judicial divisions. 

7-70. Terms of court. 



7-49. 
7-50. 
7-51. 



7-52. 



-53. 

-54. 

-55. 
-56. 
-57. 
-58. 
-59. 
-60. 
-61. 
-62. 



•63. 

•64. 
■65. 
■66. 
•67. 



[98] 



CHAPTER 7. COURTS 



Sec. 

7-71. Governor to assign judges to hold terms of 
court when regular judges are not avail- 
able. 

7-72. Civil cases at criminal terms. 

7-73. No criminal business at civil terms. 

7-74. Rotation of judges. 

7-75. Exchange of courts. 

7-76. Court adjourned by sheriff when judge not 
present. 

Art. 10. Special Terms of Court. 

7-77. Governor may designate judge. 

7-78. Governor may order special terms. 

7-79. Compensation of judge. 

7-80. Notice of special terms. 

7-81. Certificate of attendance. 

7-82. Grand juries at special terms. 

7-83. Jurisdiction. 

7-84. Attendance and process at special terms. 

7-85. Subpoenas returnable. 

Art. 11. Special Regulations. 

7-86. Reading the minutes. 

7-87. Officer attending juries sworn. 

7-88. Quakers may wear hats in court. 

7-89. Court reporters. 

7-90. Official court reporter for second judicial 
district. 

7-91. Official court reporter for fifth judicial dis- 
trict. 

7-92. Official court reporter for sixth judicial dis- 
trict. 

SUBCHAPTER III. COMMISSION FOR IM- 
PROVEMENT OF LAWS. 

Art. 12. Commission for Improvement of Laws. 

7-93. Commission established. 
7-94. Members of commission. 
7-95. Terms of office. 
7-96. Chairman and executive secretary. 
7-97. Vacancy appointments. 
7-98. Meetings of commission. 
7-99. Report and recommendations to general as- 
sembly. 
7-100. Compensation. 



SUBCHAPTER IV. DOMESTIC RELA- 
TIONS COURTS. 

Art. 13. In Counties with a City of at Least 
Twenty-Five Thousand Inhabitants. 

7-101. Established by county or city or both. 

7-102. Vote on establishment of court; any other 
city in county with required population 
may have such court. 

7-103. Jurisdiction. 

7-104. Election of judge and term of office; va- 
cancy appointments; judge to select clerk; 
Juvenile Court officers may be declared 
officers of new Court. 

7-105. Co-operation of all peace officers. 

7-106. Procedure, practice and punishments. 

7-107. Right of appeal to Superior Court; trial de 
novo. 

7-108. Offenses before Court to be petty misde- 
meanors; demand for jury trial; appear- 
ance bonds. 

7-109. Pending cases in Juvenile Court transferred 
to new Court. 

7-110. Cases transferred from Superior Court. 

7-111. Discontinuance of Court. 

[ 99 



SUBCHAPTER V. JUSTICES OF THE 
PEACE. 

Art. 14. Election and Qualification. 

Sec. 

7-112. Constitution, article seven, abrogated; ex- 
ceptions. 

7-113. Election and number of justices. 

7-114. Oath of office; vacancies filled. 

7-115. Governor may appoint justices. 

7-116. Forfeiture of office. 

7-117. Resignation. 

7-118. Removal and disqualification for crime. 

7-119. Justice may hold other office. 

7-120. Validation of official acts of certain justices 
of the peace. 

Art. 15. Jurisdiction. 

7-121. Jurisdiction in actions on contract. 

7-122. Jurisdiction in actions not on contract. 

7-123. Action dismissed for want of jurisdiction; 
remitter. 

7-124. Title to real estate in controversy as a de- 
fense. 

7-125. Title to real estate in controversy, action 
dismissed. 

7-126. Another action in Superior Court. 

7-127. Justice may act anywhere in county. 

7-128. Punishment for contempt in certain cases. 

7-129. Jurisdiction in criminal actions. 

Art. 16. Dockets and Fees. 

7-130. Justice shall keep docket. 

7-131. Entries to be made. 

7-132. Dockets filed with clerk. 

7-133. Dockets, papers, and books delivered to 

successor. 

Art. 17. Fees. 
7-134. Fees of justices of the peace. 
Art. 18. Process. 

7-135. Action begun by summons. 

7-136. Issuance and contents of summons. 

7-137. Service and return of summons. 

7-138. Process issued to another county. 

7-139. Civil process in inferior courts. 

7-140. Endorsement of process to another county. 

7-141. Certificate of clerk on process for another 
county. 

7-142. Judgment against defendant in another 
county. 

7-143. Service on foreign corporation. 

7-144. Attendance of witnesses. 

7-145. Subpoena issued to another county. 

7-146. Subpoena duces tecum in case against rail- 
road. 

Art. 19. Pleading and Practice. 

7-147. Removal of case. 

7-148. Removal in case of death or incapacity. 

7-149. Rules of practice. 



Art. 20. Jury Trial. 

7-150. Parties entitled to a jury trial. 
7-151. Jury trial waived. 
7-152. Number constituting the jury. 
7-153. Jury list furnished. 
7-154. Names kept in jury box. 
7-155. Fees deposited for jury trial. 
7-156. Jury drawn and trial postponed. 
7-157. Summoning the jury. 

] 



CHAPTER 7. COURTS 



Sec. 

7-158. Selection of jury. 

7-159. Challenges. 

7-160. Names returned to the jury box. 

7-161. Names of jurors serving. 

7-162. Tales jurors summoned. 

7-163. No juror to serve out of township. 

7-164. Additional deposit for jury fees on adjourn- 
ment. 

7-165. Jury sworn and impaneled; verdict; judg- 
ment. 

Art. 21. Judgment and Execution. 

7-166. Justice's judgment docketed; lien and exe- 
cution. 

7-167. Effect of judgment on appeal. 

7-168. Entries made by clerk when judgment is 
rendered. 

7-169. Justice's judgment removed to another 
county. 

7-170. Issue and return of execution. 

7-171. Levy and lien of execution. 

7-172. Stay of execution. 

7-173. Security on stay of execution. 

7-174. Stay of execution on appeal. 

7-175. Nature of undertaking. 

7-176. Execution stayed upon order given. 

Art. 22. Appeal. 

7-177. No new trial; either party may appeal. 
7-178. Appeal does not stay execution. 
7-179. Manner of taking appeal. 
7-180. No written notice of appeal in open court. 
7-181. Justice's return on appeal. 
7-182. Defective return amended. 
7-183. Restitution ordered upon reversal of judg- 
ment. 

Art. 23. Forms. 

7-184. Forms to be used in justice's court. 
SUBCHAPTER VI. RECORDERS' COURTS. 
Art. 24. Municipal Recorders' Courts. 

7-185. In what cities and towns established; court 
of record. 

7-186. Recorder's election and qualification; term 
of office and salary. 

7-187. Time and place of holding court. 

7-188. No subsequent change of judgment. 

7-189. Procedure in the court. 

7-190. Criminal jurisdiction. 

7-191. Jurisdiction to recover penalties. 

7-192. Disposition of cases when jurisdiction not 
final. 

7-193. Disposition of cases when jurisdiction final. 

7-194. Sentences to be imposed. 

7-195. Appeal to superior court. 

7-196. Costs paid to the municipality. 

7-197. Seal of court. 

7-198. Issuance and service of process. 

7-199. Vice recorder; election and duties. 

7-200. Clerk of court; election and duties; re- 
moval; fees. 

7-201. Clerk to keep records. 

7-202. Clerk to issue process. 

7-203. Prosecuting attorney; duties and salary. 

7-204. Jury trial, as in justice's court. 

7-205. Continuances, recognizances, and tran- 
scripts. 

7-206. Officers' fees; fines and penalties paid. 

7-207. County to pay for offenders' work on roads. 

7-208. Prosecutor may be taxed with costs. 

[1 



Sec. 

7-209. Justice of the peace to bind defendants to 

recorder's court; procedure thereon. 
7-210. Transfer of certain cases to recorder's 

court. 
7-211, Jurisdiction of justice of the peace after 

three months delay. 
7-212. Courts may be discontinued after two 

years. 
7-213. Extension of jurisdiction. 
7-214. Meeting of town and county authorities; 

election. 
7-215. Police powers. 
7-216. Resolution for extension filed with each 

board as records. 
7-217. Jurisdiction not to extend to other munici- 
palities. 

Art. 25. County Recorders' Courts. 

7-218. Established by county commissioners. 

7-219. Recorder's election, qualification, and term 
of office. 

7-220. Time and place for holding court. 

7-221. No subsequent change of judgment. 

7-222. Criminal jurisdiction. 

7-223. Jurisdiction and powers as in municipal 
court. 

7-224. Removal of cases from justices' courts. 

7-225. Defendants bound by justice to recorder's 
court. 

7-226. Notice to accused of transfer; trial; obliga- 
tion of bond. 

7-227. Trials upon warrants; by whom warrants 
issued. 

7-228. Jury trial as in municipal court. 

7-229. Sentence imposed; fines and costs paid. 

7-230. Appeals to superior court. 

7-231. Clerk of superior court ex officio clerk of 
county recorder's court. 

7-232. Deputy clerk may be appointed. 

7-233. Compensation of clerk when no deputy ap- 
pointed. 

7-234. Deputy clerk to take oath of office. 

7-235. Prosecuting attorney may be elected. 

7-236. Fees for issuing and serving process. 

7-237. Costs and fees taxed as in municipal court. 

7-238. Fees taxed when county officer on salary; 
recorder's court fund. 

7-239. Courts may be discontinued after two 
years. 

Art. 26. Municipal-County Courts. 

7-240. Established for entire county. 

7-241. Election of recorder. 

7-242. Mayor's jurisdiction continued, when. 

Art. 27. Provisions Applicable to All 
Recorders' Courts. 

7-243. Appeals from justices of the peace. 

7-244. Offenders may be sentenced to city chain- 
gang. 

7-245. Recorders' courts substituted for other spe- 
cial courts. 

Art. 28. Civil Jurisdiction of Recorders' Courts. 

7-246. Civil jurisdiction may be conferred. 

7-247. Extent of jurisdiction. 

7-248. Procedure in civil actions. 

7-249. Trial by jury in civil actions. 

7-250. Jurors drawn and summoned. 

7-251. Talesmen and challenges. 

7-252. Jury as in superior court. 
00 ] 



CHAPTER 7. COURTS 



Sec. 



7-253. Appeals to superior court. 
7-254. Enforcement of judgments. 
7-255. Costs in civil actions. 

Art. 29. Elections to Establish Recorders' Courts. 

7-256. Election required. 

7-257. Municipal recorder's court. 

7-258. Notice of election. 

7-259. New registration may be ordered. 

7-260. Manner of holding election. 

7-261. Another election after two years. 

7-262. Municipal courts with jurisdiction over the 

entire county. 
7-263. Expense of elections paid. 
7-264. Certain districts and counties not included. 

SUBCHAPTER VII. GENERAL COUNTY 
COURTS. 

Art. 30. Establishment, Organization and 
Jurisdiction. 

7-265. Establishment authorized; official entitle- 
ment; jurisdiction. 

7-266. Creation by board of commissioners with- 
out election. 

7-267. Abolishing the court. 

7-268. Transfer of criminal cases. 

7-269. Transfer of civil cases. 

7-270. Costs. 

7-271. Judge; election, term of office, vacancy in 
office, qualification, salary, office. 

7-272. Terms of court. 

7-273. Prosecuting officer; duties, election, salary, 
etc. 

7-274. Superior court clerk as clerk ex officio; sal- 
ary, bond, etc. 

7-275. Sheriff; duties; additional allowance. 

7-276. Fees of clerk and sheriff. 

7-277. Separate records to be kept by clerk; 
blanks, books and stationery. 

7-278. Criminal jurisdiction, extent. 

7-279. Civil jurisdiction, extent. 

7-280. Election, requirement of. 

7-281. Resolution by county commissioners; time 
for election; ballots. 

7-282. Notice of election; publication. 

7-283. Law governing elections; election officers; 
registration. 

7-284. Count and return of votes; canvass of re- 
turns; effect; expense. 

7-285. Application of article. 

Art. 31. Practice and Procedure. 

7-286. Procedure; issuance and return of process. 
7-287. Trial by jury; waiver; deposit for jury fee. 



udicial district; ju- 
term of office; 



uous counties in same 

risdiction. 
7-298. Judge of court; election; 

oath of office and salary. 
7-299. Present county courts may be changed to 

district courts. 
7-300. When court to be held. 
7-301. Prosecuting attorneys. 
7-302. Clerks; duties and compensation. 
7-303. Sheriffs; duties and compensation. 
7-304. Jurisdiction. 
7-305. Procedure to establish. 
7-306. Practice and procedure. 
7-307. Abolishing the court. 

SUBCHAPTER VIII. CIVIL COUNTY 
COURTS. 

Art. 33. With Jurisdiction Not to Exceed $3000. 

7-308. Establishment. 

7-309. Jurisdiction. 

7-310. Juries in such court; drawing jury; chal- 
lenges. 

7-311. Terms; docket. 

7-312. Witnesses; how summoned. 

7-313. Appeals. 

7-314. How actions commenced. 

7-315. Judgments. 

7-316. Process of the court. 

7-317. Removal of cause before justice. 

7-318. Rules of practice. 

7-319. Bonds for costs; duties of clerk. 

7-320. Costs. 

7-321. Appointment and compensation of judge; 
substitute; vacancies. 

7-322. Compensation of clerk; vacancy; files, 
books, stationery, etc. 

7-323. Stenographer; fees. 

7-324. Procedure. 

7-325. Records. 

7-326. To be court of record. 

7-327. Pending cases. 

7-328. First session. 

7-329. Discontinuance of court. 

7-330. Existing laws not repealed. 

7-331. Article not applicable to certain counties. 

Art. 34. With Jurisdiction Not to Exceed $5000. 

7-332. Establishment. 

7-333. Qualification, election, and term of judge; 
office. 

7-334. Substitute judge. 

7-335. Terms of court; calendar. 

7-336. Clerk of court. 

7-337. Sheriff, 



288. Continuance if jury demanded; drawing of 7-338. Record; blanks, forms, books, stationery. 



jury; list. 
7-289. Talesmen; challenges. 
7-290. Process; authentication; service; return. 
7-291. Pleadings; time for filing. 
7-292. Criminal appeals to superior court; case 

bound over to superior court. 
7-293. Amendments in pleadings and warrants. 
7-294. Jury trials, conduct of. 
7-295. Appeals to superior court in civil actions 

time; record; judgment; appeal to su 

preme court. 
7-296. Enforcement of judgments; stay of execu 

tion, etc. 



Art. 32. District County Courts. 

7-297. May be established in two or more contig- 



7-339. Juries. 

7-340. Jury list; summons. 

7-341. Talesmen. 

7-342. Procedure, process, pleadings, etc. 

7-343. Appeals. 

7-344. Jurisdiction. 

7-345. Stenographer; fees. 

7-346. Disqualification of judge. 

7-347. Pending cases, transfer. 

7-34S. Abolishing court. 

7-349. Existing laws not repealed. 

7-350. Article inapplicable to certain counties. 

Art. 35. With Jurisdiction Not to Exceed $1500. 

7-351. Establishment. 

7-352. Qualification of judge. 



[101] 



CHAPTER 7. COURTS 



Sec. 

7-353. Appointment of judge; vacancies; substi- 
tute judge. 

7-354. Oath of judge. 

7-355. Salary of judge. 

7-356. Disqualification of judge. 

7-357. Clerk of court. 

7-358. Oath of clerks. 

7-359. Appointment and removal of deputies. 

7-360. Oath and power of deputies. 

7-361. Sheriff. 

7-362. Stenographer. 

7-363. Jury trial. 

7-364. Waiver of jury trial; jurisdiction concurrent 
with superior court. 

7-365. Waiver of jury trial; jurisdiction concur- 
rent with justice of peace. 

7-366. Jury trial in cases instituted in superior 
court or before magistrate. 

7-367. Jury of six; demand and deposit for jury of 
twelve. 

7-368. Judge may impanel jury on own motion. 

7-369. Drawing juries; summons of jurors; pay of 
jurors. 

7-370. Talesmen. 

7-371. When court opens; terms of court. 

7-372. Jurisdiction. 

7-373. Appeals from justice of the peace. 

7-374. Removal of cause before justice of peace. 

7-375. Pending cases, transfer. 

7-376. Records; blanks, forms, books, stationery. 

7-377. Processes; pleadings; procedure, etc. 

7-378. Appeal to superior court; time for perfect- 
ing appeal; record on appeal; briefs; 
judgments; appeal to supreme court. 

7-379. Stay of execution; enforcement of judg- 
ments, etc. 

7-380. Court seal. 

7-381. Costs and fees. 

7-382. Abolishing court. 

7-383. Existing laws not repealed. 

SUBCHAPTER IX. COUNTY CRIMINAL 
COURTS. 

Art. 36. County Criminal Courts. 

7-384. Counties authorized to establish county 
criminal courts. 

7-385. Established by resolution of county com- 
missioners. 

7-386. Court may be abolished by resolution. 

7-387. Transfer of cases from docket of Superior 
Court. 

7-388. Appointment of judge; associate judge. 

7-389. Appointment of prosecuting attorney. 

7-390. Clerk of court; term of office; fees; bond; 
sheriff. 

7-391. Oath of judge; prosecuting attorney. 

7-392. Court seal. 

7-393. Jurisdiction; appeal; judgment docket. 

7-394. Jury trials. 

7-395. Process. 

7-396. Duties of judge; bond on appeal or on be- 
ing bound over. 

7-397. When prosecuting attorney's fee taxed in 
bill of costs. 

7-398. Complete record to be kept by clerk; 
docket. 

7-399. Warrants returnable to court. 

7-400. Service fees to officers except where they 
are on salary. 



7-405. 



■406. 
•407. 

-408. 



7-409. 



■410. 
■411. 
■412. 
■413. 
■414. 
•415. 

■416. 
■417. 
■418. 

■419. 
■420. 
■421. 



-401. Regular and special terms; place of ses- 
sions. 

-402. Judge and prosecuting attorney may prac- 
tice law in other courts. 

-403. Other County Court Acts not affected. 

-404. Certain counties excepted from provisions 
of article. ■ 

SUBCHAPTER X. SPECIAL COUNTY 
COURTS. 

Art. 37. Special County Courts. 

Establishment upon resolution of county 
commissioners. 

Qualifications of judge and solicitor. 

Appointment of judge. 

Appointment of prosecuting attorney and 
clerk. 

Appointment of acting attorney or judge in 
absence of regular official. 

Compensation of judge and solicitor. 

Oaths of judge and solicitor. 

Appointment of temporary judge, etc. 

Duties and liabilities of clerk. 

Oath of office of clerk. 

Attendance upon court by sheriff or depu- 
ties. 

Appointment of court stenographer. 

Right of jury trial in civil actions. 

Jury trial where no written pleadings are 
filed. i 

Jury trial where written pleadings are filed. 

Jury trial where cases appealed or removed. 

Number of jurors; deposit on demand for 
jury trial. 

Continuance of trial upon demand for jury; 
drawing and summoning of jury; com- 
pensation of jurors. 

Jury trials in criminal actions. 

Talesmen may serve as jurors. 

Sessions of court. 

Civil jurisdiction of court. 

Procedure for hearing of appeals from 
courts of justices of the peace. 

Transfer of cases from superior court. 

Separate records, equipment, etc., furnished 
by commissioners. 

Procedure in civil actions. 

Orders to stay execution; judgments. 

Seal of court. 

Costs and fees. 

Reopening of cases and modification of 
judgments. 

Criminal jurisdiction. 

Judges vested with jurisdiction of munici- 
pal recorders. 

Removal of cases from courts of justices of 
peace. 

Criminal cases bound over by justices of 
the peace. 

Notice to accused person and surety in 
cases transferred from superior court. 

Issuance of warrant in criminal causes. 

Punishment upon conviction. 

Appeals to superior court. 

Fees for issuance and service of warrants. 

Costs and fees as county funds. 

Abolition of court by resolution of commis- 
sioners. 

Counties exempt. 

Construction of article. 



7-422. 



■423. 
■424. 
•425. 
•426. 
■427. 

•428. 
•429. 

■430. 
■431. 
■432. 
■433. 
■434. 

•435. 
•436. 

-437. 



7-438. 



7-439. 



■440. 
■441. 
■442. 
•443. 

■444. 
■445. 

-446. 
-447. 



[ 102 1 



§ 7-1 



CH. 7. COURTS— JURISDICTION 



§ 7-11 



SUBCHAPTER I. SUPREME COURT. 
Art. 1. Organization and Terms. 

§ 7-1. 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; C. S. 1403.) 

§ 7-2. Election and term of office.— The jus- 
tices of the supreme court shall be elected by the 
qualified voters of the state, as is provided for the 
election of members of the general assembly. 
They shall hold their offices for eight years. 
(Const, Art. 4, s. 21; C. S. 1404.) 

§ 7-3. Salaries of supreme court justices,— Each 
justice of the supreme court shall be paid an an- 
nual salary of seven thousand five hundred dol- 
lars, and in lieu of and in commutation for ex- 
penses incident to attendance upon the court or 
amount equal to that allowed to each judge of 
the superior court, payable in equal monthly in- 
stallments, as a part of his compensation. (Rev., 
s 2764; Code, s. 3733; 1891, c. 193; 1903, c. 805; 
1905, c. 208; 1907, cc. 841, 988; 1909, c. 486; 1911, 
c. 82; 1915, c. 44; 1919, c. 51; 1921, c. 25, s. 2; 1925, 
c. 214; 1927, c. 69, s. 1; 1939, c. 252; C. S. 3883.) 

§ 7-4. Oath of office.— The justices, before 
they act as such, shall, before the governor or 
some judicial officer, take and subscribe the oaths 
appointed for the qualification of public officers, 
and also an oath of office, which shall be certified 
by the officer taking the same and delivered to 
the secretary of state, to be safely kept. (Rev., 
s. 1533; Code, s. 955; R. C, c. 33, s. 3; 1818, c. 
963; C. S. 1405.) 

§ 7-5. Name of court; where records to be 
kept. — The court bears the name and style of The 
Supreme Court of North Carolina, and is a court 
of record; and the papers and records belonging 
to the clerk's office thereof shall be constantly 
kept within the city of Raleigh. (Rev., s. 1536; 
Code, s. 954; R. C, c. 33, s. 2; R. S., c 33, s. 2; 
1884, c. 660; 1805, c. 674; 1818, c. 962; 1828, c. 13; 
C. S. 1406.) 

§ 7-6. 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; C. S. 1407.) 

§ 7-7. Terms of court. — There shall be held 
at the seat of government of the state in each 
year two terms of the supreme court, commenc- 
ing on the first Monday in February and the last 
Monday in August. 

The court shall sit at each term until all the 
business on the docket shall be determined or 
continued on good cause shown. In case no one 
of the justices shall attend the term during the 
first week thereof, at the end of that time the 
court shall stand adjourned till the next term, 
and the causes on the docket be continued, (Rev., 
ss. 1535, 1536; Code, ss. 953, 954; 1901, c. 660; 
1887, c. 49; 1881, c. 178; R. C, c. 33, s. 2; R. 
S., c. 33, s. 2; 1804, c. 660; 1805, c. 674; 1818, c. 
932; 1828, c. 13; 1842, c. 15; 1846, cc. 28, 29; C. S. 
1408.) 



Art. 2. Jurisdiction. 

§ 7-8. Original jurisdiction. — The supreme 
court has original jurisdiction to hear claims 
against the state, but its decision shall be merely 
recommendatory; no process in the nature of ex- 
ecution shall issue thereon; they shall be reported 
to the next session of the general assembly for 
its action. (Rev., s. 1537; Const., Art. IV, s. 9; 
C. S. 1409.) 

§ 7-9. Procedure to enforce claims against the 
state. — Any person having any claim against the 
state may file his complaint in the office of the 
clerk of the supreme court, setting forth the na- 
ture and grounds of his claim. He shall cause 
a copy of his complaint to be served on the gov- 
ernor, and therein request him to appear on be- 
half of the state and answer his claim. The copy 
shall be served at least twenty days before appli- 
cation for relief shall be made to the court. In 
case of an appearance for the state by the gover- 
nor, or any other authorized officer, the pleadings 
and trial shall be conducted in such manner as 
the court shall direct. If an issue of fact shall 
be joined on the pleadings, the court shall trans- 
fer it to the superior court of some convenient 
county for trial by a jury, as other issues of fact 
are directed to be tried, and the judge of the court 
before whom the trial is had shall certify to the 
supreme court, at its next term, the verdict and 
the case, if any, made up and settled as prescribed 
in cases of appeal to the supreme court. If the 
state shall not appear in the action by any au- 
thorized officer, the court may make up issues and 
send them for trial, as aforesaid. The supreme 
court shall in all cases report the facts found, and 
their recommendation thereon, with the reasons 
thereof, to the general assembly at its next term. 
(Rev., s. 1538; Code, s. 948; C. S. 1410.) 

§ 7-10. Appellate jurisdiction. — The supreme 
court has jurisdiction to review, upon appeal, any 
decision of the courts below, upon any matter of 
law or legal inference. And the jurisdiction of 
said court over "issues of fact" and "questions of 
fact" is the same exercised by it before the adop- 
tion of the constitution of one thousand eight 
hundred and sixty-eight, and the court has the 
power to issue any remedial writs necessary to 
give it a general supervision and control over the 
proceedings of the inferior courts. (Rev., s. 1539; 
Const., Art. IV, s. 8; C. S. 1411.) 

§ 7-11. Power to render judgment and issue 
execution. — In every case the court may render 
such sentence, judgment and decree as on inspec- 
tion of the whole record it shall appear to them 
ought in law to be rendered thereon; and it may 
at its discretion make the writs of execution which 
it may issue returnable either to the said court 
or to the superior court: Provided, that when an 
execution shall be made returnable as last men- 
tioned, a certificate of the final judgment of the 
supreme court shall always be transmitted to the 
superior court aforesaid, and there be recorded: 
Provided further, that the said superior court may 
enforce obedience to the execution, and in the 
event of its not being executed may issue new 
or further execution or process thereon in the 
same manner as though the first execution had 
issued from the said superior court: Provided, 
also, that in criminal cases the decision of 



[103] 



§ 7-12 



CH. 7. COURTS— JURISDICTION 



§ 7-20 



the supreme court shall be certified to the ion shall have been delivered to the clerk; which 

superior court from which the case was trans- shall afterwards be filed among the records of 

mitted, which superior court shall proceed to the court and published in the reports of the deci- 

judgment and sentence agreeable to the decision sions made by the court: Provided, that the 

of the supreme court and the laws of the state, justices shall not be required to write their opin- 

(Rev.. s. 1542; Code, s. 957; R. C, c. 33, s. 6; ions in full except in cases in which they deem 

1799 c. 520; 1818, c'. 963; 1830, c. 2; 1868-9, c. it necessary. (Rev., s. 1548; Code, s. 964; 1893, 



c. 379, s. 5; R. C, c. 33, s. 16; 1810, c. 
1416.) 

§ 7-16. Certificates to superior courts; execu- 



962; C. S. 1412.) 

§ 7-12. No judgment on interlocutory order; 
opinion certified. — When an appeal is taken to 

the supreme court from any interlocutory judg- tion for costs; penalty.— The clerk on the first 

ment, the supreme court shall not enter any judg- Monday in each month shall transmit by some 

ment' reversing, affirming or modifying the judg- safe hand, or by mail, to the clerks of the superior 

ment, order or 'decree so appealed from, but shall courts certificates of the decisions of the supreme 

cause their opinion to be certified to the court court in cases sent from such courts, which shall 

below, with instructions to proceed upon such or- have been on file ten days; and thereupon the 

der, judgment or decree, or to reverse or modify clerks respectively shall issue execution for the 

the' same according to said opinion, and the court costs incurred in the courts from which the 

below shall enter upon its records the opinion at cases were sent; and the clerk of the supreme 

length, and proceed in the cause according to the court shall issue execution for the costs incurred 

instructions. (Rev., s. 1544; Code, s. 962; C. S. in that court,_ including all publications in news- 

141 3 \ papers made in the progress of the cause in that 

_ , , , • court, and by order of the same, and all postage 

§ 7-13. Power of amendment and to require on ^^ which ^^ ^ ^^ of ^ 

further testimony—The supreme court has power paperg And . f the ckfk ghall ^ for the spac£ of 
to amend any process, pleading or proceeding twgnty dayg tQ perform the duty herdn enjoined 
either in form or substance for the purpose of q{ transmitting the certifi cates of decisions, he 
furthering justice, on such terms as_ shall be sha]1 forfdt and pay tQ the party Qr parties j n 
deemed just at any time before final judgment; whoge favor the supreme court shall have de . 
and to amend by making proper parties to any cldedj one hundred dol i ars . (Rey., s . i 549; Code, 
case where the court may deem it necessary and g g6g . 18g7 c 41 R <-. c 33 g gl . lgg0 & 
proper for the purposes of justice and on such 1070; ' 1825 ^ c ' 1282; 1842, c. 1, s. 3;C. S. 1417.)' 
terms as the court mav prescribe. And when- 
ever it appears necessary for the purpose of jus- § 7-17. Appeals dismissed. — Suits and appeals 
tice, the court may allow and direct the taking of pending in the supreme court may be dismissed 
further testimony in any case which may be pend- on failure to prosecute the same, after a rule ob- 
ing in the court, under such rules as may be pre- tained for that purpose and served on the plain- 
scribed, or may remand the case to the intent tiff or appellant, his agent or attorney, at least 
that amendments may be made, further testi- thirty days before the term next ensuing that of 
mony taken or other proceedings had in the entering the rule; when, if the party shall fail to 
court below. (Rev., s. 1545; Code, s. 965; R. C, prosecute his suit or appeal, the court shall, at 
c. 33, s. 17; 1777, c. 115, s. 75; 1785, c. 233; 1792, the election of the adverse party, dismiss the 



suit or appeal at the costs of the plaintiff or appel- 
lant, or proceed to hear and determine it. (Rev., s. 
1543; Code, s. 967; R. C, c. 33, s. 20; 1848, c. 28; 
Supm. Ct. Rules. 15, et seq.; C. S. 1418.) 

§ 7-18. Petition to rehear; execution restrained. 



c. 360; 1831, c. 46; C. S. 1414.) 

§ 7-14. Proof of exhibits. — Exhibits or other 
documents relative to cases pending in the su- 
preme court may be proved by the parol testi- 
mony of witnesses to be examined in the court 

in the same manner and under the same rules as ~ A Petition to rehear may be filed during the 

such exhibits or documents may be proved in vacation succeeding the term of the court at 

the superior court, and suitors in the court may which the Judgment was rendered, or within 

have subpoenas to enforce the attendance of wit- twenty days after the commencement of the 

nesses, who shall be liable to the same penalties succeeding term, and upon the filing of such peti- 

and actions for nonattendance, and be entitled tlon the chlef Justice, or any one of the associate 

to the same pay for traveling, ferriage and attend- Justices, may, upon such terms as he sees fit, 

ance as witnesses in the superior court: Provided, make an order restraining the issuing of an exe- 

that witnesses attending the supreme court shall c ution, or the collection and payment of the same, 

be taxed in the bill of costs and paid by the party untd the next term of sa,d court - or until the 

on whose behalf they may be summoned. (Rev., Petition to rehear shall have been determined, 

s. 1547; Code, s. 963; R. C, c. 33, s. 21; 1820, c. < Rev - s - l 546 '< Code - s - 966 : R - C -> c - 33 - »■ 18; 

1070; 1825, c. 1282; 1842. c. 1; C. S. 1415.) Supreme Court Rules 52, 53, 54; C. S. 1419.) 

§ 7-15. Opinions and judgments to be in writ- § 7 " 19 - Record s to be made.— The court may 

ing._ The justices shall deliver their opinions and order the clel t t0 record such P art s of the record 

judgments in writing, and the clerk shall make of cas ^ s as n ma V deem necessary. (Rev., s. 

no entry upon the records of the court that any 1550; Code - s ' 959; C - S ' 1420 -) 

cause pending therein is decided, nor give to any § 7-20. Power to make rules of court. The 

person a certificate of such decision, nor issue justices of the supreme court shall prescribe and 

execution in such suit, until after the opinion of establish from time to time rules of practice for 

the court shall have been delivered publicly in that court and also for the superior courts. The 

open court, and a written copy of the same opin- clerk shall certify to the judges of the superior 

[104] 



§ 7-21 



CH. 



COURTS— SUPREME COURT LIBRARY 



§ 7-31 



court the rules of practice for such court, to be cents; a determination, two dollars; a certificate, 

entered on the records thereof in each county, sixty cents; a fieri facias, or other execution, fifty 

(Rev., s. 1541; Code, s. 961; R. C, c. 33, s. 13; cents; a seal, twenty-five cents; a transcript, or 

1818 c. 963; C. S. 1431.) copy of a record, twenty cents for each copy- 

., i „ „ llo , sheet; a rule given for service, twenty-five cents; 

§ 7-21. Supreme court to prescribe rules; rules , ' r s c ' , 

s i »j.. ouyicinc u i h > a rule not £ or servlce fifteen cents; a subpoena, 

to conform to law. — The supreme court is here- , ... . . 

x writ, or other process, one dollar; a commission, 
from 



fifty cents; drawing a decree or judgment, by the 
copy-sheet, forty cents; a search, ten cents; affix- 



by vested with the power to prescribe 
time to time the modes of making and filing pro- 
ceedings, actions, and pleadings, and of entering . ^j wr uiri it twenty 
orders and judgments and recording the same, 
and to prescribe and regulate the practice on 
appeals to the supreme court, and in the trial 



of actions in the superior court, and before 
referees: Provided, no rule or regulation so 
adopted shall be in conflict with any of the pro- 



five cents; and an affidavit, twenty-five cents. 
(Rev., s. 2769; Code, s. 3738; R. C, c. 102, ss. 25, 
26; 1870-1, c. 139, s. 7; C. S. 3886.) 



§ 7-27. Clerk's bond and oath of office.— Be- 
fore undertaking his duties, the clerk of the 



visions of this code. Such rules as may be adopted supreme court shall enter into bond with suffi- 

by the supreme court shall be printed and dis- c j en t surety payable to the state of North Caro- 

tributed by the secretary of state as are the re- y m ^ m the sum of fifteen thousand dollars, condi- 

ports of the supreme court. (Ex. Sess. 1921, c. tioned for the faithful discharge of his duties and 

92, s. 1, subsec. 20; C. S. 1421(a).) for the safe keeping of all records committed to his 

custody, which bond shall be lodged with the sec- 
retary of state; and he shall also before said jus- 

§ 7-22. The court may appoint acting attorney- tices, or one of them, take the oaths which are 

general. — If the attorney-general should fail at prescribed for clerks of the superior court, and 

any term of the supreme court to attend to the shall keep his office in the city of Raleigh. (Rev., 

business which by law is assigned him, the s . 290; Code, s. 958; R. C, c. 33, s. 9; 1812, c. 

court may appoint some counsel learned in the 829, s. 2; 1818, c. 963, s. 5; 1846, c. 28, s. 3; 1799, 

law to discharge his duties during the term. c. 520, s. 2; C. S. 1425.) 



Art. 3. Officers of Court. 



§ 7-28. Clerk to report money on hand. — The 

clerk of the supreme court shall, at the beginning 
of each fall term, produce to the court a statement 
on oath of all moneys remaining in his hands 



(Rev., s. 1551; Code, s. 969; R. C, c. 33, s. 22; 
1846, c. 29; C. S. 1422.) 

§ 7-23. Reporter. — The supreme court may em- 
ploy a reporter of its decisions. (Rev., s. 1552; 

Code, s. 3363; 1893, c. 379, s. 4; 1897, c. 429; C. which have been paid into his office three years 

S. 1423.) or more previous thereto, whether received di- 

§ 7-24. Supreme court reporter; salary; offices. rectl y from P artie s or from his predecessor in 

—The governor and council of state shall fix the office ' and , ls not detained in his hands by special 

salary of the supreme court reporter at not to ex- °^ der of the court ' specifying therein the name 

ceed three thousand dollars a year, and shall of the P erson to whom the same ls Payable, and 

furnish the reporter with suitable offices at a cost nis address, if known; a copy of which report 

not to exceed five hundred dollars a year, which sha11 be transmitted to the state treasurer and 

shall be paid direct to the lessor upon the warrant j? the auditor. (Rev., s. 1554; Code, s. 1864; R. 

of the state auditor drawn upon the state treasurer. t "' c ' 73; 1823, c - 1186; 1831 > c - 3; C - S. 1426.) 
The reporter may employ a stenographer and § 7 _ 29 Marshal; librarian. — The Supreme 

clerk, at a salary to be fixed by the governor and Court may appoint a marshal of the Supreme 

council of state, payable monthly to the stenog- Court, removable at will, who shall have the 

rapher and clerk by voucher drawn by the state cr i m i na i and civi i pow ers of a sheriff and shall at- 



auditor on the state treasurer. (Rev., s. 2771 
Code, ss. 3363, 3728; 1893, c. 379; 1897, c. 429 
1911, c. 107; 1913, c. 59; 1917, c. 272; 1919, c. 276 



tend upon the court during its sessions. The Su- 
preme Court may consolidate the duties of the 
marshal with those of the librarian; when so con- 

1921, c. 143; Ex. Sess. 1921, c. 29; C. S. 3861, 3889.) so i idated the compensation of the marshal-li- 
§ 7-25. Clerk. — The clerk of the supreme court brarian shall be fixed by the Supreme Court, with 

shall be appointed by the court, and shall hold th e approval of the governor. (Rev., s. 1555; 

his office for eight years. (Rev., s. 1553; Const., Code, s. 950; 1873-4, c. 34; 1881, c. 306; 1939, c. 4; 

Art. IV, s. 15; C. S. 1424.) 

§ 7-26. Clerk of supreme court; salary; fees. — 



C. S. 1427.) 

Art. 4. Supreme Court Library. 

§ 7-30. Location. — The Supreme Court Library 
shall occupy the fifth floor of the Department of 
Justice Building. (Rev., s. 5083; 1885, c. 121, s. 
7; 1913, c. 99, s. 1; C. S. 6588.) 

§ 7-31. Trustees; powers; duties. — The Justices 
of the Supreme Court shall be, ex officio, the 
tion as may be estimated by the justices of the trustees of the Supreme Court Library and all 
court at each term, not to exceed thirty cents for moneys appropriated for its benefit shall be paid 
each page recorded, to be paid by the treasurer out under their direction and supervision. They 
on the certificate of the justices; for entering an shall have general charge and control of the li- 
appeal, one dollar; a continuance, thirty cents; a brary with authority to acquire, lend, exchange, 
scire facias, eighty cents; a certiorari, eighty and dispose of books and equipment in the in- 

[105] 



The clerk of the supreme court shall receive an 
annual salary of three hundred dollars, to be paid 
semiannually, on a certificate of the justices; and, 
in addition thereto, the following fees, namely: 
For recording the papers and proceedings in the 
causes decided in the supreme court, which are 
required by law to be recorded, such compensa- 



§ 7-32 



CH. 



COURTS— ORGANIZATION 



§ 7-44 



terest of the library, but may, in their discretion, 
employ a librarian to discharge this function un- 
der such regulations and orders as they may pre- 
scribe. The trustees may employ an assistant li- 
brarian and such other assistants as may be deemed 
necessary for the efficient functioning of the li- 
brary. (Rev., s. 5084; Code, s. 3606; 1883, c. 100; 
1889, c. 482; 1937, c. 173; C. S. 1428, 6589.) 

§ 7-32. Library hours; night use. — The library 
shall be kept open during such hours and under 
such conditions as the trustees may prescribe; 
attorneys of North Carolina, and such other per- 
sons as the trustees may deem proper, shall be 
admitted to the library at night upon application 
and compliance with reasonable rules adopted by 
the trustees. (Rev., s. 5085; 1889, c. 482; C. S. 
6590.) 

§ 7-33. Appropriation. — In addition to the funds 
regularly appropriated for the library, the clerk of 
the supreme court shall, upon order of the li- 
brarian under the general supervision and control 
of the trustees, expend for the maintenance and 
equipment of the library the funds, in excess of 
the actual expenses of each examination, paid in 
by the board of Law Examiners from the fees of 
applicants. (Rev., s. 5086; Code, s. 3613; Rev., 
1872-3; 1925, c. 275, s. 6; C. S. 6591.) 

Art. 5. Supreme Court Reports. 

§ 7-34. Supreme court reports; contract for 
printing. — The Supreme Court is authorized to 
contract from time to time for the printing of its 
reports; to select a printer for the same and to 
prescribe such terms of contract as will insure, 
under the supervision of the Court, the prompt 
issue of the reports as soon as practicable after 
a sufficient number of opinions are filed. Such 
contract shall be made after consultation with the 
division of purchase and contract after a compari- 
son of prices for similar work in other states to 
such an extent as may be practicable. (Rev., s. 
5093; 1905, c. 400; 1929, c. 39, s. 1; 1931, c. 261, s. 
3; 1931, c. 312, ss. 14, 15; C. S. 7296.) 

§ 7-35. Supreme court reports; number printed. 

— Of the supreme court reports there shall be 
printed and bound in full sheep or buckram as 
many copies, not less than seven hundred and 
fifty, as in the opinion of the attorney-general and 
secretary of state may be sufficient to supply the 
demand. All such copies shall be delivered to the 
secretary of state. Advance sheets of the supreme 
court reports are hereby authorized to be printed, 
and to be sold, under the rules of the supreme 
court. (Rev., s. 5097; Code, s. 3632; 1893, c. 146, 
s. 2; 1897, c. 135; 1901, c. 401, s. 2; 1919, c. 314, 
s. 4; 1923, c. 25; C. S. 7297.) 

Art. 6. Salaries of Supreme Court Employees. 

§ 7-36. Governor and council to fix certain 
salaries. — The governor and council of state shall 
constitute a board to adjust and fix the compen- 
sation to be paid to the employees of the Supreme 
Court. (1921, c. 143, ss. 1, 4; Ex. Sess. 1921, c. 
29; 1924, c. 124; C. S. 3861.) 

§ 7-37. Limit of salary; certificate and payment. 

— The compensation fixed under § 7-36 shall not 
exceed three thousand dollars per annum, except 
as may be elsewhere provided by law, for any in- 



dividual employee, and shall be certified by the 
governor to the state auditor, and paid as pro- 
vided by law for the payment of other salaries. 
(1921, c. 143, s. 2; C. S. 3861(a).) 

§ 7-38. Proceedings and reports. — The proceed- 
ings of the board shall be kept by the state 
auditor, and reported to each regular session of 
the general assembly. (1921, c. 143, s. 3; C. S. 
3861(b).) 

§ 7-39. Employment of additional assistants; 
compensation. — The governor and council of state 
are authorized and empowered to employ any ad- 
ditional clerical or stenographic help, for the Su- 
preme Court, upon written request from the Chief 
Justice, and when they are satisfied that such ad- 
ditional help is needed temporarily, to do the de- 
partmental work efficiently, and to fix the salary 
of such additional help at not to exceed eighteen 
hundred dollars for any one person. (Ex. Sess. 
1920, c. 95, s. 2; C. S. 3861(d).) 

SUBCHAPTER II. SUPERIOR COURTS. 

Art. 7. Organization. 
§ 7-40. Number of judges and solicitors. — The 

state shall be divided into twenty superior court 
judicial districts, for each of which a judge and 
a solicitor shall be chosen in the manner now 
prescribed by law. (1913, cc. 9, 63; Const., Art. 4, 
s. 10; C. S. 1429.) 

§ 7-41. Election and term of office of judges. — 

The judges of the superior courts shall be elected 
in like manner as is provided for justices of the 
supreme court, and shall hold their offices for 
eight years. (Const., Art. 4, s. 21; C. S. 1430.) 

§ 7-42. Salaries of superior court judges. — The 

salary of each of the judges of the superior court 
shall be six thousand five hundred dollars per 
annum, and each judge shall be allowed the sum 
of one thousand five hundred and fifty dollars in 
lieu of his traveling expenses, to be paid monthly. 
They shall also receive one hundred dollars per 
week and their actual expenses incurred in attend- 
ing and holding special terms of court by assign- 
ment of the governor, which expenses shall be 
paid by the county in which such special term is 
held. (Rev., s. 2765; Code, ss. 918, 3734; 1891, c. 
193; 1901, c. 167; 1905, c. 208; 1907, c. 988; 1909, 
c. 85; 1911, c. 82; 1919, c. 51; 1921, c. 25, s. 3; 1925, 
c. 227; 1927, c. 69, s. 2; C. S. 3884.) 

§ 7-43. Election and term of office of solicitors. 

— A solicitor shall be elected for each judicial dis- 
trict by the qualified voters thereof, as is pre- 
scribed for members of the general assembly, who 
shall hold office for the term of four years, and 
prosecute on behalf of the state in all criminal ac- 
tions in the superior courts, and advise the offi- 
cers of justice in his district. (Const., Art. 4, s. 
23; C. S. 1431.) 
Local Modification.— Forsyth: 1927, c. 129. 

§ 7-44. Solicitors; general compensation. — The 

several solicitors of the judicial districts of the 
state of North Carolina shall each receive, as full 
compensation for services as solicitor, the sum of 
forty-five hundred dollars ($4,500.00), to be paid in 
equal monthly installments out of the state 
treasury upon warrants duly drawn thereon, 
which said salaries shall be in lieu of fees or other 



[106] 



§ 7-45 



CH. 7. COURTS— ORGANIZATION 



§ 7-51 



nsation, except the expenses allowed in § the town in which such court is being held, drunk 

or intoxicated, at any time, it shall become the duty 
of such judge and he is hereby directed to im- 
mediately discharge such solicitor from the duties 
of such court, for the term then being held, and 
appoint some competent attorney to act as state 
solicitor for the term. The appointee shall be al- 
lowed all the fees and compensation belonging to 
the solicitor for such term. (Rev., s. 1499; 1901, 
c. 717; C. S. 1435.) 

§ 7-50. Emergency judges; duties; compensa- 



compe 

7-45. (Rev., s. 2767; Code, s. 3736; 1879, c. 240, 
s. 12; 1923, c. 157, s. 1; 1933, c. 78, s. 1; 1935, c. 
278; C. S. 3890.) 

§ 7-45. Appropriation for expenses of solicitor. 
— Each solicitor shall receive, in addition to the 
salary named in § 7-44, the sum of five hundred 
($500.00) dollars per annum, which will cover all 
of his expenses while engaged in duties connected 
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, tion. — The persons embraced within the provisions 

s. 2; 1933, c. 78, s. 2; 1937, c. 348; C. S. 3890(a).) of section 7-51 are hereby constituted emergency 

§ 7-46. Residence and rotation of judges.- judges of the superior court under article four 

Every judge of the superior court shall reside in (*), section eleven (11), of^ the constitution _ of 



the district for which he is elected. The judges 



this state, and are authorized to hold the superior 



shall preside in the courts of the different districts courts of any county or district when the judge 

successively, but no judge shall hold the courts in assigned thereto, by reason of sickness Jsability 

the same district oftener than once in four years, ° r other f^ ls una ^ e to attend and hold said 

but in case of the protracted illness of the judge F°" rt > and when n ° ° th " judge ." avallable , to 

assigned to preside in any district, or of any other hold the same, and to hold special terms when 

•j ui „ :j=„4. .. u;™ k„ -o-,.™ ~{ -,„u;,~v> commissioned so to do by the governor, and as 
unavoidable accident to him, by reason ot which ' ° . 

i. i. n u ui * „- a ,-;.4„ *u- „„„c~„^ ™-,t compensation for holding such special terms shall 

he shall be unable to preside, the governor may y & * . 

require any judge to hold one or more specified receive their actual expenses and in addition 

terms in said district in lieu of the judge assigned thereto fifty dollars per week to be paid by the 

to hold the courts of the said district. (Const., c °? nt y m which such s P ecial . term 1S held " . . 
At 4 s 11- C S 1432 *) case emergency arising as provided in 

said section, the governor shall designate the per- 

§ 7-47. Oath of office.— Every judge before he son t o act as emergency judge who shall receive 

shall act as such shall, in open court, or before his actual expenses only incurred while so acting, 

the governor, or before one of the judges of the to be paid by the treasurer upon warrant of the 

supreme or superior courts, or before some jus- auditor, upon certificate of the judge: Provided, 

tice of the peace, take the oath appointed for pub- that the county asking the governor for an emer- 

lic officers, and also an oath of office. The offi- gency judge shall have the privilege of requesting 

cer or court before whom the judge shall qualify the assignment of a particular judge. Such emer- 

shall cause the judge to subscribe the oaths by gency judges shall be subject to all the regula- 

him taken, and having certified the same, shall tions respecting superior court judges except as 

return the oaths to the secretary of state, who otherwise provided in §§ 7-50, 7-52, and 7-53. 

shall carefully preserve them; and if any judge (1921, c. 125, ss. 2, 3; Ex. Sess. 1921, c. 20, s. 3; 

shall act in his office before he shall have taken 1941, c. 52, s. 1; C. S. 1435(a).) 
the oaths directed, he shall forfeit and pay two 

thousand dollars, one-half to the use of the state § 7 ' 51 - Salaries of resigned or retired justices 

and the other half to the person who shall sue of supreme court and judges of superior courts.— 

for the same. (Rev., s. 1497; Code, s. 924; R. C, Every justice of the supreme court and regular or 

c. 31, ss. 18, 19; 1777, c. 115; 1806, c. 694, s. 13; s P ecia l judge of the superior court who has here- 

1848, c. 45; C. S. 1433.) tofore resigned or retired from office at the end 

„ . of his term, or who shall hereafter resign or retire 

& 7-48. Vacancies filled.— All vacancies occur- at expiration of his term, who has attained the 

ring by death, resignation or otherwise in the of- age of s i xty . five ( 65 ) years at the date of his 

fices of justice of the supreme or judge of the resignation or retirement, and who has served for 

superior court of the state shall be filled for the fifteen (15) years on the supreme court or on the 

unexpired term at the next general election for SU p e rior court, or on the supreme and superior 

members _ of the general assembly held after such courts combined, or twelve consecutive years on 

vacancy is created. The persons elected at such the supreme court, or who, without regard to the 

election shall be commissioned by the governor age of such judge or justice having serve d one 

immediately after the ascertainment of the result f u n term or six years on either the supreme or 

in the manner provided by law, and shall qualify superior court, and while still in active service 

and enter upon the discharge of the duties of the thereon, shall have become totally disabled through 

office within ten days after receiving such com- accident or disease to carry on the duties of said 

mission. (Rev, s. 1498; 1899, c. 613; Const., Art. office; or who, without regard to the age of such 



4, s. 25; C. S. 1434.) 



judge or justice, by reason of such accident, with- 



§ 7-49. When judge may discharge solicitor.— out fault on his part, shall suffer such physical 

When any state solicitor, authorized by election impairment as not to be able to efficiently per- 

or appointment to act as prosecuting attorney for form the duties of his office and who retires at 

or in behalf of the state of North Carolina, in any the end of his term, shall receive for life two- 

of the courts of said state, shall appear at such thirds (2/3) of the annual salary from time to 

court, in term time, drunk or intoxicated, or when time received by the justices of the supreme 

it shall be brought to the knowledge of the judge court or judges of superior court, respectively, 

presiding at such court that the solicitor whose payable monthly; provided, that any such justice 

duty it is to represent the state at such court is in or judge, who has or shall have served as such 

[107] 



§ 7-52 



CH. 7. COURTS— ORGANIZATION 



§ 7-59 



for twenty-five years or longer (whether con- 
tinuously or not), and whose seventieth 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 the superior courts during the time named here- 
in. (1927, c. 206, s. 1; 1929, c. 137, s. 1; 1931, c. 29, 
s. l; 1933, c. 217, s. 1; 1935, c. 97, s. 1; 1937, c. 72, 
s. 1; 1939, c. 31, s. 1; 1941, c. 51, S. 1.) 
§ 7-55. Time for appointment. — Each special 
of his resignation or retirement, and shall also judge shall be appointed by the governor on or be- 
be subject to the other provisions of this section. f ore j u ] y nrstj one thousand nine hundred and 
The provisions herein as to the amount of life- forty-one, and shall be subject to removal from 
time pay shall relate back to and become effective office for the same causes and in the same manner 
as of the fourth day of March, one thousand nine as re g U i ar judges of the superior court; and va- 
hundred and twenty-one, and the state treasurer canc j es occurring in the offices created by §§ 7-54 



is authorized and directed to pay on the warrant 
of the state auditor the salary 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. cc. 133, 201; 1935, 
cc. 233, 400; 1937, c. 199; 1939, c. 258; C. S. 
3884(a).) 



to 7-61 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; 1939, 
c. 31, s. 2; 1941, c. 51, s. 2.) 

§ 7-56. Further appointments. — The governor 
is further authorized and empowered, if in his 



§ 7-52. Jurisdiction and powers of emergency judgment the necessity exists therefor, to ap- 



judges— To the end that emergency judges pro- 
vided for in § 7-51 shall have the fullest power 
and authority sanctioned by Article Four (IV), 
Section Eleven (11), of the Constitution of North 
Carolina, such judges are hereby vested, in the 
courts which they are duly appointed to hold, with 



point at such time as he may determine, not ex- 
ceeding four additional judges, two of whom shall 
be residents of the eastern judicial division and two 
of whom shall be residents of the western judicial 
division, whose term of office shall begin from his 
or their appointment and qualification and end 



the same power and authority in all matters what- June thirtieth, one thousand nine hundred and 
soever that regular judges holding the same forty-three. All the provisions of §§ 7-54 to 7-61 
courts would have. An emergency judge duly as- applicable to the four special judges shall be 
signed to hold the court of a particular county applicable to the four special judges authorized to 
shall have, during said term of court, in open b e appointed under this section. (1927, c. 206, s. 
court and in chambers, the power and authority 
of a regular judge in all matters whatsoever aris- 
ing in that judicial district that could properly _ be 
heard or determined by a regular judge holding 
the same term of court. (Ex. Sess. 1921, c. 94, s. 
1; 1925, c. 8; 1941, c. 52, s. 2; C. S. 1435(b).) 

§ 7-53. Orders returnable to another judge; 
notice. — If any special or emergency judge has 
made any matters returnable before him, and 



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; 1939, c. 31, s. 
3; 1941, c. 51, s. 3.) 

§ 7-57. Extent of authority. — The authority 
conferred in §§ 7-54 to 7-61 upon the governor, 
pursuant to article four, section eleven, of the 
constitution of North Carolina, to appoint such 
special judges shall extend to regular as well as 
special terms of the superior court, with either 



subsequent thereto he should be called upon by c j v ji or cr j m j na l jurisdiction, or both, as may be 

the governor to hold court elsewhere, said judge designated by the statutes or by the governor 

shall make an order directing said matter to be 

heard before some other judge, setting forth in 

said order the time and place same is to be heard, 

and send a co2y of said order to the attorney or 

attorneys representing the parties plaintiff and 

defendant in such matter. (Ex. Sess. 1921, c. 94, 

s. 2; C. S. 1435(c).) 

§ 7-54. Governor to make appointment of 
four special judges. — The governor of North Caro- 
lina may appoint four persons who shall possess C0U rts which they are duly appointed to hold, with 



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; 1939, c. 31, s. 4; 1941, c. 51, 
s. 4.) 

§ 7-58. Jurisdiction as of regular judges. — 

To the end that such special judges shall have the 
fullest power and authority sanctioned by article 
four, section eleven, of the constitution of North 
Carolina, such judges are hereby vested, in the 



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, one thousand nine hun- 
dred and forty-one, and to end June thirtieth, one 
thousand nine hundred and forty-three, and the 



the same power and authority in all matters what- 
soever that regular judges holding the same courts 
would have. A special judge duly assigned to hold 
the court of a particular county shall have during 
said term of court, in open court and in chambers, 
the same power and authority of a regular judge 
in all matters whatsoever arising in that judicial 
district that could properly be heard or determined 
by a regular judge holding the same term of court. 
(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; 1939, c. 31, s. 5; 1941, c. 51, s. 5.) 

§ 7-59. Salary, expenses; terms; practice of 
law. — The special judges so appointed shall receive 
the same salary and traveling expenses as now are, 



said commission shall constitute his authority to or may hereafter be, paid or allowed to judges of 
perform the duties of the office of a special judge the superior court for holding their regularly as- 

[108] 



§ 7-60 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



signed courts, and they shall hold all such regular 
and special terms of court as they may be directed 
and assigned by the governor to hold, without ad- 
ditional compensation: Provided, that no person 
appointed under §§ 7-54 to 7-61 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; 1939, c. 31, s. 
6; 1941, c. 51, s. 6.) 

§ 7-60. Powers after commission expires. — Noth- 
ing in §§ 7-54 to 7-61 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; 1939, c. 31, s. 7; 1941, c. 51, s. 7.) 

§ 7-61. Effect on sections 7-50 and 7-51.— Noth- 
ing in §§ 7-54 to 7-60 shall in any matter affect §§ 
7-50 and 7-51. (1927, c. 206, s. 8; 1929, c. 137, s. 8; 
1931, c. 29, s. 8; 1933, c. 217, s. 8; 1935, c. 97, s. 
8; 1937, c. 72, s. 8; 1939, c. 31, s. 8; 1941, c. 51, s. 8.) 

§ 7-62. Disposition of motions where judge 
disqualified. — Whenever the judge before whom 
any motion is made, either at term time or at 
chambers, shall disqualify himself from determin- 
ing it, he may in his discretion refer the same 
for disposition to the resident judge of any ad- 
joining district, who shall have full power and 
authority to hear and determine the cause in the 
same manner as if he were the presiding jud?e 
of the district in which the cause arose. (1939, 
c. 48.) 

Art. 8. Jurisdiction. 

§ 7-63. Original jurisdiction. — The superior 
court has original jurisdiction of all civil actions 
whereof exclusive original jurisdiction is not 
given to some other court; and of all criminal ac- 
tions in which the punishment may exceed a fine 
of fifty dollars, or imprisonment for thirty days; 
and of all such affrays as shall be committed 
within one mile of the place where, and during 
the time, such court is being held; and of all of- 
fenses whereof exclusive original jurisdiction is 
given to justices of the peace, if some justice of 
the peace shall not within twelve months after 
the commission of the offense proceed to take of- 
ficial cognizance thereof. (Rev., s. 1500; Code, 
s. 922; 1889, c. 504, s. 2; Const., Art. IV, ss. 12, 27; 
1879, c. 92, s. 11; 1881, c. 210; C. S. 1436.) 

§ 7-64. Concurrent jurisdiction. — In all cases in 
which by statute original jurisdiction of criminal 
actions has been, or may hereafter be, taken from 
the superior court and vested exclusively in courts 
of inferior jurisdiction, such exclusive jurisdiction 
is hereby divested, and jurisdiction of such actions 
shall be concurrent and exercised by the court first 
taking cognizance thereof. The provisions of this 
section shall remain in full force and effect, unless 
expressly repealed by some subsequent Act of the 
General Assembly, and shall not be repealed by 
implication or by general repealing clauses in any 
Act of the General Assembly conferring exclusive 
jurisdiction on inferior courts in misdemeanor 
cases which may be hereafter enacted. Appeal 
shall be, as heretofore, to the superior court from 
all judgments of such inferior courts: Provided, 
that this section shall not apply to the counties of 



[109] 



Alleghany, Cabarrus, Caswell, Cherokee, Clay, 
Craven, Cumberland, Currituck, Dare, Davidson, 
Edgecombe, Gaston, Gates, Graham, Granville, 
Guilford, Halifax, Harnett, Henderson, Hertford, 
Hyde, Iredell, Jones, Eenoir, New Hanover, 
Pamlico, Perquimans, Rockingham, Rutherford, 
Scotland, Surry, Union and Warren. (1919, c. 299; 
1923, c. 98; 1941, c. 265; C. S. 1437.) 

§ 7-65. Jurisdiction in vacation or at term. — 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 su- 
perior court in vacation, or in term time, at their 
election. The resident judge of the judicial dis- 
trict and the judge regularly presiding over the 
courts of the district, shall have concurrent juris- 
diction in all matters and proceedings where the 
superior court has jurisdiction out of term. 
(Rev., s. 1501; Code, c. 10. s. 230; 1871-2, c. 3; 
1939, c. 69; C. S. 1438.) 

§ 7-66. Appellate jurisdiction. — The superior 
court has appellate jurisdiction of all issues oi 
law or of fact, determined by a clerk of the su- 
perior court or a justice of the peace, and of all 
appeals from inferior courts for error assigned, in 
matters of law, as provided by law. (Rev., s. 
1502; Const., Art. IV, ss. 12, 27; Code, s. 923;' C 
S. 1439.) 

§ 7-67. Transfer of cases pending in abolished 
inferior court.— In case of the abolition of any 
court inferior to the superior court (except courts 
of the justices of the peace), all cases and matters 
then in such court, not finally disposed of, and all 
records of such court, shall forthwith be transferred 
and delivered to the superior court of the county 
in which such inferior court has functioned, for 
trial or other disposition of such cases and matters 
as may be necessary and proper. 

The superior court to which such cases and mat- 
tersare transferred shall have the power and juris- 
diction to hear, deal with and dispose of the same 
to the same extent as would said inferior court had 
its existence continued. (1941, c. 117.) 

Art. 9. Judicial Districts and Terms of Court. 

_ § 7-68. 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 hereinafter designated. (1913 c 63' 
1913, c. 196; 1937, c. 413, s. 1; C S. 1441.) ' 

§ 7-69. 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 be 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; C. S. 1442.) 

§ 7-70. Terms of court.— A superior court shall 
be held by a judge thereof at the courthouse in 
each county. The twenty-one judicial districts of 



§ 7-70 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



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; C. S. 1443.) 

Eastern Division 

First District 

The first district shall be composed of the fol- 
lowing counties, and the superior courts thereof 
shall be held at the following times, to-wit: 

Currituck — Third Monday in July, for civil 
cases only; first Monday in March; first Monday 
in September. (1913, c. 196; Ex. Sess. 1913, c. 
51; Ex. Sess. 1920, c. 23, s. 2; 1939, c. 59; C. S. 
1443.) 

Camden — First Monday after the first Monday 
in March and the fourth Monday after the first 
Monday in September. (1913, c. 196; 1921, c. 105; 
1937, c. 283, s. 1; C. S. 1443.) 

Pasquotank — Eighth Monday before the first 
Monday in March for the trial of civil cases 
only; third Monday before the first Monday in 
March to continue for two weeks, the first week 
for the trial of civil cases only and the second 
week for the trial of criminal cases only; second 
Monday after the first Monday in March for the 
trial of civil cases only; ninth Monday after the 
first Monday in March to continue for two weeks 
for the trial of civil cases only; thirteenth Mon- 
day after the first Monday in March for the trial 
of criminal cases only; fourteenth Monday after 
the first Monday in March to continue for two 
weeks for the trial of civil cases only; second 
Monday after the first Monday in September for 
the trial of civil cases only; fifth Monday after the 
first Monday in September to continue for two 
weeks for the trial of civil cases only; ninth Mon- 
day after the first Monday in September to con- 
tinue for two weeks, the first week for the trial of 
civil cases only and the second week for the trial 
of criminal cases only. (1913, c. 196; Ex. Sess., 
1913, c. 51; 1921, c. 105; 1923, c. 232; Pub. Doc. 
1925, c. 631; 1929, c. 167; 1933, cc. 3, 129; C. S. 
1443.) 

Perquimans — Seventh Monday before the first 
Monday in March, for civil cases only, for which 
term a special judge to be assigned by the gov- 
ernor; sixth Monday after the first Monday in 
March; eighth Monday after the first Monday in 
September. (1913, c. 196; Ex. Sess., 1913, c. 51; 
1931, c. 6; 1933, c. 286; C. S. 1443.) 

[ 110 



Chowan — Fourth Monday after the first Mon- 
day in March; eighth Monday after the first Mon- 
day in March to continue for one week, for the trial 
of civil cases only; first Monday after the first Mon- 
day in September; twelfth Monday after the first 
Monday in September. (1913, c. 196; 1931, c. 87; 
1933, c. 456; 1937, c. 102; 1941, c. 367, s. 1; C. S. 
1443.) 

Gates — Third Monday after the first Monday in 
March; eleventh Monday after the first Monday 
in September. (1913, c. 196; 1935, c. 70; C. S. 
1443.) 

Dare — Twelfth Monday after the first Monday 
in March; seventh Monday after the first Monday 
in September. (1913, c. 196; Ex. Sess. 1913, c. 
51; C. S. 1443.) 

Tyrrell — Seventh Monday after the first Mon- 
day in March; fourth Monday after the first Mon- 
day in September, and for this term a special 
Judge may be assigned; fourth Monday before the 
first Monday in March, for civil cases only. Up- 
on recommendation of the local bar, the board of 
commissioners for the county of Tyrrell, at their 
option, may abolish and suspend the opening and 
holding, in any year, of the term above provided 
for the week commencing on the fourth Mon- 
day before the first Monday in March, by notify- 
ing the governor and the judge scheduled to hold 
said term, at least thirty days prior to the date 
for opening same, that such term of court is not 
desired. (1913, c. 196; Ex. Sess. 1913, c. 51; 1919, 
c. 128, s. 1; Ex. Sess. 1920, c. 23, s. 1; 1921, c. 83; 
Ex. Sess. 1921, c. 19; 1923, c. 124; Pub. Loc. 1925, 
c. 389; 1927, c. 123; 1931, c. 92; 1933, c. 126; C. S. 
1443.) 

Hyde — Eleventh Monday after the first Monday 
in March; sixth Monday after the first Monday in 
September. 

In addition to the terms of court now provided 
by law to be held in Hyde county, the following 
term of court shall be opened and held in each year, 
except as hereinafter provided, in the manner and 
at the time herein set forth, to-wit: To convene on 
the third Monday in August of each year and to 
continue for one week for the trial of civil cases 
only. If the judge regularly assigned to the dis- 
trict in which said court is situate be unable to 
hold any term of court provided in the first sen- 
tence of this paragraph, for any cause set out in 
article four, section eleven of the constitution, the 
governor may appoint a judge to hold such term 
from among the regular, special or emergency 
judges. If, in the opinion of the board of commis- 
sioners of Hyde county, it is not advisable or neces- 
sary to hold said additional term of court, and such 
fact is so stated in a resolution duly adopted by a 
majority of said board on or before the second 
Monday in July next preceding the day for the 
convening of said term, then said term shall not be 
held on the third Monday in August of that year 
as provided in this paragraph. Upon the adoption 
of such a resolution, the clerk of said board shall 
immediately notify the judge, who has been as- 
signed to hold the additional term, that the same 
will not be held, and no jury for the said term shall 
be drawn; but if no such resolution shall be 
adopted on or before the second Monday in July 
as provided above, then it shall be the duty of the 
board of commissioners to cause the jury to be 
drawn in the manner now prescribed by law for 



§ 7-70 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



the drawing of a jury for the trial of civil cases in 
regular terms of the superior court. (1913, c. 196; 
1935, c. 191; 1941, c. 367, s. 1; C. S. 1443.) 

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; C. 
S. 1443.) 

Second District 

The second district shall be composed of the fol- 
lowing counties, and the superior courts thereof 
shall be held at the following times, to-wit: 

Washington — Eighth Monday before the first 
Monday in March, to continue for two weeks; 
sixth Monday after the first Monday in March, 
for civil cases only; eighth Monday before the 
first Monday in September; seventh Monday 
after the first Monday in September, for civil 
cases only. (1913, cc. 63, 196; Ex. Sess. 1913, c. 
51; 1919, c. 138, s. 2; c. 133; 1923, c. 227; 1929, 
C 54; C. S. 1443.) 

Martin — Second Monday after the first Monday 
in March, to continue for two weeks; fifteenth 
Monday after the first Monday in March; sec- 
ond Monday after the first Monday in Septem- 
ber, to continue for two weeks; fourteenth Mon- 
day after the first Monday in September; sixth 
Monday after the first Monday in March and 
eleventh Monday after the first Monday in 
September, each to continue for two weeks, for 
the trial of civil cases only. For the last two 
terms of court the Governor is hereby directed to 
appoint a judge to hold the same from among 
the regular or emergency judges. (1913, c. 196; 
1919, c. 133; 1924, c. 12; 1929, c. 124; C. S. 1443.) 

Edgecombe — Sixth Monday before the first Mon- 
day in March; first Monday in March; fourth 
Monday after the first Monday in March, to con- 
tinue for two weeks, for civil cases only; thirteenth 
Monday after the first Monday in March, to con- 
tinue for two weeks; first Monday after the first 
Monday in September; sixth Monday after the 
first Monday in September; tenth Monday after 
the first Monday in September, to continue for 
two weeks, for civil cases only. 

The grand jury drawn by the commissioners of 
Edgecombe county for the term of court beginning 
on the sixth Monday before the first Monday in 
March of each year shall also serve as the grand 



jury for the term beginning on the first Monday in 
March and on the thirteenth Monday after the 
first Monday in March, and shall be charged with 
the same duties and clothed with the same power 
at each of said terms and shall receive for each 
term such mileage and compensation as is now 
provided by law. (1913, c. 196; Ex. Sess. 1913, c. 
17; 1915, c. 107; 1917, c. 12; 1919, c. 133; Ex. Sess., 
1921, c. 108, s. 1; 1923, c. 246; 1927, c. 128; 1941, 
cc. 2, 32; C. S. 1443.) 

Nash — Fifth Monday before the first Monday in 
March; second Monday before the first Monday 
in March, to continue for two weeks, for the trial 
of civil cases only; first Monday after the first 
Monday in March; seventh Monday after the first 
Monday in March, to continue for two weeks, for 
the trial of civil cases only; twelfth Monday after 
the first Monday in March; first Monday before 
the first Monday in September; second Monday 
after the first Monday in September, to continue 
for two weeks, for the trial of civil cases only, and 
for the term of court the governor is hereby di- 
rected to appoint a judge, other than the judge 
holding courts of the second judicial district, to 
hold the same from among the regular, special or 
emergency superior court judges; fifth Monday 
after the first Monday in September, for the trial 
of civil cases only; twelfth Monday after the first 
Monday in September, to continue for two weeks, 
the first week to be for the trial of criminal cases 
and the second week for the trial of civil cases 
only. The court shall have jurisdiction to try and 
determine civil actions and civil matters at any 
term of superior court held in Nash county, 
whether said term is designated above as a civil 
term or not. (1913, c. 196; 1915, c. 63; 1919, c. 
133; Ex. Sess. 1921, c. 108; 1923, c. 237; 1924, c. 
46; 1933, c. 145; 1935, c. 201; C. S. 1443.) 

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; C. S. 1443.) 

Third District 

The third district shall be composed of the follow- 
ing counties, and the superior courts thereof shall 
be held at the following times, to-wit: 

Hertford — First Monday before the first Mon- 
day in March; sixth Monday after the first Mon- 
day in March, to continue for two weeks, for the 
trial of civil cases and only such criminals as are 
confined in the common jail or otherwise impris- 
oned; fifth Monday before the first Monday in 
September; sixth Monday after the first Monday 
in September, to continue for two weeks. (1913, 
c. 196; 1915, c. 282; 1919, c. 142; 1923, c. 113; 1924, 

1] 



§ 7-70 



CH. 7. COURTS—JUDICIAL DISTRICTS 



§ 7-70 



c. 9; 1927, C. 118; 1929, c. 217; 1931, cc. 140, 200; 
1935, cc. 102, 276; 1939, C. 40; C. S. 1443.) 

B ert ie_Third Monday before the first Monday 
in March, to continue for one week for the trial 
of both criminal and civil cases; ninth Monday 
after the first Monday in March, to continue for 
two weeks, for trial of both criminal and civil 
cases; first Monday before the first Monday in 
September, to continue for two weeks, for the trial 
of both criminal and civil cases; tenth Monday 
after the first Monday in September, to continue 
for two weeks, for the trial of both criminal and 
civil cases. (1913, c. 196; Ex. Sess. 1913, c. 16; 
1915, c. 78; 1917, c. 226; Ex. Sess. 1921, c. 45; 1923, 
c 185; 1931, cc. 192, 247; 1941, c. 367, s. 1; C. S. 
1443.) 

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; C. S. 1443.) 

Halifax— Fifth Monday before the first Monday 
in March, to continue for two weeks; second Mon- 
day after the first Monday in March, to continue 
for two weeks, for the trial of civil cases only; 
eighth Monday after the first Monday in March, 
for the trial of both criminal and civil cases, to 
continue for one week, and for this term of court 
the governor is hereby directed to appoint a judge 
to hold same from among the regular, special or 
emergency judges; thirteenth Monday after the 
first Monday in March, to continue for two weeks, 
the first week of which shall be for the trial of 
criminal or civil cases, or both, and the second 
week for trial of civil cases exclusively; third 
Monday before the first Monday in September, to 
continue for two weeks, for the trial of civil and 
criminal cases; fourth Monday after the first Mon- 
day in September, to continue for two weeks, for 
the trial of civil cases only, and for this term of 
court the governor is hereby directed to appoint a 
judge to hold same from among the regular, spe- 
cial or emergency judges; seventh Monday after 
the first Monday in September, to continue for one 
week, for the trial of criminal cases only, and for 
this term of court the governor is hereby directed 
to appoint a judge to hold the same from among 
the regular, special or emergency judges; twelfth 
Monday after the first Monday in September^ for 
the trial of civil and criminal cases, to continue 
for two weeks. (1913, c. 196; Ex. Sess. 1913, c. 2; 
1915, c. 78; 1924, c. 87; 1925, cc. 36. 47; 1929, c. 
160; 1941, c. 367, s. 1; C. S. 1443.) 

Warren — Seventh Monday before the first Mon- 
day in March for criminal cases only; sixth Mon- 
day before the first Monday in March for civil 
cases only: eleventh Monday after the first Mon- 
day in March for criminal cases only; twelfth Mon- 
day after the first Monday in March for civil cases 
only; second Monday after the first Monday in 
September for criminal cases only; third Monday 
after the first Monday in September for civil cases 
only; each to continue one week. At any term for 
the trial of criminal cases, civil cases may be tried 
by consent. (1913, c. 196; 1917, c. 256; 1941, c. 367, 
s. l; C. S. 1443.) 

Vance — Eighth Monday before the first Mon- 
day in March for criminal cases only; first Mon- 
day in March for criminal cases only; second 

[ 



Monday in March for civil cases only; fifteenth 
Monday after the first Monday in March for 
criminal cases only; sixteenth Monday after the 
first Monday in March for civil cases only; fourth 
Monday after the first Monday in September for 
criminal cases only; fifth Monday after the first 
Monday in September for civil cases only, each 
to continue one week. At any term for the trial 
of criminal cases, civil cases may be tried by con- 
sent. (1913, c. 196; 1917, c. 256; 1925, cc. 66, 165; 
1927, c. 169, s. 1; C. S. 1443.) 

Fourth District 

The fourth district shall be composed of the fol- 
lowing counties, and the superior courts thereof 
shall be held at the following times, to-wit: 

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 
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; C. S. 1443.) 

Johnston — First Monday after the first Mon- 
day in March; third Monday before the first Mon- 
day in September, for criminal cases only; also 
the first Monday in March; the third Monday be- 
fore the first Monday in March; sixth Monday 
after the first Monday in March; and sixth Mon- 
day after the first Monday in September, each 
for one week for criminal and civil cases; and the 
eighth Monday before the first Monday in March, 
two weeks for civil cases; and ninth Monday 
after the first Monday in September, two weeks 
for civil cases. The governor shall assign some 
regular or special judge to hold said courts; four- 
teenth Monday after the first Monday in Septem- 
ber, to continue for two weeks; second Monday 
before the first Monday in March; seventh Mon- 
day after the first Monday in March; and third 
Monday after the first Monday in September, each 
to continue for two weeks; and the last three 
terms for civil cases only; sixteenth Monday after 
the first Monday in March, for the trial of criminal 
cases only. (1913, c. 196; 1927, c. 190; 1929, c. 208; 
1933, c. 81; C. S. 1443.) 

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 
112 ] 



§ 7-70 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



first Monday in March, for the trial of criminal only; second Monday after the first Monday in 
cases only; fourth Monday after the first Monday March to continue for two weeks for the trial 
in March to continue for two weeks for the trial of civil cases only; sixth Monday after the first 
of civil cases only; ninth Monday after the first Monday in March and seventh Monday after 
Monday in March for the trial of civil cases only; the first Monday in March to constitute one 
eleventh Monday after the first Monday in March, term for the trial of criminal and civil cases; 
one week, for the trial of criminal cases only; ninth Monday after the first Monday in March 
fourteenth Monday after the first Monday in to continue for one week for the trial of civil 
March, two weeks, for the trial of civil cases only; cases; eleventh Monday after the first M on- 
first Monday in September for criminal cases only; day in March, for civil cases only; twelfth Mon- 
second Monday after the first Monday in Septem- day after the first Monday in March, for civil 
ber for the trial of civil cases only; fourth Monday cases only; second Monday before the first Mon- 
after the first Monday in September to continue day in September, for civil cases only; first Mon- 
for two weeks, civil cases only; tenth Monday after day before the first Monday in September; first 
the first Monday in September to continue for two Monday after the first Monday in September, for 
weeks, for the trial of criminal cases only. civil cases only; third Monday after the first Mon- 
If no regular judge is available for any cause set day in September, for civil cases only; seventh 
out in article four, section eleven, of the constitu- Monday after the first Monday in September, for 
tion, for the one week term of court beginning on civil cases only; eighth Monday after the first 
the second Monday after the first Monday in Monday in September; eleventh Monday after the 
March, or on the first Monday in September, or first Monday in September, to continue for one 
for the two weeks term of court beginning on the week for the trial of civil cases. For the terms 
fourth Monday after the first Monday in March, beginning the ninth Monday after the first Hon- 
or on the fourth Monday after the first Monday in day in March and the eleventh Monday after the 
September, the governor may assign a special first Monday in September the governor may ap- 
judge to hold said court. (1913, c. 196; 1927, cc. point a judge to hold the same from among the 
161, 212; 1931, c. 147; 1937, c. 105; 1941, c. 367, s. regular or emergency judges. (1913, c. 196; Ex. 
1; C. S. 1443.) Sess. 1913, c. 25; 1915, cc. Ill, 139; 1917, c. 217; 
Chatham— Seventh Monday before the first ]919 - c - 56 ; Ex - Sess. 1920, c. 29; 1921, c. 159; 1929, 
Monday in March, to continue one week for the c - ]53 : 193 L c - 94 ; 1 9 35, c. 73; 1939, c. 43; C. S. 
trial of criminal and civil cases; the first Monday 1-143.) 

in March to continue one week for the trial of Craven— Eighth Monday before the first Mon- 

civil cases only; the second Monday after the da y in March; thirteenth Monday after the first 

first Monday in March to continue one week for Monday in March, and the first Monday in Sep- 

the trial of civil cases only; tenth Monday after tember for criminal cases only; fifth Monday 

the first Monday in March to continue for one after the first Monday in March, for civil cases 

week for the trial of civil and criminal cases; and J ail cases on the criminal docket; fifth Mon- 

fifth Monday before the first Monday in Septem- da y before the first Monday in March to con- 

ber to continue for two weeks for the trial of civil tlnue Ior three weeks for the trial of civil cases 

cases only; seventh Monday after the first Mon- onl y; fourth Monday after the first Monday in 

day in September to continue for one week for September; eleventh Monday after the first 

the trial of criminal and civil cases. (1913, c. 196; Monday in September, each to continue for two 

1917, c. 228; 1919, c. 35; Pub. Loc. 1925, c. 602; wee ks, for civil cases only; tenth Monday after 



1929, c. 169; C. S. 1443.) 

Lee — Fifth Monday before the first Monday in 
March, to continue for two weeks for the trial of 
civil cases only; provided, that for this term the 



the first Monday in March, for civil cases only. 

(1913, c. 196; 1915, c. Ill; 1917, c. 217; 1929 
c. 166; C. S. 1443.) 

Pamlico— Eighth Monday after the first Mon- 



governor shall assign a judge to hold the same day in March, and ninth Monday after the first 
from among the regular, special or emergency Monday in September, each to continue for two 



judges; third Monday after the first Monday in 
March to continue for two weeks; seventh Mon- 
day before the first Monday in September; first 
Monday after the first Monday in September, to 
continue for two weeks, for the trial of civil 



weeks. (1913, c. 196; 1921, c. 159; C. S. 1443.) 

Jones— Fourth Monday after the first Monday 
in March; third Monday before the first Monday 
in September to continue for one week for civil 
cases only; fifth Monday after the first Monday 



cases; provided, that for the last week of said in November; and second Monday after the first 
term the governor shall assign a judge to hold Monday in September 

the same from among the regular special or if the judge regularly assigned to the district in 
emergency judges; eighth Monday after the first which said county is situate be unable because of 
Monday in September. (1913, c. 196; Ex. Sess. another regular term of court in said district or 
1913, c. 24; 1917, c. 228; 1929, c. 162; 1931, c. 86; for other cause, to hold any term of court pro- 
1939, c. 194; C. S. 1443.) vided j„ the preceding paragraph, 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; 1939, c. 283; C. S. 1443.) 

Carteret — Fourteenth Monday after the first 

Pitt — Seventh Monday before the first Monday Monday in March, to continue for two weeks- 

in March, for civil cases only; sixth Monday be- first Monday after the first Monday in March' 

fore the first Monday in March; second Monday and sixth Monday after the first Monday in Sep- 

before the first Monday in March, for civil cases tember; thirteenth Monday after the first Mon- 

[113] 



Fifth District 

The fifth district shall be composed of the fol- 
lowing counties, and the superior courts thereof 
shall be held at the following'times, to-wit: 



§ 7-70 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



day in September, for civil cases only. (1913, c. 
196; 1921, c. 159; 1929, c. 166, s. 2; C. S. 1443.) 

Greene — First Monday before the first Mon- 
day in March, to continue for two weeks; six- 
teenth Monday after the first Monday in March; 
fourteenth Monday after the first Monday in 
September, to continue for two weeks; thirteenth 
Monday after the first Monday in September to 
continue for one week for the trial of both crimi- 
nal and civil cases. And for this last mentioned 
term of court the governor shall assign a judge 
from among the regular, special or emergency 
judges. (1913, cc. 63, 171, 196; Ex. Sess. 1913, cc. 
19, 47; 1915, c. 139; 1935, c. 109; C. S. 1443.) 

Sixth District 

The sixth district shall be composed of the fol- 
lowing counties, and the superior courts thereof 
shall be held at the following times, to-wit: 

Lenoir — Sixth Monday before the first Monday 
in March, to continue for one week, for the trial 
of criminal cases; second Monday before first 
Monday in March to continue for two weeks, for 
the trial of civil cases only; fifth Monday after 
first Monday in March for the trial of criminal 
cases or civil cases, or both, to continue for one 
week; tenth Monday after first Monday in March, 
to continue for two weeks for the trial of civil 
cases only; fourteenth Monday after first Monday 
in March, to continue for two weeks for the trial 
of civil cases only; sixteenth Monday after first 
Monday in March for the trial of criminal cases 
only; second Monday before first Monday in Sep- 
tember, to continue for one week for the trial of 
criminal or civil cases, or both; third Monday 
after first Monday in September, to continue for 
one week for trial of civil cases only; sixth Mon- 
day after first Monday in September, for the trial 
of civil or criminal cases, or both, to continue for 
one week; ninth Monday after first Monday in 
September, to continue for two weeks for the 
trial of civil cases only; fourteenth Monday after 
first Monday in September, to continue for one 
week for the trial of criminal or civil cases, or 
both, and for this term of court, the governor is 
hereby directed to appoint a judge to hold the 
same from among the regular or special judges. 
(1913, c. 196; Ex. Sess. 1913, c. 61; 1915, c. 240; 
1917, c. 13; Pub. Loc. 1925, c. 5; 1931, c. 271; 1933, 
c. 234, s. 1; C. S. 1443.) 

Duplin — Eighth Monday before the first Monday 
in March, to continue for two weeks, for the trial 
of civil cases only; fifth Monday before the first 
Monday in March, to continue for one week, for 
the trial of criminal cases; first Monday after the 
first Monday in March, to continue for two weeks, 
for the trial of civil cases only; sixth Monday after 
first Monday in March to continue for two weeks, 
the first week of which shall be for the trial of 
criminal cases, or civil cases, or both, and the sec- 
ond week for the trial of civil cases exclusively; 
sixth Monday before first Monday in September to 
continue for one week, for the trial of criminal 
cases only; first Monday before the first Monday 
in September, to continue for two weeks, for the 
trial of civil cases only; fourth Monday after first 
Monday in September, to continue for one week 
for the trial of criminal cases; thirteenth Monday 
after the first Monday in September, to continue 
for two weeks for the trial of civil cases only. 

[1 



At all criminal terms of the superior court in the 
county of Duplin, uncontested divorce cases may 
be tried and the court may hear and determine all 
motions in civil matters, not requiring a jury trial 
and make any order, judgment or decree respecting 
the confirmation of judicial sales. (1913, c. 196; 
Ex. Sess. 1913, c. 53; 1915, c. 240; Ex. Sess. 1920, 
c. 81; Ex. Sess. 1921, cc. 78, 79; 1931, c. 271; 1933, 
c. 234, s. 1; 1935, cc. 157, 289; 1941, c. 321; C S. 
1443.) 

Onslow — First Monday in March to continue for 
one week, for the trial of criminal cases, or civil 
cases, or both; twelfth Monday after the first 
Monday in March to continue for two weeks, for 
the trial of criminal cases only; seventh Monday 
before the first Monday in September, to continue 
for one week, for the trial of civil cases and jail 
cases, in accordance with the next succeeding 
paragraph; fifth Monday after the first Monday 
in September, to continue for one week for the 
trial of criminal and civil cases; eleventh Monday 
after the first Monday in September, to continue 
for two weeks, for the trial of civil cases. (1913, 
c. 196; Ex. Sess. 1913, c. 75; 1915, c. 240; Ex. Sess. 
1921, c. 78, s. 1; 1927, c. 179, s. 1; 1933, c. 234, s. 1; 
1941, c. 321; C. S. 1443.) 

The July term of the superior court for Onslow 
County, is hereby authorized, in the discretion of 
the board of county commissioners signified by 
resolution duly adopted in apt time, to try any or 
all state cases which involve defendants or wit- 
nesses confined in jail to await trial. In the event 
such trials are ordered, by such resolution, the 
board of county commissioners shall cause to be 
drawn and summoned in the usual manner suffi- 
cient jurors to provide for the empaneling of a 
grand jury and to also provide for a trial jury or 
juries. (1931, c. 341.) 

Sampson — Fourth Monday before the first Mon- 
day in March, to continue for two weeks, for the 
trial of criminal or civil cases, or both; third Mon- 
day after the first Monday in March, to continue 
for two weeks, for the trial of civil cases only; 
eighth Monday after the first Monday in March, 
to continue for two weeks, the first week of which 
shall be for the trial of criminal or civil cases, or 
both, and the second week for the trial of civil 
cases exclusively; fourteenth Monday after the 
first Monday in March, to continue for two weeks, 
for the trial of civil cases only, and for this term 
of court a special or emergency judge shall be as- 
signed by the governor if the regular judge is un- 
able for any cause set out in article four, section 
eleven of the constitution to hold said term. 
Fourth Monday before the first Monday in Sep- 
tember, to continue for two weeks, for the trial of 
criminal or civil cases, or both; first Monday after 
the first Monday in September, to continue for two 
weeks, for the trial of civil cases only; seventh 
Monday after the first Monday in September, to 
continue for two weeks, the first week of which 
shall be for the trial of criminal or civil cases, or 
both, and the second week for the trial of civil 
cases exclusively. (1913, c. 196; Ex. Sess. 1913, c. 
61; 1915, c. 240; Ex. Sess. 1921, c. 79, s. 2; 1927, 
c. 179, s. 1(b); 1933, c. 234, s. 1; 1935, c. 283; 1941, 
cc. 351, 367, s. 1; C. S. 1443.) 

At criminal terms of superior court in the sixth 
judicial district, civil actions which do not require 
a jury may be heard by consent; and at criminal 
14] 



§ 7-70 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



terms in the county of Lenoir uncontested divorce 
cases may be tried by the court and a jury in all 
respects as at civil terms, and any order, judgment 
or decree may be entered in a civil action not re- 
quiring a jury trial. (1915, c. 240, s. 3; 1917, c. 
13; Pub. Loc. 1925, c. 5; 1933, c. 234, s. 2; 1941, 
c. 367, s. 1; C. S. 1443.) 

Seventh District 

The seventh district shall be composed of the 
following counties, and the superior courts there- 
of shall be held at the following times, to-wit: 

Wake — Criminal courts: Eighth Monday before 
the first Monday in March; first Monday in March 
to continue for two weeks; fifth Monday after the 
first Monday in March; ninth Monday after the 
first Monday in March; thirteenth Monday after 
the first Monday in March to continue for two 
weeks; eighth Monday before the first Monday in 
September; first Monday in September to continue 
for two weeks; fifth Monday after the first Mon- 
day in September; ninth Monday after the first 
Monday in September; thirteenth Monday after 
the first Monday in September to continue for two 
weeks. These terms shall be for criminal cases 
only, and there is scheduled a two weeks term of 
criminal court each for March, June, September, 
and December, no court for the month of August, 
criminal or civil, and one week of criminal court 
for each of the other months. 

Civil courts: Seventh Monday before the first 
Monday in March to continue for three weeks; 
third Monday before the first Monday in March 
to continue for three weeks; second Monday after 
the first Monday in March to continue for two 
weeks; sixth Monday after the first Monday in 
March to continue for three weeks; tenth Monday 
after the first Monday in March to continue for 
three weeks; fifteenth Monday after the first Mon- 
day in March to continue for two weeks; second 
Monday after the first Monday in September to 
continue for two weeks; sixth Monday after the 
first Monday in September to continue for three 
weeks; tenth Monday after the first Monday in 
September to continue for three weeks; fifteenth 
Monday after the first Monday in September to 
continue for one week. These terms shall be for 
civil cases only and there shall be no term for civil 
cases in July or in August. (1913, c. 196; 1917, c. 
116; 1919, c. 113; Ex. Sess. 1924, c. 77; 1937, cc. 
163, 387; 1939, c. 378; 1941, c. 367, s. 1; C. S. 1443.) 

Franklin — First Monday after the first Monday 
in September, to continue for one week for the 
trial of civil cases only; fifth Monday after the first 
Monday in September, to continue for one week 
for the trial of criminal cases only; ninth Monday 
after the first Monday in September, to continue 
for two weeks for the trial of civil cases only; 
seventh Monday before the first Monday in March, 
to continue for one week for the trial of civil cases 
only; fourth Monday before the first Monday 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 one week for 
the trial of civil cases only; fifth Monday after the 
first Monday in March, to continue for one week 
for the trial of criminal cases only; seventh Mon- 
day after the first Monday in March, to continue 
for one week for the trial of civil cases only. 

[U 



The courts provided in the above paragraph 
shall be held by the judge regularly riding the 
seventh judicial district. 

At all criminal terms provided for in the second 
preceding paragraph, all motions and divorce cases 
may be heard, and, by consent, jury trials in all 
civil cases may be heard at said criminal terms. 
(1913, c. 196; 1917, c. 116; 1937, c. 387, ss. 1, 3; 
1939, c. 184; 1941, c. 189; C. S. 1443.) 

Eighth District 

The eighth district shall be composed of the fol- 
lowing counties, and the superior courts thereof 
shall be held at the following times, to-wit: 

New Hanover — Seventh Monday before the first 
Monday in March; second Monday after the first 
Monday in March; tenth Monday after the first 
Monday in March; fourteenth Monday after the 
first Monday in March; sixth Monday before the 
first Monday in September; first Monday before 
the first Monday in September; ninth Monday 
after the first Monday in September, each to con- 
tinue for one week, and each to be for the trial of 
criminal cases only. 

Fourth Monday before the first Monday in 
March; sixth Monday after the first Monday in 
March; twelfth Monday after the first Monday in 
March; sixth Monday after the first Monday in 
September; thirteenth Monday after the first Mon- 
day in September, each to continue for two weeks 
and each to be for the trial of civil cases only. The 
first Monday after the first Monday in March, and 
the second Monday before the first Monday in 
September, each for one week and each to be for 
the trial of civil cases only. The tenth Monday 
after the first Monday in September for one week 
for the trial of both criminal and civil cases. (1913, 
c. 196; 1915, c. 60; 1919, c. 167; 1921, c. 14; 1941, c. 
367, s. 1; C. S. 1443.) 

Pender — Eighth Monday before the first Mon- 
day in March; eighth Monday after the first Mon- 
day in March; third Monday after the first Mon- 
day in September, each to continue for one week, 
and each to be for the trial of both criminal and 
civil cases. The third Monday after the first Mon- 
day in March; seventh Monday before the first 
Monday in September; eighth Monday after the 
first Monday in September, each to continue for 
one week, and each to be for the trial of civil cases 
only. (1913, c. 196; 1921, c. 14; 1933, c. 153;' 
1941, c. 367, s. 1; C. S. 1443.) 

Columbus — Fifth Monday before the first Mon- 
day in March; the fifteenth Monday after the first 
Monday in March, each to continue for two weeks 
and each to be for the trial of criminal cases only. 
The second Monday before the first Monday in 
March; the twelfth Monday after the first Monday 
in September, each to continue for two weeks and 
each to be for the trial of civil cases only. The 
ninth Monday after the first Monday in March; 
the fifth Monday after the first Monday in Sep- 
tember; the fifteenth Monday after the first Mon- 
day in September, each to continue for one week 
and each to be for the trial of criminal cases only. 
The eighth Monday before the first Monday in 
September; the fourth Monday after the first Mon- 
day in September, each to continue for one week, 
and each to be for the trial of civil cases only. 
(1913, c. 196; Ex. Sess. 1913, c. 61; 1917, c. 124; 
5] 



§ 7-70 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



1921, cc. 14, 149; Ex. Sess. 1921, c. 40; 1931, c. 
246; 1937, c. 52; 1941, c. 367, s. 1; C. S. 1443.) 

Brunswick — The sixth Monday before the first 
Monday in March; eleventh Monday after the first 
Monday in March; first Monday , after the first 
Monday in September, each to continue for one 
week, and each to be for the trial of both criminal 
and civil cases. The fifth Monday after the first 
Monday in March; the second Monday after the 
first Monday in September, each to continue for 
one week and each to be for the trial of civil cases 
only. (1913, c. 196; Ex. Sess. 1913, c. 56; 1917, c. 
18; 1921, c. 14; 1941, c. 367, s. 1; C. S. 1443.) 

All motions and orders, applications for in- 
junctions, receiverships, etc., in the eighth district, 
may be heard at criminal terms upon five days 
notice. Divorce cases may be tried at any term of 
court, civil or criminal. (1921, c. 14; C. S. 1443.) 

Ninth District 
The ninth district shall be composed of the fol- 
lowing counties, and the superior courts thereof 
shall be held at the following times, to-wit: 

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 
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; 1925, c. 64; 1927, c. 166, s. 1; 1929, c. 27, s. 1; 
1931, c. 96; 1933, c. 77; Pub. Loc. 1935, c. 101, s. 
3; 1937, c. 159; C. S. 1443.) 

If it shall appear to the board of county com- 
missioners of Bladen County at any time before 
the jury is summoned for a term of superior 
court of Bladen County that there is not suffi- 
cient business to justify a term of such court or 
that there are no cases of sufficient importance to 
warrant the expense of a term of such court, the 
said board of commissioners are authorized to or- 
der that the jury for such term be not summoned, 
and all cases which would come on for trial at 
such term shall be continued. In case of the con- 
tinuance of a term of superior court of Bladen 
County as herein provided the board of commis- 
sioners of Bladen County shall notify, or cause 
to be notified, the solicitor of the district, the 
judge holding the courts of the district and the 
court stenographer of their action. (1933, c. 119.) 

Cumberland — Seventh Monday before the first 
Monday in March; first Monday in March; the first 

[1 



Monday after the first Monday in March; the 
eighth Monday after the first Monday in March; 
thirteenth Monday after the first Monday in 
March; first Monday before the first Monday in 
September; fifth Monday after the first Monday in 
September; and the eleventh Monday after the 
first Monday in September, the last for two weeks; 
each for criminal cases only. If the regular judge 
is unable for any reason set forth in article four, 
section eleven of the constitution to hold the terms 
above provided for beginning on the first Monday 
in March, the eighth Monday after the first Mon- 
day in March, and the fifth Monday after the first 
Monday in September, the governor shall assign a 
special, emergency or other regular judge to hold 
said terms. Third Monday before the first Mon- 
day in March; third Monday after the first Mon- 
day in March; ninth Monday after the first Mon- 
day in March; third Monday after the first Mon- 
day 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; 1941, c. 367, s. 1; C. S. 1443.) 

Hoke — Sixth Monday before the first Monday 
in March; seventh Monday after the first Mon- 
day in March; second Monday before the first 
Monday in September, to continue for one week; 
tenth Monday after the first Monday in Septem- 
ber; and fifth Monday before the first Monday 
in September, to continue for one week for the 
trial of civil cases and no longer. The commis- 
sioners of Hoke County, whenever in their dis- 
cretion the best interests of the county demand 
it, shall have and are hereby granted the power 
and authority, by order, to abrogate, in any year, 
the holding of any one of the above set forth 
terms of court, and when said term is so abro- 
gated, thirty days' notice of the same shall be 
given by said commissioners by the publication 
of same in a newspaper published in said county 
and at the court house door: Provided, that in 
the event the regular term at which the grand 
jury is selected shall be the term abrogated then 
the grand jury shall continue to serve until the 
following term of court at which time a new 
grand jury shall be selected. (1913, c. 196; 1917, 
c. 233; Ex. Sess. 1921, c. 81; 1927, c. 155; 1931, c. 
96; 1933, c. 333; 1939, c. 108; C. S. 1443.) 

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 two weeks 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 
16] 



§ 7-70 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



of civil cases; ninth Monday after the first Mon- ered special terms, and the governor may assign 

day in September one week for the trial of crim- a special or emergency judge to hold said terms 

inal cases; thirteenth Monday after the first Mon- of the superior court of Alamance County when 

day in September two weeks for the trial of civil the judge holding the regular terms of court in 

cases; fifteenth Monday after the first Monday in the district is unable to hold said terms. (1913, c. 

September one week for the trial of criminal cases. 196; 1915, c. 53; 1921, c. 134; Ex. Sess. 1921, c. 36; 

There shall also be held in Robeson county su- 1939, c . 172; 1931, c. 228; C. S. 1443.) 
perior courts, to which judges shall be assigned, Durham— Eighth Monday before the first Mon- 
the following terms: Second Monday after the ^ ay j n March; second Monday before the first 
first Monday in March one week for the trial of Monday in March; third Monday after the first 
criminal cases; ninth Monday after the first Mon- Monday in March, for a term of two weeks; elev- 
day in March two weeks for the trial of criminal enth Monday after the first Monday in March; six- 
cases; third Monday after the first Monday in teenth Monday after the first Monday in March; 
September one week for the trial of criminal cases; seventh Monday before the first Monday in Sep- 
seventh Monday after the first Monday in Sep- temb first Monday in September, for a term of 



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 



two weeks; fifth Monday after the first Monday in 
September; thirteenth Monday after the first Mon- 
day in September, each for the trial of criminal 



. < 1 , , n\, • * — uav iu utun.iiiuci, catii iui uic nidi ul ^lunula 

cases may be heard by consent. I he commission- J . ' 

. -r, J , i_ < , ... ,1 . cases only; seventh Monday before the first Mon 

ers of Robeson county, by and with the consent , ■ ■."> 1 t c ^ 1 r 

, , r .. J- ■: c 4.1 ■ 4-u ■ a- :„1 day in March, for a term of three weeks; first 

and approval of the solicitor of the ninth judicial J , ' . » 

district, in writing, may call off any term of su- Monda y f before th , e fir ^ l M °" da ^ ln ^ arch ' fo / a 

perior court in said county scheduled above for \J m ° f four weeks, fifth Monday after the first 

the trial of criminal cases to which the judge must Monday in March, for a term of three weeks; 

be assigned. The grand jury shall convene at all ei g hth Monday after the first Monday in March, 

criminal terms of said courts unless the solicitor for a term of two weeks; twelfth Monday after the 

of the ninth judicial district shall, prior to the said first Monday in March, for a term of three weeks; 

court, notify the sheriff of Robeson county not fifth Monday before the first Monday in Septem- 

to assemble the grand jury for said term, and such ber, for a term of two weeks; second Monday after 

notice, in writing, shall be filed with the clerk of the first Monday in September, for a term of three 

the board of commissioners of said county, and weeks; sixth Monday after the first Monday in 

shall be spread upon the minutes of the board of September, for a term of two weeks; eighth Mon- 

commissioners thereof. (1913, c. 196; 1915, c. 208; day after the first Monday in September, for a 

1919, c. 105; 1923, c. 209; Pub. Loc. 1925, cc. 12, term of two weeks, each for the trial of civil cases 

22, 519; 1927, c. 84; 1931, c. 96; 1935, c. 132; 1937, only. 

c. 167; 1939, c. 171, s. 2; C. S. 1443.) In case of conflict of any of the regularly estab- 

In addition there shall also be held in Robeson lished terms of the courts of the tenth judicial dis- 

county. superior courts to which judges shall be trict with the terms above set out, the said terms 

assigned, the following terms: of court here established shall be considered 

Seventh Monday before the first Monday in special terms, and the governor may assign a spe- 

March two weeks for the trial of civil cases; sev- cial or emergency judge to hold said terms of the 

enth Monday after the first Monday in March superior court of Durham county when the judge 

one week for the trial of civil cases; first Monday holding the regular terms of court in the district 

before the first Monday in September one week is unable to hold said terms for any cause set out 

for the trial of civil cases; tenth Monday after in article four, section eleven, of the constitution, 

the first Monday in September one week for the (1913, c. 196; 1915, c. 68; Ex. Sess. 1921, c. 36; 



trial of civil cases. (1939, c. 171, s. 1.) 

Tenth District 
The tenth district shall be composed of the fol- 
lowing counties, and the superior courts thereof 
shall be held in each year at the following times, 
to-wit: 



Ex. Sess. 1924, c. 39; 1929, c. 243; 1931, cc. 224, 
419; 1941, cc. 274, 367, s. 1; C. S. 1443.) 

Granville — Fourth Monday before the first 

Monday in March, fifth Monday after the first 

Monday in March, tenth Monday after the first 

Monday in September, each term for two weeks; 

sixth Monday before the first Monday in Septem- 

Alamance — First Monday before the first Mon- ber, one week; seventh Monday after the first 

day in March, tenth Monday after the first Mon- Monday in September, one week, for civil cases 

day in March, third Monday before the first only. (1913, c. 196; 1915, c. 7; Ex. Sess. 1921, 

Monday in September and twelfth Monday after c. 36; 1923, c. 131; C. S. 1443.) 

the first Monday in September, each for one Orange — Tenth Monday after the first Monday 
week, for the trial of criminal cases only; fifth in March, fifteenth Monday after the first Mon- 
Monday before the first Monday in March, day in March, fourth Monday after the first Mon- 
fourth Monday after the first Monday in March, day in September, for civil cases only; second 
each for one week, twelfth Monday after the first Monday after the first Monday in March, first 
Monday in March, two weeks, fifth Monday be- Monday before the first Monday in September, 
fore the first Monday in September, one week, fourteenth Monday after the first Monday in Sep- 
first Monday in September and tenth Monday tember. 

after the first Monday in September each for two The fourteenth Monday after the first Monday 
weeks, all for the trial of civil cases only. in March, to continue for one week, for the trial 

In case of conflict of any of the regularly es- of criminal and civil cases and is hereby consti- 
tablished terms of the courts of the tenth judicial tuted a mixed term of court; 

district with the terms above set out, the said The second Monday before the first Monday in 
terms of court herein established shall be consid- September to continue for one week for the trial 

[117] 



§ 7-70 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



of criminal and civil cases and is hereby consti- 
tuted a mixed term of court; 

The first Monday before the first Monday in 
September to continue for one week for the trial 
of civil cases only. 

For each separate week of court there shall be 
separate jurors summoned. If the judge regularly 
assigned to the district in which said county is 
situated is unable, because of another regular term 
of court in the said district, or for other causes, 
to hold any term of court provided for in the three 
preceding paragraphs, then the governor shall as- 
sign another judge to hold said term. (1913, c. 
196; 1915, cc. 33, 54; 1917, c. 52; Ex. Sess. 1921, c. 
36; 1927, c. 205; 1929, c. 172, s. 2; C. S. 1443.) 

Person — Fifth Monday before the first Monday 
in March; fourth Monday before the first Monday 
in March; seventh Monday after the first Monday 
in March; fourth Monday before the first Monday 
in September; sixth Monday after the first Mon- 
day in September. All of said terms shall be for 
the trial of criminal and civil cases, except the 
term beginning on the fourth Monday before the 
first Monday in March, which shall be for the trial 
of civil cases only. (1913, c. 196; 1915, c. 54; Ex. 
Sess. 1921, c. 36; 1929, c. 23; 1941, c. 367, s. 1; C. 
S. 1443.) 

Western Division 

Eleventh District 

The eleventh district will be composed of the 
following counties, and the superior courts thereof 
shall be held at the following times, to-wit: 

Alleghany — Eighth Monday after the first Mon- 
day in March, and the fourth Monday after the 
first Monday in September, both terms to be held 
by the regular judge, and both terms to be for the 
trial of civil and criminal cases. (1913, c. 196; 1935, 
c. 246; 1937, c. 413, s. 4; 1941, c. 367, s. 1; C. S. 
1443.) 

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; 
C. S. 1443.) 

Forsyth — Eighth Monday before the first Mon- 
day in March; fourth Monday before the first Mon- 
day 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 first Monday in March; eighth 
Monday before first Monday in September; first 
Monday in September; fifth Monday after first 
Monday in September; ninth Monday after the 
first Monday in September; thirteenth Monday 
after first Monday in September, each of said terms 
to continue for two weeks, for the trial of criminal 
and civil cases; the seventh Monday before the 
first Monday in March, to continue for three 
weeks; the third Monday before the first Monday 
in March, to continue for three weeks; the first 

[1 



Monday after the first Monday in March, to con- 
tinue for three weeks; the sixth Monday after the 
first Monday in March to continue for three weeks; 
the twelfth Monday after the first Monday in 
March to continue for two weeks; the fifteenth 
Monday after the first Monday in March to con- 
tinue for two weeks; the second Monday after the 
first Monday in September, to continue for three 
weeks; the seventh Monday after the first Mon- 
day in September to continue for two weeks; the 
eleventh Monday after the first Monday in Sep- 
tember, to continue for two weeks, each of said 
terms for the trial of civil cases only. 

The governor shall assign a special, emergency 
or any regular judge to hold the following courts 
hereinbefore provided for when the regular judge 
assigned to the district is unable to hold same for 
any cause set out in article four, section eleven, of 
the constitution. 

The second week of the term to try civil and 
criminal cases of the term beginning the eighth 
Monday before the first Monday in March; the 
second week of the civil and criminal term, begin- 
ning the fourth Monday before the first Monday 
in March; the second week of the civil and criminal 
term beginning the first Monday in March; the 
entire civil term beginning the sixth Monday after 
the first Monday in March; the second week of 
the civil and criminal term beginning the fourteenth 
Monday after the first Monday in March; the third 
week of the term beginning the second Monday 
after the first Monday in September; the first week 
of the civil term beginning the seventh Monday 
after the first Monday in September. All other 
terms and weeks of terms shall be presided over 
by the regular judge assigned to hold courts in 
the eleventh judicial district. (1913, c. 196; 1917, 
c. 169; Pub. Loc. 1917, c. 375; 1919, c. 87; 1923, c. 
151; Pub. Loc. 1925, c. 19; 1927, c. 197; 1929, c. 
131; 1933, cc. 231, 306; 1935, c. 246; 1937, c. 158; 
1937, c. 413, ss. 4, 5; 1941, c. 367, s. 1; C. S. 1443.) 

Twelfth District 

The twelfth district shall be composed of the fol- 
lowing counties, and the superior courts thereof 
shall be held at the following times, to-wit: 

Guilford — Sixth Monday before the first Mon- 
day in March, one week; first Monday in March, 
two weeks; eighth Monday after the first Monday 
in March, one week; fifteenth Monday after the 
first Monday in March, one week; fifth Monday 
before the first Monday in September, one week; 
second Monday after the first Monday in Sep- 
tember, two weeks; tenth Monday after the first 
Monday in September, one week; fifteenth Monday 
after the first Monday in September, one week, for 
the trial of criminal cases only. 

Eighth Monday before the first Monday in 
March, two weeks; fourth Monday before the first 
Monday in March, two weeks; second Monday 
after the first Monday in March, two weeks; sixth 
Monday after the first Monday in March, two 
weeks; tenth Monday after the first Monday in 
March, two weeks; thirteenth Monday after the 
first Monday in March, two weeks; fourth Mon- 
day before the first Monday in September, two 
weeks; first Monday before the first Monday in 
September, two weeks; second Monday after the 
first Monday in September, two weeks; fourth 

18] 



§ 7-70 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



Monday after the first Monday in September, two after the first Monday in September, two weeks; 

weeks; eighth Monday after the first Monday in eleventh Monday after the first Monday in Sep- 

September, two weeks; for the trial of civil cases tember, two weeks mixed; for the trial of civil 

only. In addition to the terms of court now pro- cases only. (1913, c. 196; Ex. Sess. 1913, c. 14; 

vided by law to be held in Guilford county, the fol- 1921, c. 42; 1923, c. 169; 1933, cc. 14, 404; C. S. 

lowing terms of court shall be opened and held in 1443.) 

each year in the manner and at the times herein In addition to the terms of court now provided 

set forth, to-wit: second Monday before the first by law to be held in Davidson County, the follow- 

Monday in March, to continue for two weeks for ing terms of court shall be opened and held in 

the trial of civil cases; fourth Monday after the each year in the manner and at the times herein 

first Monday in March, to continue for two weeks set forth, to-wit: To convene on the first Mon- 

for the trial of civil cases; eighth Monday before day in April of each year and to continue for 

the first Monday in September, to continue for one two weeks for the trial of civil cases only. To 

week for the trial of criminal cases; seventh Mon- convene on the first Monday in October of each 

day after the first Monday in September, to con- ye ar and to continue for two weeks for the trial 

tinue for one week for the trial of criminal cases; of civil cases onl y- If the J ud S e regularly as- 

eleventh Monday after the first Monday in Sep- si S ned to the district in which said county is situ- 

tember, to continue for two weeks for the trial of ate be unable because of another regular term of 

,~;,m1 r-ooc court in said district, or for other cause, to hold 

Civil LdSCb. .--.-. 

If the judge regularly assigned to the district in a »y term of court Prodded in this paragraph, 

which said county is situate is unable because of the governor may appoint a judge to hold such 

any cause set out in article four, section eleven, of term from amon g the re S ular or emergency 

the constitution to hold any of the last five preced- J ud S es - ( 1931 . c - 114 -) 



ing terms of court, then the governor shall assign 
another judge to hold such term. The commis- 
sioners of Guilford county are authorized and em- 
powered in their discretion to pay the solicitor 



Thirteenth District 

The thirteenth district shall be composed of the 
following counties, and the superior courts shall 



prosecuting the docket for the two criminal terms be held at * he followin S t,mes > to ,- wlt: 

above provided, or other extra terms of criminal Union-Fifth Monday before the first Monday 

court of said county, not exceeding one hundred m March for criminal cases; third Monday after 

and fifty ($150.00) dollars a week for such terms, the first Monday ,n March for evil cases; fifth 

or to designate some other competent attornev to Monday before the first Monday in September, 

prosecute at any such terms on behalf of the state f ° r criminal cases Sixth Monday after the first 



and to pay him not exceeding said sum for each 
such week of work by him. 



Monday in September, to continue for two weeks, 
the second week for civil cases only; second Mon- 



t jjv * ±u * r -j j day before the first Monday in March, and second 

In addition to the terms of court now provided .,-' , . , ,. ,. . i t , . ' _ . , 

« i , , , ,j • ^ ;r , ., I,, ■ Monday before the first Monday in September, 

by law to be held in Guilford county, the following , ' ,. , , . .. \. , 

j ,.,. , . , . . , ' ,, . . , , each to continue for two weeks; ninth Monday 

additional terms of superior court for the trial of c . ,, a . •««■ , ■ ,, . -.u i ,. 

after the first Monday in March; the last three 



criminal cases only in Guilford county shall be held 
as follows: Ninth Monday before the first Mon- 
day in March, one week; third Monday after the 
first Monday in March, one week; twelfth Monday 
after the first Monday in March, one week; seventh 
Monday before the first Monday in September, 
one week; sixth Monday after the first Monday in 



terms for civil cases only. 

In the first two terms of court for Union County 
for the trial of criminal cases, if it shall appear 
to the clerk of the superior court that the crimi- 
nal docket will not be sufficient to take up the 
entire term, he may make or cause to be made a 
calendar of civil cases as is made at other terms, 



September, one week; ninth Monday after the first and such cases shall be tried at such term j n the 

Monday in September, one week. First Monday same manner as if it were a civil term, 
after the first Monday in September, one week; If it shall ap p ea r to the county commissioners 

eighth Monday after the first Monday in Septem- for the county f Union, prior to the drawing of 

ber, one week; thirteenth Monday after the first a j ury or gran d jury for any criminal term of 

Monday in September, one week; fourteenth Mon- courtj t hat there is no prisoner in jail in the 

day after the first Monday in September, one week; C0U nty or that the criminal docket at such term 

eighth Monday before the first Monday in March, j s not sufficient to justify the holding of the term, 

one week; fourth Monday before the first Monday then the clerk is not to make or cause to be made 

in March, one week; seventh Monday after the a calendar of civil cases to be tried at said term, 

first Monday in March, one week; eleventh Mon- an d the county commissioners, within their dis- 

day after the first Monday in March, one week, cretion, may not draw a jury or grand jury for 



(1913, c. 196; 1921, c. 22; 1923, c. 169; 1927, c. 211; 
1935, c. 184; 1939, c. 42; 1941, c. 367, s. 1; C. S. 
1443.) 



such term, and notice shall be given immediately 
to the judge not to hold said court. 

If it shall appear to the board of commissioners 



Davidson — Fifth Monday before the first Mon- of Union County, thirty days before the beginning 
day in March, one week; ninth Monday after the of the term held the third Monday after the first 
first Monday in March, one week; sixteenth Mon- Monday in March that the condition of the crim- 
day after the first Monday in March, one week; inal docket, and the number of prisoners in jail, 
second Monday before the first Monday in Sep- make it necessary that said March term should 
tember, one week, for the trial of criminal cases be used as a criminal term, then said board of 
only. commissioners are hereby authorized and em- 
Second Monday before the first Monday in powered within their discretion to draw a grand 
March, two weeks; twelfth Monday after the jury for said term, and to give thirty days' notice 
first Monday in March, two weeks; first Monday in some local paper that criminal cases would be 

[119] 



§ 7-70 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



tried at said term, and all criminal process and 
undertakings returnable to a subsequent term 
shall be returnable to said March term. (1913, c. 
196; Ex. Sess. 1913, c. 22; 1915, c. 72; 1917, cc. 
28, 117; 1921, c. 55; C. S. 1443.) 

If it shall appear to the county commissioners 
for the county of Union, prior to the drawing of 
a jury for the civil term of court to be held the 
third Monday after the first Monday in March, 
and/or the civil term to be held on the ninth Mon- 
day after the first Monday in March, that the 
condition of the civil docket does not justify 
holding said term, then the clerk shall not make, 
or cause to be made, a calendar of civil cases to 
be tried at the said term and the county com- 
missioners may not draw a jury for such term 
and notice shall be given immediately to the judge 
not to hold said court. (1933, c. 112.) 

If it shall appear to the board of county com- 
missioners of Union county thirty days before 
the beginning" of the term held on the ninth Mon- 
day after the first Monday in March that the 
condition of the criminal docket and the number 
of prisoners in jail make it necessary that said 
May term should be used for the trial of criminal 
cases as well as civil cases, then said board of 
commissioners are hereby authorized and empow- 
ered within their discretion to direct the clerk of 
said court to order the grand jury to assemble 
for said term, and to give thirty days notice in 
some local paper that criminal cases would be 
tried at said term, and all criminal process and 
undertaking returnable to a subsequent term shall 
be returnable to said May term. (1939, c. 25.) 

Anson- — Seventh Monday before the first Mon- 
day in March, for criminal cases only; first Mon- 
day in March for civil cases only; sixth Monday 
after the first Monday in March to continue for 
two weeks; fourteenth Monday after the first 
Monday in March, for civil cases only; first Mon- 
day after the first Monday in September, for civil 
cases only; third Monday after the first Monday 
in September, for criminal cases only; tenth Mon- 
day after the first Monday in September, for civil 
cases only. (1913, c. 196; Ex. Sess. 1921, c. 16; 
1923, c. 112; 1927, c. 181; 1929, c. 157; C. S. 1443.) 

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; C. S. 1443.) 

Moore — Sixth Monday before the first Monday 
in March, for the trial of criminal cases only, to 
continue for one week; third Monday before the 
first Monday in March, for the trial of civil cases 
only, to continue for one week; third Monday af- 
ter the first Monday in March, for the trial of 
civil cases only, to continue for two weeks; 
eleventh Monday after the first Monday in 
March, to continue for two weeks, the first week 
for the trial of criminal cases only and the sec- 
ond week for the trial of civil cases only; third 
Monday before the first Monday in September, 



to continue for one week, for the trial of criminal 
cases only; second Monday after the first Mon- 
day in September, to continue for two weeks, for 
the trial of civil cases only; fourteenth Monday 
after the first Monday in September, to continue 
for one week, for the trial of civil cases only. 

Each of the terms designated for the trial oi 
criminal cases shall also have jurisdiction to hear 
motions in civil actions on notice; and civil cases 
requiring a jury may, by consent of parties there- 
to, be tried at such terms. (1913, c. 196; Ex. Sess. 
1913, c. 30; 1915, c. 64; 1929, c. 229; C. S. 1443.) 

Richmond — Eighth Monday before the first 
Monday i n March to continue for one week; fifth 
Monday after the first Monday in March to con- 
tinue for one week; sixth Monday before the first 
Monday in September to continue for one week; 
fourth Monday after the first Monday in Septem- 
ber to continue for one week, all for the trial of 
criminal cases; fourth Monday before the first 
Monday in March to continue for one week; sec- 
ond Monday after the first Monday in March to 
continue for one week; twelfth Monday after the 
first Monday in March to continue for one week; 
fifteenth Monday after the first Monday in 
March to continue for one week; seventh Mon- 
day before the first Monday in September to con- 
tinue for one week; first Monday in September 
to continue for one week; ninth Monday after 
the first Monday in September to continue for 
one week, all for the trial of civil cases. 

Each of the terms designated for the trial of 
criminal cases shall also be the return term for 
such civil process as may be returnable at term, 
and for the hearing of motions in civil actions; 
and civil cases requiring a jury, may, by consent 
of the parties thereto, be tried at such criminal 
terms. 

The governor shall assign an emergency, or 
any other judge, to hold any of the terms of the 
superior court for Richmond County when the 
judge regularly holding the courts in said district 
for any cause is unable to hold any of said terms. 
(1913, c. 196; 1915, c. 72; 1917, s. 117; 1919, c. 98; 
1921, c. 77; Ex. Sess. 1921, c. 16; 1923, cc 112, 
184; 1925, c. 241; 1931, c. 82; 1935, c. 3; C. S. 1443.) 

Stanly — Fourth Monday before the first Mon- 
day in March to continue for two weeks, for 
civil cases only; fourth Monday after the first 
Monday in March; tenth Monday after the first 
Monday in March, for civil cases only; eighth 
Monday before the first Monday in September; 
first Monday in September to continue for two 
weeks, for civil cases only; fifth Monday after 
the first Monday in September, for civil cases 
only; eleventh Monday after the first Monday in 
September. 

Each of the terms set for the trial of criminal 
cases shall also be the return term for such civil 
process as may be returnable at term; and for the 
hearing of motions in civil actions; and for the 
trial of civil cases requiring a jury where issues 
are drawn by consent of the parties thereto; and 
for the trial of actions for divorce and other ac- 
tions in which no answer has been filed when the 
time for filing the answer has expired. 

The governor shall assign an emergency, or any 
other judge, to hold any of the terms of the su- 
perior court for Stanly County when the judge 
regularly holding the courts in said district for 



[120] 



§ 7-70 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



any cause is unable to hold any of said terms. 
(1913, c. 196; 1933, c. 240; C. S. 1443.) 

Fourteenth District 

The fourteenth district shall be composed of the 
following counties, and the superior courts thereof 
shall be held at the following times, to-wit: 

Gaston — Seventh Monday before the first Mon- 
day in March; first Monday after the first Monday 
in March; seventh Monday after the first Monday 
in March; thirteenth Monday after the first Mon- 
day in March; sixth Monday before the first Mon- 
day in September; first Monday after the first Mon- 
day in September; seventh Monday after the first 
Monday in September; twelfth Monday after the 
first Monday in September, each to continue for 
one week, for the trial of criminal cases exclusively; 
sixth Monday before the first Monday in March; 
second Monday after the first Monday in March; 
eleventh Monday after the first Monday in March; 
fifth Monday before the first Monday in Septem- 
ber; second Monday after the first Monday in Sep- 
tember; thirteenth Monday after the first Monday 
in September, each to continue for two weeks, for 
the trial of civil cases exclusively; eighth Monday 
after the first Monday in September to continue 
for one week for the trial of civil cases only: Pro- 
vided, that when the judge regularly assigned to 
hold the courts of the district is unable to do so for 
any cause set out in article four, section eleven, of 
the constitution, a special or emergency judge shall 
be assigned by the governor to hold said courts in 
Gaston county, and such special or emergency 
judge shall have all the powers conferred upon any 
resident or presiding judge. 

At all criminal terms of said court, civil trials 
which do not require a jury may be heard by con- 
sent of the parties; and at all criminal terms of 
said court, upon five days' notice to the adverse 
party, any order, application for injunction, receiv- 
ership, motions, etc., may be heard in same man- 
ner as at civil terms. (1913, c. 196; Ex. Sess. 1913, 
c. 12; 1915, c. 153; 1919, c. 187; Ex. Sess. 1920, c. 
39; 1925, c. 237; 1931, c. 242; 1941, c. 367, s. 1; C. 
S. 1443.) 

Mecklenburg — Eighth Monday before the first 
Monday in March; first Monday before the first 
Monday in March; tenth Monday after the first 
Monday in March; fourteenth Monday after the 
first Monday in March; eighth Monday before the 
first Monday in September, which last named term 
only is to continue two weeks; first Monday before 
the first Monday in September; fourth Monday 
after the first Monday in September; tenth Mon- 
day after the first Monday in September, which 
eight terms are for the trial of criminal cases ex- 
clusively; fourth Monday before the first Monday 
in March, to continue three weeks; the first Mon- 
day in March; fourth Monday after the first Mon- 
day in March; eighth Monday after the first Mon- 
day in March; eleventh Monday after the first 
Monday in March; the first Monday in September; 
fifth Monday after the first Monday in September; 
eighth Monday after the first Monday in Septem- 
ber; eleventh Monday after the first Monday in 
September, which last named eight terms are to 
continue for two weeks; fifteenth Monday after the 
first Monday in March, and all of the last named 
ten terms are for the trial of civil cases exclusively: 
Provided, that the board of county commissioners 



of Mecklenburg county may in their discretion, by 
an order at their regular meeting held on the first 
Monday in March in any year, provide for the 
holding of a term of court for the seventh Monday 
after the first Monday in March, and for the trial 
of civil and criminal cases, either or both, at said 
term. 

No process nor other writ of any kind pertaining 
to civil actions shall be made returnable to any of 
the criminal terms, and no business pertaining to 
civil actions shall be transacted at the criminal 
terms for Mecklenburg county. 

In addition to the courts above set out for Meck- 
lenburg county, the following terms of superior 
court for the trial of civil cases in Mecklenburg 
county shall be held, as follows: eighth Monday 
before the first Monday in March; sixth Monday 
before the first Monday in March; fourth Monday 
before the first Monday in March; second Mon- 
day before the first Monday in March; first Mon- 
day in March; second Monday after the first Mon- 
day in March; fourth Monday after the first Mon- 
day in March; sixth Monday after the first Monday 
in March; eighth Monday after the first Monday 
in March; tenth Monday after the first Monday in 
March; twelfth Monday after the first Monday in 
March; fourteenth Monday after the first Monday 
in March; the first Monday in September; the sec- 
ond Monday after the first Monday in September; 
the fourth Monday after the first Monday in Sep- 
tember; the sixth Monday after the first Monday 
in September; the eighth Monday after the first 
Monday in September; the tenth Monday after the 
first Monday in September; the twelfth Monday 
after the first Monday in September; and the four- 
teenth Monday after the first Monday in Septem- 
ber. Said terms of court may be held contempo- 
raneously with other courts in raid county or dis- 
trict, shall be for two weeks each, shall be for the 
trial of civil cases only, and shall be held by regu- 
lar, special, or emergency judges who shall be as- 
signed by the governor, and the special or emer- 
gency judges who preside over said additional 
terms of court shall have all the powers conferred 
upon any resident or regular judge. 

In addition to the courts above set out for Meck- 
lenburg county, the following terms of superior 
court for the trial of criminal cases in Mecklenburg 
county shall be held, as follows: sixth Monday. 
after the first Monday in March; fifth Monday be- 
fore the first Monday in September; fourth Mon- 
day before the first Monday in September, each to 
continue for one week. The sixth Monday before 
the first Monday in March; the second Monday 
after the first Monday in March; the sixteenth 
Monday after the first Monday in March; the third 
Monday before the first Monday in September; the 
second Monday after the first Monday in Septem- 
ber; and the thirteenth Monday after the first 
Monday in September. 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, special, or emergency 
judges who shall be assigned by the governor, and 
the special or emergency judges who preside over 
said additional terms of court shall have all the 
powers conferred upon any resident or regular 
judge. (1913, c. 196; Ex. Sess. 1913, cc. 11, 18; 



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1915, c. 153; 1919, c. 187; Ex. Sess. 1920, c. 39; 1935, 
c. 48; 1937, c. 27; 1939, c. 9; 1941, c. 367, s. 1; C. 
S. 1443.) 

Fifteenth District 

The fifteenth district shall be composed of the 
following counties, and the superior courts thereof 
shall be held at the following times, to-wit: 

Iredell— Fifth Monday before the first Monday 
in March, to continue for two weeks, for the trial 
of criminal and civil cases; first Monday after the 
first Monday in March, to continue for one week, 
for civil cases only; eleventh Monday after the 
first Monday in March, to continue for two 
weeks, for the trial of criminal and civil cases; 
fifth Monday before the first Monday in Septem- 
ber, to continue for two weeks, for criminal and 
civil cases; ninth Monday after the first Monday 
in September, to continue for two weeks, for 
criminal and civil cases. (1913, c. 196; 1921, c. 
121, s. 2; 1923, c. 129; C. S. 1443.) 

Randolph — Second Monday after the first 
Monday in March, to continue for two weeks, 
for civil cases only; fourth Monday after the 
first Monday in March, for criminal cases; sev- 
enth Monday before the first Monday in Septem- 
ber, to continue for two weeks for civil cases 
only; the first Monday in September for criminal 
cases; thirteenth Monday after the first Monday 
in September, to continue for two weeks for 
criminal and civil cases. In addition to the regular 
terms of superior court now provided for by law 
for Randolph County there shall be held in Ran- 
dolph County three additional terms of superior 
court as follows, to-wit: On the fifth Monday be- 
fore the first Monday in March, to continue for 
two weeks, for the trial of civil cases only. On 
the sixteenth Monday after the first Monday in 
March for a term of one week, for the trial of 
criminal cases only. On the seventh Monday after 
the first Monday in September, to continue for 
two weeks, for the trial of civil cases only. This 
paragraph shall not be construed to repeal or 
abolish any terms now provided for the fifteenth 
judicial district, but in case of conflict of any of 
the regularly established terms of court of the 
fifteenth judicial district with the terms created in 
this paragraph, the said terms of court hereby and 
herein established shall be considered special 
terms, and the governor may assign the judge to 
hold said terms of superior court for Randolph 
County, when the judge holding the regular terms 
of court in the district is unable to hold said terms. 
(1913, c. 196; Ex. Sess. 1913, c. 31; 1921, c. 121, s. 
3; Ex. Sess. 1921, c. 22; 1923, c. 229; Ex. Sess. 
1924, c. 23; 1925, c. 156; Pub. Loc. 1939, c. 78; C. 
S. 1443.) 

Rowan — Third Monday before the first Mon- 
day in March, to continue for two weeks; first 
Monday in March, to continue for one week, for 
civil cases only; ninth Monday after the first 
Monday in March, to continue for two weeks; 
first Monday after the first Monday in September, 
to continue for two weeks; fifth Monday after 
the first Monday in September, for civil cases 
only; eleventh Monday after the first Monday in 
September, to continue for two weeks. (1913, 
c. 196; Ex. Sess. 1913, c. 5; 1921, c. 31; C. S. 1443.) 

In addition to the regular terms of court now 
prescribed by law for Rowan County, there shall 



be held in Rowan County two additional terms of 
the superior court as follows, to-wit: On the 
sixth Monday after the first Monday in September 
to continue for one week for the trial of civil cases 
only; on the first Monday after the first Monday 
in March to continue for one week for the trial of 
civil cases only. This paragraph shall not be con- 
strued to repeal or abolish any terms of court 
now provided for the fifteenth judicial district, but 
in case of conflict of any of the regularly estab- 
lished terms of the courts of the fifteenth judicial 
district with the terms above set out, the said 
terms of court herein established shall be con- 
sidered special terms and the governor may as- 
sign a special or emergency judge to hold said 
terms of superior court of Rowan County when 
the judge holding the regular terms of court in 
the district is unable to hold said terms. (1933 c. 
274.) 

Cabarrus — Eighth Monday before the first 
Monday in March, to continue for two weeks, for 
the trial of criminal and civil cases; first Monday 
before the first Monday in March, to continue for 
two weeks, for civil cases only; seventh Monday 
after the first Monday in March, to continue for 
two weeks, for criminal and civil cases; four- 
teenth Monday after the first Monday in March, 
to continue for two weeks, for civil cases only; 
second Monday before the first Monday in Sep- 
tember, to continue for one week, for criminal 
cases only; first Monday before the first Monday 
in September, to continue for one week, for civil 
cases only; sixth Monday after the first Monday 
in September, to continue for two weeks, for 
criminal and civil cases; tenth Monday after the 
first Monday in September, to continue for one 
week, for civil cases only; thirteenth Monday 
after the first Monday in September, to continue 
for one week, for civil cases only. 

The governor shall assign an emergency or any 
other judge to hold any of the terms of the su- 
perior court of Cabarrus county when the judge 
holding courts in said district is unable to hold 
said terms. (1913, c. 196; 1921, c. 121, s. 2; 1933, 
c. 76; 1935, c. 177; 1939, c. 377; C. S. 1443.) 

Montgomery — Sixth Monday before the first 
Monday in March for criminal cases: Provided, 
motions on the civil docket may be heard at said 
term, and uncontested divorce cases and, with the 
consent of the parties thereto, any other civil case 
requiring a jury may also be tried at said term. 
Fifth 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; third Monday after the first Monday in 
September, and eighth Monday after the first 
Monday in September for civil cases; fourth Mon- 
day after the first Monday in September. (1913, 
c. 196; Ex. Sess. 1913, c. 61; 1915, c. 183; 1917, c. 
122; 1921, c. 121, s. 3; 1927, c. 193, s. 1; 1941, c. 
98; C. S. 1443.) 

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; C. S. 1443.) 



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Sixteenth District 

The sixteenth district shall be composed of the 
following counties, and the superior courts thereof 
shall be held at the following times, to-wit: 

Cleveland — Third Monday after the first Mon- 
day in March; eleventh 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; first Monday 
after the first Monday in September to continue 
for one week for the trial of civil cases only; sec- 
ond Monday after the first Monday in September, 
one week, for the trial of civil cases only; eighth 
Monday after the first Monday in September; 
each to continue for two weeks; eighth Monday 
before the first Monday in March, for one week. 

For the terms commencing on the eleventh 
Monday after the first Monday in March, and on 
the first Monday after the first Monday in Sep- 
tember, the governor may assign a judge to hold 
such terms from among the regular, special or 
emergency judges. (1913, c. 196; 1915, c. 173; 
1917, c. 245; 1927, c. 154; 1931, cc. 240, 456; 1935, 
cc. 194, 195; C. S. 1443.) 

Lincoln — Sixth Monday before the first Mon- 
day in March to continue for two weeks, the 
second week for civil cases only; seventh Mon- 
day before the first Monday in September; sixth 
Monday after the first Monday in September; the 
last term to continue for two weeks, the second 
week for civil cases only. (1913, c. 196; 1915, c. 
210; 1925, c. 26; C. S. 1443.) 

Burke — Second Monday before the first Mon- 
day in March, to continue for one week, for the 
trial of civil and criminal cases; first Monday after 
the first Monday in March, to continue for two 
weeks, for the trial of civil cases only; thirteenth 
Monday after the first Monday in March, to con- 
tinue for three weeks, for the trial of civil and 
criminal cases; fourth Monday before the first 
Monday in September, to continue for two 
weeks, for the trial of civil and criminal cases; 
third Monday after the first Monday in Septem- 
ber, to continue for three weeks, for the trial of 
civil cases only; fourteenth Monday after the 
first Monday in September, to continue for 
two weeks, for the trial of civil and criminal cases: 
Provided, however, that the board of com- 
missioners of Burke County, in any year, 
upon the written petition of a majority of the 
practicing attorneys resident in said county, may, 
by resolution duly adopted, dispense with and 
abrogate the holding of that term of said court 
which by the provisions of this section commences 
on the thirteenth Monday after the first Monday 
in March. (1913, c. 196; 1915, c. 67; Ex. Sess. 
1920, c. 5; Ex. Sess. 1921, c. 90, s. 3; Pub. Loc. 
1925, c. 306; 1931, c. 343; C. S. 1443.) 

Caldwell — First Monday before the first Monday 
in March; second Monday before the first Monday 
in September, each to continue two weeks; eleventh 
Monday after the first Monday in March, to con- 
tinue two weeks, for civil cases only; twelfth Mon- 
day after the first Monday in September, to con- 
tinue two weeks, for the trial of civil and criminal 
cases; the eighth Monday before the first Monday 
in March, to continue two weeks, for the trial of 
civil cases only; ninth Monday after the first Mon- 
day in March, to continue one week, for the trial 



of civil and criminal cases; fourth Monday after 
the first Monday in September, to continue two 
weeks, for the trial of civil cases only. For the 
last three terms provided for above, the governor 
may assign a regular, special or emergency judge 
when the judge regularly assigned to the district 
is unable to hold said terms for any cause set out 
in article four, section eleven, of the constitution. 
(1913, c. 196; 1915, c. 35; Ex. Sess. 1921, c. 90, s. 
2; 1941, c. 367, s. 1; C. S. 1443.) 

Catawba — Seventh Monday before the first 
Monday in March, to continue for two weeks and 
for the trial of civil cases only, fourth Monday 
before the first Monday in March, to continue 
for two weeks; ninth Monday after the first Mon- 
day in March, to continue for two weeks, for the 1 
trial of civil cases only; ninth Monday before the 
first Monday in September, to continue for two 
weeks; first Monday in September, to continue 
for two weeks, for the trial of civil cases only; 
tenth Monday after the first Monday in Septem- 
ber, to continue for one week, for the trial of 
criminal cases only; thirteenth Monday after the 
first Monday in September, to continue for one 
week and for the trial of civil cases only. Fifth 
Monday after the first Monday in March, to con- 
tinue for two weeks, for the trial of civil cases 
only; eleventh Monday after the first Monday in 
September, to continue for one week, for the trial 
of civil cases only: Provided, that the board of 
county commissioners may by resolution, adopted 
not less than 30 days prior to the convening of 
either of the last two courts, determine that the 
holding of such court is not necessary and cancel 
the same, in which case notice of such action 
shall immediately be given to the governor to the 
end that the judge assigned to said court may be 
relieved from such assignment. (1913, c. 196; 
Ex. Sess. 1913, c. 7; Ex. Sess. 1921, c. 47; c. 90, 
s. 1; 1923, c. 18; 1925, c. 13, ss. 1, 2; 1933, c. 311; 
C. S. 1443.) 

Watauga — Seventh Monday after the first Mon- 
day in March, to continue for two weeks; second 
Monday after the first Monday in September, to 
continue for one week; fourteenth Monday after 
the first Monday in March to continue for a term 
of two weeks, for the trial of civil cases only. 
(1913, C. 196; 1921, c. 166; 1931, c. 424; 1933, c. 
250, s. 2; 1935, c. 274; C. S. 1443.) 

Seventeenth District 

The seventeenth district shall be composed of 
the following counties, and the superior courts 
thereof shall be held at the following times, to-wit: 

Yadkin — Fourth Monday before the first Mon- 
day in March for three weeks for the trial of 
criminal and civil cases; second Monday before 
the first Monday in September for one week for 
the trial of criminal cases; eleventh Monday after 
the first Monday in September for two weeks for 
the trial of civil cases. (1913, c. 196; Ex. Sess. 1920, 
c. 42; 1921, c. 166; 1925, c. 65; 1941, c. 367, s. 1; 
C. S. 1443.) 

Wilkes — Seventh Monday before the first Mon- 
day in March for three weeks for the trial of civil 
cases only; first Monday in March for three weeks 
for the trial of both civil and criminal 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 



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CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



weeks for the trial of civil cases only; fourth Mon- 
day before the first Monday in September for two 
weeks for the trial of both civil and criminal cases; 
fourth Monday after the first Monday in Septem- 
ber for two weeks for the trial of civil cases only; 
fourteenth Monday after the first Monday in Sep- 
tember for two weeks for the trial of civil and 
criminal cases. 

If, in the opinion of the board of commissioners 
of Wilkes county, it is not advisable or necessary 
to hold the term of court beginning on the four- 
teenth Monday after the first Monday in Septem- 
ber, and such fact is so stated in a resolution duly 
adopted by a majority of said board on or before 
the second Monday in November next preceding 
the day for the convening of said term, then the 
said term shall not be held on the fourteenth Mon- 
day after the first Monday in September of that 
year. Upon the adoption of such a resolution, the 
clerk of the board shall immediately notify the 
judge, who has been assigned to hold said term, 
that same will not be held, and no jury for the said 
term shall be drawn. (1913, c. 196; 1919, c. 165; 
1921, c. 166; 1935, c. 105, s. 1, c. 192; 1937, c. 48; 
1941, c. 367, s. 1; C. S. 1443.) 

Davie — Second Monday after the first Mon- 
day in March; twelfth Monday after the first Mon- 
day in March, for civil cases only; first Monday 
before the first Monday in September; and 
thirteenth Monday after the first Monday in Sep- 
tember, last term for civil cases only. (1913, c. 
196; 1921, cc. 31, 121, 166; 1935, c. 105, s. 2; C. S. 
1443.) 

Mitchell — Fourth Monday after the first Mon- 
day in March, two weeks; sixth Monday before 
the first Monday in September, two weeks for civil 
cases only; second Monday after the first Monday 
in September for two weeks. (1913, c. 196; 1921, 
c. 166; Ex. Sess. 1921, c. 33; 1927, c. 168; 1929, c. 
10; 1933, c. 250, s. 3; 1935, c. 1; 1941, c. 212, s. 1; 
C. S. 1443.) 

Avery — Fifth Monday after the first Monday in 
March, for two weeks, the first week for the trial 
of criminal cases only, and the second week for the 
trial of civil cases only; ninth Monday before the 
first Monday in September, two weeks, for the 
trial of both criminal and civil cases; sixth Monday 
after the first Monday in September, for two 
weeks, the first week for the trial of criminal cases 
only, and the second week for the trial of civil 
cases only. (1913, c. 196; 1915, c. 169; 1921, c. 166; 
Ex. Sess. 1921, c. 33; 1923, c. 90; 1931, c. 84; 1933, 
cc. 152, 250, s. 1; 1941, c. 212, s. 1, C. 367, s. 1; C. 
S. 1443.) 

Eighteenth District 

The eighteenth district shall be composed of the 
following counties and the superior courts thereof 
shall be held at the following times, to-wit: 

Henderson — Eighth Monday before the first 
Monday in March to continue for two weeks for 
the trial of civil cases only; the first Monday in 
March to continue for two weeks for the trial of 
both criminal and civil cases; the eighth Monday 
after the first Monday in March to continue for 
two weeks for the trial of civil cases only, and the 
twelfth Monday after the first Monday in March 
to continue for two weeks for the trial of civil 
cases only; the fifth Monday after the first Mon- 



day in September to continue for two weeks for 
the trial of both criminal and/or civil cases or 
both; eleventh Monday after the first Monday in 
September to continue for two weeks for the trial 
of civil cases only. (1913, c. 190; 1917, c. 115; 1919, 
c. 162; Ex. Sess. 1921, c. 24; 1923, c. 204; 1927, c. 
207, s. 1; 1933, c. 117; 1935, c. 127; C. S. 1443.) 

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; C. S. 1443.) 

Polk — The fifth Monday before the first Monday 
in March to continue for two weeks for the trial 
of both criminal and civil cases; second Monday 
before 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; 
1927, c. 207, s. 1; 1933, c. 232, s. 2; 1935, c. 127; C. 
S. 1443.) 

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; C. S. 1443.) 

Transylvania — Fourth Monday after the first 
Monday in March, to continue for two weeks for 
the trial of both criminal and civil cases; sixth 
Monday before the first Monday in September, to 
continue for two weeks for the trial of both crim- 
inal and civil cases; thirteenth Monday after the 
first Monday in September, to continue for two 
weeks for the trial of both criminal and civil cases. 
(1913, c. 196; 1915, c. 66; Ex. Sess. 1920, c. 19; 
Ex. Sess. 1921, c. 24; 1925, c. 63; 1927, c. 207, s. 
1; 1929, c. 173, s. 2; 1935, c. 127; C. S. 1443.) 

Yancey — Sixth Monday before the first Mon- 
day in March, to continue for one week for the 
trial of civil cases only; second Monday after the 
first Monday in March, to continue for two weeks 
for the trial of both criminal and civil cases; fourth 
Monday before the first Monday in September, to 
continue for two weeks for the trial of criminal 
and civil cases; seventh 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. 38; 1915, c. 71; Ex. Sess. 1920, c. 4; 
Ex. Sess. 1921, c. 24; 1923, c. 222; 1927, c. 207, s. 
1; 1929, c. 173; 1933, c. 478; 1935, c. 127; C. S. 
1443.) 



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In all criminal terms of court in the eighteenth 
judicial district, civil actions and proceedings, 
which do not require a jury, may be heard by con- 
sent and any order, judgment or decree therein 
may be entered. (1935, c. 127.) 

Nineteenth District 

The nineteenth district shall be composed of the 
following counties, and the superior courts thereof 
shall be held at the following times, to-wit: 

Buncombe — Eighth Monday before the first 
Monday in March, to continue for two weeks for 
the trial of civil cases only; sixth Monday before 
the first Monday in March, to continue for one 
week, for the trial of criminal cases only; eighth 
Monday before the first Monday in September, to 
continue for two weeks for the trial of civil cases 
only; sixth Monday before the first Monday in 
September, to continue for one week for the trial 
of criminal cases only. 

Fourth Monday before the first Monday in 
March, to continue for two weeks, for the trial of 
civil cases only; second Monday before the first 
Monday in March, to continue for one week for 
the trial of criminal cases only; first Monday in 
March, to continue for two weeks for the trial of 
civil cases only; second Monday after the first 
Monday in March, to continue for one week for 
the trial of criminal cases only; fourth Monday 
after the first Monday in March, to continue for 
two weeks for the trial of civil cases only; sixth 
Monday after the first Monday in March, to con- 
tinue for one week for the trial of criminal cases 
only; ninth Monday after the first Monday in 
March, to continue for two weeks for the trial of 
civil cases only; eleventh Monday after the first 
Monday in March, to continue for one week for 
the trial of criminal cases only; thirteenth Monday 
after the first Monday in March, to continue for 
two weeks for the trial of civil cases only; fifteenth 
Monday after the first Monday in March, to con- 
tinue for one week for the trial of criminal cases 
only; fourth Monday before the first Monday in 
September, to continue for two weeks for the trial 
of civil cases only; second Monday before the first 
Monday in September, 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; second Monday after the first 
Monday in September, to continue for one week 
for the trial of criminal cases only; fourth Monday 
after the first Monday in September, to continue 
for two weeks for the trial of civil cases only; sixth 
Monday after the first Monday in September, to 
continue for one week for the trial of criminal cases 
only; ninth Monday after the first Monday in Sep- 
tember, to continue for two weeks for the trial of 
civil cases only; eleventh Monday after the first 
Monday in September, to continue for one week 
for the trial of criminal cases only; thirteenth Mon- 
day after the first Monday in September, to con- 
tinue for two weeks for the trial of civil cases only; 
fifteenth Monday after the first Monday in Septem- 
ber, to continue for one week for the trial of crimi- 
nal cases only. 

The terms of court provided in the preceding 
paragraph shall be held by the judge regularly rid- 
ing the nineteenth judicial district, and during said 
terms uncontested divorce actions and civil orders 

[ 125 



may be tried and heard by the judge assigned to 
hold said courts. 

Seventh Monday before the first Monday in 
March, to continue for two weeks; fifth Monday 
before the first Monday in March, to continue for 
one week; second Monday before the first Mon- 
day in March, to continue for two weeks; second 
Monday after the first Monday in March, to con- 
tinue for two weeks; sixth Monday after the first 
Monday in March, to continue for two weeks; 
eighth Monday after the first Monday in March, 
to continue for one week; eleventh Monday after 
the first Monday in March, to continue for two 
weeks; fifteenth Monday after the first Monday in 
March, to continue for two weeks; seventh Mon- 
day before the first Monday in September, to con- 
tinue for two weeks; fifth Monday before the first 
Monday in September, to continue for one week; 
second Monday before the first Monday in Sep- 
tember, to continue for two weeks; second Monday 
after the first Monday in September, to continue 
for two weeks; sixth Monday after the first Mon- 
day in September, to continue for two weeks; 
eighth Monday after the first Monday in Septem- 
ber, to continue for one week; eleventh Monday 
after the first Monday in September, to continue 
for two weeks; fifteenth Monday after the first 
Monday in September, to continue for two weeks. 
The courts provided in the preceding paragraph 
shall be held by special or emergency judges to be 
assigned by the governor, if the regular judge as- 
signed is unable to hold said terms for any cause 
set out in article four, section eleven, of the consti- 
tution. The board of county commissioners shall 
notify the jury commission at, or before, the time 
of drawing the jurors for these terms of court 
whether the same shall be for the trial of civil or 
criminal cases, or what portions thereof shall be 
for each, and the jury commission shall draw 
jurors accordingly. (1913, c. 196; 1915, c. 117; 
1917, c. 79; 1923, c. 31; Pub. Loc. 1925, c. 400; 
1929, c. 213; 1941, c. 367, s. 1; C. S. 1443.) 

Madison — First Monday before the first Monday 
in March, to continue for one week; third Monday 
after the first Monday in March, to continue for 
one week; seventh Monday after the first Monday 
in March, to continue for one week; twelfth Mon- 
day after the first Monday in March, to continue 
for one week; sixteenth Monday after the first ' 
Monday in March, to continue for one week; first 
Monday before the first Monday in September, to 
continue for one week; third Monday after the 
first Monday in September, to continue for one 
week; seventh Monday after the first Monday in 
September, to continue for one week; twelfth Mon- 
day after the first Monday in September, to con- 
tinue for one week; sixteenth Monday after the 
first Monday in September, to continue for one 
week. 

The board of county commissioners shall, at the 
time of drawing the jurors for the terms of court 
provided in the preceding paragraph, designate 
whether the terms shall be for the trial of civil or 
criminal cases, and draw the jurors accordingly. 
(1913, c. 196; 1915, c. 117; 1917, c. 79; 1929, c. 205" 
1931, c. 25; 1941, c. 367, s. 1; C. S. 1443.) 

Twentieth District 
The twentieth district shall be composed of the 



§ 7-70 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-70 



following counties, and the superior courts thereof Macon county may, for good cause, decline to draw 

shall be held at the following times, to-wit: a jury for more than one week for any term of 

Cherokee— Sixth Monday before the first Mon- court provided for in this paragraph. (1913, c. 

day in March for civil cases only; fourth Mon- 196 : 1923 > C. 35, s. 1; 1927, c. 245; 1937, c. 106; C. 

day after the first Monday in March; fifteenth S. 1443.) 

Monday after the first Monday in March, for the Clay — Eighth Monday after the first Monday 

trial of civil causes only: Provided, that upon m March, and fourth Monday after the first Mon- 

request of the bar of Cherokee county the board da y m September. (1913, c. 196; 1927, c. 245, s. 

of county commissioners need not draw a jury 1 > 193 7, c. 162; 1939, c. 44; C. S. 1443.) 



for this term; fourth Monday before the first 
Monday in September; ninth Monday after the 
first Monday in September, each to continue two 
weeks. (1913, c. 196; Ex. Sess. 1913, c. 21; 1917, 
c. 114; 1923, c. 51; 1925, c. 30; C. S. 1443.) 

Graham — Eighth Monday before the first Mon- 
day in March, to continue for two weeks, for 
civil cases only; second Monday after the first 
Monday in March; thirteenth Monday after the 
first Monday in March, to be held for civil cases 
only; first Monday in September, each to con- 
tinue for two weeks. (1913, c. 196; Ex. Sess. 
1913, c. 28; 1917, c. 54; 1927, c. 245, s. 1; C. S. 
1443.) 



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 Monday 
in March, to continue for two weeks, the first week 
to be for the trial of criminal cases only, and the 
second week for the trial of civil cases; ninth Mon- 
day before the first Monday in September, to con- 
tinue for one week for the trial of both criminal 
and civil cases; tenth Monday after the first Mon- 
day in September, to continue for two weeks, the 



Swain— Seventh Monday before the first Mon- first week t0 be for the trial of criminal cases only, 

day in March, for the trial of civil cases only, to alld the second week for the trial of civil cases, 

continue for two weeks; a special judge to be as- ( 1913 > c - 196 ! 1919 > c - 289 ! 1927 > c - 202 ; 1933 > c - 45 > 

signed for this court; first Monday in March; s. 1; 1935, c. 246; 1937, cc. 107, 413, s. 5; 1941, c. 

sixth Monday before the first Monday in Sep- 367 » s - lj C. S. 1443.) 

tember; seventh Monday after the first Monday Rockingham — First Monday after the first 

in September, each to continue for two weeks: Monday in March to continue for one week; sixth 

Provided, that the board of commissioners of Monday before the first Monday in March to 

Swain County may, when the public interest re- continue for two weeks; eleventh Monday after 

auires it, decline to draw a grand jury for the the first Monday in March to continue for two 

July term. (1913, c. 196; 1933, c. 125; C. S. 1443.) weeks; fourth Monday before the first Monday in 

Haywood — Eighth Monday before the first September to continue for two weeks; eighth 

Monday in March, to continue for two weeks, Monday after the first Monday in September to 

for civil cases only; fourth Monday before the continue for two weeks; fourteenth Monday after 

first Monday in March, to continue for two weeks: the first Monday in September to continue for 

ninth Monday after the first Monday in March, one week, each of the above terms to be for the 

to continue for two weeks, for civil cases only; trial of criminal cases only. 

eighth Monday before the first Monday in Sep- First Monday in March to continue one week; 

tember, to continue for two weeks; second Mon- sixth Monday after the first Monday in March to 

day after the first Monday in September, for civil continue for one week; ninth Monday after the 

cases only and the eleventh Monday after the first first Monday in March to continue for two weeks; 

Monday in September, each to continue for two fourteenth Monday after the first Monday in 

weeks. (1913, c. 196; 1917, cc. 7, 114; 1923, c. 35, March to continue for two weeks; first Monday 

s. 2; Ex. Sess. 1924, c. 27; 1937, c. 106; C. S. 1443.) in September to continue for two weeks; seventh 

Jackson— Second Monday before the first Mon- Monday after the first Monday in September to 

day in March; eleventh Monday after the first continue for one week; twelfth Monday after the 

Monday in March, for the trial of civil cases only, first Monday in September to continue for two 

each to continue for two weeks; fourteenth Mon- weeks < each of the above terms to be for the tnal 

day after the first Monday in March, for the trial of cml cases onl y- Provided, that at any criminal 

of criminal cases only and for this term of court term > elther regular or special, of the superior 

the governor shall assign a judge to hold same court t0 be held for Rockingham County, all mo- 



from among the regular, special or emergency 
judges; fifth Monday after the first Monday in 
September to continue for two weeks. 

The county commissioners, may, in their judg- 



tions in any civil actions pending before said court, 
and all uncontested divorce cases pending before 
said court, may be heard and tried by the court, 
and provided further, that all other civil actions 



ment abrogate the term herein provided to be and civil matters may, with the consent of the 

held on the fourteenth Monday after the first parties and the approval of the court, be heard 

Monday in March, the jurors for this term to be and tried at an y criminal term, either regular or 

drawn at the same time as those for the May special, of the superior court of Rockingham 

term, service to be withheld pending the decision County. However, no contested civil cases shall 

of the county commissioners. (1913, c. 196; 1933, be tr ied until after the criminal docket for the 

c. 107; 1939, c. 212; C. S. 1443.) ter m has been disposed of. (1913, c. 196; Ex. 

Macon— Sixth Monday after the first Monday Sess. 1913, c. 49; 1917, c. 107; 1933, cc. 45, 264; 

in March; second Monday before the first Mon- 1935 . c. 246; 1937, cc. 156, 413, s. 5; 1939, c. 156; 

day in September, and thirteenth Monday after 1941 » c. 58; C. S. 1443.) 

the first Monday in September, each to continue Stokes — Fourth Monday after the first Monday 

for two weeks. The board of commissioners of in March to continue for one week for the trial 

[126] 



§ 7-71 



CH. 7. COURTS— JUDICIAL DISTRICTS 



§ 7-75 



of criminal cases only; fifth Monday after the first civil cases exclusively, and the solicitors shall not 

Monday in March to continue for one week for be required to attend upon any exclusively civil 

the trial of civil cases only; sixteenth Monday after terms, unless there are cases on the civil docket 

the first Monday in March to continue for one in which they officially appear, and no criminal 

week for the trial of criminal cases only; second process shall be returnable to any term desig- 

Monday before the first Monday in September na ted for the trial of civil actions alone. (Rev., 

to continue for one week for trial of both crim- s , 1508; 1901, c. 28, ss. 3, 7; 1913, c. 196; C. S. 

inal and civil cases; fifth Monday after the first 1445.) 
Monday in September to continue for one week 

for the trial of criminal cases only; sixth Mon- § 7-74. Rotation of judges.— The judges of 

day after the first Monday in September to con- the superior court shall hold the courts of the 

tinue for one week, for the trial of civil cases only, several judicial districts successively, according 

(1913, c. 196; Ex. Sess. 1913, c. 1; 1921, c. 142; to the following order and system: The judges 

1923, c. 169; 1929, c. 158; 1937, c. 413, s. 5; C. S. resident in the Eastern Judicial Division shall 

1443.) hold the courts for the fall term, one thousand 

There is hereby established a term of court to nine hundred and fifteen, as follows: The judge 

continue for one week in Stokes county, begin- of the first district shall hold the courts of the 

ning the first Monday in January of each year for fifth district; the judge of the second, the courts 

the trial of criminal causes only. There shall be of the sixth; the judge of the third, the courts 

jurors, including a grand jury, provided for said of the seventh; the judge of the fourth, the 

January term of court. (1939, c. 342.) courts of the eighth; the judge of the fifth, the 

Surry— Eighth Monday before the first Mon- courts of the ninth; the judge of the sixth, the 

day in March to continue for one week; third courts of the tenth; the judge of the seventh, the 

Monday before the first Monday in March to con- courts of the first; the judge of the eighth, the 

tinue for one week; seventh Monday after the courts of the second; the judge of the ninth, the 

first Monday in March to continue for one week; courts of the third; the judge of the tenth, the 

second Monday after the first Monday in Septem- courts of the fourth; and the judges of the East- 

ber to continue for one week; fifteenth Monday ern Judicial Division shall thereafter successively 

after the first Monday in September to continue hold the courts of this division, but may make 

for one week, for the trial of criminal cases only, exchange of the courts as now provided by law. 

Seventh Monday before the first Monday in The judges resident in the Western Judicial 

March to continue for one week; second Monday Division shall hold the courts for the fall term, 

before the first Monday in March to continue for one thousand nine hundred and fifteen, as fol- 

two weeks; eighth Monday after the first Mon- lows: The judge of the seventeenth district shall 

day in March to continue one week; thirteenth hold the courts of the eleventh; the judge of the 

Monday after the first Monday in March to con- eighteenth, the courts of the twelfth; the judge 

tinue for one week; eighth Monday before the of the nineteenth, the courts of the thirteenth; 

first Monday in September to continue for two the judge of the twentieth, the courts of the 

weeks; third Monday after the first Monday in fourteenth; the judge of the eleventh, the courts 

September to continue for two weeks, for the of the fifteenth; the judge of the twelfth, the 

trial of civil cases only. (1913, c. 196; Ex. Sess. courts of the sixteenth; the judge of the thir- 

1913, c. 34; Ex. Sess. 1921, c. 9; Pub. Loc. 1925, c. teenth, the courts of the seventeenth; the judge 

417; 1931, c. 251; 1933, cc. 180, 413; 1935, c. 246; of the fourteenth, the courts of the eighteenth; 

1937, cc. 210, 413, s. 5; C. S. 1443.) the judge of the fifteenth, the courts of the nine- 

& 7 ?i /-„.,«,-.,„.. * • -j j. u u <_ teenth; the judge of the sixteenth, the courts of 

& 7-71. Governor to assign judges to hold terms tU „ 4 „'._ tJ J u . ^a + u„ ;.„4„„„ .'-.«—* :_ a- 
of court when regular judges are not available. — If 



the regular judge holding the courts for any dis- 
trict is not available for any cause set out in 
Article four, Section eleven, of the Constitution to 
hold any of the terms of court provided for in 
Chapter 367 of the Public Laws of 1941, amend- 
ing § 7-70, the Governor shall assign a judge to 
hold such term or terms from among the regular, 
special or emergency judges. (1941, c. 367, s. 2.) 



the twentieth; and the judges resident in the 
Western Judicial Division shall thereafter suc- 
cessively hold the courts of this division, subject 
to such exchanges of courts as are now provided 
by law. 

The judge riding any spring circuit shall hold 
all the courts which fall between January and 
June, both inclusive, and the judge riding any fali 
circuit shall hold all the courts which fall between 
July and December, both inclusive. (Rev., s. 
1509; Code, s. 911; 1913, c. 196, ss. 4, 5, 6, 9; 
1915, c. 15, ss. 3, 4; 1901, c. 28, ss. 4, 9;R. C, c. 
31, S. 20; 1876-7, c. 27; 1879, c. 11; 1885, c. 180; 



§ 7-72. Civil cases at criminal terms. — At crim- 
inal terms of court, motions in civil actions may 
be heard upon due notice, and trials in civil 
actions may be heard by consent of parties. Const. Art. 4, s. 11; C. S. 1446.) 
Also motions for confirmation or rejection of 
referees' reports may be heard upon ten days no- 
tice and judgment entered on said reports. 
(Rev., s. 1507; 1901, c. 28; 1913, c. 196, s. 2; Ex. 
Sess. 1913, c. 23; 1915, cc. 68, 240; 1917, c. 13; 
1931, c. 394; C. S. 1444.) 



Local Modification. — Anson, Bladen, Cumberland, Durham, 
Gaston, Robeson: C. S. 1444. 

§ 7-73. No criminal business at civil terms. — 

No grand juries shall be drawn for the terms of 



§ 7-75. Exchange of courts. — By consent of 
the governor the judges may exchange the courts 
of a particular county or counties; and the judges 
resident in the western division and the judges 
resident in the eastern division may exchange 
courts or circuits with the consent of the gov- 
ernor; but no judge shall hold all the courts in 
one district oftener than once every four years. 
When a judge shall die or resign, his successor 
shall hold the courts of the district allotted to 



court designated by law as being for the trial of his predecessor. (Rev., s. 1511; Code, s. 913; R. 

[127] 



§ 7-76 



CH. 



COURTS— SPECIAL REGULATIONS 



§ 7-88 



C, c. 31, s. 20; 1879, c. 11; 1915, c. 15, s. 4; Const., 
Art. 4, s. 11; C. S. 1447.) 

§ 7-76. Court adjourned by sheriff when judge 
not present.— If the judge of a superior court 
shall not be present to hold any term of a court 
at the time fixed therefor, he may order the sher- 
iff to adjourn the court to any day certain dur- 
ing the term, and on failure to hear from the judge 
it shall be the duty of the sheriff to adjourn the 
court from day to day until the fourth day of the 
term inclusive, unless he shall be sooner informed 
that the judge from any cause can not hold the 
term. If by sunset on the fourth day the judge 
shall not appear to hold the term, or if the sher- 
iff shall be sooner advised that the judge cannot 
hold the term, it shall then be the duty of the 
sheriff to adjourn the court until the next term. 
(Rev., s. 1510; Code, s. 926; 1901, c. 269; 1887, c. 
13; C. S. 1448.) 

Art. 10. Special Terms of Court. 

§ 7-77. Governor may designate judge. — The 

governor has the power to appoint any judge to 
hold special terms of the superior court in any 
county. (Rev., s. 1511; Code, s. 913; 1879, c. 11; 
Const., Art. 4, s. 11; C. S. 1449.) 

§ 7-78. Governor may order special terms. — 
Whenever it shall appear to the governor by the 
certificate of any judge, a majority _ of the board 
of county commissioners, or otherwise, that there 
is such an accumulation of criminal or civil ac- 
tions in the superior court of any county as to 
require the holding of a special term for its dis- 
patch, he shall issue an order to the judge of the 
judicial district in which such county is, or to 
any other judge of the superior court, requiring 
him to hold a special term of the superior court 
for such county, to begin on a certain Monday, not 
to interfere with any of the regular terms of the 
courts of his district, and hold for such time as 
he may designate, unless the business be earlier 
disposed of. If the dispatch of business requires 
it, the Governor may order a special term of court 
to be held by a regular, special, or emergency 
judge of the superior court in any county or dis- 
trict during the holding of a regular term in such 
county or district. (Rev., s. 1512; Code, s. 914; R. 
C, c. 31, s. 22; 1868-9, c. 273; 1876-7, c. 44; Ex. 
Se'ss. 1924, c. 100; C. S. 1450.) 

§ 7-79. Compensation of judge.— Any regular 
judge appointed to hold a special term of court 
shall attend and hold such court, and shall be paid 
as compensation therefor at the rate of one hun- 
dred dollars per week and his actual exoenses in- 
curred in attending such special term by the 
county in which the special term is held. But any 
such judge who is in a district having fewer than 
twenty regular weeks of court for the six months 
shall "hold without extra compensation, if directed 
by the governor, enough extra weeks of court to 
make out twenty weeks for the six months. (Rev., 
s. 1512; Code, s. 914; 1913, c. 63; 1901, c. 167; R. 
C, c. 31, s. 22; 1868-9, c. 273; 1876-7, c. 44; 1909, 
c. '85, s. 1; C. S. 1451.) 

§ 7-80. Notice of special terms. — Whenever the 
governor shall call a special term of the su- 
perior court for any county, he shall notify the 
chairman of the board of commissioners of the 

[1 



county of such call, and such chairman shall take 
immediate steps to cause competent persons to be 
drawn and summoned as jurors for said term; 
and also to advertise the term at the courthouse 
and at one public place in every township of his 
county, or by publication of at least two weeks 
in some newspaper published in his county in lieu 
of such township advertisement. (Rev., s. 1513; 
Code, s. 915; 1868-9, c. 273; C. S. 1452.) 

§ 7-81. Certificate of attendance. — The clerk 
shall give the judge a certificate of attendance 
for the number of days occupied by the court, and 
the judge shall thereupon be entitled to receive 
from the commissioners of the county in which 
the court is held the compensation provided by 
law. (Rev., s. 1514; Code, s. 918; 1901, c. 167; 
1868-9, c. 273; 1909, c. 85, s. 1; 1913, c. 63; C. S. 
1453.) 

§ 7-82. Grand juries at special terms. — There 
shall be no grand jury at any special term, unless 
the same shall be ordered by the governor. (Rev., 
s. 1515; Code, s. 921; 1868-9, c. 273; C. S. 1454.) 

§ 7-83. Jurisdiction. — The special terms of the 
superior court held in pursuance of this chapter 
shall have all the jurisdiction and powers that 
regular terms of the superior court have. (Rev., 
s. 1516; Code, s. 916; 1868-9, c. 273; C. S. 1455.) 

§ 7-84. Attendance and process at special 
terms. — All persons and witnesses summoned at 
the regular or special term, and officers or others 
who may be bound to attend the next regular 
term of the court, shall attend the special term, 
under the same rules, forfeitures and penalties 
as if the term were a regular term. (Rev., s. 1517; 
Code, s. 919; R. C, c. 31, s. 23; 1844, c. 10; 1848, 
c. 29; C. S. 1456.) 

§ 7-85. Subpoenas returnable. — Subpoenas may 
issue returnable on any day of any special term. 
(Rev., s. 1518; Code, s. 920; 1868-9, c. 273; C. S. 
1457.) 

Art. 11. Special Regulations. 

§ 7-86. Reading the minutes. — Every morning 
during the term the judge presiding shall order 
the reading of the minutes of the court for the 
day preceding, and the minutes of the last day 
shall be read immediately preceding the final ad- 
journment of the term. (Rev., s. 1519, Code, s. 
925; 1861, c. 3; C. S. 1458.) 

§ 7-87. Officer attending juries sworn. — When 
any officer (except such as are appointed to at- 
tend the grand jury) shall be appointed or sum- 
moned to attend any superior court, the clerk, at 
the time of the first going out of a jury on the 
trial of any civil or criminal action, shall adminis- 
ter an oath to such officer, faithfully to attend the 
several juries that may be put under his care dur- 
ing that term, that shall be charged in the trial 
of any civil or criminal action; and after such of- 
ficer shall be once so sworn, he shall be con- 
sidered to all intents and purposes as acting upon 
the same oath while attending every jury that he 
may be called to attend during that term. (Rev., 
s. 1527; Code, s. 927; R. C, c. 31, s. 36; 1801, c. 
592; C. S. 1459.) 

§ 7-88. Quakers may wear hats in court. — The 

people called Quakers may wear their hats in 

28] 



§ 7-89 



CH. 7. COURTS— SPECIAL REGULATIONS § 7-91 



courts of judicature, as elsewhere, according to shall be filed in the office of the clerk of the su- 

the custom of their sect. (Rev., s. 1528; Code, perior court of each county in said district in 

s 943- R. C, c. 31, s. 131; 1784, c. 209; C. S. 1460.) which said reporter is to officiate, and the same, 

or a certified copy thereof, shall be recorded by 

§ 7-89. Court reporters.— Upon the request of said clerk on the m i nute docket of his court, 

a judge holding a superior court in any county in Before entering upon the discharge of the du- 

the state, the board of county commissioners in ties of said omcej sa j d reporter shall take and 

such county shall employ a competent stenog- subscribe an oath in words substantially as fol- 

rapher to take down the proceedings of the \ ows: «t , do solemnly swear 

court, at a compensation not to exceed five dollars t j, at t vp .iH j to the best of my ability, discharge the 

per day and actual expenses, to be paid by the duties of the office of court reporter in and for the 

county in which the court is held: Provided, that C0U nty of in the second judicial 

the compensation of said stenographers in counties district, and will faithfully transcribe the testi- 

composing the sixteenth judicial district shall not mony offered in said courts as the presiding judge 

exceed ten dollars per day. may direct, or as I may be required to do under 

The judge is authorized to tax a reasonable fee tne law, so help me, God." Said oath shall be 

against the losing party in every action, civil and fji ed J n the office of each of the clerks of the su- 

criminal, to be turned into the county treasury p er j r courts of the counties in which said reporter 

towards reimbursing the county, but no fee shall ; s t0 officiate, and recorded and indexed on the 

be taxed against a losing party suing in forma m i nute dockets of said courts, 

pauperis. If on account of sickness, or for other cause, 

Every stenographer so employed shall make sa ; d reporter is unable to attend upon any of the 
three copies of the proceedings in every case ap- regular courts of said district, and for conflict and 
pealed to the supreme court, without extra charge, spe cial terms, the resident judge may appoint a 
and shall furnish one copy to the attorneys on repor ter pro tern for said court or courts, and 
each side and file one copy with the clerk of the sa j d appointment shall appear upon the minutes 
superior court of the county in which any such of said term> and sa id reporter shall take and sub- 
case is tried, and shall obey all orders of the scr ibe the oath referred to above, which oath shall 
judge relative to the time in which any such work be filed with the clerk In Iieu of appointing a 
shall be done: Provided, that the restrictions rep orter pro tern for each of said courts, the 
herein against an extra charge for making copies resident judge may, in his discretion, appoint a re- 
of the proceedings in cases appealed _ to the su- port er pro tem for a stated period whose duty it 
preme court shall not apply to counties compos- sna n be to report any and all courts in the county 
ing the sixteenth judicial district. or coun ties designated in the appointment, which 

Every stenographer so employed shall, before the regu i ar cour t reporter is for any cause una- 

entering upon the discharge of his duties, be ble to report . 

duly sworn to well, truly, and correctly take down The res jdent judge shall likewise fix the com- 

and transcribe the proceedings of the court, ex- pen sation to be received by such reporter and 

cept the argument of counsel, and the charge of such rep0 rter pro tem: Provided, however, such 

the court thus taken down and transcribed shall compensation shall not exceed ten dollars per day 

be held to be a compliance with the law requiring and actual eX p enses upon a weekly basis, 

the judge to put his instructions to the jury in The testimony taken and transcribed by said 

writing. court reporter or said court reporter pro tem, as 

This section shall not apply to any _ county the case may be> and duly certified) either by said 

which has a court stenographer authorized by rep0 rter or the presiding judge at the trial of the 

law: Provided, that the board of county com- causC) may be offered m ev i dence in any of the 

missioners of Mecklenburg county may, by reso- courts of this state ag the deposition of the wit . 

lution approving this section, bring said county nesg whose testimony is so taken and transcribed, 

within the provisions of the same: Provided fur- fa the same manner> and under the same rule 

ther, that this section shall not apply to the follow- governing t he introduction of depositions in civil 

ing counties: Alleghany, Brunswick, Caldwell, actions _ (1933| c 335) 
Camden, Carteret, Caswell, Chatham, Currituck, 

Dare, Davidson, Davie, Forsyth, Greene, Harnett, § 7-91. Official court reporter for fifth judicial 

Haywood, Hoke, New Hanover, Orange, Pender, district. — The resident judge of the fifth ju- 

Person, Transylvania, Union, Watauga. (Ex. Sess. dicial district is hereby authorized and empowered 

1913, c. 69; Ex. Sess. 1921, c. 57; 1927, c. 268; Pub. to appoint an official court reporter for all of the 

Loc. 1927, c. 49; 1933, c. 75, s. 2; C. S. 1461.) counties in said district, who shall serve at the 

Local Modification.-Alamance: Ex. Sess. 1921, c. 2; 1935, will of the resident judge, and whose appointment 

c. 474; Burke, Lincoln, Catawba: 1929, cc. S3, 260; Halifax: may be terminated at thirty days written notice 

1929, c. 45, s.'5; McDowell: 1933, c. 85; Northampton: 1931, thereof. 

c. 11, s. 5; Robeson: 1935, c. 9; Surry: 1927, c. 268, s. 2; Th appo i ntm ent of Such reporter shall be filed 

Wayne: 1927, c. 156. . . ^* r , , * . 

in the office of the clerk of the superior court of 

§ 7-90. Official court reporter for second judicial each county in said district in which said reporter 

district. — The resident judge of the second judicial is to officiate, and the same or a certified copy 

district is hereby authorized and empowered to thereof shall be recorded by said clerk on the min- 

appoint an official court reporter for one or more ute docket of his court. 

or all of the counties in said district who shall Before entering upor. the discharge of the du- 
serve at the will of the resident judge, and whose ties of said office, said reporter shall take and sub- 
appointment may be terminated by thirty days' scribe an oath in words substantially as follows: 

written notice thereof. "I , do solemnly swear that I 

The appointment of such reporter or reporters will to the best of my ability discharge the duties 

_5 [ 129 1 



§ 7-92 CH. 7. COURTS— COMMISSION § 7-95 

of the office of court reporter in and for the coun- and shall in addition thereto take and subscribe 

ties of the fifth judicial district and will faithfully an oath in words substantially as follows: "I 

transcribe the testimony offered in said courts , do furthermore solemnly swear that I 

as the presiding judge may direct or as I may be will, to the best of my ability, discharge the du- 

required to do under the law, so help me, God." ties of the office of court reporter in and for the 

Said oath shall be filed in the office of each of the sixth judicial district, and will faithfully transcribe 

clerks of the superior courts of the counties of the testimony offered in said courts as the pre- 

said district and recorded and indexed on the min- siding judge may direct, or as I may be required 

ute dockets of said courts. to do under the law, so help me God." Said oath 

If on account of sickness or for other cause shall be filed in the office of the clerk of the su- 

said reporter is unable to attend upon any regular perior court of the county in which said reporter 

courts of said district, and for conflict of special resides, and recorded and indexed by him on the 

terms the resident judge may appoint a reporter minute docket of said court. 

pro tern for said court or courts and said appoint- In case of sickness, or for other cause, if said 

ment shall appear upon the minutes of said term, reporter fails to attend upon' any of the courts of 

and said reporter shall take and subscribe the said district, the presiding judge may appoint a 

oath referred to above, which oath shall be filed reporter pro tern, for said court, and said appoint- 

with the clerk. In lieu of appointing a reporter ment shall appear upon the minutes of said term, 

pro tern for said district the resident judge may, and said reporter shall take and subscribe the 

in his discretion, appoint a reporter pro tern for oath referred to above, which oath shall be filed 

a stated period, whose duty it shall be to report with the clerk. 

any and all of the courts designated in the ap- The resident judge shall likewise fix the com- 

pointment which the regular court reporter is for pensation to be received, by said reporter, and said 

any cause unable to report. reporter pro tern, provided, however, such com- 

The resident judge shall likewise fix the com- pensation shall not exceed ten dollars per day and 

pensation to be received by said reporter and said actual expenses upon a weekly basis, 
reporter pro tern, provided, however, such com- Said court reporter or reporter pro tern must, 

pensation shall not exceed ten dollars per day upon request of counsel when the presiding judge 

and actual expenses upon a weekly basis. shall find as a fact that same is necessary and so 

Said court reporter or reporter pro tern must, order, deliver to the clerk of the superior court in 

upon request of counsel when the presiding judge which said cause is pending a transcript of the 

shall find as a fact that same is necessary and so evidence in that cause within fifteen days from the 

order, deliver to the clerk of the superior court in adjournment of the term of court in which such 

which said cause is pending a transcript of the evidence was taken. 

evidence in that cause within fifteen days from The testimony taken and transcribed by said 

the adjournment of the term of court in which court reporter, and duly certified, either by said 

such evidence was taken. reporter or the presiding judge at the trial of the 

The testimony taken and transcribed by said cause, may be offered in evidence in any of the 
court reporter or said reporter pro tern as the case courts of this State as the deposition of the witness 
may be, and duly certified, either by said reporter whose testimony is so taken and transcribed, in 
or the presiding judge at the trial of the cause, the same manner, and under the same rules gov- 
may be offered in evidence in any civil action in erning the introduction of depositions in civil ac- 
any of the courts in this state as the deposition tions. (1931, c. 154, s. 5; 1935, c. 420.) 
of the witness whose testimony is so taken and SUBCHAPTER IIL COMMISSION FOR 
transcribed in the_ same manner and under the IMPROVEMENT OF LAWS, 
same rules governing the introduction of deposi- 
tions in civil actions: Provided, however, that Art. 12. Commission for Improvement of Laws. 

such transcript of testimony shall be admissible s » , r | ..«.~J..j „4.„ui;<.u a a • ■ 

., F . . , J ■.""•,. , § 7-83. Commission established.— A commission 

in evidence only in the cause in which same was «.. t__ i „ u. „„: • c 4.u t 

. . „„, „„ , to be known as the commission for the Improve- 

taken. (1935, c. 128.) . c ,, T • , , ,,;.,, /h„ 01 

' ment of the Laws is hereby established. (1931, c. 

Local Modification. — Carteret: 1941, c. 137. QR e 1 1 

§ 7-92. Official court reporter for sixth ju- s _ „. ,» . r . . « . , 

,..,,. ^ . A _, ., . , . J , § 7-94. Members of commission. — Said com- 

dicial district. — The resident judge of the • • , ,, • . t ., , 

. , .,..,,.. . , , J , ° . , mission shall consist of the attorney-general, 

sixth judicial district is hereby authorized and ,, u • „ t , c ., ... T 

J , ^ . , cr . . the chairman of each of the committees on Ju- 
empowered to appoint an official court reporter ,• • r ,, e , ., TT . ,-. J 
. 11 r i ...,,. diciary of the Senate and the House of Represen- 
tor one or more, or all of the counties in said dis- , .• r .. n , . , , , ,, c n 

, ' , „ , ., , . , tatives of the General Assembly, and the follow- 

trict, whose term of office shall be for a period ■ , ,-,• , , * u- • .■. j i_ ..u 

, J , , r x ,.,. ,• -r, m S additional members to be appointed by the 

of five years from and after qualification: Pro- ^ .. . • ■ t ... : , , • , 

. , , , ,, . . . . , H , ,, , , Governor on the basis of their interest in and 

vided, however, that said judge shall have the . , ., . , , , , 

. , . . , j. r competency for the study of law reform: two 

right to remove said reporter for cause at any , , , ,, , . , , -, .,- T 

.. members who shall be appointed from the Jus- 
time 

t,/ . . r , tices of the Supreme Court and/or the Judges of 

The appointment of such reporter or reporters jy . « I i i n t_ 

,,,,/,,.,, a- c ., . . . f. the Superior Courts; two members who shall be 
shall be filed in the office of the clerk of the su- .. .... . ... , . , , ... 

, . . ., ,. , . . . ... active practitioners in the trial and appellate 

perior court of each county in said district in which 1, , , , ,, , . , . 

., . a- ■ . , ., courts; three members who shall be appointed 

said reporter is to officiate, and the same, or a r '. . ,,. , , . ,, . . 

,-r , ,, runt. j j u -i from the faculties of law in the various universi- 

certified copy thereof shall be recorded by said ,••.,. 0i j ^ r. 

,. , ., ^ J . . , . . t , . ' ties in this State; and two members, not attorneys 

clerk on the minute docket of his court. , , ' ,, , . , ...^ . 

■or 4. ■ , L j- v, r .. , at law, who shall be men of proven ability in 

Before entering upon the discharge of the du- ' . , „„ „„ , , „ . J 

c ■ , a- • j * u.ii v i . . other occupations. (1931, c. 98, s. 2.) 

ties of said ofhce, said reporter shall take and sub- v 

scribe the oath provided by law for public officers, § 7-95. Terms of office. — The attorney-gen- 

[130] 



§ 7-96 



CH. 7. COURTS— COUNTIES OF TWENTY-FIVE THOUSAND 



§ 7-103 



eral shall be a member of the commission during 
such time as he shall serve as attorney-general. 
The respective chairmen of the committees on 
judiciary shall hold office as members of the com- 
mission from their appointment as chairmen dur- 
ing the session of the General Assembly at which 
they were appointed and continuously thereafter 
until their successors as chairmen shall be ap- 
pointed by the presiding officers of the next Gen- 
eral Assembly, which successors shall in like 
manner become ex officio members of said com- 
mission. The other members of said commission 
shall serve from the dates of their appointment 
until the conclusion of the term of office of the 
Governor appointing them, or until their suc- 
cessors shall be appointed and qualified. (1931, 
c. 98, s. 3.) 

§ 7-96. Chairman and executive secretary. — The 

Governor shall designate one of the members of 
such commission as the chairman and another as 
the executive secretary of the commission. (1931, 
c. 98, s. 4.) 

§ 7-97. Vacancy appointments. — The Governor 
shall have power to fill vacancies among the un- 
official members occasioned by death, resignation 
or otherwise. (1931, c. 98, s. 5.) 

§ 7-98. Meetings of commission. — It shall be 
the duty of such commission to meet twice an- 
nually, or more often at the call of the chairman, 
to consider proposals for the betterment of the 
law, both substantive and procedural, to conduct 
such research and investigation as may be appro- 
priate therefor, and to recommend to the General 
Assembly such specific changes in the existing 
law as it deems expedient. (1931, c. 98, s. 6.) 

§ 7-99. Report and recommendations to general 
assembly. — In advance of each regular session 
of the general assembly, the commission shall 
prepare a report and shall embody the recommen- 
dation of the commission with drafts of proposed 
bills, and the reasons for the same, and copies 
of such report shall be sent to each member of 
the general assembly not less than thirty days be- 
fore the beginning of such session. (1931, c. 98, 
s. 7.) 

§ 7-100. Compensation. — The members of the 
commission shall serve without compensation. 
(1931, c. 98, s. 8.) 

SUBCHAPTER IV. DOMESTIC RELA- 
TIONS COURTS. 

Art. 13. In Counties with a City of at Least 
Twenty-five Thousand Inhabitants. 

§ 7-101. Established by county or city or both. 

— The Board of County Commissioners in the 
various counties having a county seat with twenty- 
five thousand or more inhabitants of the State, or 
the governing authorities in cities of twenty-five 
thousand or more inhabitants shall have authority 
to establish a "Domestic Relations Court," which 
court may be a joint county and city court, as pro- 
vided in section 7-102 or a court for the county or 
city as may be determined by the governing au- 
thorities. (1929, c. 343, s. 1.) 

Local Modification. — Durham, Edgecombe, Gaston, Guilford, 
Nash, New Hanover, Pitt, Wayne: 1929, c. 343, s. 10; Bun- 

[13 



combe: 1929, c. 343, s. 10; 1941, c. 208, s. 2; Forsyth: 1929, 
c. 343, s. 10; 1931, c. 221, s. 2; Wake: 1929, c. 343, s. 10; 
Pub. Loc. 1941, c. 339. 

§ 7-102. Vote on establishment of court; any 
other city in county with required population 
may have such court. — In case the Board of 
County Commissioners and governing authori- 
ties of a particular city decide to establish a joint 
city and county Domestic Relations Court, they, 
voting as separate bodies, shall determine whether 
or not such Domestic Relations Court shall be 
established. If both bodies, shall vote for its es- 
tablishment, each of them shall record the reso- 
lutions in their minutes and upon such consent 
by both boards, the court shall be established. 
In counties in which the said joint court is thus 
established by the Board of County Commis- 
sioners and the governing authorities of the 
county and city such establishment of the court 
shall not prevent any other city within the ter- 
ritorial limits of the county and having more than 
twenty-five thousand inhabitants, establishing its 
own court under section 7-101. (1929, c. 343, s. 2.) 

§ 7-103. Jurisdiction. — Said Domestic Relations 
Court shall have, and is hereby vested with 
all the power, authority, and jurisdiction hereto- 
fore vested by law in the juvenile courts of North 
Carolina, and said power, authority, and juris- 
diction being as fully vested in the Domestic Re- 
lations Court as if herein particularly set forth 
in detail; and in addition thereto the said Domes- 
tic Relations Court shall have exclusive original 
jurisdiction over the following classes of cases: 

(a) All cases where any adult is charged with 
abandonment, non-support, or desertion of any 
juvenile, or where either spouse is charged with 
abandonment, non-support, or desertion of the 
other. 

(b) All cases involving voluntary desertion of 
any juvenile by its mother. 

(c) All cases involving the custody of juve- 
niles, except where the case is tried in Superior 
Court as a part of any divorce proceeding. 

(d) All cases where assault, or assault and 
battery, on a juvenile is charged against an 
adult, or where husband or wife is charged with 
assault, or assault and battery, upon the other. 

(e) All cases in which an adult is charged 
with causing or being responsible for delin- 
quency, dependency, or neglect of a juvenile. 

(f) All bastardy cases within said county. 

(g) All cases wherein any person is charged 
with receiving stolen goods from any juvenile, 
knowing them to be stolen. 

(h) All cases involving violation of the North 
Carolina School Attendance Law as set forth in 
Public Laws of North Carolina, one thousand 
nine hundred and nineteen, chapter one hun- 
dred, and Public Laws of North Carolina, one 
thousand nine hundred and twenty-three, chap- 
ter one hundred and thirty-six; and in §§ 115-302 
to 115-312, inclusive; and such other laws relative 
to school attendance as may hereafter be enacted. 

(i) In either case where either parent institutes 
a divorce action when there is a minor child or 
children, it shall be the duty of the Clerk of the 
Superior Court to refer the case for investiga- 

1] 



§ 7-104 



CH. 7. COURTS— COUNTIES OF TWENTY-FIVE THOUSAND 



§ 7-110 



tion as to the child, or children, to the Domestic 
Relations Court, and the Judge of the Domestic 
Relations Court shall make his recommendations 
to the Judge of the Superior Court as to the dis- 
position of the child, or children, for the consid- 
eration of the Judge of the Superior Court in dis- 
posing of the custody of the said child or chil- 
dren. (1929, C 343, s. 3; 1941, c. 308.) 

§ 7-104. Election of judge and term of of- 
fice; vacancy appointments; judge to select clerk; 
juvenile Court officers may be declared officers of 
new Court. — It shall be the duty of the Board of 
Commissioners of any county and the govern- 
ing board of any city, in which a joint Court of 
Domestic Relations is established, as provided in 
this article, or of the governing authorities of 
any city or county in which an independent Do- 
mestic Relations Court shall be established, as pro- 
vided in this article, acting jointly, in the first in- 
stance, or independently, in the second instance, to 
elect a Judge of the Domestic Relations Court and 
to fix his salary and provide for the payment of 
same, his term of office to run from the time of his 
election to the second Monday in July in each odd 
numbered year and until his successor shall have 
been elected and qualified. The regular term of 
office shall be for a term of two years and until 
his successor is elected and qualified. If _ any 
vacancy should occur in said office during the 
two years' term, for any cause, it shall be filled 
for the unexpired term in the same manner and 
by the same bodies as provided for the election of 
said Judge. 

It shall be the duty of the Judge of the Do- 
mestic Relations Court to appoint a Clerk for 
said court, the salary of said Clerk to be fixed, 
provided for, and paid by the Board of County 
Commissioners of any of such counties and the 
governing board of any of such cities, acting 
jointly, or independently when a joint county 
and city court is not established. 

And the officers of the Juvenile Court of any 
of such cities and of any of such counties, as 
now constituted by law may be declared to be 
officers of the Domestic Relations Court. 

The probation officers of Domestic Relations 
Court and their method of appointment shall be 
the same as now provided for in § 110-31, for pro- 
bation officers of the Juvenile Court. The salaries 
of said probation officers, and the necessary equip- 
ment for the proper maintenance and functioning 
of said court, shall be a charge upon such county 
and such city jointly, or upon the county or city, 
if it is an independent court. (1929, c. 343, s. 4; 
1931, c. 221, s. 1.) 

Local Modification.— Mecklenburg: 1937, c. 268. 

§ 7-105. Co-operation of all peace officers. — 
It shall be the duty of all officers of the coun- 
ties and of the cities to assist the Domestic Re- 
lations Court in any and all ways in the line of 
their official duty as fully and to the same ex- 
tent and in the same manner as they heretofore 
have been authorized and required to do in the 
case of all other courts. (1929, c. 343, s. 5.) 

§ 7-106. Procedure, practice and punishments. 
— The procedure, practice, and punishments im- 
posed in the Domestic Relations Court as estab- 
lished in this article shall be the same as now 

[1 



provided by law in courts now having original 
jurisdiction of the various offenses or causes 
enumerated in this article, and the Judge of the 
said Domestic Relations Court is hereby granted 
the power to prescribe such rules and fix such 
modes of procedure, as, in his discretion, will best 
effect the purposes for which said court is cre- 
ated. (1929, c. 343, s. 6.) 

§ 7-107. Right of appeal to Superior Court; trial 
de novo. — Wherever in this article criminal ju- 
risdiction is conferred upon the Domestic Rela- 
tions Court there shall be the same right of ap- 
peal from this court as from Recorders' Courts 
or other inferior criminal courts to the Superior 
Court, and the same rules and regulations of such 
appeals from inferior courts shall apply to ap- 
peals from this court, and in the Superior Court 
the trial shall be de novo. This provision shall 
apply also to the trials in bastardy cases. (1929, 
c. 343, s. 7.) 

§ 7-108. Offenses before Court to be petty 
misdemeanors; demand for jury trial; appearance 
bonds. — All the offenses for the trial of which 
the Domestic Relations Court is given jurisdic- 
tion are hereby declared to be petty misdemean- 
ors punishable as now prescribed by law. On the 
trial before such Domestic Relations Court, if a 
jury trial is demanded, the cause shall be there- 
with transferred for trial to some criminal term 
of the Superior Court of the counties in which 
the Domestic Relations Court is situated. The 
defendant or defendants shall be held under an 
adequate bond to secure his or their attendance 
at the criminal term of the Superior Court to 
which the record is transferred. If in the exer- 
cise of the jurisdiction hereinbefore conferred 
upon the Domestic Relations Court, it should 
appear that a felony has been committed, said 
court shall have jurisdiction and authority upon 
proper investigation to bind over the alleged 
felon in all cases in which probable cause is 
found, to the Superior Court of the county, under 
proper bond and recognizances. (1929, c. 343, 
s. 8.) 

§ 7-109. Pending cases in Juvenile Court trans- 
ferred to new Court. — All causes pending in the 
Juvenile Court of the county or city at the 
time of the organization of any Domestic Re- 
lations Court within said county or city, shall 
be transferred to the Domestic Relations Court 
for final adjudication. (1929, c. 343, s. 9.) 

§ 7-110. Cases transferred from Superior Court. 

— Upon the establishment of a domestic relations 
court as authorized in this article, the clerk of 
the superior court shall immediately transfer from 
the superior court to such domestic relations 
court all actions pending in the superior court 
of which the domestic relations court has juris- 
diction as in this article conferred, whether such 
actions are untried or tried and retained for judg- 
ment, sentence or further orders, and the domestic 
relations court shall immediately have jurisdiction 
of such actions and shall thereafter try, enter 
further orders or dispose of such actions in the 
same manner and to the same extent as if said 
actions had been initiated in said domestic rela- 
tions court. (1941, c. 208, s. 1.) 

32 ] 



§ 7-111 



CH. 7. COURTS— ELECTION AND QUALIFICATION 



§ 7-120 



§ 7-111. Discontinuance of Court. — After the 
establishment of any domestic relations court by 
any county commissioners or by the governing 
authorities of a particular city, or the establish- 
ment of a joint county-city court of domestic re- 
lations, such board, governing authorities, or both, 
may, by resolution or resolutions, discontinue any 
such court. (1941, c. 208, s. 2 l / 2 .) 

SUBCHAPTER V. JUSTICES OF THE 
PEACE. 

Art. 14. Election and Qualification. 

§ 7-112. Constitution, article seven, abrogated; 
exceptions. — All the provisions of article seven 
of the constitution inconsistent with this chapter, 
except those contained in sections seven and 
twelve are hereby abrogated, and the provisions 
of this article substituted in their place; subject, 
however, to the power of the general assembly to 
alter, amend or abrogate the provisions of this 
article, and to substitute others in their stead, as 
provided in section thirteen of article seven of the 
constitution. (Rev., s. 1408; Code, s. 818; 1876-7, 
c. 141, s. 7; C. S. 1462.) 

§ 7-113. Election and number of justices. — At 

every general election held for members of the 
general assembly there shall be elected in each 
township three justices of the peace, and for each 
township in which any city or incorporated town 
is situated, one justice of the peace for every one 
thousand inhabitants in such city or town, who 
shall hold office for a term of two years from and 
after the first Monday in December next after 
their election. (Rev., s. 1409; Code, s. 819; 1876-7, 
c. 141; 1895, c. 157; 1905, cc. 35, 44, 148; 1907, c. 
225; 1909, cc. 177, 716; C. S. 1463.) 

Local Modification. — Bertie, Caswell, Chowan, Franklin: 
C. S. 1464; Gaston: 1931, c. 256; Granville: C. S. 1464; 
New Hanover (City of Wilmington): C. S. 1464; Vance: C. 
S. 1466; Wake: 1937, c. 113; Warren: C. S. 1465. 

§ 7-114. Oath of office; vacancies filled. — Every 
person elected or appointed a justice of the 
peace, before his term of office begins or within 
thirty days thereafter, shall take and subscribe 
the prescribed oaths of office before the clerk of 
the superior court, who shall file the same. All 
elections of justices of the peace by the general 
assembly or by the people shall be void unless 
the persons so elected shall qualify as herein di- 
rected. All original vacancies in the offices or 
justice of the peace occurring before qualification 
as provided in this section shall be filled for the 
term by the governor. All other vacancies shall 
be filled by the clerk of the superior court. (Rev., 
s. 1411; Code, s. 821; 1901, c. 37; C. S. 1467.) 

§ 7-115. Governor may appoint justices. — The 
governor may, from time to time, at his discre- 
tion, appoint one or more fit persons in every 
county to act as justices of the peace, who shall 
hold their office for four years from and after the 
date of their appointment; and, on exhibiting 
their commission to the clerk of the superior 
court of the county in which they are to act, shall 
be duly qualified by taking before said clerk an 
oath of office and the oaths prescribed for other 
officers. The governor shall issue to each justice 
of the peace so appointed a commission, a cer- 



tificate of which shall be deposited with the clerk 
of the court and filed among the records, and he 
shall note on his minutes the qualifications of the 
justice of the peace. 

_ Any commission so issued by the Governor or 
his predecessor shall be revokable by him in his 
discretion upon complaint being made against 
such justice of the peace and when he shall be 
satisfied that the interest of the public will be 
best served by the revocation of said commission. 
Whenever the Governor shall have revoked 
the commission of any justice of the peace ap- 
pointed by him, or his predecessor in office, it shall 
be his duty to file with the clerk of the court in the 
county of such justice of the peace a copy of said 
order and mail a copy of same to said justice of 
the peace. 

Any person holding himself out to the public 
as a justice of the peace, or any person attempting 
to act in such capacity after his commission shall 
have been revoked by the Governor, shall be guilty 
of a misdemeanor and upon conviction be punish- 
able in the discretion of the court, as provided for 
in other misdemeanors. (1917, c. 40; 1927, c 116- 
C. S. 1468.) 

§ 7-116. Forfeiture of office. — When any justice 
of the peace removes out of his township and 
does not return therein for the space of six 
months, he thereby forfeits and loses his office; 
and any such justice presuming to act thereafter, 
contrary to this section, unless reelected or re- 
appointed, shall be guilty of a misdemeanor. 
(Rev., ss. 1412, 3589; Code, s. 822; C. S. 1469.) 

§ 7-117. Resignation. — Justices of the peace 
wishing to resign must deliver their letters of 
resignation to the clerk of the superior court, 
who shall file the same. (Rev., s. 1413; Code, s. 
823; C. S. 1470.) 

§ 7-118. Removal and disqualification for crime. 
— Upon the conviction of any justice of the peace 
of an infamous crime, or of corruption and mal- 
practice in office, he shall be removed from office, 
and he shall be disqualified from holding or en- 
joying any office of honor, trust or profit under 
this state. (Rev., s. 1414; Code, s. 826; C. S. 1471.) 

§ 7-119. Justice may hold other office.— Any 
justice of the peace may accept a civil office or 
appointment of trust or profit, under the author- 
ity of the United States, the duties of which con- 
fine him to the county where he is resident. 
(Rev., s. 1415; Code, s. 825; Const., Art. 14, s. 7: 
C. S. 1472.) 

§ 7-120. Validation of official acts of certain 
justices of the peace. — Each and all of the official 
acts of justices of the peace appointed by chapter 
three hundred twenty-one, Public Laws of one 
thousand nine hundred thirty-one, performed 
after the expiration of their terms on April first, 
one thousand nine hundred thirty-seven, and be- 
fore March twenty-first, one thousand nine hun- 
dred thirty-nine, including all judgments ren- 
dered, probates taken, marriages performed, and 
any and all other acts whatsoever, are hereby in 
all respects validated, ratified and confirmed. 
(1939, c. 268.) 



[133] 



§ 7-121 



CH. 7. COURTS— FEES 



§ 7-134 



Art. 15. Jurisdiction. 

§ 7-121. Jurisdiction in actions on contract. — 

Justices of the peace shall have exclusive original 
jurisdiction of all civil actions founded on con- 
tract, except — 

1. Wherein the sum demanded, exclusive of in- 
terest, exceeds two hundred dollars. 

2. Wherein the title to real estate is in con- 



holding court, the justice may commit him for 
contempt, or fine him not exceeding five dollars. 
(Rev., s. 1426; Code, s. 848; R. C. c. 115; 1741, c. 
30; C. S. 1480.) 

§ 7-129. Jurisdiction in criminal actions. — Jus- 
tices of the peace have exclusive original jurisdic- 
tion of all assaults, assaults and batteries, and af- 
frays, where no deadly weapon is used and no 



troversy. (Rev., s. 1419; Const., Art. 4, s. 27; serious damage is done, and of all criminal matters 

Code, s. 834; C. S. 1473.) arising within their counties, where the punish- 

§ 7-122. Jurisdiction in actions not on contract. " lent Prescribed by law does not exceed a fine of 



— Justices of the peace shall have concurrent ju- 
risdiction of civil actions not founded on contract, 
wherein the value of the property in controversy 
does not exceed fifty dollars. (Rev., s. 1420; 
Const., Art. 4, s. 27; Code, s. 887; C. S. 1474.) 

§ 7-123. Action dismissed for want of jurisdic- 
tion; remitter. — Where it appears, in any action 
brought before a justice, that the principal sum 



fifty dollars or imprisonment for thirty days: 
Provided, that justices of the peace shall have no 
jurisdiction over assaults with intent to kill, or as- 
saults with intent to commit rape, except as com- 
mitting magistrates: Provided further, that noth- 
ing in this section shall prevent the superior or 
criminal courts from finally hearing and determin- 
ing such affrays as shall be committed within one 
mile of the place where and during the time such 



demanded exceeds two hundred dollars, the court is being held; nor shall this section be con- 
justice shall dismiss the action and render a strued to prevent said courts from assuming juris- 



judgment against the plaintiff for the costs, un- 
less the plaintiff shall remit the excess of princi- 
pal, above two hundred dollars, with the interest 
on said excess, and shall, at the time of filing his 



diction of all offenses whereof exclusive original 
jurisdiction is given to justices of the peace if 
some justice of the peace, within twelve months 
after the commission of the offense, shall not have 



complaint, direct the justice to make this entry: proceeded to take official cognizance of the same. 



(Rev., s. 1427; Const., Art. 4, s. 27; Code, s. 892; 



"The plaintiff, in this action, forgives and remits 

to the defendant so much of the principal of this 1889, c. 504, s. 2; C. S. 1481.) 
claim as is in excess of two hundred dollars, to- 
gether with the interest on said excess." (Rev., s. Art. 16. Dockets and Fees. 
1421; Code, s. 835; 1868-9, c. 159, s. 3; 1876-7, c. 
63; C. S. 1475.) 



§ 7-130. Justice shall keep docket. — A civil and 
a criminal docket shall be furnished each justice, 
§ 7-124. Title to real estate in controversy as a at the expense of the county, by the board of 
defense. — In every action brought in a court of county commissioners, in which shall be entered a 
a justice of the peace, where the title to real estate minute of every proceeding had in any action be- 
comes in controversy, the defendant may, either fore such justice. (Rev., s. 1416; Code, s. 831; C. 
with or without other matter of defense, set forth, S. 1482.) 
in his answer, any matter showing that such title § 7 _ m g^ tQ be made ._ The justice shall 

will come in question, buch answer shall be in ., . . ,. . •. , , t 

enter all his proceedings in a cause tried before 



writing, signed by the defendant or his attorney, 
and delivered to the justice. (Rev., s. 1422; Code, 
s. 836; C. S. 1476.) 

§ 7-125. Title to real estate in controversy, ac- 
tion dismissed. — If it appears on the trial that the 
title to real estate is in controversy, the justice 



him in his docket. No part of such proceedings 
must be entered on the summons, on the plead- 
ings, or on any other paper in the cause. (Rev., 
s. 1470, Rule 14; Code, s. 840, Rule 13; C. S. 1483.) 

§ 7-132. Dockets filed with clerk. — Each justice 



shall dismiss the action and render judgment of the peace, as often as he has filled his docket, 

against the plaintiff for costs. (Rev., s. 1423; shall file the same with the clerk of the superior 

Code s 837- C S 1477) court for his county. (Rev., s. 1417; Code, s. 

o ' .' , ■ . „ • ^ 827; C. S. 1484.) 
§ 7-126. Another action in Superior Court. — 

When an action, before a justice, is dismissed up- § 7-133. Dockets, papers, and books delivered 

on answer, and proof Ly the defendant, that the to successor.— When a vacancy exists, from any 

title to real estate is in controversy in the case, cause, in the office of a justice of the peace, 

the plaintiff mav prosecute an action for the whose docket is not filled, or when such justice 

same cause in the superior court, and the defend- goes out of office by expiration of his term, such 

ant shall not be admitted in that court to deny former justice, if living, and his personal repre- 



the jurisdiction by an answer contradicting his 
answer in the justice's court. (Rev., s. 1424; 
Code, s. 838; C. S. 1478.) 

§ 7-127. Justice may act anywhere in county. — 
A justice of the peace may issue a summons or 



sentative, if dead, shall deliver such docket, all 
law and other books furnished him as a justice of 
the peace, and all official papers, to the clerk of 
the superior court for his successor, who is au- 
thorized to hear and determine any unfinished ac- 
tion on said docket, in the same manner as if such 



372; C. S. 1485.) 



other process anywhere in his county, but he action had been originally brought before such 
shall not be compelled to try a cause out of the succesS or. (Rev., s. 1418; Code, s. 828; 1885, c 
township for which he was elected or appointed. 
(Rev., s. 1425; Code, s. 824; C S. 1479.) 

§ 7-128. Punishment for contempt in certain 
cases.— If any person shall profanely swear or § 7-134. Fees of justices of the peace.— Justices 
curse in the hearing of a justice of the peace, of the peace shall receive the following fees, and 

[134] 



Art. 17. Fees. 



§ 7-135 



CH. 7. COURTS— PROCESS 



§ 7-139 



none other: For attachment with one defendant, more than one defendant in the same case, for 
twenty-five cents, and if more than one defend- each additional defendant, fifteen cents; subpoena 
ant, ten cents for each additional defendant; for each witness, fifteen cents; trial when issues 
transcript of judgment, ten cents; summons, are joined, one dollar; and if no issues are 
twenty cents, if more than one defendant in the joined, then a fee of fifty cents for trial and 
same case, for each additional defendant, ten judgment; taking an affidavit, bond, or under- 
cents; subpoena for each witness, ten cents; taking, or for an order of publication, or an or- 
trial when issues are joined, seventy-five cents, der to seize property, thirty-five cents; for jury 
and if no issues are joined, then a fee of forty trial and entering verdict, one dollar; execution, 
cents for trial and judgment; taking an affida- thirty-five cents; renewal of execution, fifteen 
vit, bond or undertaking, or for an order of cents; return to an appeal, forty cents; order of 
publication, or an order to seize property, arrest in civil actions, thirty cents; warrant of 
twenty-five cents; for jury trial and entering arr est in criminal and bastardy cases, including 
verdict, seventy-five cents; execution, twenty- affidavit or complaint, seventy-five cents; war- 
five cents; renewal of execution, ten cents; re- rant D f commitment, fifty cents; taking deposi- 
turn to an appeal, thirty cents; order of arrest t j ons on or d er of commission, per one hundred 
in civil actions, twenty-five cents; warrant of wor ds, fifteen cents; garnishment for taxes and 
arrest in criminal and bastardy cases, including making necessary return and certificate of same, 
affidavit or complaint, fifty cents; warrant of thirty-five cents. (Rev., s. 2788; Code, ss. 2135, 
commitment, twenty-five cents; taking deposi- 3743; 1870-1, c. 130, s. 9; 1883, c. 368, 1885, c. 
tions on order or commission, per one hundred 86; 1903, c. 225; 1907, c. 967; 1917, c. 260; 1921, 
words, ten cents; garnishment for taxes, and mak- c 113; g x Sess. 1921, cc. 38, 64, 67; 1923, cc. 
ing necessary return and certificate of same, 
twenty-five cents; for hearing petition for widow's 
year's allowance, issuing notice to commissioners 
and allotting the same, one dollar; for filing 
and docketing laborers' liens, fifty cents; pro- 
bate of a deed or other writing proved by a wit- 
ness, including the certificate, twenty-five cents; 



28, 114, 238; 1929, cc. 13, 59; 1931, cc. 51, 303; C. 

S. 3923.) 

Local Modification.— Orange: 1935, c. 358; Wake: 1937, 
c. 136; 1941, c. 165; Warren: 1937, c. 187. 

Art. 18. Process. 
§ 7-135. Action begun by summons. — Civil ac- 



probate of a deed or other writing executed by tions in these courts shall be commenced by the 

a married woman, proper acknowledgment and issuing of a summons. (Rev., s. 1444; Code, s. 

private examination, with the certificate there- 83 o; 1868-9, c. 159, s. 9; C. S. 1486.) 

of, twenty-five cents; probate of a deed or 

other writing acknowledged by the signers or § 7 - 136 " Issuance and contents of summons.- 



makers, including all except married women 



The summons shall be issued by the justice and 



who acknowledge at the same time, with the signed b V hlm - Jt shall ru " ln the * ame ot the 

certificate thereof, twenty-five cents; probating state > and be directed to any constable or other 

chattel mortgage, including the certificate, ten lawful officer > commanding him to summon the 

cents; for issuing all papers and copies thereof defendant to appear and answer the complaint of 

in an action for claim and delivery, and the trial the plaintiff at a place, within the county, to be 

of the same, if issues are joined, when there is therein specified, and at a time to be therein 

one defendant, one dollar and fifty cents, and if named, not exceeding thirty days from the date 

more than one defendant in action, fifty cents o f the summons. It shall also state the sum de- 

for each additional defendant, and ten cents manded by the plaintiff or the value of the prop- 

for each subpcena issued in said cause, and ert Y sued for, where specific property is claimed, 

twenty-five cents for taking the replevy bond, (Rev., s. 1445; Code, s. 832; 1874-5, c. 234; C. S. 

when one is given: Provided, that when the 1487.) 

trial of such a cause shall have been removed § 7-137. Service and return of summons. — The 
from before the justice of the peace issuing the officer to whom the summons is delivered shall 
said papers, the justice of the peace sitting in execute the same within five days after its re- 
trial of such cause shall receive fifty cents of ceipt by him or immediately, if required to do so 
the above costs for such trial and judgment. by the plaintiff. Before proceeding to execute it, 
Justices of the peace in the counties of Mont- he is entitled to require of the plaintiff his fees 
gomery, Onslow, Macon, Swain, Greene, Hyde, for the service. When executed he shall imme- 
Cherokee, Rowan, Anson, Bertie, Nash, Chow- diately return the summons, with the date and 
an, Alamance, Wake, Transylvania, Watauga, manner of the service, to the justice who issued 
Pender, Lee, Lenoir, Perquimans, Rockingham, the same. (Rev., s. 1446; Code, s. 833; C. S. 1488.) 
Stokes, Johnston, Halifax, Duplin, Chatham, 



Forsyth, Wilkes, Gates, Tyrrell, Brunswick, 



§ 7-138. Process issued to another county. — No 



Stanly, Columbus, Edgecombe, Franklin, Vance, P rocess sha11 be issued by any justice of the 

Mitchell, Orange, Buncombe, Jackson, Alexan- P eace to any county other than his own, unless 

der, McDowell, Clay, Hertford, Davidson, one or more bona fide defendants shall res.de m 

Northampton, Wayne, Jones, Cabarrus, Rob- and also one or more bona fide defendants shall 

eson, Richmond, Randolph, Polk, Henderson, reslde outside of, his county; in which case, only. 

Harnett, Bladen, Burke, Granville, Person, he may issue_ process to any county in which any 

Haywood, Caldwell, Cumberland, and Madison such nonresident defendant resides. (Rev., s. 

shall receive the following fees, and none other: 1447 = Code < s ' 871; 1876 " 7 ' c ' 287; C S ' ,489 - ) 
For attachment with one defendant, thirty-five § 7-139. Civil process in inferior courts. — The 

cents, and if more than one defendant, fifteen process of any recorder's court, county court, or 

cents for each additional defendant; transcript of other court inferior to the superior courts of the 

judgment, fifteen cents; summons, thirty cents, if state, when such court is exercising the jurisdic- 

[ 135] 



§ 7-140 



CH. 7. COURTS— PLEADING AND PRACTICE 



§ 7-147 



tion of a justice of the peace in civil matters, a process agent within the terms of this section, 

shall run only as does the process of the court of and that this proviso shall apply to existing claims 

a justice of the peace for the county in which as well as those arising hereafter. Such service 

such court is located. (1915, c. 19; C. S. 1490.) can be made in respect to a foreign corporation 

_ _ , r .. ._ only when it has property, or the cause of action 

§ 7-140. Endorsement of process to another J , . *. ■, . .. . ■. . 

s T f , . J arose, or the plaintiff resides in this state, or when 

county. — In all civil actions in courts of justices . , *_ , „ . , . , 

, , * , £ ., , c j _*- rt cannot be made personally within the state upon 

of the peace where one or more of the defendants , .. . , 

11 -L-l :„ „ -„„„*„ „*»,„. *w tw „* tl,P the President, treasurer, or secretary thereof. (Rev., 



may reside in a county other than that of the 
plaintiff, it shall be lawful for any justice of the 
peace within the county where such defendant or 
defendants may reside, upon proof of the hand- 



s. 1448; 
1494.) 



1907, c. 473; Ex. Sess. 1920, c. 28; C. S. 



§ 7-144. Attendance of witnesses. — The justice, 



writing of the justice of the peace who issued the on application of either party, shall, by a sub- 
process, to endorse his name on the same, or a poena or by an order in writing, on the process, 
duplicate thereof, and such process so endorsed direct the constable or other officer to summon 
shall be executed in like manner as if it had been witnesses to appear and give testimony at the 
originally issued by the justice endorsing it. time and place appointed for the trial. Each wit- 
(Rev., s. 1449; Code, s. 872; C. S. 1491.) ness failing to appear shall forfeit and pay eight 

, dollars to the party at whose instance he was 

§ 7-141. Certificate of clerk on process for an- summoned) and shall be further Hable t0 such 

other county.— In all cases referred to in § ,-140 party for aU damage sustaine d by nonattendance. 

it shall be lawful for the clerk of the superior The fine herein imposed may be rec0 vered, on 

court of the county in which the action is brought motion( before the justice who tried the action) 

to certify, under the seal of his court, on the unless thg witness on a notice of five daySi by 

process or a duplicate thereof, that the justice of affidavit or other proofi show suffiden t excuse 

the peace who issued the same is an acting justice for hig fai , ure tQ attend (Rey-> s _ 1452 . CodCj s _ 

of the peace in his county. And in all such cases g47; q g 1495 ) 

it shall be the duty of any sheriff or constable to .' '," ' « u ' 

whom it may be directed to make an entry of the ■ § 7-145 Subpoena issued to another county.- 

date of its reception, and to execute the same as Justices of the peace, in all civil cases, may issue 

provided for the service of civil process in courts subpoenas to counties other than their own; such 

of justices of the peace, and return it by mail to subpoenas shall be authenticated in the same 

the justice of the peace from whose court it issued, manner as provided by law for the authentication 

(Rev, s. 1450; Code, s. 873; 1870-1, c. 60, s. 2; C. of process. When so authenticated the sheriff, 

c 14 q 3 \ constable or other officer to whom the same is 

directed shall execute and return the same as 

§ 7-142. Judgment against defendant in another provided for the return of pr0 cess: Provided, that 

county.— No justice of the peace shall enter a where witnesses attend in counties other than 

judgment under §§ 7-140 and 7-141 against any their Qwn under such su b poe na they shall receive 

defendant who may be a nonresident of his county, the same per d j em and m ;i e age as witnesses who 

unless it shall appear that the process was duly attend the SU p e rior courts: Provided further, that 

served upon him at least ten days before the re- be f ore j ssu i ng suc h subpoenas the party wanting 

turn day of the same. (Rev., s. 1451; Code, s. 874; such w j tness sha ll deposit with the justice before 

1876-7, c. 57; C. S. 1493.) whom the cause is pending one day's per diem 

§ 7-143. Service on foreign corporation.-When- and the mileage of the witness to and returning 

ever any action of which a justice of the peace from place of trial, which amount shall be paid 



has jurisdiction shall be brought against a for 
eign corporation, which corporation is requ 
to maintain a process agent in the state, the sum 
mons may be issued to the sheriff of the county 



to the witness on his attendance and taxed 
ired a & amst tne party cast in the trial. (Rev., s. 1453; 
1893, c. 436; C. S. 1496.) 



§ 7-146. Subpoena duces tecum in case against 



in which such process agent resides, and when railroad. — When any action is brought against a 
certified under the seal of his office by the clerk railroad company before a justice of the peace, 
of the superior court of the county in which the the justice before whom such action is made re- 
justice issuing such summons resides to be under turnable shall have power to issue a subpoena to 
the hand of such justice, the sheriff of the county any county within the limits of the state, com- 
to which such summons shall be issued shall manding the president or any officer, director, 
serve the same as in other cases and make due agent, or any one in the employment of such 
return thereof. No justice of the peace shall company, to appear before him at the time and 
enter a judgment in such cases against any such place of trial and to produce such books, cards 
foreign corporation unless it shall appear that the an d other papers as the justice shall deem proper, 
process was duly served upon such process agent anc j to give evidence in said cause; and each 
at least twenty days before the return day of the witness summoned as aforesaid failing or refus- 
same. The summons may be made returnable at ing to appear and testify and produce the books 
a time to be therein named, not exceeding forty and papers aforesaid in obedience to such writ 
days from the date of such summons: Provided, shall be deemed guilty of a contempt of court and 
this section shall not apply to actions commenced fined not exceeding fifty dollars or imprisoned 
in a county where the defendant has an officer or not exceeding thirty days. (Rev., s. 1454; 1885, c. 
agent upon whom process may be served: Pro- 221, s. 2; C. S. 1497.) 

vided, that when any foreign corporation has no lg pleadi and Practice . 
process agent in this state, but has an agent who 

collects money for it, said agent shall be deemed § 7-147. Removal of case.— In all proceedings 

[136] 



§ 7-148 



CH. 7. COURTS— PLEADING AND PRACTICE 



§ 7-149 



and trials, both criminal and civil, before justices 
of the peace, the justice before whom the writ or 
summons is returnable shall, upon written re- 
quest made by either party to the action before 
evidence is introduced, move the same to some 
other justice residing in the same township, or 
to the justice of some neighboring township if 
there be no other justice in said township; but 
no cause shall be more than once removed. (Rev., 
s. 1455; Code, s. 907; 1880, c. 15; 1883, c. 66; 
1917, C. 48; C. S. 1498.) 
Local Modification.— Mecklenburg : 1933, c. 278. 

§ 7-148. Removal in case of death or incapacity. 
— If any justice of the peace dies or becomes in- 
capacitated by removal, resignation or other 
cause, having any action, civil or criminal, pend- 
ing before him, which has not been finally de- 
termined, such action shall not abate or be dis- 
continued, but the plaintiff in such civil action, 
or any one on behalf of the state in such criminal 
action, may remove such action for further and 
final determination before any other justice of 
the peace of the same township in which the 
original action was pending, or before any justice 
of the peace of the same county when there is no 
other in the township, by filing the papers in said 
action with the justice to whom the same is re- 
moved and by giving ten days notice to the de- 
fendant of such removal; and if the plaintiff in 
any civil action shall fail to give such notice of 
removal within ten days from the happening of 
the death, removal, or resignation, or incapacity 
of such justice, then the defendant in such action 
may remove the same by giving like notice to the 
plaintiff; and if no notice is given by either party 
to such action within twenty days, then such ac- 
tion shall stand discontinued without prejudice. 
The justice of the peace before whom such action 
may be removed shall proceed to try and deter- 
mine the same, but he shall demand no fees or costs 
which have theretofore been properly advanced by 
any party to such action. After such removal 
either party shall be entitled to all the rights 
given in § 7-147. (Rev., s. 1456; 1905, c. 121; C. 
S. 1499.) 

§ 7-149. Rules of practice: 

Rule 1, Pleadings. The pleadings in these 
courts are — 

1. The complaint of the plaintiff. 

2. The answer of the defendant. (Rev., s. 1457, 
Code, s. 840; C. S. 1500.) 

Rule 2, Complaint. The complaint must state, 
in a plain and direct manner, the facts constitut- 
ing the cause of action. (Rev., s. 1459; Code, s. 
840, Rule 3; C. S. 1500.) 

Rule 3, Answer. The answer may contain a 
denial of the complaint, or of any part thereof, 
and also a statement, in a plain and direct man- 
ner, of any facts constituting a defense or coun- 
terclaim. (Rev., s. 1460; Code, s. 840, Rule 4; C. 
S. 1500.) 

Rule 4, Demurrer. Either party may demur to 
a pleading of his adversary, or to any part there- 
of, when it is not sufficiently explicit to enable 
him to understand it, or contains no cause of ac- 
tion or defense, although it be taken as true. 
(Rev., s. 1461; Code, s. 840, Rule 11; C. S. 1500.) 

Rule 5, Order on demurrer. If the justice deem 

f 13 



the objection well founded, he shall order the 
pleading to be amended on such terms as he may 
think just; and if the party refuse to amend, the 
defective pleading shall be disregarded. (Rev 
s. 1462; Code, s. 840, Rule 12; C. S. 1500.) 

Rule 6, Pleadings, oral or written. The plead- 
ings may be either oral or written; if oral, the 
substance must be entered by the justice on his 
docket; if written, they must be filed by the jus- 
tice, and a reference to them be made on his 
docket. (Rev., s. 1458; Code, s. 840, Rule 2; C. S 
1500.) 

Rule 7, No particular form for pleadings. 
Pleadings are not required to be in any particu- 
lar form, but must be such as to enable a person 
of common understanding to know what is 
meant. (Rev., s. 1463; Code, s. 840, Rule 5- C S 
1500.) 

Rule 8, No judgment by default. Where a de- 
fendant does not appear and answer, the plaintiff 
must still prove his case before he can recover. 
(Rev., s. 1464; Code, s. 840, Rule 6; C. S. 1500.) 

Rule 9, Action on account or note. In an action 
or defense, founded on an account, or an instru- 
ment for the payment of money only, it is suffi- 
cient for a party to deliver the account or instru- 
ment to the justice and state that there is due him 
thereon from the adverse party a specified sum, 
which he claims to recover or set off. (Rev., s.' 
1465; Code, s. 840, Rule 7; C. S. 1500.) 

Rule 10, Account or demand exhibited. The 
justice may at the joining of issue require either 
party, at the request of the other, at that or some 
other specified time to exhibit his account or de- 
mand, or state the nature thereof as far as may 
be in his power; and in case of his default, the 
justice shall preclude him from giving evidence of 
such parts thereof as have not been so exhibited 
or stated. (Rev., s. 1469; Code, s. 840, Rule 10- 
C. S. 1500.) 

Rule 11, Variance. A variance between the 
evidence on the trial and the allegations in a 
pleading shall be disregarded as immaterial, un- 
less the court is satisfied that the adverse party 
has been misled to his prejudice thereby (Rev 
s. 1466; Code, s. 840, Rule 8; C. S. 1500.) 

Rule 12, No process quashed for want of form. 
No process or other proceeding begun before a 
justice of the peace, whether in a civil or a crimi- 
nal action, shall be quashed or set aside for the 
want of form, if the essential matters are set forth 
therein; and the court in which any such action 
shall be pending shall have power to amend any 
warrant, process, pleading or proceeding in such 
action, either in form or substance, for the fur- 
therance of justice, on such terms as shall be 
deemed just, at any time either before or after 
judgment. (Rev., s. 1467; Code, s. 908; R C cc 
3, 62, s. 22; 1794, c. 414; C. S. 1500.) 

Rule 13, Pleadings amended. The pleadings 
may be amended at any time before the trial, or 
during the trial, or upon appeal, when by such 
amendment substantial justice will be promoted. 
If the amendment be made after the joining of 
the issue, and it appears to the satisfaction of the 
court, by oath, that an adjournment is necessary 
to the adverse party, in consequence of such 
amendment, an adjournment shall be granted. 
The court may also, in its discretion, require as 
a condition of an amendment the payment of 
71' 



§ 7-150 



CH. 7. COURTS— JURY TRIAL 



§ 7-156 



costs to the adverse party. (Rev., s. 1468; Code, judgment, apply for relief to the justice who 

s, 840, Rule 9; C. S. 1500.) awarded the same, by affidavit, setting forth 

Rule 14, Tender of judgment. The defendant the facts, which affidavit must be filed by the 
may, on the return of process and before answer- justice; whereupon the justice, if he deem the 
ing, make an offer in writing to allow judgment affidavit sufficient, shall open the case for recon- 
to be taken against him for an amount, to be sideration; and to this end, he shall issue a sum- 
stated in such offer, with costs. The plaintiff mons, directed to a constable, or other lawful 
shall thereupon, and before any other proceeding officer, to cause the adverse party, together with 
be had in the action, determine whether he will the witnesses on both sides, to appear before him 
accept or reject such offer. If he accept the offer, at a place and at a time, not exceeding twenty 
and give notice thereof in writing, the justice days, to be specified in the summons, when the 
shall file the offer and the acceptance thereof, and complaint shall be reheard, and the same proceed- 
render judgment accordingly. If notice of ac- ings had as if the case had never been acted on. 
ceptance be not given, and if the plaintiff fail to If execution has been issued on the judgment, 
obtain judgment for a greater amount, exclusive the justice shall direct an order to the officer 
of costs, than has been specified in the offer, he having such execution in his hands, commanding 
shall not recover costs, but shall pay to the de- him to forbear all further proceedings thereon, 
fendant his costs accruing subsequent to the and to return the same to the justice forthwith, 
offer. (Rev., s. 1471; Code, s. 840, Rule 16; C. S. (Rev., s. 1478; Code, s. 845; C. S. 1500.) 
1500.) . 

Rule 15, Continuance. Any justice before Art - 20 - J ury TnaL 

whom an action is brought may, on sufficient § 7-150. Parties entitled to a jury trial. — When 

excuse therefor shown on the affidavit of either a n issue of fact shall be joined before a justice, 

party or any person for him, continue such action on demand of either party thereto, he shall cause 

from time to time for trial; but such continuance a jury of six men to be summoned, who shall try 

shall not exceed thirty days. (Rev., s. 1472; the same. (Const., Art. 4, s. 27; C. S. 1501.) 
Code, s. 840, Rule 17; C. S. 1500.) 



Rule 16, Chapter on civil procedure applicable. 
The chapter on civil procedure, respecting forms 
of actions, parties to actions, the times of com 



§ 7-151. Jury trial waived. — A trial by jury 
must be demanded at the time of joining the 
issue of fact, and if neither party demand at such 



' . , .< '. , ... time a iury, they shall be deemed to have waived 

menemg actions, and the service of process, shall . , ; . /7 -, ..,_.. ,-, , .„ ~ 

1 • .. > ,-d f.„ n * j a trial by jury. (Rev., s. 1431; Code, s. 857 C b. 

apply to justices courts. (Rev., s. 1473; Code, s. N 



840, Rule 15; C. S. 1500.) 

Rule 17, Attachment proceedings. The chapter 



1502.) 

§ 7-152. Number constituting the jury. — Six 

on civil procedure is applicable to proceedings by jurors shall constitute a jury in a justice's court, 

attachment before justices of the peace, in all but, by consent of both parties, a less number 

cases founded on contract wherein the sum de- may constitute it. (Rev., s. 1440; Code, s. 866; 

manded does not exceed two hundred dollars, C. S. 1503.) 

and where the title to real estate is not in con- § 7 _ 153 j ury list furnished.— The clerk of the 

troversy. (Rev., s. 1474; Code, s. 853; C. S. 1500.) board pf commiss i one rs shall furnish, on demand, 

Rule 18. Claim and delivery and arrest and t0 each justice of the peace in the county, a list 

bail. The chapter on civil procedure is appli- f tn e jurors for the township for which such 

cable, except as herein otherwise provided, to justice is elected or appointed. (Rev., s. 1428; 

proceedings in justices' courts concerning claim Code, s. 854; C. S. 1504.) 
and delivery of personal property and arrest and 



bail, substituting the words, "justice of the peace" 
for "judge," "clerk" or "clerk of the court," and 
inserting the words "or constable" after "sheriff," 
whenever they occur. (Rev., s. 1475; Code, ss. 
849, 889; 1876-7, c. 251; C. S. 1500.) 



§ 7-154. Names kept in jury box. — Each justice 

shall keep a jury box, having two divisions 

marked respectively number one and number 

two, and having two locks, the key to be kept by 

the justice. He shall cause the names on his 

jury list to be written on small scrolls of paper 

Rule 19, Actions for damages and for conver- of equal size and to be p i ace d in the jury box, in 

sion. All actions in a court of a justice of the division m ar ked number one, until drawn out for 

peace for the recovery of damages to real estate, the tdal of an issue as requ ired by law. (Rev., 

or for the conversion of personal property, or gs _ 1439j 1430; Code> ss 855i 856; Q. S. 1505.) 

any injury thereto, shall be commenced and pros- „ , , .. . , . , „ , 

j. j j. • j t j *i 1 c. § 7-155 Fees deposited for jury trial. — Before 

ecuted to judgment under the same rules of pro- S ' 10 °- * c « "c F « «• , , ,, , - tU 

cedure as provided in civil actions in a justice's * party is entitled to a jury he shall deposit with 

court. (Rev., s. 1476; Code, s. 888; 1876-7, c. the J ustice the sum of three d ° lars for JUr3 f feeS ' 

251- C S 1500) and the Justice shall pay to all persons who at- 

. Rule' 20, Action on former judgment. On the tend, pursuant to the summons, _as_welMo those 
trial of an action founded on a former judgment 



the judgment itself shall be evidence of the debt, 
subject to such payments as have been made. 
(Rev., s. 1477; Code, s. 844; C. S. 1500.) 
Rule 21, Rehearing of case. When a judgment 



who do not actually serve as to those who 
do serve, twenty-five cents each, to be in- 
cluded in the judgment as part of the costs, in 
case the party demanding the jury recover judg- 
ment, but not otherwise. The justice shall re- 



fund to the partv the fees of all jurors who do 

has been rendered by a justice, in the absence ot runu lu U1C ^r, - „ , „ „ ^ , ' ocn n c 

• , j u u i i not attend (Rev., s. 1432; Code, s. 869, C b. 

either party, and when such absence was caused Ilut "*'-" 

by the sickness, excusable mistake or neglect of 1 D ° 6 ' 
the party, such absent party, his agent or attor- § 7- 

ney, may, within ten days after the date of such When a trial by jury is demanded, the justice 

[138] 



§ 7-156. Jury drawn and trial postponed. 



§ 7-157 



CH. 7. COURTS— JUDGMENT AND EXECUTION 



§ 7-167 



shall immediately, in the presence of the parties, court out of his own township, except as a tales- 
proceed to draw the names of twelve jurors from man. (Rev., s. 1439; Code, s. 867; C. S. 1514.) 

division marked number one of the jury box; and K „ ,_. ajj-*- i j „ -^ c c j 

.. , . , ■ ■ - ,, , n ,1 i , 8 7-164. Additional deposit for jury fees on ad- 

the trial of the cause shall thereupon be post- . . > T , . . , ,, , t , 

, . ... , , i'n'j..,.. journment. — No adjournment shall be granted 

poned to a time and place to be fixed by the jus- •.,. ., , ., -. . .. . 

• ,-o .,,„„ X , _.„ ,-, c *«k„\ after the return of the jury, unless the party ask- 

tice. (Rev., s. 1433; Code, s. 8o8; C. S. 1507.) - „.i i « •• ■ .-■!• A i , 

mg the same shall, in addition to the other con- 

§ 7-157. Summoning the jury. — A list of the .ditions imposed on him by law or by the justice, 
jurors so drawn shall be immediately delivered deposit with the justice, to be immediately paid 
by the justice to any constable, or other lawful to the jurors attending, the sum of twenty-five 
officer, with an order indorsed thereon, directing cents each, such amount to be in no case included 
him to summon the persons named in the list to in the judgment as part of the costs. On such ad- 
appear as jurors at the time and place fixed for journment, the jurors shall attend at the time and 
the trial; and it is the duty of the officer to pro- place appointed, without further summons or no- 
ceed forthwith to summon such jurors, or so tice; and the fees for the jury, deposited with the 
many of them as can be found, according to the justice in the beginning, shall remain in his hands 
order; and he shall make return thereof at the until the jury are impaneled on the trial, and shall 
time and place appointed, stating in his return be then immediately paid to the jurors or to the 
the names of the jurors summoned by him. For party entitled thereto. (Rev., s. 1442; Code, s. 
performing the aforementioned duties, he shall re- 870; C. S. 1515.) 

ceive the fee allowed by law for summoning jurors. § 7 _ 165 j ury sworn an( j impaneled; verdict; 

The preceding sentence shall not apply to the judgment.— The jury shall be sworn and im- 

counties of Beaufort, Brunswick, Cabarrus, Edge- paneled by the j ustice) who shall record their ver- 

combe, Forsyth, Gaston, Gates, Guilford, Halifax, dkt in his docket and enter a j udgment in the 

Martin, McDowell, Orange. Pasquotank, Rowan, case according t0 such ver dict. (Rev., s. 1443; 

Transylvania, and Wake. (Rev., s. 1434; Code, s. Code s 864- C S 1516) 

859; 1935, c. 309; C. S. 1508.) ' 

§ 7-158. Selection of jury.-At the time and Art " 21 " J ud S ment and Execution. 
place appointed, and on return of the order, if the § 7-166. Justice's judgment docketed; lien and 
trial be not further adjourned, and if adjourned, execution. — A justice of the peace, on the de- 
then at the time and place to which the trial shall mand of a party in whose favor he has rendered 
be adjourned, the justice shall proceed, in the a judgment, shall give a transcript thereof which 
presence of the parties, to draw from the jurors may be filed and docketed in the office of the 
summoned the names of six persons to constitute superior court clerk of the county where the 
the jury for the trial of the issue. (Rev., s. 1435; judgment was rendered. And in such case he 
Code, s. 860; C. S. 1509.) shall also deliver to the party against whom such 

§ 7-159. Challenges.-Each party shall be en- Judgment was rendered, or his attorney, a tran- 



titled to challenge, peremptorily, two of the per- 
sons drawn as jurors. (Rev., s. 1436; Code, s. 
861; C. S. 1510.) 



script of any stay of execution issued, or which 
may thereafter be issued, by him on such judg- 
ment, which may be in like manner filed and 
docketed in the office of the clerk of such court. 

§ 7-160. Names returned to the jury box.— The The time of the receipt of the transcript by the 
scrolls containing the names of jurors not sum- c l er k shall be noted thereon and entered on the 
moned, if any, and of those summoned but not docket; and from that time the judgment shall 
drawn, and of those drawn but challenged and be a judgment of the superior court in all respects 
set aside, must be returned by the justice to his f or the purposes of lien and execution. The 
jury box, in division marked number one: Pro- execution thereon shall be issued by the clerk 
vided, that the scrolls containing the names of f the superior court to the sheriff of the 
such as are not legally liable or legally qualified county, and shall have the same effect, and be 
to serve as jurors shall be destroyed. (Rev., s. executed in the same manner, as other executions 
1437; Code, s. 862; C. S. 1511.) { the superior court; but in case a stay of execu- 

§ 7-161. Names of jurors serving.— The scrolls tion u P on such Judgment shall be granted, as 
containing the names of the jurors who serve on Provided by law, execution shall not be issued 
the trial of an issue must be placed in the jury thereon by the clerk of the superior court until 
box in division marked number two, until all the the expiration of such stay. A certified transcript 
scrolls in division marked number one have been of such Judgment may be filed and docketed in 
drawn out. As often as that may happen, the the superior court clerk's office of any other 
whole number of scrolls shall be returned to county, and with like effect, in every respect, as 
division marked number one, to be drawn out as in the county where the judgment was rendered, 



except that it shall be a lien only from the time 
of filing and docketing such transcript. (Rev., s. 
1479; Code, s. 839; C. S. 1517.) 

§ 7-167. Effect of judgment on appeal. — In cases 
of appeal to the superior court from a justice's 



in the first instance. (Rev., s. 1441; Code, s. 868; 
C. S. 1512.) 

§ 7-162. Tales jurors summoned. — If a com- 
petent and indifferent jury is not obtained from 
the twelve jurors drawn, as before specified, the 
justice may direct others to be summoned from Judgment docketed in such court, when judgment 
the bystanders, sufficient to complete the jury. ls rendered in the superior court on such appeal, 
(Rev., s. 1438; Code, s. 863; C. S. 1513.) the hen acquired by the docketing of such justice's 

judgment shall merge into the judgment of the 

§ 7-163. No juror to serve out of township. — No superior court, and continue as a lien from the 
person is compelled to serve as a juror in a justice's date of the docketing of such justice's judgment, 

[139] 



§ 7-168 



CH. 7. COURTS— JUDGMENT AND EXECUTION 



§ 7-176 



and be superior to any other judgment docketed 
subsequent to the date of the justice's judgment, 
except prior attachment liens and judgment on 
the same. The clerk of the superior court shall 
carry forward and tax into the judgment of the 
superior court all costs incurred in the justice's 
court, including transcript and docketing, as well 
as all costs incurred in the superior court, and 
shall issue execution only on the judgment ren- 
dered in the superior court, and not upon the 
justice's judgment. When the judgment of the 
superior court is satisfied, it shall be a satisfaction 
of the justice's judgment, and the clerk shall note 
such satisfaction on the record of the justice's 
judgment. (Rev., s. 1479; 1903, c. 179; C. S. 1518.) 

§ 7-168. Entries made by clerk when judgment 
is rendered. — Whenever a transcript of a judg- 
ment taken before a justice of the peace is 
docketed on the judgment docket of the superior 
court and the same is afterwards reversed, modi- 
fied, or affirmed in the superior court on appeal 
by a final judgment, the clerk of said court shall 
within ten days thereafter enter on the judgment 
docket where the said transcript was first 
docketed, the word "reversed," "modified," or 
"affirmed," as the case may be, and further refer 
to the book and page where can be found the 
judgment reversing, modifying, or affirming the 
former judgment. Any clerk failing to perform 
such duties as are required of him in this section 
shall pay to any person all such damages as he 
may have sustained by such failure. (Rev., s. 
1479; 1907, c. 880; C. S. 1519.) 

§ 7-169. Justice's judgment removed to another 
county. — Any person who may desire to have a 
justice'^ judgment in his favor removed to an- 
other county to be enforced against the goods 
and chattels of the defendant must obtain from 
the justice who rendered the judgment a tran- 
script tnereof, under his hand; and must further 
procure a certificate from the clerk of the su- 
perior court of the county where the judgment 
was rendered, under the seal of his court, that the 
justice who gave the judgment was, at the rendi- 
tion thereof, a justice of the county. On such 
transcript of the judgment, thus certified, any 
justice in any other county may award execution 
for the sum therein expressed. (Rev., s. 1480; 
Code, s. 846; C. S. 1520.) 

§ 7-170. Issue and return of execution. — Execu- 
tion may be issued on a judgment, rendered in a 
justice's court, at any time within one year after 
the rendition thereof, and shall be returnable 
sixty days from the date of the same. (Rev., s. 
1481; Code, s. 840, Rule 14; C. S. 1521.) 

§ 7-171. Levy and lien of execution. — Executions 
issued by a justice, which must be directed to any 
constable or other lawful officer of the county, 
shall be a lien on the goods and chattels of the 
defendant named therein, from the levy thereof 
only, but shall not be levied on or enforced in any 
manner against real estate; but when a justice's 
judgment shall be made a judgment of the su- 
perior court, as is elsewhere provided, the exe- 
cution shall be capable of being levied and col- 
lected out of any property of the defendant in 
execution, and it shall be a lien on the real estate 
of said defendant from the time when it becomes 



[140] 



a judgment of the superior court. (Rev., s. 1482; 
Code, s. 841; 1868-9, c. 159, s. 5; C. S. 1522.) 

§ 7-172. Stay of execution. — In all actions 
founded on contract, whereon judgments are ren- 
dered in justices' courts, stay of execution, if 
prayed for at the trial by the defendant or his at- 
torney, shall be granted by the justices in the 
following manner: For any sum not exceeding 
twenty-five dollars, one month; for any sum 
above twenty-five dollars and not exceeding 
fifty dollars, three months; for any sum above fifty 
dollars and not exceeding one hundred dollars, 
four months; for any sum above one hundred dol- 
lars, six months. But no stay of execution shall 
be allowed in any action wherein judgment is 
rendered on a former judgment taken before a 
justice of the peace. (Rev., s. 1483; Code, s. 842; 
1868-9, c. 272; C. S. 1523.) 

§ 7-173. Security on stay of execution. — The 

party praying for a stay of execution shall, within 
ten days after the trial, give sufficient security, 
approved by the justice, for payment of the judg- 
ment, with interest thereon till paid, and cost; 
and the acknowledgment of the surety, entered 
by the justice in his docket and signed by the 
surety, shall be sufficient to bind such surety. If the 
judgment be not discharged at the time to which 
execution has been stayed, the justice who awarded 
the judgment shall issue execution against the 
principal, or surety, or both. (Rev., s. 1484; Code, 
s, 843; C. S. 1524.) 

§ 7-174. Stay of execution on appeal. — In all 

cases of appeal from justices' courts, if the ap- 
pellant desires a stay of execution of the judg- 
ment, he may, at any time, apply to the clerk of 
the appellate court for leave to give the under- 
taking as provided in a subsequent section; and 
the clerk, upon the undertaking being given, shall 
make an order that all proceedings on the judg- 
ment be stayed. Instead of before the clerk of 
the appellate court, the appellant may give the un- 
dertaking before the justice who tried the cause, 
who shall indorse his approval thereon. (Rev., 
ss. 1485, 1486; Code, ss. 882, 883; 1869-70, c 187- 
C. S. 1525.) 

§ 7-175. Nature of undertaking.— The under- 
taking shall be in writing, executed by one or 
more sufficient sureties, to be approved by the 
justice or clerk making the order, to the effect 
that if judgment be rendered against the appel- 
lant, the sureties will pay the amount together 
with all costs awarded against the appellant, and 
when judgment shall be rendered against the ap- 
pellant, the appellate court shall give judgment 
against the said sureties. And in the event that 
said defendant shall prior to entry of the final 
judgment be adjudicated a bankrupt, then and in 
that event, the surety or sureties on said bond 
shall remain bound as if they were co-debtors 
with the defendant and the plaintiff may continue 
the prosecution of the action against said sure- 
ties, as if they were co-defendants in the cause. 
(Rev., s. 1487; Code, s. 884; 1879, c. 68; 1933, c. 
251, s. 1; C. S. 1526.) 

§ 7-176. Execution stayed upon order given. — 

A delivery of a certified copy of the order, here- 
inbefore mentioned, to the justice of the peace 
shall stay the issuing of an execution on the 



§ 7-177 



CH. 7. COURTS— FORMS 



§ 7-184 



judgment; if it has been issued, the service of a tained on proof of the facts made at or after the 

certified copy of such order on the officer holding hearing of the appeal, on a previous notice of six 

the execution shall stay further proceedings days. If the order be obtained before the judg- 

thereon. A certified copy of such order shall also ment of reversal is entered, the amount may be 

be served on the respondent, or on his agent included in the judgment. (Rev., s. 1495; Code 

or attorney, within ten days after the making s. 886; C. S. 1534.) 
thereof. (Rev., s. 1488; Code, s. 885; C. S. 1527.) 

Art. 23. Forms. 
Art. 22. Appeal. s _ to . „ 

3 7-184. norms to be used in justice's court. — 

§ 7-177. No new trial; either party may appeal. The following forms, or substantially similar 

—A new trial is not allowed in a justice's court ones, shall be sufficient in all cases of proceedings 

in any case whatever; but either party dissatis- in civil actions, provided for in this article: 



[No. 1 ] 

Summons 

North Carolina, County Township. 

' '- ■ • • • • I Before 

against r T . . , '"' 

q p J Justice of the Peace. 



fied with the judgment in such court may appeal 
therefrom to the superior court, as hereinafter 
prescribed. (Rev., s. 1489; Code, s. 865; C. S. 
1528.) 

§ 7-178. Appeal does not stay execution. — No 

appeal shall prevent the issuing of an execution 

on a judgment, or work a stay thereof, except as , 

provided for by giving an undertaking and ob- State 1 oi r N ° Tt l Carohna, to any constable or other 

taining an order to stay execution. (Rev., s. ,J awful ° fficer of County— Greeting: 

1490; Code, s. 875; 1876-7, c. 251, s. 6; C. S. 1529.) , r We c ° m ™ an T d y ° u to summon C - D - to a PP ear 

before G. W. H., Esq., one of the justices of the 

§ 7-179. Manner of taking appeal. — The appel- peace for the county of on the ....day of 

lant shall, within ten days after judgment, serve a , 19...., at his office (or elsewhere, as the 

notice of appeal, stating the grounds upon which justice may appoint the place of trial), in 

the appeal is founded. If the judgment is ren- Township, to answer A. B. in a civil action for 

dered upon process not personally served, and the recovery of dollars; and have you 

the defendant did not appear and answer, he shall then and there this precept with the date and 

have fifteen days, after personal notice of the manner of its service. 

rendition of the judgment, to serve the notice of Herein fail not. Witness our said justice, this 

appeal herein provided for. (Rev., s. 1491; Code day of 19.... 



s. 876; 1876-7, c. 251, s. 7; C. S. 1530.) 

§ 7-180. No written notice of appeal in open 
court. — Where any party prays an appeal from a 
judgment rendered in a justice's court, and the 
adverse party is present in person or by attorney 
at the time of the prayer, the appellant shall not 
be compelled to give any written notice of appeal 



G. W. H 

Justice of the Peace. 

[No. 2] 
Summons on Allowing Application to Rehear 

(Title, etc., as in No. 1) 
Whereas, A. B., plaintiff above named (or C. 



either to the justice or to the adverse party. D - defendant above named), has applied by affi- 

(Rev., s. 1492; Code, s. 877; 1869-70, c. 187; dav,t - which is filed, for a rehearing in the above- 

1876-7, c. 251, s. 8; C. S. 1531.) entitled action, wherein judgment was rendered 

T ' . ,' , _., against the said plaintiff (or defendant), in his 

§ 7-181. Justices return on appeal.— The jus- absence, at the trial thereof, before the under- 

tice shall, within ten days after the service of the signed on the . . day of 19 • and 

notice of appeal on him, make a return to the ap- such application ' having been' allowed "and the 

pellate court and file with the clerk thereof the caus e opened for reconsideration- 

papers, proceedings and judgment in the case, NoWj therefore, we command you to summon 

with the notice of appeal served on him. He may the sa id plaintiff (or defendant) to appear before 

be compelled to make such return by attachment. G w H> . Esq-i one of the justices of the peace 

But no justice shall be bound to make such re- f or t i ie county of on the day of 

turn until the fees, prescribed by law for his serv- 19 at _ - n said county when 

ice, be paid him. The fee so paid shall be in- a nd where the complaint will be reheard and the 

eluded in the costs, in case the judgment ap- same proceedings be had as if the case had not 

pealed from is reversed. (Rev., s. 1493; Code, s. bee n acted on; and have you then and there this 
878; C. S. 1532.) 

§ 7-182. Defective return amended. — If the re- 
turn be defective, the judge or clerk of the ap- 



pellate court may direct a further or amended re- 
turn as often as may be necessary, and may com- 
pel a compliance with the order by attachment. 
(Rev., s. 1494; Code, s. 879; C. S. 1533.) 

§ 7-183. Restitution ordered upon reversal of 
judgment. — If the judgment appealed from, or 

any part thereof, be paid or collected, and the deposes and says 
judgment be afterwards reversed, the appellate 1. That the defendant C. D. is indebted to the 

court shall order the amount paid or collected to plaintiff in the sum of dollars (state any 

be restored, with interest from the time of such cause of action founded on contract, specifying 
payment or collection. The order may be ob- the amount of the claim and the grounds thereof) 

[141] 



precept with the date and manner of its service. 
Herein fail not. Witness our said justice, this 

day of , 19 

G. W. H 

Justice of the Peace. 
[No. 3] 
Affidavit to Obtain Attachment 
(Title as in No. 1) 
A. B., plaintiff above named, being duly sworn, 



§ 7-184 



CH. 7. COURTS— FORMS 



§ 7-184 



2. That the said defendant (State any fact or same, and all damages which he may sustain by 
facts, so as to bring the case within one of the reason of such attachment. 



classes in which an attachment may issue. The 
facts must be stated positively and affirmatively, 
not merely upon information and belief, except 
where a fact is alleged with a particular intent. 
The intent in such case may be stated as on in- 
formation and belief. See No. 4.) 

A B 

Sworn to and subscribed before me, this 

day of 19 

G. W. H 

Justice of the Peace. 

[No. 4] 

Another Form of Affidavit to Obtain Attach- 
ment 

(Title, etc., as in No. 1) 



J. W. B 

W. D. M 

Signed and delivered in the presence of G. W. 

H., Esq., this ....day of 19 

G. W. H 

Justice of the Peace. 

[No. 7] 

Warrant of Attachment 

(Title as in No. 1 or No. 5) 

State of North Carolina, to any constable or 

other lawful officer of County — 

Greeting: 
It appearing by affidavit to the undersigned that 
a cause of action exists in favor of the plaintiff 
against the defendant for the sum of ....dollars, 
and that the defendant is not a resident of this 
A. B., plaintiff above named, being duly sworn, sta te (or otherwise, as the fact may be), and the 
deposes and says: plaintiff having given the undertaking as required 

1. That the defendant C. D. is indebted to Dy i aw: 

plaintiff in the sum of dollars for goods Now, therefore, vou are commanded forthwith 

sold and delivered to said defendant by the plain- to attac h an d safely keep all the property of the 
tiff on or about the .... day of 19.... said defendant C. D. in your countv, or so much 

2. That the said defendant has departed from thereof as mav be sufficient to satisfy the said 
state, or keeps himself concealed therein, plaintiff's demand, with costs and expenses; and 

have you this warrant before G. W. H., one of 



with intent, as defendant is informed and believes, 
to avoid the service of a summons (or with in- 
tent, etc., to defraud defendant's creditors). 

A. B 

(Sworn to, etc., as in No. 3.) 

[No. 5] 

Affidavit against a Foreign Corporation 

North Carolina County. 

A B 

against 
The Highland Mining Co. 



Before , 

Justice of the Peace. 



the justices of the peace for your county, at his 

office in said county, on the .... day of , 

19... with your proceedings hereon. 

Witness our said justice, this day of 

, 19 

G. W. H 

Justice of the Peace. 
[No. 8] 
Officer's Return to be Indorsed on Attachment 

I, O. P. M., constable (or sheriff) of 

County, do hereby return that, by virtue of the 



A. B., the plaintiff above named, being duly within attachment, I have seized and taken into 

sworn, deposes and says: my possession the tangible personal property (or, 

1. That the defendant above named is indebted have levied on the real estate, as the case may be) 

to the plaintiff in the sum of dollars, for of the defendant within named, specified in the 

the use and occupation of certain premises, by inventory hereto annexed. 

permission of plaintiff, from the day of Dated this day of , 19 



19 .... , until the day of 



19 



2. That the defendant is a foreign corporation, 
created under the laws of the state of 

3. That the cause of action above stated arose 
in this state. 

A. B 

(Sworn to, etc., as in No. 3.) 

[No. 6] 
Undertaking upon Attachment 

(Title as in No. 1 or No. 5) 



O. P. M 

Constable (or Sheriff). 
[No. 9] 
Inventory of Property Attached to Above Re- 
turn 
(Title as in No. 1 or No. 5) 
I do hereby certify that the following is a true 
and just inventory of all the property seized or 
levied on by me under a warrant of attachment, 
issued in the above-entitled action by G. W. H., 
Esq., with a statement of the books, vouchers, 
papers, rights and credits taken into my custody 
Whereas, the plaintiff above named is about to by virtue of said warrant. (Insert list of prop- 
apply for a warrant of attachment against the erty by items.) I do further certify that the fol- 
property of the above-named defendant: lowing property mentioned in the above in- 

Now, therefore, we, J. W. B., of County, ventory is perishable, and that the expense 

and W. D. M., of County, undertake in of keeping the same until the termination of the 

the sum of dollars (the sum must be at suit would exceed one-fifth of its value; and I do 

least two hundred dollars), that if the said war- hereby apply to this court for authority to sell 
rant be granted, and the defendant recover judg- the same. (Insert a list of perishable property.) 

ment in this action, or the attachment be set Dated this day of , 19.... 

aside by order of the court, the plaintiff shall pay O. P. M 

all costs that may be awarded to defendant in the Constable (or Sheriff.) 

[142] 



§ 7-184 



CH. 7. COURTS— FORMS 



§ 7-184 



[No. 10] day of 19. . . ., and be examined on oath 

' ' ' . ■• ■ . _ concerning the same. 

Order Directing Sale of Perishable Property Dated this _ day of 19 

(Title as in No. 1 or No. 5) G. W. H 

Justice of the Peace. 
It appearing by the inventory returned by O. 

P. M., constable (or sheriff), under the warrant [No. 13] 

of attachment granted in this action, that the Attachment to Enforce Obedience to Above 

following property mentioned in said inventory is Order 

perishable, to wit: (Insert here the list of perish- ;_. ,;.'■... „ T 

able property.) < Tltle as in No " 1 or No ' 5 > 

It is therefore ordered that the said property State of North Carolina, to any constable or 

be sold by the said officer at public auction, at other lawful officer of County — 

such time and place as he shall deem advisable, Greeting: 

and that the said officer give notice of such sale Whereas, it appears that H. B. was duly served 

as the sale of personal property on execution. on the day of 19 , 

It is further ordered that the proceeds of such with an order issued by G. W. H., Esq., one of 

sale be retained by said officer, and disposed of in our justices of the peace for said county, requir- 

the same manner as the property itself, if the ing said H. B. to attend before said justice at his 

same had not been sold. office, in said county, on the .... day of , 

Dated this .... day of ,19.... 19 and be examined on oath concerning a 

G. W. H certain debt owing to the defendant, named in 

Justice of the Peace. the above action, by the said H. B. (or property 
held by the said H. B. for the benefit of the de- 

LJNo. 11 J fendant, or otherwise, as the case may be); 

Notice of Levy on Property not Capable of Man- And whereas, the said H. B., in contempt of said 

ual Delivery order, has refused or neglected, and doth still re- 
fuse or neglect, to appear and be examined on 

To H. B : oath, as in said order he is required to do : 

Take notice that by warrant of attachment is- Now, therefore, we command you that you 

sued in this action, a certified copy of which is forthwith attach the said H. B., so as to have his 

herewith served upon you, I have levied upon, body before G. W. H., Esq., one of our justices 

and do hereby levy upon, your indebtedness, of the peace for your county, on the day 

amounting to dollars or thereabouts, to of ,19 at his office, in said county, 

the defendant above named. (Describe as par- then and there to answer, touching the contempt 

ticularly as possible the shares, debts or property which he, as is alleged, hath committed against 

levied upon.) our authority; and further, to perform and abide 

Dated this day of 19 .... by such order as our said justice shall make in this 

O. P. M behalf. And have you then and there this writ, 

Constable (or Sheriff.) with a return, under your hand, of your proceed- 

The officer will indorse on the copy of the ings thereon, 

attachment served with the above notice the fol- Hereof fail not, at your peril. 

lowing certificate: Witness, our said justice, this day of 

I do hereby certify that the within is a true copy 19 

of the warrant of attachment in my possession, G. W. H 

issued in this action, and of the whole thereof. Justice of the Peace. 

Dated this day of 19 

O. P. M [ No - 14 1 

Constable (or Sheriff.) Undertaking on Discharge of Attachment 

[No. 12] (Title of the cause as in No. 1) 

Order Directing Third Person (H. B.) to Ap- Whereas, the property of the above-named C 

pear and be Examined & h u as been r atta f ed ' and the defendant desires a 

discharge of said attachment on giving security 

(Title as in No. 1 or No. 5) according to law: 

It appearing to me by the certificate of O. P. M., Now, therefore, we, B. B., of County, 

constable (or sheriff) of said county, that the an d D. D., of County, undertake in the 

said officer, with a warrant of attachment against sum OI dollars (the sum named must be at 

the property of C D., the defendant in this action, least double the amount claimed by plaintiff), 

has applied to H. B. for the purpose of levying that if the said attachment be discharged we will 

upon a debt owing to the defendant by said H. B. pay to the plaintiff, on demand, the amount of 

(or upon property of said defendant held by said the judgment that may be recovered against the 

H. B., or otherwise), and that the said H. B. re- defendant in this action. 

fuses to furnish said officer with a certificate Dated this .... day of ., 19.... 

designating the amount of the debt owing by said (Signed) B. B 

H. B. to the defendant, or the amount and de- D. D 

scription of the property held by said H. B. for Signed and delivered in the presence of G. W. 

the benefit of the defendant: H., Esq., this .... day of 

Now, therefore, I do order and require the said G. W. H 

H. B. to attend before me at my office on the .... Justice of the Peace. 

[143] 



§ 7-184 



CH. 7. COURTS— FORMS 



§ 7-184 



Acknowledgment and Affidavit of Sureties 2. That on the day of , 19 

North Carolina, County. the defendant applied to the plaintiff to purchase 

On this .... day of 19...., before me a bill of goods amounting to dollars, 

personally appeared the above named B. B. and which the plaintiff offered to sell to the defendant 
D. D., known to me to be the persons described for cash; that the defendant, contriving to de- 
in and who executed the above undertaking, and fraud the plaintiff, represented that he had money 
severally acknowledged that they executed the on deposit at said National Bank for more than 
same. the amount of the proposed purchase, and offered 

And the said B. B. and D. D., being severally to give plaintiff a sight draft on said bank; that 
sworn, each for himself, says that he is a resident the plaintiff, relying upon the representations of 
of the State of North Carolina and a house- the said defendant, and solely induced thereby, 
holder (or freeholder) therein. sold and delivered a bill of goods amounting to 

B. B dollars to the defendant, who thereupon 

D. D drew the sight order on said bank above referred 

Sworn ana subscribed before me the day above to; that on the .... day of 19 the 

written. plaintiff presented said draft at said bank for ac- 

ceptance, when the same was not accepted for 
want of any funds in said bank to the credit of 
the defendant; that notice of nonacceptance was 
given to the defendant, who has wholly refused 



G. W. H 

Justice of the Peace. 



[No. 15] 



Order Vacating Attachment on Security being to pay the draft or any part thereof; that the 



Given 

(Title as in No. 1 or No. 5) 
The defendant having appeared in this action 



representations made as aforesaid by the defend- 
ant were, and each and every of them was, as de- 
ponent is informed and believes, untrue; and that 
the defendant, as deponent is informed and be- 



and applied to discharge the attachment on giving .. ... . , 

.; , ,, ., , , , . , . j ,. 5 neves, did not have, nor expect to have, any funds 

security, and the said defendant having delivered ' 



to the court an undertaking in due form of law, 



on deposit at said bank at the making of the 
representations above mentioned, but said de- 



which has been duly approved by the court: , , , , .. . 

Ti . , , ., . ,i. • .. . . • , • „.,.■ tendant was then and is now wholly insolvent 

It is ordered that the attachment issued in this / _ 



action on the .... day of , 19 be and 

the same is hereby vacated and discharged, and 
the defendant is released therefrom in all re- 
spects. It is further ordered that any and all pro- 
ceeds of sales and money collected by O. P. M., 
constable (or sheriff), and all property attached, 
now in said officer's possession, be paid and de- 
livered to the said defendant or his agent. 

Dated this day of 19.... 

G. W. H 

Justice of the Peace. 

(No. 16] 

Form of Publication to be Made by Plaintiff in 
Attachment 

(Title as in No. 1) 



A. B. 
Sworn to and subscribed before me, this.... 

day of 19 

G. W. H 

Justice of the Peace. 

[No. 18] 
Undertaking on Arrest 

(Title as in No. 1) 

Whereas, the plaintiff above named is about to 
apply (or has applied) for an order to arrest the 
defendant, C. D.; 

Now, therefore, we, J. J., of County, 

and P. P., of County, undertake, in the 

sum of dollars (the sum must be at 

least one hundred dollars), that if the said de- 



[ Amount sued for] due by note (or otherwise fendant recover judgment in this action the plain- 
as the fact may be). Warrant of attachment re- tiff wil1 P a y all costs that may be awarded to the 
turnable before G. W. H., Esq., a justice of the said defendant i.nd all damages which he may 
peace for County, North Carolina, at sustain by reason of his arrest in this action. 



Signed in my presence, this 



J- J- 
P. P. . . . 

. . day of 



19. 



G. W. H 

Justice of the Peace 



his office (or otherwise as the case may be), on 

the .... day of , 19 .... , when and where 

the defendant is required to appear and answer 
the complaint. 

Dated this day of 19 

A. B Plaintiff. 

[No. 17] 

Affidavit for Arrest on Debt Fraudulently Con- 
tracted 

(Title as in No. 1) 

A. B., plaintiff above named, being duly sworn, 
deposes and says: 

1. That the defendant C. D. is indebted to the 
plaintiff in the sum of dollars on an in- 
land bill of exchange, drawn on the .... day of defendant named above, and hold him to bail in 

, 19 by defendant on the First Na- the sum of dollars (the sum should be 

tional Bank of Charlotte, North Carolina, pay- the amount of the plaintiff's claim), and to re- 
able at sight to the order of plaintiff. turn this order before the undersigned at his of- 

[144] 



[No. 19] 

Order of Arrest 

(Title as in No. 1) 

North Carolina County, Township. 

To any constable or other lawful officer of 
said county: 

For the causes stated in the annexed affidavit, 
you are required forthwith to arrest C. D., the 



§ 7-184 



CH. 7. COURTS— FORMS 



§ 7-tSA 



fice in said county, on the day of .... , 

19 ; of which return you will give notice to 

plaintiff or his attorney. 

Dated this day , 19 

G. W. H 

Justice of the Peace. 

[No. 20] 
Undertaking of Bail on Arrest 

(Title as in No. 1) 



Whereas, the above named defendant, C. D., 
has been arrested in this action; 

Now, therefore, we, B. B., of County, 

and D. D., of County, undertake, in the ^.^ of rt exempt from execution. 

of dollars (the sum should be the 



[No. 24] 
Justification of Bail 

(Title as in No. 1) 

On this day of , 19 . . . . , before 

G. W. H., Esq., a justice of the peace for said 
county, personally appeared B. B. and D. D. (or 
R. S. and Y. Y., as the case may be), the bail 
given by the defendant C. D. in this action, for 
the purpose of justifying pursuant to notice; and 
the said B. B., being duly sworn, says: 

1. That he is a resident and householder (or 
freeholder) in this state; 

2. That he is worth the sum of dollars 

(the amount specified in the order of arrest), ex- 



sum 

same as mentioned in the order of arrest), that if 
the defendant is discharged from arrest he shall 
at all times render himself amenable to the proc- 
ess of the court during the pendency of this ac- 
tion, and to such as may be issued to enforce 
judgment therein. 

B. B 

D. D 

Signed in my presence, this .... day of 



19., 



G. W. H 

Justice of the Peace. 



[No. 21] 
Notice of Exception to Bail 

(Title as in No. 1) 

To O. P. M., constable (or sheriff) of the county 

of : 

Take notice, that the plaintiff does not accept 
the bail offered by the defendant in this action 
(and if the undertaking is defective in form or 



And the said D. D., being duly sworn, says: 

(As with the other bail.) 

(And so on with each bail offered.) 

(Signatures of bail.) 
Examination taken and sworn to before me, 

this day of 19 

G. W. H 

Justice of the Peace. 

[No. 25] 
Allowance of Bail 
(Title as in No. 1) 
The bail of the defendant, C. D., within men- 
tioned, having appeared before me and justified, 
I do find the said bail sufficient, and allow the 
same. 

Dated this day of , 19 

G. W. H 

Justice of the Peace. 

[No. 26] 
Subpoena to Testify 



otherwise, add also), and further he excepts to the s tate f North Carolina, County. 



form and sufficiency of the undertaking. 
Yours, etc., 

A. B , Plaintiff. 

(or M. W. N Attorney for Plaintiff.) 

Dated this day of , 19.... 



To S. T greeting: (the justice may 

insert any number of necessary names.) 
You (and each of you) are commanded to ap- 
pear personally before G. W. H., Esq., a justice 
of the peace for said county, at his office in said 

county, on the day of , 19 , 

to give evidence in a certain civil action now pend- 
ing before said justice, and then and there to be 
tried, between A. B., plaintiff, and C. D., defend- 
ant, on the part of the defendant (or plaintiff).* 
To A. B., Plaintiff (or M. W. N., Attorney for Herein fail not, under the penalty prescribed by 

plaintiff) : law. Witness our said justice, this day 

Take notice, that the bail in this action will jus- of , 19 



[No. 22] 
Notice of Justification of Bail 

(Title as in No. 1) 



tify before G. W. H., Esq., a justice of the peace 
for said county, at the office of said justice, in said 

county, on the day of 19 

Dated this day of 19.... 

C. D 

(or, M. W. N Attorney for 

C. D.), Defendant. 

[No. 23] 
Notice of Other Bail 

(Title as in No. 1) 

Take notice that R. S., of County (phy- 
sician), and Y. Y., of County (farmer), testify at the time and place within named for the 

are proposed as bail, in addition to (or in place return of this process. 

of) B. B. and D. D., the bail already put in; and Dated this day of , 19 

that they will justify (conclude as in last form). G. W. H 

Date etc Justice of the Peace. 

[145] 



G. W. H 

Justice of the Peace 

[No. 27] 

N. B. — The justice may, instead of a formal 
subpcena, indorse on the summons or other proc- 
ess an order for witnesses, substantially as fol- 
lows: 

The officer to whom the within process is di- 
rected will summon the following persons as wit- 
nesses for the plaintiff: ; and the 

following as witnesses for the defendant: ; 

and will notify all such witnesses to appear and 



§ 7-184 



CH. 7. COURTS— FORMS 



§ 7-184 



[No. 28] 
Subpoena Duces Tecum 

If any witness has a paper or docuinent which 
a party desires as evidence at the trial, the justice 
will pursue the form No. 26 as far down as the 
asterisk (*) and then add the following clause: 

And you, S. T., are also commanded to bring 
with you and there produce as evidence a certain 
bond (describe particularly) which is now in your 
possession or under your control, together with 
all papers, documents, writings or instruments 
in your custody, or under your control. (Con- 
clude as in form No. 26.) 

[No. 29] 
Form of Oath of Witness 
You swear that the evidence you will give as to 
the matters in difference between A. B., plaintiff, 
and C. D., defendant, shall be the truth, the whole 
truth, and nothing but the truth. So help you, 
God. 

[No. 30] 
Proceedings against Defaulting Witness 
When a witness, under subpoena, fails to at- 
tend, the justice will note the fact in his docket 
by some such entry as the following: 

R. P., a witness summoned on behalf of the 
plaintiff, called and failed. 

If the party who suffers by default of the wit- 
ness wishes to move for the penalty against him, 
he will serve substantially the following notice on 
the witness: 

(Title as in No. 1) 
To R. P.: 

Take notice, that on the .... day of , 

19 the plaintiff in the above action will 

move G. W. H., Esq., the justice before whom 



M. Y. as a witness, who, being sworn, testifies 
(state what witness says). 

Neither party having any other evidence, and 
after hearing all the proofs and allegations sub- 
mitted for and against the motion, it is adjudged, 
on motion of A. B., that A. B. do recover of 
R. P. the sum of dollars, penalty for- 
feited by reason of the premises, and the further 
sum of dollars, costs of this motion. 

[No. 31] 

Form of a Venire 

The justice will make a list of the persons drawn 
by him as jurors, and indorse thereon substantially 
as follows: 

To O. P. M., constable of County: 

You are hereby directed to summon the persons 
named within to appear as jurors before me at my 

office in your county, on the day of , 

19 . . . ., for trial of a civil action now pending be- 
tween A. B., plaintiff, and C. D., defendant, then 
and there to be tried. And have you then and 
there the names of the jurors you shall summon, 
with this precept. 

Dated this day of , 19 

G. W. H 

Justice of the Peace. 

[No. 32] 
Form of Juror's Oath 

You swear well and truly to try the matter in 
difference between A. B., plaintiff, and C. D., de- 
fendant, and a verdict to give thereon according 
to the evidence in the cause. So help you, God. 

[No. 33] 
Form of Oath to Constable in Charge of the Jury 
You swear that you will, to the utmost of your 



the trial of said action was had, on the ability, keep the persons sworn as jurors on this 

trial together in some private and convenient 
place, without any meat or drink, except such as 
may be ordered by the court; that you will not 
suffer any communication, orally or otherwise, to 
be made to them, and that you will not communi- 
cate with them yourself, orally or otherwise, un- 
less by order of the court. So help you, God. 



day of , 39 ...., for judgment against 

you for the sum of dollars, forfeited by 

reason of your failure to appear and give evidence 
on said trial as you were summoned to do. 

Dated this day of 19 .... 

A. B , Plaintiff. 

The justice will enter the proceedings on the 
foregoing notice on his docket as follows: 

A B -| Justice's Court. 

against ^Motion for penalty against 

C D J R. P., defaulting witness. 

day of 19 , A. B., above 

named, appears, and according to a notice filed 
and duly served on R. P., moved for the penalty 

of dollars forfeited by the said R. P. 

by reason of his failure to attend and give evi- 
dence on the trial of a cause, wherein A. B. 



[No. 34] 

Summons against Defaulting Juror to Show 

Cause 

State of North Carolina, to any constable or 

other lawful officer of County — 

Greeting: 
We command you to summon R. S. to appear 
before G. W. H., Esq., a justice of the peace for 
your county, at his office in said county, on the 



was plaintiff and C. D. was defendant, tried be- day of , 19 ...., to show cause 

fore me at my office on the .... day of why he, the said R. S., should not be fined ac- 

19 as appears by entry duly made on my cording to law for his nonattendance as a juror 



docket; when and where the said R. P., a witness 
summoned on the part of the plaintiff in that ac- 
tion, was called and did fail. 

R. P. appears and assigns for excuse "high 
water," and offers his own affidavit, which is filed. 
He also offers as a witness in his behalf S. S., 
who, being duly sworn, testifies that (state what 
S. S. says about the condition of the water at the 
time). R. P., having no other evidence, closed 
the case on his part. Whereupon A. B. offered 



before our said justice at his office in said county 

on the .... day of , 19 in a certain 

cause then and there pending, in which A. B. was 
plaintiff and C. D. was defendant; and have you 
then and there this precept, with the date and 
manner of your service thereof. 

Witness, our said justice, this .... day of 

19 

G. W. H 

Justice of the Peace. 



[146] 



§ 7-184 



CH. 7. COURTS— FORMS 



§ 7-184 



[No. 35] 
Demurrer to Complaint 

(Title as in No 1.) 

The defendant demurs to the complaint in this 
action, for that the said complaint does not state 
facts sufficient to constitute a cause of action (or, 
for that the said complaint is not sufficiently ex- 
plicit to enable this defendant to understand it.) 

(Signature of defendant or defendant's attorney.) 

[No. 36] 
Demurrer to Answer 

(Title as in No. 1 or No. 5) 

The plaintiff demurs to the answer of the de- 
fendant, for that the facts stated in the answer are 
not legally sufficient to constitute a defense to 
this action (or, for that the said answer is not suf- 
ficiently explicit to make this plaintiff understand 
it.) 

(Signature of plaintiff or plaintiff's attorney.) 

[No. 37] 
Judgment upon Demurrer 

NOTE. — If the justice thinks the objection 
raised by the demurrer to the pleadings is well 
founded, he will make this entry on his docket: 

"Demurrer to the complaint (or to the answer) 
filed, heard and sustained; and whereupon it is 
ordered that the said pleading be amended with- 
out cost (or upon payment of costs, as the case 
may be)." 

This order to amend the defective pleading is 
a matter of course, and is the only judgment which 
the justice can render upon demurrer. He can- 
not give a final judgment in the cause at this stage, 
for the party may choose to amend his pleadings 
and try the case on the facts. If, however, the 
party refuse to amend the defective pleading, the 
justice will disregard the same, and proceed to 
render final judgment, as follows: 

"The plaintiff (or defendant) having refused to 
amend his complaint (or his answer) demurred 
to, it is adjudged that the defendant go without 

day and recover of the plaintiff the sum of 

dollars, costs of this action (or that the plaintiff 
recover of the defendant the sum of 



The plaintiff complains on a promissory note 

executed by the defendant to him, dated 

19...., payable one day after date, for $ 

and also for goods sold and delivered to the de- 
fendant, and claims damages for $ 

The defendant answers and denies each and 
every allegation in the complaint, and claims a 

setoff of $ for wood sold and delivered to 

the plaintiff, and also of $ for work and 

labor performed for the plaintiff. , 

On joining issue of fact as above, the action is, 
by consent of parties, adjourned to the in- 
stant, at my office. 

A venire is also issued at the plaintiff's (or de- 
fendant's) demand, returnable at the time and 
place last mentioned. 

19 The parties appear and pro- 
ceed to the trial of the cause. The following ju- 
rors are returned as summoned upon the venire by 
O. P. M., constable. (Insert the names of all 
jurors summoned.) The following jurors, who 
are returned as summoned, do not appear. (In- 
sert their names.) The following jurors appear 
according to the summons. (Insert their names.) 
The following jurors are sworn to try the action. 
(Insert their names.) 

H. P. and J. M., witnesses for the plaintiff, and 
W. F., a witness for the defendant, are sworn 
and testify; J. S., a witness on the part of the de- 
fendant, is offered, but objected to by the plain- 
tiff on the ground (state the ground), and re- 
jected. 

Having heard the evidence (and the arguments 
of a counsel, if any), the cause is submitted to the 
jury, who retire, under charge of O. P. M., a con- 
stable duly sworn for that purpose, and afterwards 
return in open court and publicly deliver their 
verdict, by which they find in favor of the plain- 
tiff for $ damages; whereupon, I adjudged 

that the plaintiff do recover of the defendant — 

Damages, - - - - - $ 

Costs, - - - - - 

, 19 Execution issued for above 

judgment to O. P. M., constable. 

, 19 Notice of appeal served on me 

by defendant; my fee paid and return to the ap- 
peal made by me. 

N. B. — If the action is tried by the justice with- 



dollars, damages, and the further sum of out a j ury> all that re l a tes to the venire and the 



dollars, costs of this action.)" 

If the justice deem the objection, raised by the 
demurrer, not well founded, he will enter in his 
docket as follows: "Demurrer to the complaint 
(or to the answer) filed, heard and overruled," and 
he will then proceed to the evidence in the cause. 

[No. 38] 
Entry in Docket 
NOTE. — The following is offered as a general 
precedent of the manner in which the justice will 
make the entries in his docket: 

(Title as in No. 1) 

19 Summons issued; returnable 

. . instant at my office. 

19 Summons returned, served on 



on the 



defendant by O. P. M., constable, on the day of 



verdict in the above form must be left out, and 
the judgment will be entered as follows: 

After hearing the proofs and allegations of the 
respective parties, I do adjudge that the plaintiff 
recover, etc. (as above). 

[No. 39] 

Form of Notice of Appeal to the Superior Court, 

Where a New Trial of the Whole Matter 

is to be Had 

(Title as in No. 1) 

To G. W. H., Esq., a justice of the peace for said 

county. 

Take notice, that the defendant in the above 

action appeals to the Superior Court from the 

judgment rendered therein by you on the 



19. 



instant, both parties appear, the plaintiff 

in person, the defendant by R. H. R., Esq., at- 
tornev. 



in favor of the plaintiff 



for the sum of sixty-five dollars damages and the 
further sum of three dollars and seventy-five cents 
costs, and that this appeal is founded upon the 
[147] 



§ 7-184 CH. 7. COURTS— FORMS § 7-184 

ground that the said judgment is contrary to law [No. 42] 

and evidence. .... ,, _. , _ _ 

Dated this day of , 19. . . . Where the Tltle to Real Estate ls in Question 

W. W N. B. — The defendant, if he wishes to make 

Attorney for Appellant. answer to title, must file a written answer to the 

r No 40 -i complaint, setting forth the facts. 

Return to Notice of Appeal Answer of Title 

j\ B 1 (Title as in No. 1) 

against ^County of The defendant answers to the complaint: 

C D ^ 1. That no allegation thereof is true. 

To the Superior Court of County: 2. That the plaintiff ought not to have or main- 

An appeal having been taken in this action by tain nis action against the defendant, because the 

the defendant, I, G. W. H., the justice before premises mentioned and described in the com- 

whom the same was tried, in pursuance of the no- plaint, at the time when the rent and render, for 

tice of appeal hereto annexed, do hereby certify which said action is brought, is alleged to be due, 

and return that the following proceedings were was and is now the land and freehold of one J. D., 

had by and before me in said action: and not that OI th e plaintiff; nor was the plaintiff 

On the first of February, one thousand eight J en ' " or |f h u e n ° w > entitled to the possession 

hundred and sixty-nine, at the request of the ^ e ^°, ; and * e defenda "t further answers that 

plaintiff, I issued a summons in his favor and the title t sa.d premises was, at the time afore- 

against the defendant, which is herewith sent. said > and ls flow, in said J. D., and will come in 

Said summons was, on the return day thereof, re- 1 u «tion on the trial of this action. 

. ,,r . a- , , ,, Dated this dav of 19 

turned before me at my office; and at the same * "■■■■ 

time and place the parties personally appeared. T . , • -Defendant 

The plaintiff complained for goods sold and . " a PP ear ' n g f ™ the answer and proof of the 
delivered to defendant to the amount of $75. The defendant . that the > title to real estate is in con- 
defendant denied the right of the plaintiff to re- rover u s y ln . ™ a ct>on, it is ordered that the ac- 
cover that amount for the goods, on the ground hon be , dlsr " lssed ' and J ud g™ent is rendered 

that he had paid, at or shortly after the purchase a £ ainst the plaintiff for dollars, costs. 

of said goods, dollars thereon; and he [N 43] 

also claimed to have a setoff against the plaintiff 

to the amount of $85 for board and lodging fur- Tender of Judgment 

nished to plaintiff and work and labor done for (Title as in No. 1) 

him; and he claimed to be entitled to judgment t CD.. 

against the plaintiff for $ ^ , . ,!".'.. , , 

D lL f. . . j , ., ,. lake notice, that the defendant herebv offers 

Both parties introduced evidence upon the . ,, • , ' . . , . . ™' uuc " 

1 • j u 4.u j C4. u • ,u •„ to allow judgment to be taken against him bv the 

claims so made by them, and after hearing their . . ,.~ 7. . , s . m uy LUC 

c j 11 t j j • j 7 i. ■ plaintiff in the above action for the sum of fiftv 

proofs and allegations, I rendered judgment in K ,, . A , c auui ul 1UL ^ 

c c 4.1. 1 • *•«: j : * 4.u a i *« a * dollars, with costs. 

favor of the plaintiff and against the defendant, n . , ,, . , 

,, .. c t* . . .. , , , j Dated this day of 19.. 

on the tenth of February, eighteen hundred and r> n f> t a 

sixty-nine, for $65 damages, and for the further C- Defendant. 

sum of $3.75, costs of the action. [No. 44] 

I also certify that on the eleventh of February, . 

eighteen hundred and sixty-nine, the defendant Acceptance of Tender of Judgment 

served the annexed notice of appeal on me, and (Title as in No. 1) 

at the same time paid me my fee of $1 for making To A. B : 

my Aii et f \- v, t a * A, '*u «* Take notice - that the Plaintiff hereby accepts 

All of which I send, together with the process the offer tQ a , low ^ ^^ take j J 

?v iTI S '/ nd ; v e l ^^oL CaUS6 ' in the above action for the sum of fifty dollars, 

this 15th day of February, 1904^ with CQSts> and ^ justice ^ ^^ .^ 

, . ,",'**1^*" ment accordingly. 

Justice of the Peace. Dated this day of Jg 

N. B. — If the cause was tried by a jury, state A. B Plaintiff 

the fact and set forth the verdict, with the judg- 
ment thereon. It is not necessary to set out in [No. 45] 
the return a copy of any process, pleading, affi- Form of Judgment on Tender 
davit or other paper. It is sufficient to refer to rn^-^ • xt ,% 
1 £i 1 j j u -^u (litle as in No. 1) 
such a paper as filed and as herewith sent. 

N. B.— The justice will state all the proceed- 
[No. 41] j ngs ; n t h e ac tion from the issuing of the sum- 
Where the Sum Demanded Exceeds Two Hun- mons down to the appearance of the parties and 
dred Dollars the complaint of the plaintiff, and then proceed 
It appearing that the sum demanded by the as follows: 
plaintiff in this action exceeds two hundred dol- Whereupon, the said defendant, before answer- 
lars, it is ordered that the action be dismissed, ing said complaint, made and served an offer, in 
and judgment is rendered against A. B., plaintiff, writing, to allow the plaintiff to take judgment 

for the sum of dollars, costs. against him for the sum of fifty dollars with 

(Date and sign.) costs;* and the said plaintiff thereupon accepted 
[148] 



§ 7-184 



CH. 7. COURTS— FORMS 



§ 7-184 



such offer, and gave notice thereof to the defend- the said judgment out of the property so attached 

ant in writing; said offer and acceptance thereof as aforesaid, by the sale of the same or so much 

being filed; thereof as shall be sufficient to satisfy the said 

Now, therefore, judgment is accordingly ren- judgment; and if a sufficient sum be not realized 

dered in favor of the plaintiff and against the de- therefrom, then you satisfy the said judgment 

fendant for the sum of fifty dollars damages, and out of any other goods and chattels of the said 

the further sum of one dollar, costs. judgment debtor within your county. 

If notice of acceptance is not given, the entry And make due return thereof according to law 



will be as follows: 

(Follow the foregoing form down to the as- 
terisk (*) and then add) : 

And the said plaintiff having refused to accept 
such offer, the defendant answered the complaint 
by denying, etc. (state the defense of the defend- 
ant down to the judgment, which, in case the 
plaintiff fails to recover more than the sum men- 
tioned in the offer, will be entered thus) : 

After hearing the proof and allegations of the 



within sixty days from the date hereof. 

Witness, our said justice, this day of 

19 

G. W. H..., 

Justice of the Peace 

[No. 48] 
Record of Conviction of a Contempt 

The justice will make an entry in his docket 



respective parties, I adjudge that the plaintiff do stating the particular circumstances of the con- 
recover the sum of fifty dollars damages, and the tempt, of which the following is offered as an 



example: 

Whereas, on the day of , 19 , 

while engaged in the trial of an action (or other 
judicial act, as the case may be) in which A. B. 
was plaintiff and C. D. was defendant, at my of- 
fice in County, M. B. did willfully and con- 
temptuously interrupt me, and did then and there 
conduct himself so disorderly and insolently to- 
wards me, and by making a loud noise did dis- 
turb the proceedings on said trial (or other ju- 
dicial act) and impair the respect due to the au- 
thority of the law; and on being ordered by me 
to cease making such noise and disturbance, the 
said M. B. refused so to do, but on the contrary 



further sum of one dollar, costs. 

I further adjudge that the defendant do recover 
of the plaintiff the sum of two dollars and seventy- 
five cents, costs accruing in the action subse- 
quent to the offer of the defendant referred to. 

[No. 46] 
General Form — Execution 

(Title as in No. 1) 

State of North Carolina, to any constable or 
other lawful officer of County — Greet- 
ing: 

Whereas, judgment has been rendered by G. 

W. H., Esq., a justice of the peace for said county, did publicly declare" "and "with ""loud v'oiceTstate 

against C. D., in favor of A. B., for the sum of . . . . whatever offensive words were used) • and 

dollars damages, and the further sum of whereas, when immediately called upon by me 

dollars costs, on the ... .day of , 19....; to answer for the said contempt said M B did 

You are therefore commanded forthwith to not make any de f en ce thereto nor excuse 

levy of the goods and chattels of the said C. D. himself therefrom; the said M B is therefore con- 

(excepting such goods and chattels as are by v j ct ed of the contempt aforesaid, and is adjudged 

law exempt from execution) the amount of such t0 pay a fine of five dol i ars and be j mprisoned 

judgment, with interest from the date thereof j n the county jail for the term of two days and 

until the money is recovered. until he pays such fine or is duly discharged' from 

And make due return, according to law, in imprisonment according to law. 
sixty days from the date hereof. G W H 

Dated this ....day of ... 19 Justke of t he' Peace 

(j. W. H 

Justice of the Peace. 

[No. 47] 

Execution in Attachment (TitIe as ij( No 1} 

(Title as in No. 1) _ 

State of North Carolina, to the keeper of the 

State of North Carolina, to any constable or common jail of County— Greeting: 

other lawful officer of county— Greeting: \*ru*.~*. n ~ „*.„/_ u ^ f , ' . . 

, Whereas, etc. (recite the record of conviction 

Whereas, in pursuance of a warrant of attach- so as to show the entire matter of contempt to- 

ment, dated the day of 19 issued ge ther with the judgment therefor, and then 'pro- 

by G. W. H., Esq., a justice of the peace of said ceed as follows) : 



[No. 49] 
Warrant of Commitment for a Contempt 



county, in an action wherein A. B. was plaintiff 
and C. D. defendant, the following property of 

defendant was, on the .... day of , 19.., 

duly levied on and attached: 

(Here insert a list of property) 
And whereas, judgment was rendered in said 

action, on the day of , in favor of 

said plaintiff, and against the said defendant in 



Therefore, you are hereby commanded to re- 
ceive the said M. B. into your custody in the said 
jail, and him there safely keep during the said 
term of two days, and until he pays the said fine 
or is duly discharged according to law. 
Herein fail not. 

Dated this day of ,19 

G. W. H 

Justice of the Peace. 



the sum of dollars : 

Therefore, we command you that you satisfy (Rev., s. 1496; Code, s. 909; C. S. 1535.) 

[149] 



§ 7-185 



CH. 7. COURTS— MUNICIPAL RECORDERS' COURTS 



§ 7-192 



SUBCHAPTER VI. RECORDERS' COURTS, the regular weekly term or after the adjourn- 

Art. 24. Municipal Recorders' Courts. ment of an y special term called by the recorder. 

(1919, c. 277, s. 3; C. S. 1539.) 
§ 7-185. In what cities and towns established; 

court of record—In each city and town in the §7-189. Procedure m the court.-The recorder 

state, which has acquired a population of one sha11 Pf, esld . e . over the court and tr y and deter " 

thousand or over by the last federal census, a mme J a11 . criminal actions coming before him, the 

recorder's court for such municipality may be Jurisdiction of which is conferred by this article, 

established, which shall be a court of record and and the Proceedings of the court shall be the 

shall be maintained pursuant to the provisions of s * m ? as are now Prescribed for courts of justices 

this subchapter. (1919, c. 277, ss. 1, 2; 1925, c. 32, of the peace and for the superior cour t so far as 
s. 1; C. S. 1536.) 

Local Modification. — Richmond: 1941, c. 60, s. 1. 

§ 7-186. Recorder's election and qualification; L § 7-190. Criminal jurisdiction.-The court shall 

term of office and salary.-The court shall be have the flowing jurisdiction within the follow- 

•j j 1 j u u r me named territory: 

presided over by a recorder, who may be a h- ° J 

censed attorney at law, and who shall be of good *• Original, exclusive, and concurrent jurisdic- 
moral character and, at the time of his appoint- tion > as the case may be, of all offenses com- 
ment or election, a qualified elector of the mu- mitted within the corporate limits of the munici- 



the same may reasonably apply. (1919, c. 277, 
s. 9; C. S. 1540.) 



nicipality. The first recorder, upon the establish- 
ment of such court, shall be elected by the gov- 
erning body of the muncipality, either at the 
time of the establishment of the court or within 
thirty days thereafter, and he shall hold office un- 
til the next municipal election and until his suc- 



pality which ar