at once by an order applied in payment of the judgment. After the issuing and before the return of such execution, upon an affidavit or other competent written evidence showing that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, an order may also be obtained requiring him to be examined concerning his property. Such proceedings do not apply where judgment debtor is a domestic corporation or a foreign corporation doing business, or having a business, fiscal, or transfer agency, within the State. By this proceeding, debts, choses in action, and tangible property may be reached, but not articles exempt (see Exemptions), earnings for sixty days prior to order necessary for use of a family supported by him, and property held under a trust created by a person other than the judgment debtor. A receiver may be appointed to take charge of property discovered, and to reduce choses in action to possession.

Taxes. All real property within this State, and all personal property situated or owned within this State, is taxable unless specially exempt from taxation by law. (L. 1896, ch. 908.) This includes the personal property of non-residents situated within the State (except negotiable securities deposited as collateral or money deposited by or debts owing to non-residents.) Capital invested by non-residents in business in the State is taxed as personal property. (L. 1906, ch. 248.) Taxes on personal property are enforced by sale of debtor's personal chattels, by action on short notice. Taxes on real property not paid for one year from the first day of February following the date on which the tax was laid are enforced by sale by state comptroller. Lists of such lands are sent to the county treasurer eighteen weeks before sale, and published weekly for ten weeks previous to sale in two newspapers of the county where the land is situated, and notice of sale, which always takes place at Albany, is published for twelve weeks preceding, in county newspapers. Sufficient of each parcel of land to pay taxes, interest, and expenses of sale is sold at the time advertised; the surplus, if any, is held in trust for the former owner. Purchaser at tax sale receives certificate describing the property and the amount paid therefor; if no previous redemption, the purchaser is entitled to a deed at the expiration of one year from the last day of sale. The comptroller must publish, in two newspapers of the county where the land is situated, designated to publish the session laws, a description of the land and the amount necessary to be paid for redemption, weekly for six weeks; the last notice must appear at least six weeks before the expiration of the time for redemption. Land may be redeemed within one year from the time of sale on payment of the amount paid by the purchaser, with ten per cent. interest; if no redemption, comptroller then executes conveyance vesting in the purchaser absolute estate in fee simple. If at the time of such conveyance the lands are in the immediate occupancy of persons other than the purchaser, the latter must serve notice upon such occupant of the sale and conveyance within one year after the time for redemption expires. At any time within six months after such notice and proof of service thereof is filed in the state comptroller's office, the occupant or any other person may redeem on payment of the consideration mentioned in the conveyance, with thirty-seven and one half per cent. on such sum, and charge of executing the deed. The purchaser shall, within one year from expiration of time to redeem, give notice to mortgagees, requiring them to redeem such lands within six months by payment of the purchase price with interest. If payment is made, it is deemed to be included in the mortgage. (L. 1896, ch. 908.) For tax on transfer of stock, see Corporations. For tax on mortgages, see Mortgages. Testimony. Parties and persons interested in the event of a suit are competent witnesses. (C. P. § 828.) There are, however, some exceptions, e. g. party or person interested, or predecessor of such person, is not a competent witness in his own behalf or interest, or in behalf of his successor in interest, against the executor, administrator, or survivor of a deceased person, or the committee of a lunatic, or the successor in interest of such decedent or lunatic, concerning a personal transaction or communication between the witness and decedent or lunatic, unless executor or other person named is examined in his own behalf, or testimony of decedent or lunatic concerning the transaction or communication is given in evidence. (C. P. § 829.) Husbands and wives may be witnesses for or against each other, except that in actions founded on adultery they are incompetent, except to prove the marriage or to disprove allegation of adultery. Neither can be compelled, or, without the consent of the other, if living, allowed, to disclose confidential communications made during marriage; in criminal conversation, plaintiff's wife is a competent witness for defendant but not for plaintiff, and cannot disclose confidential communications. (C. P. § 831.) Conviction of crime does not render witness incompetent. (C. P. § 832.) Fact may be shown to affect credibility. Clergymen, physicians, professional or registered nurses and attorneys and counselors, and the latter's clerks, etc., are not allowed to disclose communications made to them respectively in their professional character, in the course of discipline enjoined by the rules or practice of their church, professional information acquired in attending patient, and necessary to enable physician to act in a professional capacity, communications made to them by clients, and their advice given thereon in course of professional employment. (C. P. §§ 833-835.) These provisions may be waived by person confessing, the patient or the client. (§ 836.) Physician or professional nurse may also disclose information as to mental or physical condition of decedent, except confidential communications or disgraceful facts, upon a waiver by the personal representatives of decedent,

or of executors named in will whose validity is attacked, or of surviving husband, widow, heir, next of kin, or any other party in interest. (C. P. § 836.) Witness is not required to give an answer tending to criminate him or expose him to penalty or forfeiture, but is not privileged because the facts established thereby render him liable to civil suit. (C. P. § 837.) A seal on an executory agreement is only presumptive evidence of sufficient consideration. (C. P. § 840.) Seven years' absence from State or United States affords presumption of death. For rules as to taking depositions, see title Depositions.

Trust Deeds. - Trust deeds are rarely used in this State for securing payment of money lent. See Mortgages.

Usury. See Interest.

Wills. All persons, except idiots, per ons of unsound mind, and infants, can devise real estate, including any estate or interest in real property descendible to heirs. A devise to a corporation not authorized by charter or statute so to take is invalid. Aliens may take under devise on filing a deposition of intention to become a citizen. (See Aliens) Males can bequeath personal property at the age of eighteen, females at sixteen. No nuncupative will bequeathing personal estate is valid unless made by soldier in actual military service, or by mariner at sea. A will must be executed and attested as follows: Must be subscribed by the testator at end of the will in the presence of each of the attestine witnesses, or acknowledged to have been so made to each of such witnesses, and declared by him, at the time of subscribing or of acknowledging the same, to be his last will and testament, and at least two attesting witnesses shall sign their names at the end of the will at the request of the testator. The witnesses must write opposite their names their respective places of residence; such an omission does not invalidate the will, but subjects the witness to a penalty of fifty dollars. A seal is not necessary. While it is usual to admit typewritten wills to probate, the question has not been passed upon by the courts. The following is the usual attestation clause: "Signed, sealed, published, and declared by the said testator as and for his last will and testament, in our presence, who at his request, and in his presence, and in the presence of each other, have hereunto subscribed our names as attesting witnesses." Subsequent marriage and birth of issue revoke the will previously made, unless made in contemplation of marriage. A will executed by an unmarried woman is revoked by her subsequent marriage although no issue. Wills of real and personal property executed as prescribed by the laws of New York, or of personal property executed without the State but in the United States, Canada, or Great Britain and Ireland, according to the laws of the country where executed, or will of personal property executed by person not a resident of the State, according to the laws of his place of residence, may be proved in New York. (C. P. § 2611.) Copy of a will admitted to probate in any other State, or of the record thereof, and of the proofs or of the record thereof, or if proofs are not on file any statement on file of the existence of proofs properly authenticated, or, if there are no proofs and no statement, a copy of will or record thereof authenticated and accompanied by a certificate that there are no proofs or statement, may be recorded in the surrogate's office of any county where the real estate affected by the will is situated. Original wills filed in New York may be sent to other states for probate. In case of wills of personalty, the filing of such papers, and of copies of foreign letters properly authenticated, entitle the executors or administrators with the will annexed to ancillary letters. This applies to cases of letters issued by courts of foreign countries, as well as of the States of the United States. No person having husband, wife, child, or parent is permitted to devise or bequeath by will to any benevolent, charitable, literary, scientific, or religious society, association, or corporation, in trust or otherwise, more than one half of his or her estate after payment of debts; such devise or bequest is valid to the extent of one half of the estate; the widow's dower and debts must be deducted in ascertaining the value of the estate. (L. 1860, ch. 360.) Benevolent, charitable, scientific, and missionary corporations organized under L. 1848, ch. 319, may hold property by virtue of a devise or bequest, the annual income of which devise or bequest does not exceed ten thousand dollars, but no person having a wife, child, or parent can devise or bequeath to such corporation more than one fourth of his or her estate after payment of debts. Bequest or devise is valid to the extent of such one fourth, but not unless the will is made and executed at least two months before testator's death. (L. 1848, ch. 319, § 6.)

LAWS OF NORTH CAROLINA

RELATIVE TO THE

COLLECTION OF DEBTS,

TAKING OF DEPOSITIONS, ETC.

REVISED EXPRESSLY FOR HUBBELL'S LEGAL DIRECTORY, DECEMBER 1, 1906, BY R. H. BATTLE, LL. D., OF RALEIGH, NORTH CAROLINA.

Actions. The distinction between actions at law and suits in equity is abolished and there is but one form of action, and that is denominated a civil action. All actions in the superior courts must be commenced by the issuing of a summons, which is to be issued by the clerk of the superior court, at the instance of the plaintiff. The summons must be signed by the clerk, who, before issuing it, must take bond with sufficient security for the prosecution of the suit. Guarantee companies may be surety on such bonds. (Rev. §§ 273, 450.) Actions "upon a bill, note, bill of exchange, liquidated and settled account, or for divorce" stand for trial at the appearance term, if the summons be served and complaint filed thirty days prior to such term. (§ 484.) Other actions do not stand for trial until the succeeding term, except in a few instances such as controversies over the title to office, taxes, and the like.

Administration of Decedents' Estates. -See Claims against Estates of De

ceased Persons.

Affidavits. Affidavits in another State or country to be used in any judicial proceeding in this State should be made before a commissioner of affidavits duly commissioned by the governor of this State, or before a clerk of a court of record of any other State or a notary public. (§§ 925, 2350.)

Aliens May take by purchase, descent, or by will, and transmit real estate, whether they are residents of the State or not. (§ 182.)

Appeals. An appeal can be taken from every judicial order or determination of a judge of a superior court, upon or involving a matter of law or legal inference, whether made in or out of term, which affects a substantial right claimed in any action or proceeding, or which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action, or grants or refuses a new trial. (§ 587.) If the judgment is rendered in term time, the appeal mnst be taken within ten days after its rendition; if rendered out of term time, within ten days after notice thereof. (§ 588.) Appeals lie from the superior courts to the supreme court, and from justices' courts to the superior courts.

In appeals from a justice's court, the appellant must serve a notice of appeal upon the justice and the adverse party within ten days after the rendition of the judgment, unless the adverse party be present in the justice's court, personally or by attorney, at the time of the appeal, in which case no written notice is necessary. (§§ 1491, 1492.)

If the judgment is rendered when process was not personally served, and the defendant did not appear and answer, he shall have fifteen days after personal notice of the judgment in which to serve notice of appeal. (§ 1491.)

Arrests May be made: 1st. The defendant may be arrested when he is a non-resident of this State, or is about to remove therefrom, in an action for the recovery of damages on a cause of action not arising out of contract, or when the action is for injury to person or character, or for injuring, wrongfully taking, detaining, or converting real or personal property. 2d. In an action for a fine or penalty, or for seduction, or for money received, or for property embezzled or fraudulently misapplied by a public officer, or by an attorney, solicitor, or counselor, or by an officer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment. 3d. In an action to recover the possession of personal property unjustly detained, where the property or any part thereof has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof. 4th. Where the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought, or in concealing or disposing of the property for the taking, detention, or conversion of which the action is brought, or when the action is brought to recover damages for fraud or deceit.

5th. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. But no female shall be arrested in any action, except for a willful injury to person, character, or property. Nor shall any arrest be made on Sunday. (§ 727.)

An order for the arrest of the defendant must be obtained from the court in which the action is brought, or from a judge thereof. The order may be made when it shall appear to the court or judge, by affidavit of the plaintiff or any other person, that a sufficient cause of action exists, and that the case is one of those above mentioned. (§§ 728, 729.)

A written undertaking on the part of the plaintiff with sufficient surety to secure to defendant all costs and damages which he may sustain is required. The amount of the undertaking shall not be less than one hundred dollars. Statute does not require sureties to be freeholders. (§ 730.) See Corporations.

Assignments.
Attachments.

See Insolvent Laws and Assignments.

At the time of the issuing of the summons, or at any time afterwards, an attachment may issue in the following cases, to wit: When the action is to recover a sum of money only, or damages for one or more of the following causes: 1. Breach of contract, express or implied. 2. Wrongful conversion of personal property. 3. Any other injury to real or personal property, in consequence of negligence, fraud, or other wrong. 4. Any injury to the person, caused by negligence or wrongful act. (§ 758.)

To entitle the plaintiff to a warrant, he must show by affidavit to the satisfaction of the court granting the same: 1. That one of the causes of action specified above exists against the defendant. If the action is to recover damages for breach of contract, the defendant must show that the plaintiff is entitled to recover a sum stated therein, over and above all counter claims known to him. 2. That the defendant is either a foreign corporation, or a domestic corporation none of whose officers can, after due diligence, be found in this State, or not a resident of the State; or, if he is a natural person and a resident of the State, that he has departed therefrom, with intent to defraud his creditors, or to avoid service of summons, or keeps himself concealed therein with like intent; or, if the defendant is a natural person, or a domestic corporation, that he or it has removed, or is about to remove, property from the State, with intent to defraud his or its creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, property with the like intent. (§ 759.)

The affidavit upon which the warrant is granted must be filed with the clerk of the court to which, or magistrate before whom, the warrant is returnable, within ten days from the issuing of the warrant. (§ 760.)

"

A written undertaking with sufficient surety," to secure all defendant's costs and damages, in a sum not less than two hundred dollars, must be given by plaintiff. The statute does not require that sureties to the above undertaking be freeholders, nor does it specify the number required. (§ 763.) But if personal security is given it is best that the sureties be residents and freeholders, for if defendant should require the undertaking to be justified, as he may do, such sureties will be required. (§§ 740, 788.) See Corporations. The affidavit can be made by plaintiff's agent. (Bruff v. Stern, 81 N. C. 183.) If several attachments are levied on the same property at different times, they take precedence in the order of their levy. If levied on real property, the officer must certify such levy to the clerk of the superior court of the county wherein the land lies. The clerk must note such levy on the judgment docket and index the same on the index for judgments, and the levy is a lien only from the date of such entry by the clerk; but if such levy is indexed and docketed within five days after the levy is made, the lien relates back to the time of the levy. (§ 767.)

Attachments may be issued by a justice of the peace if the cause of action is within his jurisdiction. (§ 769.) See Insolvent Laws and Assignments.

Chattel Mortgages. A form is prescribed by statute for chattel mortgages not exceeding three hundred dollars, the probate and registration fees on which are less than ordinary chattel mortgages. (§§ 1039, 2773.)

It is made a misdemeanor to dispose of or to buy property covered by a chattel mortgage with intent to defeat the mortgagee's rights. (§ 3435.)

Party may sell after the day when the note becomes due, but no time is fixed for foreclosure. (§ 1034.)

Chattel mortgages must be recorded in the county where the mortgagor resides; or, in case he does not reside in this State, then in the county where the chattels are situate, unless they consist of choses in action, in which latter case the mortgage must be recorded in the county where the mortgagee resides. There is no statute requiring their renewal. (§ 982.) See Mortgages and Deeds of Trust and Insolvent Laws and Assignments.

Conditional sales must be recorded in the county in which the purchaser resides; or, if he resides out of the State, in the county in which the property, or some part thereof, is situated. (§ 983.) If household or kitchen furniture is mortgaged, it is essential to its validity that the wife of the mortgagor join in the execution of the mortgage, and that her private examination be taken as in cases of conveyances of real estate. (§ 1041.) Chattel mortgages may be foreclosed by suit in court, or by sale if mortgage contain a power of sale. See Mortgages and Deeds of Trust for advertisement of sale. When by the terms of a chattel mortgage, particularly of a miscellaneous stock of mer

chandise, the mortgagee is allowed to remain in possession for an unreasonable length of time say nine months-and deal with the property as his own, a presumption of law arises that the mortgage is fraudulent as to other creditors of the mortgagor; and if fraudulent, it is void as to such other creditors. (Holmes v. Marshall, 78 N. C. 262; Cheatham v. Hawkins, 80 N. C. 161.)

The following is the form prescribed by statute for chattel mortgages not exceeding three hundred dollars :

of the county of

in the State of North Carolina, am indebted to

of

I, county, in said State, in the sum of dollars, for which he holds my note to be due the day of A. D. 19 and to secure the payment of the same I do hereby convey to him these articles of personal property, to wit: (insert description); but on this special trust, that if I fail to pay said debt and interest on or before the

day of A. D. 19 then he may sell said property, or so much thereof as may be necessary, by public auction, for cash, first giving twenty days' notice at three public places, and apply the proceeds of such sale to the discharge of said debt and interest on the same, and pay any surplus to me.

Given under my hand and seal this

day of A. D. 19

(Signature.) [Seal.]

No special provision is made as to the manner of proof and acknowledgment of chattel mortgages and conditional sales. The probate of such instruments is governed by the laws regulating the probate of deeds and other instruments, a synopsis of which laws appears under the title Deeds.

Claims, Proof of. See Proof of Claims.

Claims on the Estates of Deceased Persons. The personal representative of a deceased person must within twenty days after his qualification advertise for claimants to exhibit their claims at or before a certain day, which must be twelve months from the first publication of the notice. A creditor who neglects to present his claim within the prescribed time may yet recover of the heirs, devisees, legatees, or next of kin. Real estate may be sold for the payment of debts under orders of the court, obtained for the purpose. The clerk of the superior court is the probate judge. Debts are to be paid in the following order: First class. Debts which by law have a specific lien on property to an amount not exceeding the value of such property, Second class. Funeral expenses. Third class. Taxes assessed on the estate of the deceased previous to his death. Fourth class. Debts due to the United States, and to the State of North Carolina. Fifth class. Judgments of any court of competent jurisdiction within the State, docketed and in force, to the extent to which they are a lien on the property of the deceased at nis death. Sixth class. Wages due to any domestic, servant, or mechanical or agricultural laborer employed by the deceased; which claim for wages shall not extend to a period of more than one year next preceding the death; or if such servant or laborer was employed for the year current at the decease, then from the time of such employment; for medical services within the twelve months preceding the decease. Seventh class. All other debts and demands. Every debt must be paid pro rata equally in its class. (Rev. ch. 1.) Claims must be proved in the same manner whether creditor lives in or out of the State.

In case of intestacy, letters of administration are to be granted to the persons entitled in the order following: 1. Husband or widow. 2. To the next of kin in the order of their degree; if of equal degree, to one or more of them, at the discretion of the clerk. 3. To the most competent creditor who resides within the State and proves his debt on oath before the clerk. 4. To any other person legally competent. Non-residents may qualify as executors. (§§ 3, 5.)

Administrators and non-resident executors must give bond with two or more sufficient sureties to be justified and approved by the clerk in an amount at least double the value of all the personal estate of deceased. The clerk may require additional sureties and an increase of the bond from time to time if necessary for the protection of those interested in the estate. (§§ 28, 32.) See Corporations.

Every widow of a resident intestate, or of a resident testator from whose will she has dissented, besides her distributive share in her husband's personal estate, is entitled to an allowance of three hundred dollars, and one hundred dollars additional for every child of deceased or widow, or child towards whom deceased or widow stood in loco parentis, and who was residing with deceased at his death, such children being not over fifteen years of age. This allowance may be increased to a sum sufficient for the support of the widow and her family, according to the estate and condition of her husband; but in no case shall it exceed one half the net annual income of deceased for the three years next preceding his death. These allowances are made whether the husband was solvent or insolvent at his death, but increased allowance is not allowed if estate insolvent or personal estate does not exceed two thousand dollars. (§§ 3091-3107.) If there be no widow, or the widow die before the year's allowance is allotted, cach child such as is above described is entitled to have one hundred dollars allotted for its benefit. (§ 3094.) See Dower. Executors and administrators must file an inventory of all the estate of deceased within three months after qualification; must file annual accounts; and a final account within two years, unless the time is extended by the clerk. All accounts are filed in the office of the clerk of the superior court. (§§ 42, 99, 103.)