¿285.-Referees' fees. The fees of referees shall be three dollars to each, for every day spent in the business of the reference; but the parties may agree in writing upon any other rate of compensation.. Wall o. Covington, 76-150.a 286.-Costs against infant plaintiff. When costs are adjudged against an infant plaintiff, the guardian by whom he appeared in the action, shall be responsible therefor, and payment thereof may be enforced by attachment. 287.-Costs in action by, or against, an executor or administrator, trustee of an express trust, or a person expressly authorized by statute to sue. 1. In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute to sue, costs shall be recovered, as in an action by or against a person prosecuting or defending in his own right; but such costs shall be chargeable only upon, or collected (out) of the estate, fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith, in such action or defence. But this section shall not be construed to allow costs against executors or administrators where they are now exempted therefrom by law. Lewis v. Johnson, 67-38. 2. And whenever any claim against a deceased person shall be referred, the prevailing party shall be entitled to recover the fees of referees and witnesses, and other necessary disbursements, to be taxed according to law. Wall . Covington, 76-150. See §§ 276, 277, ante, and § 343, post. a It will be observed that, in this case, the Supreme Court construe several sections of this title as if it were still in force. The action appears to have been tried in 1876. It may be that the services were rendered before the repeal of the law in 1871, though it is hardly probable. The court seem to have overlooked the fact that the entire title was repealed, or at least make no re ference to that fact, though it has been alluded to in another case. This fact shows the prime importance of these provisions and the very great necessity for their substantial re-enactment. 288.-Costs in civil actions by the State. In all civil actions prosecuted in the name of the State, by an officer duly authorized for that purpose, the State shall be liable for costs in the same cases, and to the same extent, as private parties. If a private person be joined with the State as plaintiff, he shall be liable, in the first instance for the defendant's costs, which shall not be recov ered of the State, till after execution issued therefor against such private party and returned unsatisfied. State v. Richmond & Danville R. R. Co., 74-287. 289.- In an action prosecuted in the name of the State, for the recovery of money or property, or to establish a right or claim, for the benefit of any county, city, town, village, corporation or person, costs awarded against the plaintiff shall be a charge against the party for whose benefit the action was prosecuted, and not against the State. 1289.a-In appeals from Circuit Court of the United States, by the State. [Acts of 1871-'72, Chapter 26, Section 1.] In all cases to which the State of North Carolina is a party, which may be carried from the courts of this State, or from the Circuit Court of the United States, by appeal or writ of error, to the Supreme Court of the United States, and in which the State shall be adjudged to pay the costs in said last mentioned court, it shall be the duty of the Attorney-General, to certify to the Governor, the amount of any such bill of costs, who shall thereupon issue a warrant for the same, directed to the Public Treasurer, who shall pay the same, out of any moneys in the treasury, not otherwise appropriated. {290.-Costs against assignee after action brought, of cause of action. In actions in which the cause of action shall, by assignment after the commencement of the action, or in any other manner, become the property of a person not a party to the action, such person shall be liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by attachment. 291.-Costs on a settlement. Upon the settlement, before judgment of any action mentioned in section two hundred and seventy-six (§ 276), no greater sum shall be demanded from the defendant, as costs, than at the rates prescribed by that section. {292.-Costs on appeals. On an appeal from a Justice of the Peace to a Superior Court, or from a Superior Court or a Judge thereof, to the Supreme Court, if the appellant shall recover judgment in the appellate court, he shall recover the costs of the appellate court, and those he ought to have recovered below, had the judgment of that court been correct, and also, restitution of any costs of the court appealed from, which he shall have paid under the erroneous judgment of such court. If, in any court of appeal, there shall be judgment for a new trial, or for a new jury, or if the judgment appealed from be not wholly reversed, but partly affirmed and partly disaffirmed, the costs shall be in the discretion of the appellate court. {293.-Costs in existing actions. Costs in actions brought before the ratification of this act, shall be according to existing laws. 294.-Costs in special proceedings. The costs in special proceedings shall be as herein allowed in civil actions, unless where otherwise specially provided. Noble v. Koonce, 76-405. 295.-On appeals from justices of the peace. After an appeal from the judgment of a justice of the peace shall be filed with the Clerk of a Superior Court, the costs in all subsequent stages, shall be as herein provided, for actions originally brought to the Superior Court. Upon an appeal from a justice's judgment, the court has discretion to require the plaintiff to give bond for costs or not. R. & D. R. R. Co., 72-62. 32 Smith v. 792670 TITLE XIII. OF APPEALS IN CIVIL ACTIONS. SEC. 296. Writs of error abolished, and SEC. 305. If judgment be to deliver appeals substituted. 297. Orders made out of court how vacated or modified. 298. Who may appeal. 299. Appeal; in what cases it may 300. When taken; execution not 301. Appeal to be entered by 803.a Appeal in forma pauperis. document or personal prop erty, it must be deposited or security given. 306. If to execute conveyance, it must be executed and deposited. 307. Security where judgment is to deliver real property, or for a sale of mortgaged premises. 309. 308. Stay of proceedings upon se- 311. Perishable property may be 312. Undertaking must be filed. Į 296.-Writs of error abolished, and appeals substituted. Writs of error in civil actions, as they have heretofore existed, are abolished; and the only mode of reviewing a judgment or order in a civil action shall be that prescribed by this title. The provisions of this title shall apply to all actions tried after the Fall Terms of the Superior Courts, held next after the ratification of this act. The existing laws shall govern trials and appeals in said courts at said Fall Terms. { 297.-Orders made out of court, how vacated or modified. An order, made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made. Construing this section with section 195: Held, that where a judge, acting on the complaint without notice to the defendant, grants an injunction, he may afterwards, acting on the complaint alone, without notice to the plaintiff, modify or vacate the injunction, as irregularly or improperly granted. But if he goes out of the complaint and takes into consideration the answer, and the affidavits filed for the defendants, the plaintiff is then entitled to notice, and may meet the affidavits by counter-affidavits. Sledge v. Blum, 63-374. A plaintiff can appeal from a decision of a judge at chambers refusing an injunction. Bank of Charlotte v. Jenkins, 64-719. An order for a party to appear and show cause why a receiver should not be appointed, involves no matter of law, nor does it affect any substantial right, and is consequently not applicable. Gray v. Gaither, 71-55. 298.-Who may appeal. Any party aggrieved may appeal in the cases prescribed in this title; this section shall apply to existing suits. A defendant who has confessed judgment has no right of appeal from such judgment; but where an appeal was allowed in such case by a justice of the peace, and the plaintiff failed to move to dismiss the appeal in the Superior Court, the Supreme Court may pass by the irregularities and, regarding the proceedings as in the nature of a writ of false judgment, consider the errors assigned upon the record. Rush v. Halcyon Steamboat Co., 67–47. In an action for the possession of personal property, under section 176, C. C. P., a third party claiming such property, loses his right to be made a party to the suit, after a lapse of three years from the filing of his affidavits and his motion to allow him to interplead. Quere? Whether such claimant can appeal from an order of the presiding judge, refusing his application to be made a party. Clemmons v. Hampton, 70-534. When, in an action to recover real estate, both the plaintiff and a third party claim to be the landlord of the defendant, such third person has a right to be made a party to the action and upon the refusal of his motion on affidavit, to be let in, has a right to appeal. Rollins . Rollins, 76-264. {299.-Appeal—in what cases it may be taken. An appeal may be taken from every judicial order or determination of a Judge of a Superior Court, upon or involving a matter of law or legal inference, whether made in or out of term; which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial. Matter of law or legal inference. Jurisdiction of Supreme Court in matters of fact.-It cannot review an order striking out a judgment depending, in part, upon the question whether there had been a verdict. Simonton v. Chipley, 64-152, Where the judge below held that there had been an agreement between counsel that several suits should abide the event of a particular one: Held, that such finding was not subject to review. roll v. Haywood, 64-481. Car |