v. Mock, 108-601; Stokes v. Taylor, 104-394; Moore v. Edmiston, 70-517. Equities must be set up in the pleadings: Moore v. Cameron, 93-51; Lumber Co. v. Wallace, 93-22; Stamps v. Cooley, 91-316; Ledbetter v. Quick, 90-276; Rawlings v. Hunt, 90-270; Adams v. Hayes, 120-383. New system of pleading looks to the merits: Halstead v. Mullen, 93-252. Practice under Revised Code still remains except where in conflict herewith: Boyleston Ins. Co. v. Davis, 74-78; London v. Bear, 84-266; Morisey v. Swinson, 104-555; Simms v. Goettle, 82-271; but see if this doctrine is not destroyed by section 5453.

Cases citing but not construing section: Kiff v. Weaver, 94-278; Sneeden v. Harris, 109-358.

355. Parties known as plaintiff and defendant. In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

Code, s. 134; C. C. P., s. 13. It is irregular to be plaintiff and defendant in the same action: Medlin v. Simpson, 144-397.

356. How party may appear. A party may appear in actions or proceedings in which he is concerned either in person or by attor

ney.

Code, s. 109; C. C. P., s. 423. The test for determining the character of an appearance is the relief asked: Woodard v. Milling Co., 142-100; Scott v. Life Asso. 137-518. What amounts to a general appearance, see Woodard v. Milling Co., 142-100; Scott v. Life Asso. 137-515; Allen-Fleming Co. v. Rwy., 145-; General appearance cures all defects in service of process: Roberts v. Allman, 106-391; Lemly v. Ellis, 143-200; Wheeler v. Cobb, 7521; Penniman v. Daniel, 95-341; Hatcher v. Faison, 142-364; see also sections 429, 447. What amounts to special appearance, see Woodard v. Milling Co., 142-100; Scott v. Life Asso. 137-515. Special appearance can only be made to dismiss an action or move to set aside judgment for lack of jurisdiction: Scott v. Life Asso. 137-515; Clark v. Mnfg. Co., 110-111— and can not be entered to take an appeal, Ibid; also Allen-Fleming Co. v. Rwy., 145-; Houston v. Lumber Co., 136-328. When special appearance made to move to dismiss action, and motion overruled, defendant should except and go ahead on the merits: Graham v. O'Bryan, 120-463; Farris v. R. R., 115-600; Guilford County v. Georgia Co., 109-310. Where counsel appears specially the entry should state the special purpose, but a failure to state it from inadvertence is not a waiver of client's right: Suiter v. Brittle, 90-19. As to the doctrine of appearance by representation, see Card v. Finch, 142-140; Springs v. Scott, 132-548.

357. Feigned issues abolished. Feigned issues are abolished, and instead thereof, in the cases where the power formerly existed to order a feigned issue, or when a question of fact not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made by the judge, stating distinctly and plainly the question of

fact to be tried; and such order shall be the only authority necessary for a trial.

Code, s. 135; C. C. P., s. 15. Feigned issues in ejectment abolished: Harkey v. Houston, 65-137—and in actions for seduction, Hood v. Sudderth, 111-215. Court should dismiss action upon a feigned issue ex mero motu: Blake v. Askew, 76-325.

358. Jurisdiction of clerk on procedure. The clerk of the superior court shall have jurisdiction to hear and decide all questions of practice and procedure in this court, and all other matters whereof jurisdiction is given to the superior court, unless the judge of said court, or the court at regular term thereof, be expressly referrred to.

Code, s. 251; C. C. P., s. 108. See section 352. Clerk has no equitable jurisdiction, except when specially conferred by statute: Vance v. Vance, 118-864; Bragg v. Lyon, 93-151. Exercise of judicial powers by clerk is exercise of them by court, acting through clerk: Brittain v. Mull, 91-498. Cases merely citing section: Turner v. Holden, 109-186; Cushing v. Styron, 104-339; Click v. R. R., 98-392; Maxwell v. Blair, 95-317; Loftin v. Rouse, 94-508; Jones v. Desern, 94-35; Johnson v. Judd, 63-498; McAden v. Banister, 63-481; McAdoo v. Benbow, 63-462.

III.

LIMITATIONS, GENERAL PROVISIONS.

359. When action commenced. An action is commenced as to each defendant when the summons is issued against him.

Code, s. 161; C. C. P., s. 40. Requisites of a valid summons: Redmond v. Mullenax, 113-505. Rebuttable presumption that summons was issued on the date it bears: Houston v. Thornton, 122-365; Currie v. Hawkins, 118-593. Fatal effect of a break in the chain of alias summonses: Rufty v. Claywell, 93-306; Etheridge v. Woodley, 83-11; Koonce v. Pelletier, 115233. A summons is issued within the meaning of this section when it is delivered to the Sheriff: Smith v. Lumber Co., 142-26; Webster v. Sharpe, 116-466-when put out from clerk's office under his direction to be sent to officer for service, Houston v. Thornton, 122-365.

Summons is not issued within the meaning of this section when it remains in the office of the clerk filled up and signed but held for a prosecution bond: Webster v. Sharpe, 116-466—when signed and issued but not docketed on summons docket, nor returned served; nor followed by alias, Neal v. Nelson, 117-393. When defendant out of state, action commenced by affidavit for publication: Grocery Co. v. Bag Co., 142-174; Best v. Mortgage Co., 128-351. Cases merely citing section: Morris v. House, 125-569; Farthing v. Carrington, 116-331.

360. Run from cause of action accrued; objection taken by answer. Civil actions can only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where in special cases a different limitation is pre

scribed by statute. But the objection that the action was not commenced within the time limited can only be taken by answer.

Code, s. 138; C. C. P., s. 17.

CAUSE OF ACTION ACCRUES. In cases of fraud or mistake, from its discovery or when it should have been discovered: Tuttle v. Tuttle, 146-; Modlin v. Railroad and Lumber Co., 145-218; Peacock v. Barnes, 142-215; Alpha Mills v. Engine Co., 116-797—in cases of failure of clerk to index judgment, Shackleford v. Staton, 117-73-of subjecting stockholders of bank to liability, Long v. Bank, 90-405-of negligence, Mast v. Sapp, 140-533-of sureties liable on administrator's bond, Gill v. Cooper, 111-311-of sureties generally, Leak v. Covington 99-559-of breach of covenant of seizin, Shankle v. Ingram, 133-254-of breach of covenant of warranty, Shankle v. Ingram 133-254; Wiggins v. Pender, 132-628; Griffin v. Thomas, 128-310; Mizzell v. Ruffin, 118-69-of damages for construction of railroad, Lassiter v. R. R., 126-509; Ridley v. R. R. 118-996; Hocutt v. R. R., 124219 of sale by sheriff of exempt property, Hobbs v. Barefoot, 104-224of failure of consideration, to recover purchase money Barden v. Stickney, 132-416 of trespass on land, Spruill v. Mfg. Co., 130-42-of ejectment, Ladd v. Byrd, 113-466-of ouster of cestui que trust, Webb v. Borden, 145188;-of action against nonresident, Green v. Ins. Co., 139-309.

In favor of debtor on mutual account: Stokes v. Taylor, 104-394—of executor against creditor of testator, Hinton v. Pritchard, 126-8; Lynn v. Lowe, 88-478; Miller v. Shoaf, 110-319; Love v. Ingram, 104-600-of mortgagor or trustor, Scott v. Lumber Co., 144-44; Bernhardt v. Hagamon, 144-526; Triplett v. Foster, 115-335; Woody v. Jones, 113-253; Moore v. Ray, 108-252-of guardian against ward, Dunn v. Beaman, 126-766; Kennedy v. Cromwell, 108-2-of judgment debtor where judgment taken on rehearing before magistrate, Salmon v. McLean, 116-209—of tenant in common, Tharpe v. Holcombe, 126-365-of debtor to one under disability, Eller v. Church, 121-269; Dunn v. Dunn, 137-533-of trustee of implied trust, Dunn v. Dunn, 137-533; of trustee of express trust, Dixon v. Dixon, 145-; Davis v. Boyden, 123-283; Wright v. Cain, 93-296; Patterson v. Lilly, 90-87; Bd. of Ed. v. Bd. of Ed., 107-366-of county as against holders of bond coupons, Threadgill v. Comrs., 116-616-of vendee in bond for title, Worth v. Wrenn, 144-656;-of sureties on bond of first administrator against administrator d. b. n., Burgwyn v. Daniel, 115-115-of grantee of junior grant, Johnson v. Lumber Co., 144-717; McAden v. Palmer, 140-258 -of an employer of labor, Robertson v. Pickerell, 77-302-of a partner, Loan Asso. v. Ferrell, 114-301; Murray v. Penny, 108-324; Reucher v. Anderson, 95-208-of one who is guilty of conversion, Ritch v. Oates, 122-634; University v. Bank, 96-280; Bryant v. Peebles, 92-176-of obligor in bond, Ervin v. Brooks, 111-358-of one claiming under life tenant as against remainderman, Norcum v. Savage, 140-472; Joyner v. Futrell, 136-301; Griffin v. Thomas, 128-310; Wooten v. R. R., 128-119; Hunnicutt v. Brooks, 116788-of grantee of the legal title from trustee as against cestui que trust; Cherry v. Power Co., 142-404-of person ousting cestui que trust, Webb v. Borden, 145-188;-of person who received money on executory contract where contract not executed, Tomlinson v. Bennett, 145-279.

WHEN STATUTE BEGINS TO RUN NOTHING STOPS IT. Frederick

v. Williams, 103-189; Chancy v. Powell, 103-160; Mebane v. Patrick, 4627; Barden v. Stickney, 132-416; Copeland v. Collins, 122-619; Neal v. Nelson, 117-393; Grady v. Wilson, 115-344; Koonce v. Pelletier, 115-234; Hughes v. Boone, 114-54; Helm Co. v. Griffin, 112-356; Asbury v. Fair, 111-251.

NECESSITY OF PLEADING THE STATUTE. Statute of presumptions does not have to be pleaded: Ins. Co. v. Edwards, 124-116; Crawford v. McLellan, 87-169-but statutes of limitations are not available unless pleaded: Boone v. Peebles, 126-824; Ins. Co. v. Edwards, 124-116; Bank v. Loughran, 122-668; Albertson v. Terry, 109-8; Guthrie v. Bacon, 107337; Green v. R. R., 73-524-except in possessory actions where title is to be shown: Whitaker v. Jenkins, 138-476; Ins. Co. v. Edwards, 124-117; Freeman v. Sprague, 82-366; Asbury v. Fair, 111-251; Shelton v. Wilson, 131-501. Defendant will not be allowed to plead the statute where the delay in suing was caused by his telling plaintiff if he would not sue he would not plead it: Barcroft v. Roberts, 91-363; Daniel v. Commrs., 74494.

LIMITATION BARRING ACTION, HOW PLEADED. Can only be done by answer: Wilmington v. McDonald, 133-548; King v. Powell, 12710; Ins. Co. v. Edwards, 124-116; Bacon v. Berry, 85-124; Long v. Bank, 81-41-not by demurrer: Oldham v. Rieger, 145-; King v. Powell, 127-10; Bacon v. Berry, 85-124; Daniel v. Commrs. 74-494-nor by motion to dismiss: Oldham v. Rieger, 145-254; Lynn v. Lowe, 88-483; nor by motion to vacate judgment: Williams v. Mullis, 87-159-and must set up the facts, not just plead a conclusion of law: Duckworth v. Duckworth, 144-621; Pipes v. Lumber Co., 132-612; Murray v. Barden, 132-136; Heyer v. Rivenbark, 128-270; Turner v. Shuffler, 108-642; Pope v. Andrews, 90-401. Other cases where held insufficiently pleaded: Murray v. Barden, 132-136; Humble v. Mebane, 89-410.

STATUTE DOES NOT RUN. Against an express trust until when: Owens v. Williams, 130-165; Patterson v. Lilly, 90-82; Davis v. Boyden, 123-283; Bd. of Education v. Bd. of Education, 107-366-against subscriptions of stock payable as called for, Cooper v. Security Co., 127-219— against municipality holding land in trust, when: Turner v. Commrs., 127153-against a charge upon land for owelty of partition: In re Ausborn, 122-42; Walker ex parte, 107-340; Dobbins v. Rex, 106-444; Sutton v. Edwards, 40-425-against a cestui que trust in possession: Norton v. McDevit, 122-755; Stith v. McKee, 87-389.

361. Deemed pleaded by insane party. On the trial of any action or special proceeding to which an insane person has been made a party, such insane person shall be deemed to have pleaded specially any defense, and shall on trial have the benefit of any defense, whether pleaded or not, that might have been made for him by his guardian or attorney under the provisions of this chapter. And the court, at any time before the action or proceeding is finally disposed of, may order the bringing in, by proper notice, of one or more of the near relatives or friends of such insane person, and may

make such other order as it may deem necessary for his proper defense.

1889, c. 89, s. 2. Insane person deemed to have pleaded the statute of limitations: Hospital v. Fountain, 129-90; In re Hybart, 119-366.

362. Disabilities. If a person entitled to commence an action, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of action accrued, either,

1. Within the age of twenty-one years; or

Self v. Shugart, 135-185; Lafferty v. Young, 125-296; Amis v. Stephens, 111-174; Gudger v. R. R., 106-481; Frederick v. Williams, 103-189; Chancey v. Powell, 103-159; Campbell v. Crater, 95-162. Infant having guardian nevertheless protected: Cross v. Craven, 120-331; see Norman v. Walker, 101-24.

2. Insane; or

Outland v. Outland, 118-138; Asbury v. Fair, 111-251; Warlick v. Plonk, 103-81; Ellington v. Ellington, 103-55. Insanity once shown to exist, the presumption is that it continues, but this is rebuttable: Beard v. R. R., 143

137.

3. Imprisoned on a criminal charge, or in execution under sentence for a criminal offense:

Then such person may bring his action within the times herein limited, after the disability shall be removed, except in an action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents and services out of the same, when he shall commence his action, or make his entry, within three years next after the removal of the disability, and at no time thereafter.

Code, ss. 148, 163; C. C. P., ss. 27, 142; 1899, c. 78.

For disabilities in an action to recover land sold for taxes, see section 2999. Adverse possession relates only to the true title and the exemptions in the statute as to those under disability can apply only to one having by virtue of his title a right of entry or of action: Berry v. Lumber Co., 141-386.

363. Disability of marriage. In any action in which the defense of adverse possession is relied upon, the time computed as constituting such adverse possession shall not include any possession had against a feme covert during coverture prior to February thirteenth. one thousand eight hundred and ninety-nine.

1899, c. 78, ss. 2, 3. Adverse possession prior to February 13, 1899, as to married woman: Berry v. Lmbr. Co., 141-386; Norcum v. Savage, 140472; Gaskins v. Allen, 137-426; Earnhardt v. Clement, 137-91; Fowler v. McLaughlin, 131-209.

364. Cumulative disabilities. When two or more disabilities shall co-exist at the time the right of action accrues, or when one