REVISED CODE

OF

NORTH CAROLINA.
 REVISED CODE
OF

NORTH CAROLINA,
ENACTED BYV THlE

GENERAL ASSEMBLY AT THE SESSION OF 1854;

TOGETHER WITH

OTHER ACTS OF A PUBLIC AND GENERAL NATURE, PASSED AT

THE SAME SESSION;

THE CONSTITUTION OF THE STATE - THE CONSTITUTION OF THE UNITED STATES, ETC., ETC.

PREPARED UNDER ACTS OF THE GENERAL ASSEMBLY PASSED AT THE SESSIONS OF

1850 AND 1854,

BT

BARTHOLOMEW F. MOORE AND ASA BIGGS.

PRINTED AND PUBLISHED UNDER THE SUPERVISION AND DIRECTION OF

BARTHOLOMEW F. MOORE AND WILLIAM B. RODMAN.

IN ONE VOLUME.

BOSTON:
LITTLE, BROWN AND COMPANY.
1855.
 Entered according to Act of Congress, in the year 1855, by
WILLIAM B. RODMAN AND B. F. MOORE,
On behalf of the State of North Carolina the proprietor, in the Clerk's Office of the District Court
of the United States for the District of Newbern, North Carolina.

CAMfBRIDGE

ALLEN AND FARNHAM, PRINTZES.

 PREFACE
OF THE COMMISSIONERS OF 1838.

THE revision and consolidation of the whole public statute law will
constitute an important epoch in the legislative history of North Carolina.
In presenting this work to the public the commissioners for superintend-
ing its publication, have thought that some facts, connected with and
illustrating that history, might be neither an inappropriate nor uninter-
esting introduction. Their limits confine them to a brief summary, and
compel them to omit much, both of detail and remark, that would be
necessary to do justice to the subject.
The first permanent settlement in North Carolina was made about the
year 1660, by emigrants from Virginia, on the north side of Albemarle
Sound, and probably on Durant's Neck in Perquimons county, lying
between Perquimons and Little Rivers. The oldest land title is a con-
veyance for that neck of land from the king of the Yeopim Indians to
George Durant, dated in 1662. On the twenty-fourth of March, 1663,
King Charles the Second granted to Edward, Earl of Clarendon, and
others, as true and absolute Lords Proprietors, all the country from the
Atlantic to the Pacific Ocean, included between the thirty-first and
thirty-sixth parallels of north latitude; and on the thirtieth of June, 1665,
by a second charter he enlarged the powers of the grantees, and extended
their boundaries so as to include all the country between the parallels of
thirty-six degrees thirty minutes and twenty-nine degrees, north latitude.
These grants will be found in the second volume of this work.* Among
other powers which they conferred on the Lords Proprietors was that of

2d Vol. p. I and 437, published in 1837.

Vi PREFACE.

enacting laws and constitutions for the people of that province by and
with the advice, assent, and approbation of the freemen thereof, or of the
greater part of them, or of their delegates or -deputies, who were to be
assembled from time to time for that purpose. In the year 1663, George
Drummond was appointed by Governor Berkley of Virginia, in pursu-
ance of instructions from the Lords Proprietors, the first governor of
the colony, then known as the county of Albemarle. In October, 1677,
Governor Drummond was succeeded by Samuel Stephens, who was
authorized to grant land, reserving to the Lords Proprietors one half of
the gold and silver ore. At this time the first constitution was given to
the colony. It directed that the governor should act with the advice of
a council of twelve, one half to be appointed by himself, the other half
by the assembly; and the assembly was to be composed of the governor,
the council, and twelve delegates chosen by the freeholders. Historians
do not agree as to the precise year, in which the first legislative body in
North Carolina convened. It was certainly, however, either in 1666, or
1667. This legislature was called "the Grand Assembly of the County
of Albemarle;" and on its petition the Lords Proprietors, by an instru-
ment since called the " Great Deed of Grant," * directed that lands
should be held by the inhabitants of the said county, on the same terms
and conditions as lands were held by the inhabitants of Virginia. The
principal acts of this assembly were such as were believed to be required
by the peculiar situation of the country, and were prompted by an anx-
ious desire to increase its population. Suits for any debts created out of
the country were prohibited for five years -new settlers were exempted
from taxation for one year-the right to a certain quantity of land,
acquired by migration, could not be transferred until the owner had
remained two years in the country-dealers from abroad were prohibited
from trafficking with the Indians; and as there were no regular ministers,
marriages might be contracted by a simple declaration by the parties of
their mutual consent, made before the governor or a member of the coun-
cil, in the presence of a few neighbors. These laws were transmitted to,
and approved by, the Lords Proprietors, who had reserved to themselves
a veto on the acts of the Assembly. In July, 1669, the Lords Proprietors
adopted a new form of government for their colony. It was styled " The

* See 2d Vol. p. 13.

 PREFACE. Vii

Fundamental Constitutions of Carolina," and was the production of the

celebrated John Locke.* Its provisions were so illy adapted to the situa-
tion of the country, and to the habits, customs, and feelings of the people
for whom it was intended, that all the efforts of the proprietors could
never carry it into practical operation. After producing great discontent,
faction, and disorder throughout the colony for more than twenty years,
it was finally abrogated in 1693. By one of its provisions, the eldest
Lord Proprietor was called Palatine; and the style of the enactments
by the Grand, afterwards called General, Assembly, during the whole
of the Proprietary government, was thus - " Be it enacted by his
Excellency the Palatine and the rest of the true and absolute Lords
Proprietors of Carolina, by and with the advice and consent of the rest
of the members of the General Assembly now met at for the
north-east part of the said province, and it is hereby enacted by the
authority of the same." The acts were signed by the governor, by the
deputies of the Lords Proprietors, (each proprietor having one deputy,) and
by the speaker of the house of delegates. No record is to be found, in
any of our public offices, of acts passed prior to the session of ta General
Biennial Assembly, held at the house of Captain Richard Sanderson, at
Little River, begun the seventeenth day of November, 1715, and, con-
tinued by several adjournments, until the nineteenth day of January,
1716." It seems that a revisal of all the acts of the assembly up to that
period had been made under the directions of an act of the preceding
session, which is not now extant. A manuscript copy of the acts of
1715, much mutilated, is on file in the office of the secretary of State of
North Carolina. Among these acts is one entitled "1An Act for ye con-
firmation of ye laws passed this session of Assembly and for repealing
all former laws not herein particularly expressed." After this preamble,
"' Whereas in pursuance to an act of Assembly made and ratified ye sixth
day of November last past the ancient standing laws of this Government
have been carefully revised," it enacts " That all laws heretofore made
within this province, such only excepted as by their particular titles are
hereby expressly continued and revived, are and stand hereby repealed,
annulled, and void, and that all laws now made, passed, and confirmed
this present session of Assembly, together with such other as are here-

* 2d Vol. p. 449.
Viii PREFACE.

after mentioned to be continued, shall be of full force and shall be hence-

forward deemed taken and adjudged as the body of the laws of this
Government and no other heretofore made." It then provides for rights
acquired under the acts repealed, specifies the acts continued in force,
and goes on to declare -" That the chief justice and the clerk of
each and every precinct court shall take care that the transcript or book
of laws deposited in his or their custody shall be constantly laid open
upon the court table during the sitting of the court for the perusal of such
members of the court or other persons litigating causes therein as shall
have occasion so to do "- and also "that the clerk of each court shall at
the next court after receipt thereof publicly and in open court read over
the same and so yearly at the first court next following the first day of
May under the penalty of five pounds for such neglect." A number of
well drawn and important acts were passed at this session; among which
may be mentioned one, 1'An Act concerning old titles of lands and for
limitation of actions and for avoiding suits in law," the provisions of
which, with slight alterations, have continued in force to the present day.
On the twenty-fifth day of July, 1729, seven, of the eight proprietors of
Carolina, in consideration of seventeen thousand five hundred pounds
sterling, conveyed all their rights, privileges, and franchises to George
the Second, King of Great Britain; and Earl Carteret, afterwards Lord
Granville, the eighth lord proprietor, conveyed all his right of jurisdiction
over the said province or colony, reserving his one eighth part of the soil
and territorial rights. The proprietary government then ceased and the
regal government commenced. The last General Assembly held under
the proprietary government met at Edenton on the twenty-seventh day
of November, 1729, and the first under the royal government met at the
same place in the year 1734. It may be proper here to remark, (though
there is some confusion in history as to this point,) that the division, into
North and South Carolina, had probably been consummated before, or
about the year 1700. George Burrington was appointed by the king on
the twenty-ninth of April, 1730, the first royal governor. is council con-
sisted of seven members, three of whom with the governor formed a
quorum. They were appointed by the crown, except that the governor
and council might temporarily fill vacancies, and constituted the first
branch of the legislature. Burrington having abdicated, Gabriel Johnston
 PREFACE. ix
was appointed governor, the ablest of all the colonial governors; not less
distinguished for his energy and prudence than for his extensive classical
and scientific attainments. He continued in office from 1734, till his
death in 1752. During this period the style of enactment was as fol-
lows-" We pray that it may be enacted and be it enacted by his Excel-
lency Gabriel Johnston, Esq., Governor, by and with the advice and
consent of his Majesty's council and General Assembly of this province
and it is hereby enacted by the authority of the same." After the death
of Governor Johnston, Matthew Rowan first, as president, and then suc-
cessively, Arthur Dobbs, William Tryon, and Josiah Martin, as governors,
presided over the province until the revolution, in 1776. The style of
enactment was changed after the year 1753. It was then " Be it enacted
by the Governor, Council, and Assembly and by the authority of the
same." The acts were signed by the governor, president of the council,
and speaker of the assembly, - the council and assembly being separate
bodies, -and were subject to the approval or disapproval of the king in
council. At the session of the General Assembly held at Newbern on
the seventh day of March, 1746, after a preamble that " Whereas for want
of the laws of this Province being revised and printed, the magistrates are
often at a loss how to discharge their duty, and the people transgress
many of them through want of knowing the same," it is enacted, " That
the Honorable Edward Mosely, Esq., Samuel Swann, Esq., the Honora-
ble Enoch Hall, Esq., and Mr. Thomas Barker, or the majority of them,
be and they are hereby nominated and appointed commissioners to revise
and print the several acts of assembly in force in this province." They
are required to "revise the said acts of assembly, and compile them into
one body, and make an index, marginal notes, and references thereto, and
to lay the same before the next succeeding General Assembly after they
shall have so revised and compiled them, to be ratified and confirmed."
By subsequent sections, the laws so revised and ratified are to be printed
and distributed, and the copies so printed are to be received in evidence
before any judicature. This act was passed on the earnest and repeated
recommendations of Governor Johnston. Of the commissioners so ap-
pointed, Edward Mosely and Samuel Swann alone appear to have acted;
and, Mosely having died. before the completion of the work, Samuel
Swann reported to the General Assembly at their session on the sixteenth
X PREFACE.

of October, 1749. At that session an act was passed to confirm this

revisal. The preamble states "Whereas the whole body of the laws
of this Province to the seventh day of March in the year of our Lord one
thousand seven hundred and forty-six have, in pursuance of the act, &c.
&c., been carefully compiled and revised, and the said revisal laid before
both houses of this present Assembly and approved of by the said
houses." The act then recites the acts revised and confirmed, directs
them to be printed, and the printed copies to be evidence. It repeals all
acts not confirmed, and saves the rights of parties, &c. In pursuance of
this act, the code of laws so revised was printed and published at
Newbern, by James Davis, in the year 1752, under the title: " A Col-
lection of all the public Acts of Assembly of the Province of North
Carolina, now in force and use; together with the titles of all such laws
as are obsolete, expired, or repealed; and also an exact table of the titles
of the Acts in force. Revised by Commissioners appointed by an Act of
the General Assembly of the said Province for that purpose, and exam-
ined with the records and confirmed in full Assembly. Newbern -
printed by James Davis: MDCCLII." Davis was the first public printer,
erected the first printing-press, and this was the first book printed, in
North Carolina. It is said by Martin in his history, that this act confirm-
ing Swann's revisal was, through some jealousy of the General Assembly,
disapproved by the king in council. Up to this period the acts of the
Assembly had been promulgated in manuscript copies, which were trans-
mitted to the judges and clerks of the several courts, and directed to be
annually read, openly, in each court. Another edition of the public laws
was published by James Davis at Newbern in 1765, dedicated to Gov-
ernor Tryon; and still another in 1773, dedicated to Governor Martin.
These were both on private account. Since the revolution the acts of
Assembly have been regularly printed and distributed, at the end of each
session. The last session of the General Assembly under the royal gov-
ernment, whose proceedings are on record, was held at Newbern on the
second day of March, 1774, and its acts are signed by Josiah Martin,
governor, James Hasell, president, and John Harvey, speaker, on the
nineteenth of March, 1774.
The Assembly met again in April, 1775; but was immediately dis-
solved by the governor. A meeting of deputies from the different counties
 PREFACE. Xi
had been held in August, 1774, and by adjournment reassembled in April,
1775. The deputies again met in convention in August, 1775, and ap-
pointed a provincial council, consisting of Samuel Johnston, Cornelius
Harnet, Samuel Ashe, Abner Nash, James Coor, Thomas Jones, Whit-
mill Hill, William Jones, Thomas Jones, Thomas Person, John Kinchen,
Samuel Spencer, and Waightstil Avery. The revolution was then in
full progress. The Mecklenburg Declaration of Independence was signed
on the twentieth day of May, 1775. Deputies had been sent to the con-
tinental congress in 1774, and 1775. The Declaration of Independence
by the United States, on the fourth of July, 1776, was proclaimed at
Halifax, on the first of August of the same year, by direction of the
council of safety. A congress of the representatives of the freemen of
the State of North Carolina, assembled at Halifax the eighteenth day of
December, in the year 1776, for the purpose of establishing a constitution
or form of government for the State. Besides adopting the constitution,
this congress performed the functions of an ordinary legislature; its legis-
lative acts, however, being generally limited to the end of the next Gen-
eral Assembly. These acts were styled ordinances. Richard Caswell, a
distinguished patriot and soldier, was the president. Among others, an
ordinance was passed directing " That Thomas Jones, Samuel Johnston,
Archibald Maclaine, James Iredell, Abner Nash, Christopher Neale, Sam-
uel Ashe, Waightstil Avery, Samuel Spencer, Jasper Charlton, and John
Penn, Esquires, be appointed to revise and consider all such statutes and
acts of assembly as are, or have been in force and use in North Carolina,
and to prepare such bills to be passed into laws as may be consistent
with the genius of a free people, that form of government which we have
adopted, and our local situation, and to lay the same before the next
General Assembly for their approbation." It is not now known how
many of these commissioners accepted this trust, or what share of its
execution was borne by any one of them, but the fruits of their labors are
manifest in the laws passed in the years immediately succeeding, -laws
which have received repeated encomiums, for the ability and skill and
accuracy with which they are drawn. The style of enactment was now
changed, so as to read " Be it enacted by the General Assembly of the
State of North Carolina, and it is hereby enacted by the authority of the
same," which style has ever since been continued.
X11 PREFACE.

By an act passed in 1715, it was declared that " the common law is,
and shall be in force in this government," except such parts as relate to
the practice in courts, which were to be supplied by the general court,
subject to the approval of the governor and council. It is also declared
that " all statute laws of England providing for the privileges of the
people, as also all statute laws made for limitation of actions, and pre-
venting of vexatious lawsuits, and for preventing immorality and fraud,
and confirming inheritances and titles of land are and shall be in force
here, although this province or the plantations in general are not named."
By an act passed in 1749, the statutes of Great Britain which are to
be in force, are particularly enumerated, and the common law declared
to be in force with certain exceptions. And by an act passed in 1778,
reciting, that " whereas doubts may arise upon the revolution in govern-
ment whether any, and what laws continue in force here," it is enacted
" That all such statutes, and such parts of the common law, as were
heretofore in force and use within this territory, and all the acts of the
late General Assemblies thereof, or so much of the said statutes, common
law, and acts of assembly, as are not destructive of, repugnant to, or
inconsistent with the freedom and independence of this State and the
form of government therein established, and which have not been other-
wise provided for, in the whole or in part, not abrogated, repealed,
expired, or become obsolete, are hereby declared to be in full force in this
State."
At the session of the General Assembly, in 1787, it was enacted " That
James Iredell be, and he is hereby appointed a commissioner to revise
and compile the acts of the General Assemblies of the late Province and
present State of North Carolina, and to insert the charter from the crown
of Great Britain, &c. -and further, the said commissioner is hereby
authorized and directed, in revising and collecting said acts, to leave
out all laws repealed or obsolete, all private acts, and all other acts on
which no question of property can arise : and further, the said commis-
sioner is hereby required to see the said acts printed in the same order
and in the same words in which they now stand, with marginal notes
of the contents of each section, a marginal reference, and a copious
general index with reference to each act, and the contents of each
section." This duty was performed by the commissioner appointed, and
 PREFACE. Xill
the laws so revised were printed by Hodge and Wills, at Edenton, in 1789,
including the acts of 1788. It was approved in every respect by an act
passed in 1791, and has since been commonly known as " Iredell's Re-
visal." In the year 1792, Francois Xavier Martin, in obedience to a
resolution of the General Assembly of the preceding year, published a
" Collection of the statutes of the Parliament of England in force in the
State of North Carolina; " of which work it may only be remarked, that it
was utterly unworthy of the talents and industry of the distinguished
compiler, omitting many important statutes, always in force, and insert-
ing many others, which never were, and never could have been in force,
either in the Province, or in the State. In the year 1794, also, in pur-
suance of a resolution of the General Assembly of the preceding year,
the same gentleman published " A collection of the private acts of
the General Assembly, from the year 1715 to the year 1790, inclusive,
now in force and use." In 1800, John Haywood, one of the judges of
the superior courts, published " A Manual of the laws of North Carolina,
arranged under distinct heads, in alphabetical order; with references from
one head to another when a subject is mentioned in any other part of the
book than under the distinct head to which it belongs." This work was
a great favorite with the public, and passed through several editions.
In 1803, it was resolved by the General Assembly " that Francois Xavier
Martin collect and -revise the public acts passed since the publication of
Judge Iredell's Revisal, to the end of the present session inclusive;
which said revisal shall connect the acts passed since Judge Iredell's, by
notes and remarks, adverting to such as appear to have been virtually
repealed, and retaining such as are not expressly so, and cause his said
revisal to be printed." This revisal was prepared and published by
Mr. Martin, and. approved by the succeeding legislature. At the session
of the General Assembly in 1817, it was enacted, " That a committee of
three persons be appointed by joint ballot of both houses, whose duty it
shall be to revise and consolidate the public acts, and parts of acts of the
General Assembly of this State heretofore passed, or which may be
passed before the completion of their work;" and also, " That it shall be
the duty of said commissioners to enumerate and specify those statutes
and parts of statutes of Great Britain, which are in force within this
State." The commissioners appointed were, John Louis Taylor, chief

B
XIV PREFACE.

justice of the supreme court, Henry Potter, judge of the district court of
the United States, and Bartlet Yancy, speaker of the senate. The
revisal, completed by these gentlemen after the manner of Iredell's revisal,
was ordered by the legislature to be published, and was published in 1821,
under the superintendence of Judge Potter, the acts of 1820 being in-
cluded. This work has usually been called "' the Revised Code," or the
"New Revisal."

PREFACE

CONTINUED BY THE COMMISSIONERS OF 1854.

AT the session of the General Assembly, in 1833, it was enacted, that

three commissioners should be appointed by the Governor, " to collate,
digest, and revise, all the public statute laws of the State," with instruc-
tions to reduce into one act, all acts and parts of acts upon the same
subject, and distribute the acts thus consolidated, under proper titles,
divisions, and sections. For this purpose the late Gavin Hogg, Esq., and
Gov. Iredell, with the Hon. William H. Battle, now a judge of the
Supreme Court, were appointed. Mr. Hogg, by reason of ill health, soon
abandoned the commission; and the vacancy was filled with the Hon.
Frederic Nash, now chief justice of the Supreme Court. The plan of
revision adopted, was " simply to digest and consolidate into one act, all
the various statute laws relating to one subject, occasionally to alter
vicious and inadvertent phraseology, and to insert into the body of the
statute, such new provisions as seemed to them manifestly proper," and
to incorporate with them, such British statutes as were in force.
The work was finally reported to the General Assembly of 1836; and
at that session, the acts thus digested, were amended and passed into
laws, entitled, " The Revised Statutes," which were comprised wholly in
the first volume printed under that title, - the second volume being little
else than a collection of charters, and boundaries of counties.
This was a work much demanded, and was favorably received by
the public. From the construction, however, put on their powers by the
commissioners, very little change was made in the language of the stat-
 PREFACE. XV

utes, as they were originally enacted, or last revised. To some extent,

and in cases very palpably requiring it, this was done by the legislature
of 1836.
In 1850, the General Assembly deeming another revisal of the statutes
necessary, empowered the Governor to appoint three commissioners for
that purpose, with instructions similar to those prescribed in the act of
1833. The undersigned B. F. Moore, with the Hon. R. M. Saunders,
and the Hon. Asa Biggs were appointed; and after some progress in the
work, Mr. Saunders resigned. At the ensuing session of the Legislature,
Messrs. Biggs and Moore were directed to continue and complete the
unfinished work. In its execution, (to use the language of their report to
the General Assembly of 1854,) they " departed in one respect, very
essentially from the course pursued by former commissioners; they not
only compiled, and brought together the different acts, and parts of acts
on the same subjects; but they consolidated them, by fusing them
together, and giving them the character of a single enactment; and as to
a great many, and indeed most of the acts, they expunged the verbiage,
where it was merely cumbersome and imparted no aid in ascertaining
the meaning of the law."
The laws as revised and reported, with such alterations and amend-
ments as were deemed proper, were passed; and have now become the
law of the land, under the title of " The Revised Code of North Caro-
lina."
By virtue of the " act concerning the Revised Code," the undersigned
were appointed superintendents of publication. In that act are pre-
scribed their duties. The marginal digests of the sections of the acts as
first published, have not been revised for many years past, imperfect and
scant as they were. Although a great part of them was the hasty work
of the public printer, they had undergone no change, and furnished
almost the entire material of the index to the matter contained in the stat-
utes. These digests have been greatly enlarged in number, and most of
them were corrected in phrase, by the commissioners of revision; and all
have received, at the hands of the undersigned, much additional alteration.
The Constitutions of the State, and the United States, they have caused
to be printed with a marginal digest, and an index following each instru-
ment.
xVI PREFACE.

In regard to the references to the decisions of the Supreme Court, they

have felt much embarrassed. These decisions have greatly increased in
number since the publication of the Revised Statutes in 1837. To have
referred to those only, which directly construed the words of the statutes,
would have answered, very imperfectly, the end designed; to have referred
to all indirectly connected with the statute, would have been cumbrous.
Moreover, in not a few instances, the known purpose of laws having been
defeated by judicial decision, (a calamity which sometimes befalls the
best considered acts,) an attempt has been made to regain the purpose,
by a change, in the Revised Code, of the language which defeated it. In
such cases the decision is of little consequence, except, perhaps, to aid the
inquiring lawyer to discover, that the case is of no authority against a
change of the construction, while it may mislead those who skim the sur-
face of investigation. In such cases, they have not prescribed for them-
selves any inflexible rule, but have endeavored to refer to all the leading
cases connected with each subject, which they thought the practising
lawyer would likely be desirous to use. Notwithstanding all the care
which the commissioners have been able to use, imperfections will doubt-
less exist in their work; but having discharged their duty, with faithful
purpose and industry, they submit it to the public.
B. F. MOORE,
WILL. JB. RODMAN.