1683. Fence built around territory. The stock law authorized by this chapter shall not be enforced until a fence shall have been erected around any territory proposed to be enclosed, with gates on all the public roads passing into and going out of said territory: Provided, all streams which are or may be declared to be lawful fences shall be sufficient boundaries, in lieu of fences: Provided further, no fence shall be erected along the boundary lines of any county, township or district where a stock law prevails.

Code, s. 2823.

1684. Lawful fence in stock law territory. In any county in the state in which or in any portion of which the stock law is now in force or may hereafter be adopted, the county commissioners of said. county in their discretion may declare any water-course, mountain, mountain ranges or parts of same, and also other natural and sufficient obstruction along the line of said stock law territory to be and constitute a sufficient stock law fence, and in that event such water-course, mountain, mountain range or part thereof and obstructions so declared by said commissioners shall be and constitute a lawful fence to all intents and purposes.

1901, c. 542.

For the pur

1685. Fence built by assessment on land owners. pose of building stock law fences, the board of commissioners of the county may levy and collect a special assessment upon all real property, taxable by the state and county, within the county, township or district which may adopt the stock law, but no such assessment shall be greater than one-fourth of one per centum on the value of said property.

Code, s. 2824. Excepted district can not be taxed for a common county fence: Harper v. Comrs., 133-106. Local assessments for local improvements are constitutional: Harper v. Comrs., 133-110; Comrs. v. R. R.. 133216; Hilliard v. Asheville, 118-845; Raleigh v. Peace, 110-32; Putt v. Comrs., 94-709; Busbee v. Comrs., 93-143; Comrs. v. Comrs., 92-180; Shuford v. Cmrs., 86-552; Cain v. Comrs., 86-8. This is not a tax within the constitutional prohibition as to uniformity: Harper v. Comrs., 133-110; Shuford v. Comrs., 86-552.

The provision of this section applies both to cases where adoption of stock law is dependent on popular vote and where it is made absolute by act of general assembly: Busbee v. Comrs., 93-143.

1686. Land condemned. If the owner of any land shall object to the building of any fence herein allowed, his land, not exceeding twenty feet in width, shall be condemned for the fenceway as land. is condemned for railroad purposes under the chapter entitled Railroads.

Code, s. 2825. No appeal lies from order appointing commissioners: Comrs. v. Cook, 86-18.

For punishment for allowing stock to run at large in stock law territory, see section 3319. Misapplication of funds by impounder, see section 3312. Punishment for releasing impounded stock, see sections 3411, 3310. Injuring fences and leaving gates open, see sections 3413, 3411. Persons living in stock law territory allowing stock to run at large outside said territory, see section 3322. Trespassing on lands along roadway, see section 3321. Wilful riding or driving on land, see section 3320.

CHAPTER 35a.

FLUME COMPANIES.

1686a. Common carriers; under control of corporation commission. All flume companies which shall avail themselves of the right of eminent domain under the provisions of subchapter five of chapter sixty-one shall become public carriers of freight, for the purposes to which they are adapted, and shall be under the control, direction and supervision of the corporation commission of North Carolina, in the same manner and for the same purposes as is by law provided for other public carriers of freight.

1907, c. 39, s. 4.

CHAPTER 36.

GAMING CONTRACTS.

1687. Gaming and betting contracts void. All wagers, bets or stakes made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty or unknown or contingent event whatever, shall be unlawful; and all contracts, judg ments, conveyances and assurances for and on account of any money or property, or thing in action, so wagered, bet or staked, or to repay, or to secure any money, or property, or thing in action, lent or advanced for the purpose of such wagering, betting, or staking as aforesaid shall be void.

Code, s. 2841, 2842; R. C., c. 51, ss. 1, 2; 1810, c. 796. This section construed liberally: Turner v. Peacock, 13-303. Gambling contracts are void: Banking Co. v. Tate, 122-313; Turner v. Peacock, 13-303.

One buying "futures" for another can not recover money lost: Garseed v. Sternberger, 135-501; Williams v. Carr, 80-294.

Note given in consideration of a bet on horse race in another state not enforceable here: Gooch v. Faucett, 122-270.

Renewal note to purchaser for value, without notice that original was for gaming debt, is valid: Calvert v. Williams, 64-168.

It is settled that money, or a horse, or a judgment won at cards and actually paid and delivered can not be recovered if the game was fairly played: Teague v. Perry, 64-41, and cases cited; Dunn v. Holloway, 16322; Hodges v. Pittman, 4-276-but can be recovered when game unfairly played, or fraud perpetrated, Webb v. Fulchire, 25-485.

Note given subsequently, in purchase of a magistrate's judgment which had been won at cards by payee from maker, is not void under statute against gaming: Teague v. Perry, 64-39.

Where stakeholder pays over money after being notified by loser not to do so, he is liable to loser: Wood v. Wood's Executor, 7-172-for as long as money is in hand of stakeholder it belongs to the one having the legal right, Forrest v. Hart, 7-458.

Where A won a justice's judgment from B at a game of cards unfairly played, and took from defendants in the judgment a bond payable to himself for the amount, upon which he brought suit, and to which the statute against gaming was pleaded: Held that he could not recover: Warden v. Plummer, 49-524.

Bond, the consideration of which is based upon a gaming contract is void in toto: Turner v. Peacock, 13-303; Bettis v. Reynolds, 34-344.

Ten pins is not a game of chance: State v. King, 113-631; State v. Gupton. 30-271.

"Shooting for beef'' where party pays for his privilege of shooting is not a game of chance: State v. DeBoy, 117-702.

For other annotations as to gambling contracts, see section 1689.

1688. Players and betters competent witnesses. No person shall be excused or incapacitated from confessing or testifying touching any money or property, or thing in action, so wagered, bet or staked, or lent for such purpose, by reason of his having won, played, bet or staked upon any game, lot or chance, casualty, or unknown or contingent event aforesaid; but the confession or testimony of such person shall not be used against him, in any criminal prosecution, on account of such betting, wagering or staking.

Code, s. 2843; R. C., c. 51, s. 3. See section 1637 and annotations thereunder.

1689. Certain contracts for future delivery void. Every contract, whether in writing or not, whereby any person shall agree to sell and deliver any cotton, Indian corn, wheat, rye, oats, tobacco, meal, lard, bacon, salt pork, salt fish, beef, cattle, sugar, coffee, stocks, bonds, and choses in action, at a place and at a time specified and agreed upon therein, to any other person whether the person to

whom such article is so agreed to be sold and delivered shall be a party to such contract or not when, in fact, and notwithstanding the terms expressed of such contract, it is not intended by the parties. thereto that the articles or things so agreed to be sold and delivered shall be actually delivered, or the value thereof paid, but it is intended and understood by them that money or other thing of value shall be paid to the one party by the other, or to a third party, the party to whom such payment of money or other thing of value. shall be made to depend, and the amount of such money or other thing of value so to be paid to depend upon whether the market price or value of the article so agreed to be sold and delivered is greater or less at the time and place so specified than the price stipulated to be paid and received for the articles so to be sold and delivered; and every contract commonly called "futures" as to the several articles and things hereinbefore specified, or any of them, by whatever other name called, and every contract as to the said several articles and things, or any of them, whereby the parties thereto contemplate and intend no real transaction as to the article or thing agreed to be delivered, but only the payment of a sum of money or other thing of value, such payment and the amount thereof and the person to whom the same is to be paid to depend on whether or not the market price or value is greater or less than the price so agreed to be paid for the said article or thing at the time and place specified in such contract, shall be uttterly null and void; and no action shall be maintained in any court to enfore any such contract, whether the same was made in or out of the state, or partly in and partly out of this state, and whether made by the parties thereto by themselves or by or through their agents, immediately or mediately; nor shall any party to any such contract, or any agent of any such party, directly or remotely connected with any such contract in any way whatever have or maintain any action or cause of action on account of any money or other thing of value paid or advanced or hypothecated by him or them in connection with or on account of such contract and agency. This section shall not be construed so as to apply to any person, firm, corporation or his or their agent engaged in the business of manufacturing or wholesale merchandising in the purchase. or sale of the necessary commodities required in the ordinary course of their business.

1889, c. 221, s. 1; 1905, c. 538, s. 7. For punishment for dealing in futures, see sections 3823-3826.

"Bucket shop" defined in State v. McGinnis, 138-724. One buying "'futures" for another can not recover for loss: Garseed v. Sternberger, 135-501; Williams v. Carr, 80-294. As to sufficiency of evidence of gambling contract see Cantwell v. Boykin, 127-64. Lender of money to pay losses in futures may recover, if not connected with the speculation: Ballard v. Green, 118-390; Williams v. Carr, 80-294. Statutes forbidding the

running of a bucket shop are clearly within police power of state: State v. McGinnis, 138-724.

Last sentence of section does not render section void under the fourteenth amendment to constitution of United States: Ibid.

If intention of the contract is not to make actual delivery of the articles bought or sold for future delivery it is within the prohibition of this section: State v. Clayton, 138-732; Rankin v. Mitchem, 141-277; State v. MeGinnis, 138-724; Williams v. Carr, 80-294.

If there is in the contract the right to require actual delivery and an intention to demand it if the exigencies of party's business shall require it, this is a legal contract, notwithstanding mere expectation that delivery will not be demanded: State v. Clayton, 138-732.

Gambling contracts are not protected by the interstate commerce clause of the federal constitution: Ibid.

Where contract not a gambling one on its face, proper to leave that question to jury: Rankin v. Mitchem, 141-277.

Contracts for actual future delivery are valid hereunder: State v. Clayton, 138-732; State v. McGinnis, 138-724.

As to intention in the enactment of the last sentence of section, seo Ibid.

1690. Procedure and evidence under preceding section. Proof that anything of value agreed to be sold and delivered was not actually delivered at the time of making the agreement to sell and deliver, and that one of the parties to such agreement deposited or secured, or agreed to deposit or secure, what are commonly called "margins," shall constitute prima facie evidence of a contract declared void by the preceding section.

1889, c. 221, s. 2; 1905, c. 538, ss. 5, 7. Where parties to a purchase or sale for future delivery upon "margin" will not need the commodity in ordinary course of business, this section makes the purchase in such case prima facie evidence that such contract is a wagering contract: State v. Clayton, 138-732; State v. McGinnis, 138-724.

1691. Invalidity pleaded shifts burden of proof; plea and proof not used in criminal action. When the defendant in any action pending in any court shall allege specifically in his answer that the cause of action alleged in the complaint is in fact founded upon a contract such as is by this chapter made void, and such answer shall be verified, then the burden shall be upon the plaintiff in such action to prove by the proper evidence, other than any written evidence. thereof, that the contract sued upon is a lawful one in its nature and purposes; and the defendant may likewise produce evidence to prove the contrary: Provided, nevertheless, that any allegation or statement of fact made in any pleading in any such action, or the evidence produced on the trial in any such action, shall not be evidence against the party making or producing the same in any criminal action against such party.

1889, c. 221, s. 2.