921. Paid 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 recive the same all such balances reported as aforeIsaid to be in their hands.

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. "Account" means written statement of receipts and payments; when settlement is intended, additional words are used: State v. Dunn, 134-668.

922. Fees of jurors and witnesses, when paid to treasurer. All moneys due jurors and witnesses which shall 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 shall be the duty of said clerk to indicate in his report any moneys so held by him for a period embracing the two annual reports.

1891, c. 580, s. 4; 1893, c. 14, s. 3.

923. Used by public till called for. The money aforesaid, while held by the clerks, shall be paid on application, to the persons entitled thereto; and after it shall cease to be so held, it may be used as other revenue, subject, however, to the claim of the rightful

owner.

Code, s. 1869; R. C., c. 73, s. 6; 1828, c. 41, s. 1.

924. Paid indigent children, when. Whenever any moneys less in amount than twenty dollars shall be paid into court for indigent or needy children for whom no one will become guardian, upon satisfactory proof of their necessities, the clerk may pay the same upon his own motion or order to the mother or other person who has charge of said minor or to some discreet neighbor of said minor to be used for the benefit or maintenance of said minor. Such person shall be solvent and shall faithfully apply any money so paid to him or her. The clerk shall take a receipt from the person to whom the same is paid and record it in a book entitled record of amounts paid for indigent children, and the same shall be a valid acquittance for said clerk.

1899, c. 82.

CHAPTER 14.

COMMISSIONERS OF AFFIDAVITS.

925. Clerks and notaries authorized 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 affidavits so taken by a clerk shall be certified under 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 notorial seal.

Code, s. 631. Clerks of courts in other states as commissioners: Barcello v. Hapgood, 118-712. Courts take judicial knowledge of their seals: Ibid. For probates generally, see sections 989-1030.

926. Governor appoints; term of office; powers. The governor is hereby 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 District of Columbia, or any of the territories, colonies or dependencies as he may deem expedient, who shall continue in office for two years from the date of their appointment, unless sooner removed by the governor, and shall have authority to take the acknowledgment 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. And such acknowledgement 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 the same had been made or taken before any competent authority in this state.

Code, s. 632. General powers of commissioner: Barcello v. Hapgood, 118-712; Buggy Co. v. Pegram, 102-540; Maphis v. Pegram, 107-505.

PROBATE OF DEEDS BY. Distinction between probate by clerk and by commissioner: Evans v. Etheridge, 99-43. Commissioner need not affix seal, Johnson v. Duvall, 135-642. A judicial or quasi judicial act: Long v. Crews, 113-256. Where commissioner not authorized to take probates, clerk's order to register invalid, when: Long v. Crews, 113-256; Robinson v. Willoughby, 70-358. Acknowledgment by resident or nonresident allowed before commissioner: Buggy Co. v. Pegram, 102-540; Maphis v. Pegram, 107-505.

Old cases under former statutes: Simmons v. Gholson, 50-401; Smith v. Castrix, 27-518.

927. How qualify; may administer oaths, take depositions, affidavits, etc. Every commissioner appointed by the governor aforesaid, before he shall proceed to perform any duty by virtue of this chapter, shall take and subscribe in oath before a justice of the peace in the city or county in which such commissioner shall reside well and faithfully 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. And thereupon he shall have full power and authority to administer an oath or affirmation to any person, who shall be willing or desirous to make such oath or affirmation before him, and to take depositions and to examine the witnesses under any commission emanating from the courts of this state, relating to any cause depending, or to be brought in said courts, and every deposition, affidavit, or affirmation made before him shall be as valid as if taken before any proper officer in this state.

Code, s. 633. Commissioner not required to affix seal, when: Johnson v. Duvall, 135-642. Verification of pleadings before commissioner: Hinton v. Ins. Co., 116-22; Young v. Rollins, 85-485.

928. Appointments, where recorded; certified copies evidence. It shall be 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 secretary of state, when the oath of the commissioner shall be filed in his office, shall forthwith certify the appointment to the several clerks of the superior courts of the state, who shall record the certificate of the secretary at length; and all removals of commissioners by the governor, and all commissioners whose commissions have expired by law, and which have not been renewed, shall be recorded and certified in like manner; and a certified copy thereof from the clerk, or a certificate of the appointment or removal aforesaid from the secretary of state, shall be sufficient evidence of the appointment or removal of such commissioner.

Code, s. 634.. See Evans v Etheridge, 99-46.

929. Secretary of state to prepare and publish list in public laws. The secretary of state shall prepare and cause to be printed in each volume of the public laws a list of all persons who since the preceding publication in the public laws have been appointed commissioners 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 District of Columbia, under this chapter, setting forth the states, 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 appointments 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 revocation, resignation, removal or death.

Code, ss. 635, 636, 637, 639. See Evans v. Etheridge, 99-46.

930. Published list conclusive evidence. 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.

Code, s. 638. See Evans v. Etheridge, 99-46.

931. Clerks of courts of record in other states are commissioners of deeds. Every clerk of a court of record in any other state shall have full power as a commissioner of affidavits and deeds as is vested in regularly appointed commissioners of affidavits and deeds for this state.

Code, s. 640.

For powers as to probate of deeds, see sections 989-991. See Barcello v. Hapgood, 118-727; Hinton v. Ins. Co., 116-22.

CHAPTER 15.

COMMON LAW.

932. Common law declared to be in force. All such parts of the common law as were heretofore in force and use within this state. or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this state and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this state.

Code, s. 641; R. C., c. 22; 1715, c. 5, ss. 2, 3; 1778, c. 133. The laws of our state rest for a foundation on the common law of England: In re Bryan, 60-38. Presumed that common law of other states the same as of this state: Lassiter v. R. R., 136-89; Hall v. Rwy., 146-; see also Brown V. Pratt, 56-202; Griffin v. Carter, 40-413.

PREVAILS. As to probate of wills, except as statute changes: Crump v. Morgan, 38-98-as to no allowance of alimony in divorce a vinculo,

Duffy v. Duffy, 120-346-as to Jews, infidels, etc., taking oaths, Shaw v.
Moore, 49-25-presumptively in states that were formerly English colonies,
Gooch v. Faucett, 122-270; Cade v. Davis, 96-139; Jones v. Reddick, 79-
292; Brown v. Pratt, 56-202; Griffin v. Carter, 40-213.

DOES NOT PREVAIL. As to rules of practice in deciding issues of fact in probate of wills: Downey v. Murphey, 18-92-as to outlawry, Sherrod v. Davis, 2-282-as to fines and recoveries, Barfield v. Combs, 15-516-as to the demurring of the parol, Baker v. Long, 2-1-as to forfeiture of property for crime, White v. Fort, 10-264-as to special customs, Jones v. Allen, 27-473; Winder v. Blake, 49-336; Morehead V. Brown, 51-370.

This section cited but not construed in Greenleaf v. Bank, 133-295.

CHAPTER 16.

CONSTABLES.

933. How elected. In each township there shall be a constable, elected by the voters theerof, who shall hold his office for two years.

Const., Art. IV, s. 24. As to town constables, see sections 2938, 2939. The constitutional provision that officers shall hold until successors are qualified does not apply to constables: King v. McLure, 84-153.

934. Oath of office to be taken. All constables, before they shall be qualified to act, shall take before the board of county commissioners the oaths prescribed for public officers, and also an oath of office.

Code, s. 642; R. C., c. 24, s. 8. For bond of, see section 302.

935. Special constables appointed by justices. For the better executing any precept or mandate in extradordinary cases, any justice of the peace may direct the same in the absence of, or for want of a constable, to any person not being a party, who shall be obliged to execute the same, under like penalty that any constable would be liable to.

Code, s. 645. Justice can appoint a special constable hereunder: State v. Wynne, 118-1206; State v. Armistead, 106-639; State v. Dula, 100424 and his decision is conclusive as to when case "extraordinary,”’ State v. Wynne, 118-1206; State v. Armistead, 106-639; State v. Dula, 100-423-yet justice should state in special deputations that it is done for want of regular officer, State v. Dula, 100-423. Powers of special constable set forth in State v. Armistead, 106-639. Legality of prisoner's custody depends upon validity of deputation and not on sufficiency of mittimus: Ibid. Special officer must show warrant if demanded when making arrest: State v. Dula, 100-423.