proceeding shall be had as in other cases of similar process not executed.

R.

Sec. 205. Sheriff returning that defendant is not to be found, plaintiff may issue alias or pluries summons. C., c. 31, s. 52. 1777, c. 115, ss. 23, 71.

When the sheriff shall return in a civil action or special proceeding that the defendant is not to be found in his county, the plaintiff may sue out an alias or pluries summons, returnable in the same manner as original process.

Discontinuance.-A discontinuance results from the voluntary act of the plaintiff in not regularly issuing the successive connecting processes necessary. Penniman v. Daniel, 93-332.

Sec. 206. Filing of complaint. 1868-'9, c. 76, s. 3. 1870-'1, c. 42, s. 1.

The plaintiff shall file his complaint in the clerk's office on or before the third day of the term to which the action is brought, otherwise the suit may, on motion, be dismissed at the cost of the plaintiff.

Time of filing complaint extended. The courts have an inherent discretionary power to amend pleadings or to allow them to be filed at any time, unless prohibited by statute, or unless vested rights are interfered with. Gilchrist v. Kitchen, 86-20; Brendle v. Heron, 68-496.

Semble, that when permission is given the last day of the term to file an amended complaint, a motion to strike out the judgment, taken for want of an answer at that term, should be granted. Ellington v. Wicker, 87-14.

Entry of time to file pleadings."-An entry of time to demur or answer does not extend the time to the trial term. Boddie v. Woodard, 83-2.

Complaint filed after judge has left.-A pleading placed on the files of the court after the judge has left for the term, is not filed in contemplation of law. Foley v. Blank, 92-476.

Complaint filed after return term.-Where complaint is filed after the return term, it stands on file during the first three days of the next succeeding term, and judgment by default for want of answer at that term may be rendered. Roberts v. Alman, 106–391.

Dismissal of complaint.-It is error to dismiss a complaint because the defendants are summoned to answer A and B, and the complaint is in the name of A, B and others. Wilson v. Moore, 82-558.

Nonsuit taken by plaintiffs.-Entry of nonsuit, and "judgment against plaintiffs for costs" is not a retraxit. Wharton v. Currituck, 82-11.

A plaintiff who has gotten possession of property under claim and delivery, cannot take a nonsuit and cut off the defendant's pleas. Manix v. Howard, 82-125.

When a counterclaim is set up by the defendant, the plaintiff cannot take a nonsuit. Purnell v. Vaughan, 80-46.

This provision does not prevent the plaintiff from taking a nonsuit at his own election wherever only a judgment for costs can be rendered against him; when the answer would justify an affirmative relief to the defendant he cannot. McKesson v. Mendenhall, 64-502.

Defendant's motion to nonsuit the plaintiff.—A motion for nonsuit cannot be made a substitute for demurrer. If a complaint does not show a cause of action the defendant should demur. He has only a right to move for nonsuit under the provisions of this section. Andrews v. Pritchett, 66-387.

Sec. 207. Answer of defendant. 1870-'1, c. 42, s. 4.

The defendant shall appear and demur, or answer, at the same term to which the summons shall be returnable, otherwise the plaintiff may have judgment by default.

Refusal to allow answer to be filed at trial term.-The refusal of the judge to allow an answer to be filed at the trial term is a matter of discretion and not reviewable. Reese v. Jones, 84-597; Boddie v. Woodard, 83-2.

Sham answer.-A sham answer is false in fact. An irrelevant or frivolous one has no substantial relation to the controversy, and presents no defence to the action, though its contents may be true. When such are filed they may be stricken out and the plaintiff have judgment by default. Howell v. Ferguson, 87-113. See 247, post.

Sec. 208. Reply to answer, issue to stand for trial. 1870-'1, c. 42, s. 5.

The plaintiff shall join issue on the demurrer or reply to the answer at the same term to which such demurrer or answer may be filed; and the issues, whether of law or of fact, shall stand for trial at the next term succeeding the term at which the pleadings are completed.

Time to plead.-An entry on docket "complaint filed, time to demur or answer," does not extend the time for pleading to the trial term, and the refusal of the presiding judge, in his discretion, to allow pleadings to be filed at that term, is not appealable. Boddie v. Woodard, 83-2.

Trial of issues postponed by consent.-Parties may, by consent, postpone a trial of issues of law, to vacation. Harrell v. Peebles, 79-26.

Sec. 209. Before issuing the summons clerk to take undertaking, etc. R, C., c. 31, 8, 40, C. C. P., s. 71. 1868-'9, c. 277, s. 13,

Before issuing the summons, the clerk shall require of the plaintiff, either to give an undertaking with sufficient surety in the sum of two hundred dollars, with the condi

tion that the same shall be void if the plaintiff shall pay the defendant all such costs as the defendant shall recover of him in the action; or to deposit a like sum with him as a security to the defendant for such costs; and in case of such deposit he shall give to the plaintiff and to the defendant a certificate to that effect; or to file with him a written authority from some judge or clerk of a superior court, authorizing the plaintiff to sue as a pauper.

Surety on prosecution bond.-A surety on a prosecution bond is not liable to his principal for costs, nor to anyone for any part of the plaintiff's costs. Hallman v. Dellinger, 84-1; Swain v. McCullock, 75-495

Sufficient undertaking. -Where an undertaking under seal to secure the defendant's costs, was written on the back of the summons, but did not specify the name of either the plaintiff or defendant, or the surety, it was held to be sufficient. The seal is surplusage. Holly v. Perry, 94-30.

Too late to object.-An objection that one who has been permitted to become a party plaintiff upon filing a prosecution bond, has not complied with the condition, comes too late after the amendment has been made and supplemental complaint filed. The execution of such bond is an incidental, and not an essential, condition of the order. Hughes v. Hodges, 94-56.

Judgment for costs on failure to file undertaking.-Where a portion of the plaintiffs have been compelled to withdraw from the action upon their refusal to file a prosecution bond, it is not erroneous to enter judgment against them for costs. Lafoon v. Shearin, 95–391.

Duty of clerk. Where a summons which is to be personally served, is ordered to be issued by the court, it is not the duty of the clerk to issue it until it is demanded by the plaintiff; but when service is ordered to be made by publication, after the expenses are paid by the plaintiff, it is the duty of the clerk to obey the order, and make the publication. Penniman v. Daniel, 93-332.

Fees of officers payable in advance.-Officers of the courts are not compelled to perform their duties, unless the fees prescribed by law are paid or tendered them, but they must demand them before laches can be imputed to litigants. West v. Reynolds, 94-333.

A lien exists in favor of the officers of the court when they do not require the plaintiff, as they have a right to do, to pay their fees in advance. In such instances the officers (sheriff and clerk of the court) have the right of retainer, to the extent of the costs, out of the amount collected, and neither can be compelled to look exclusively to the plaintiff's prosecution bond, nor prevented from exhausting their remedy against the debtor, by reason of any receipt or compromise between the judgment creditor and debtor. Long v. Walker, 105-90; Clerk's Office v. Bank, 66-214.

Actions in the nature of a bill of review. -This section applies to actions in the nature of a bill of review. Matthews v. Joyce, 85-258.

Former practice as to dismissing for want of a prosecution bond.-After the plaintiff has been allowed to go on and prepare his case for trial, the

court will not, on motion by defendant, dismiss peremptorily for want of a prosecution bond, but will permit the plaintiff then to prepare and file such a bond. Brittain v. Howell, 19-107; Russell v. Saunders, 48432.

Sec. 210. Leave to sue as a pauper, how obtained. C. C. P., 8. 72. 1868-'9, c. 96, s. 1.

Any judge or clerk of the superior court may authorize any person to sue as a pauper in their respective courts, when he shall prove, by one or more witnesses, that he has a good cause of action, and shall make affidavit that he is unable to comply with the last section.

Notice.-Notice of application to adverse party is not required. Deal v. Palmer, 68-215.

Non-resident.—A non-resident may sue as a pauper in the courts of this state. Porter v. Jones, 68-320.

Affidavit of applicant competent.-The applicant may prove his cause of action by his own oath. Sumner v. Candler, 74-265.

Affidavit need not negative.—In an application to prosecute an action in forma pauperis, it is not necessary the affidavit should state that the applicant did not own real estate which he might mortgage to secure costs. Maggett v. Roberts, 108-174.

Certificate of counsel. -The certificate of counsel is sufficient proof of "a good cause of action." Miazza v. Calloway, 74-31.

Either the judge or clerk may grant leave.-Either the judge or the clerk of a superior court may grant leave to sue as a pauper therein; the clerk may grant such leave in the probate court, and a justice of the peace in his own court. Rowark v. Gaston, 67-291.

Assignment of cause of action pendente lite.-If suit is brought in forma pauperis, and the plaintiff assigns his interest in the subject-matter of the action, the court, upon notice of that fact, will dismiss the action unless security is given for costs. Davis v. Higgins, 91-382.

Guardian can sue in forma pauperis.-An adult or infant, suing by his guardian, can obtain leave to sue in forma pauperis by complying with the provisions of this section. Brendle v. Heron, 68–496.

Objections to affidavit waived.—Where suit is brought in forma pauperis,

and the answer is filed and the case continued on docket from term to term for three years, the action cannot be dismissed for insufficiency of the affidavit, without notice of the defendant's motion given to the plaintiff. Semble, that the objection has been waived by the defendant. Corn v. Stepp, 84-599.

Sec. 211. Court may assign counsel. 1868-'9, c. 96, s. 2. The court to which such summons is made returnable may, at its discretion, assign to the person suing as a pauper, learned counsel, who shall prosecute his action.

Sec. 212. No costs or fees recoverable. 1868-'9, c. 96, s. 3. Whenever any person shall sue as a pauper, no officer shall require of him any fee, and he shall recover no costs.

If successful, recovers no costs.-Wherever one sues in forma pauperis, no officer shall require of him any fees, and, if successful in his suit, he shall recover no costs. Booshee v. Surles, 85-90; Hall v. Younts, 87-285. One suing in forma pauperis is not entitled to recover the costs of his witnesses. Draper v. Buxton, 90-182.

Witnesses -summoned by the pauper must be paid by him.-Witnesses summoned by one suing in forma pauperis are entitled to their costs for attendance. Officers of the court only are included in the order authorized by the act. Morris v. Rippy, 49-533; Bailey v. Brown, 105–127.

Sec. 213. What summons to contain.

1876-7, c. 241, s. 1.

C. C. P., s. 74.

There shall be inserted in the summons a notice, in substance, as follows: That if the defendant shall fail to answer the complaint within the time specified, the plaintiff will apply to the court for the relief demanded in the complaint.

Amendment of summons.-Process may be amended in many cases, but not where third persons have acquired rights which may be prejudiced thereby. Bank of Cape Fear v. Williamson, 24-147; Smith v. Low, 24-457; Phillips v. Holland, 78-31.

Irregular process may be amended, but is no protection to the plaintiff or officer for acts done under it before amendment. Woody v. Jordan, 69-189.

Summons irregular but not void.—Summons returnable at a day specified, before the clerk, since the act of 1868-'69, ch. 76, is not void, but merely irregular. Woody v. Jordan, 69-189.

Sec. 214. Service of summons. 1876-7, c. 241, s. 2.

The summons shall be served in all cases, except as hereinafter provided, by the sheriff or other officer reading the same to the party or parties named as defendants, and such reading shall be a legal and sufficient service.

Appearance in the action.-An appearance in an action dispenses with necessity of process. Wheeler v. Cobb, 75-21; State v. Jones, 88-683; Heilig v. Stokes, 63-612; Moore v. Railroad 67-209; Middleton v. Duffy, 73-72; Penniman v. Daniel, 95-341. Contra, Etheridge v. Woodley, 83-11.

An irregularity in serving a summons is waived by the defendant's answering, though he is an infant. Turner v. Douglas, 72-127.

An appearance by counsel, even without authority, is regular upon its face, and will usually bind the party for whom the appearance was made. England v. Garner, 90-197.

Where a party assumed the defence of an action as administrator, the regularity of his admission as a party in place of his intestate is suffi