feasance of such bond, though such payment 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, yet the said payment or satisfaction 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.

Code, s. 933; R. C., c. 31, s. 101; 4 Hen. VII, c. 20.

1523. Sum due with interest and costs, discharges penalty of bonds. If at any time, pending an action on any bond with a penalty, the defendant shall bring into court, where the action 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.

Code, s. 934; R. C., c. 31, s. 102; 4 Anne, c. 16. Judgments upon bonds of executors, administrators, etc., should be for penalty of bond, to be discharged upon payment of amount of damages assessed with interest, when allowed, from first day of term at which judgment rendered: Anthony v. Estes, 101-541.

In penal bonds, only sum due, interest and costs, can be recovered: Moore v. Cameron, 93-58.

As bearing upon section, see Governor v. Sutton, 20-622; Thoroughgood v. Walker, 47-18; Sewing Machine Co. Seago, 128-158.

1524. Proceeds of judicial sales collected on motion. The supreme and other courts ordering a judicial sale, or having possession of the bonds which may have been taken on such sale, may, on motion, after ten days' notice thereof in writing, enter judgment as soon as the money may become due against the debtors or any of them, unless for good cause shown the court shall direct some other mode of collection.

Code, s. 941; R. C., c. 31, s. 129. Independent action upon obligation to secure payment of money given upon purchase under judicial sale will not be entertained if objection made in apt time: Lackey v. Pearson, 101-651— proper course being to enforce contract by motion in cause in which sale decreed, Ibid; Hudson v. Coble, 97-262-but if objection not made at proper time court may proceed with action, Lackey v. Pearson, 101-651-and such objection will not be entertained when made for first time in supreme court, Ibid.

Where commissioner appointed to conduct judicial sale is directed to sell for cash, and did so, except that one of purchasers did not immediately pay his bid, commissioner may maintain independent action in own name to recover amount of bid, Ibid.

As to different courses which may be pursued by court where purchaser refuses to comply with bid, see Hudson v. Coble, 97-260. Court ordering judicial sale has power to make decree for money, after ten days' notice thereof: Cotten ex parte, 62-79; Mauney v. Pemberton, 75-219.

Section is constitutional: Cotten ex parte, 62-79-and, as regards courts of equity, merely substitutes notice and execution for original power of proceeding by attachment, Ibid.

Sale of land for assets, made by administrator, pursuant to judgment in probate court, in proceeding instituted for that purpose, is judicial sale: Mauney v. Pemberton, 75-219-and summary judgment may be rendered against purchaser and his sureties, under section, Ibid; Chambers v. Penland, 78-53-but such judgment can only be rendered by court ordering sale, Mauney v. Pemberton, 75-219.

Semble, that no other way of holding commissioner appointed to make judicial sale pecuniarily responsible for money collected by him, except by action instituted by parties entitled: Smith v. Moore, 79-82.

1525. Judicial sale confirmed, purchaser deemed owner. Any person let into possession under any judicial sale confirmed, where the title may be retained as a security for the price, shall be deemed the legal owner of the premises for all purposes of bringing suits for injuries thereto, after the day of sale, by trespass or wrongful possession taken or continued, in the same manner as if the title had been conveyed to him on the day of sale, unless restrained by some order of the court directing the sale; and the suit so brought shall be under the control of the court ordering the sale.

Code, s. 942; 1858-9, c. 50.

1526. Procedure after appeal. In civil cases, at the first term of the superior court after a certificate of the determination of an appeal is received, if the judgment is affirmed the court below shall direct the execution thereof to proceed, and if said judgment is modified, shall direct its modification and performance. If a new trial is ordered the cause shall stand in its regular order on the docket for trial at such first term after the receipt of the certificate from the supreme court.

1887, c. 192, s. 2. See section 1542.

When new trial awarded by supreme court on appeal, case goes back to superior court for new trial on whole merits: McMillan v. Baker, 92-110and court below ought to proceed with trial as if no former trial had taken place, Ibid.

1527. Officer attending juries sworn. When any officer (except such as are appointed to attend the grand jury shall be appointed or summoned 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 administer an oath to such officer, faithfully to attend

the several juries that may be put under his care during that term, that shall be charged in the trial of any civil or criminal action; and after such officer shall be once so sworn, he shall be considered 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.

Code, s. 927; R. C., c. 31, s. 36; 1801, c. 592.

1528. Quakers may wear hats in court. The people called Quakers may wear their hats in courts of judicature, as elsewhere, according to the custom of their sect.

Code, s. 943; R. C., c. 31, s. 131; 1784, c. 209.

VI. PROCESS.

1529. Return on notice, evidence. When a notice shall issue to the sheriff, his return thereon that the same has been executed shall be deemed sufficient evidence of the service thereof.

Code, s. 940; R. C., c. 31, s. 123; 1799, c. 537.

Presumption that the return states the truth: Strayhorn v. Blalock, 92292; Miller v. Powers, 117-218; Isley v. Boon, 113-249; Chadbourn v. Johnston, 119-282.

Official returns of sheriff are acted upon without proof of his signature in court in which he is officer: McDonald v. Carson, 94-497.

Return by sheriff on notice to produce paper, "executed by delivering a copy," implies delivery of copy to each person to whom notice addressed, and is sufficient: McDonald v. Carson, 94-497.

Return of sheriff is prima facie service of process: Williamson v. Cocke, 124-585-subject to be overcome by proof of facts, Ibid.

1530. When directed to officer of adjoining county. If at any time there should not be in the county a proper officer to whom precepts of process, original, mesne or final, of a court of record, shall or ought to be directed, who can lawfully execute the same; or if there be such officer who shall refuse or neglect to execute such precept or process, then the clerk of the court from which the same hath issued or shall issue, upon the facts being verified before him by written affidavit, subscribed by the plaintiff or his agent, shall issue such precept or process to the sheriff of any adjoining county, who shall have power to execute, and shall execute the same, in like manner as if he were sheriff of the county.

Code, s. 929; R. C., c. 31, s. 55; 1779, c. 156; 1821, c. 1080; 1822, c. 1132; 1846, c. 61. Section merely referred to in Collais v. McLeod, 30-224.

1531. Sheriff interested and no coroner, issues to officer of adjoining county. In all cases where the sheriff of any county shall be

interested, if there is no coroner in said county, process may be issued to and shall be executed by the sheriff of any adjoining county.

Code, s. 930; 1869-70, c. 175. Where there is no coroner in county execution against sheriff will issue to sheriff of adjoining county: Anonymous, 2-422; Witkousky v. Wasson, 69-38. Section merely referred to in Evans v. Etheridge, 96-45.

CHAPTER 29.

COURTS SUPREME.

I. HOW AND WHEN HELD.

1532 How constituted. The supreme court shall consist of a chief justice and four associate justices.

Const., Art. IV, s. 6.

1533. Justices to take 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.

Code, s. 955; R. C., c. 33, s. 3; 1818, c. 963.

1534. Quorum. Three justices shall constitute a quorum for the transaction of the business of the court.

Code, s. 956; 1889, c. 230. The court" means the three (now five) justices sitting together, consulting and advising one with the others, upon questions before them for judicial decision: State v. Lane, 26-435. The distinction between the three (now five) judges and the court" pointed out: Ibid.

Upon the death of a member, the two surviving judges have full power and authority to hold court and exercise its functions: Ibid, page 434.

1535. Convenes, when. There shall be held at the seat of government of the state in each year two terms of the supreme court, commencing on the first Monday in February and the last Monday in August.

Code, s. 953; 1901, c. 660; 1887, c. 49; 1881, c. 178.

1536. Sits until business is dispatched; name of court; adjourned if no justice present first week. The court shall sit at each term until all the business on the docket shall be determined or continued

on good cause shown. The court shall bear the name and style of "The Supreme Court of North Carolina," and shall be 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: Provided, that 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.

Code, s. 954; R. C., c. 33, s. 2; 1804, c. 660; 1805, c. 674; 1818, c. 962; 1828, c. 13; 1842, c. 15; 1846, cc. 28, 29.

II. PRACTICE IN.

1537. Original jurisdiction, claims against state. The supreme court shall have original jurisdiction to hear claims against the state, but its decision shall be merely recommendatory; no process in the nature of exceution shall issue thereon; they shall be reported to the next session of the general assembly for its action.

Const., Art. IV, s. 9. Jurisdiction conferred upon supreme court by this section to hear claims against state is confined to examination of, and adjudication of legal validity of, such claims: Baltzer v. The State, 104265-the jurisdiction only attaching when questions of law are involved, Miller v. State, 134-270; Reeves v. The State, 93-257; Horne v. The State, 82-384; Clodfelter v. State, 86-51; Bledsoe v. The State, 64-392; Reynolds v. The State, 64-460-and this jurisdiction will not be exercised where the matter is small and there is no doubt about the law. Horne v. The State, 82-384; Sinclair v. State, 69-47-nor where facts pertaining to alleged claim against state are well known, or readily ascertainable, and are no "grave questions of law' to be decided, Cowles v. State, 115-173.

Section is relaxation of rule that state can not be sued, and enables citizen to obtain opinion of supreme court as recommendation to legislature and no more: Blount v. Simmons, 119-51.

Original jurisdiction conferred by section is for benefit only of such plaintiffs, and to be used only in such cases as can not otherwise obtain footing in court by reason of state being a party: Bain v. State, 86-49. Supreme court has not original jurisdiction of action against state by clerk of superior court for fees in action instituted by state and for which it has been adjudged liable: Miller v. State, 134-270; Blount v. Simmons, 119-52.

Jurisdiction conferred by section confined to such claims as are legal: Clodfelter v. State, 86-51-and, as against any other defendant, could be reduced to judgment and enforced by execution, Ibid; Bain v. State, 8649. Jurisdiction to hear claim against state wherein plaintiff demands return of bonds alleged to have been exchanged for other bonds in 1862, is exclusively in supreme court: Martin v. Worth, 91-45-as is also jurisdiction to pass upon validity of coupons as claims against state, Horne v. The State, 82-382.