38. Reargument. The court will, of its own motion, direct a reargument before deciding any case, if in its judgment, it is desirable. 39. Agreement of counsel. The court will not recognize any agreement.of counsel in any case unless the same shall appear in the record, or in writing, filed in the cause in this court. 40. Entry of appearance. An attorney shall not be recognized as appearing in any case unless he be entered as counsel of record in the case. Upon his request, the clerk shall enter the name of such attorney, or he may enter it himself, thereby making him counsel of record for the party he may designate therein. Such appearance of counsel shall be deemed to be general in the case, unless a different appearance be indicated. Counsel of record are not permitted to withdraw from a case, except by leave of the court. CERTIORARI AND SUPERSEDEAS. 41. When applied for. Generally the writ of certiorari, as a substitute for an appeal, must be applied for at the term of this court to which the appeal ought to have been taken, or, if no appeal lay, then before or to the term of this court next after the judgment complained of was entered in the superior court. If the writ shall be applied for after that term, sufficient cause for the delay must be shown. 42. How applied for. The writs of certiorari and supersedeas shall be granted only upon petition specifying the grounds of application therefor, except when a diminution of the record shall be suggested, and it appears upon the face of the record that it is manifestly defective, in which case the writ of certiorari may be allowed, upon motion in writing. In all other cases, the adverse party may answer the petition. The petition and answer must be verified, and the application shall be heard upon the petition, answer, affidavit and such other evidence as may be pertinent. 43. Notice of. No such petition or motion in the application shall be heard unless the petitioner shall have given the adverse party ten days' notice, in writing, of the same; but the court may, for just cause shown, shorten the time for such notice. ADDITIONAL ISSUES. 44. If other issues necessary. If, pending the consideration of an ap Whenever, pending an appeal to this court, either party shall die, the proper representative in the personalty or realty of the deceased party, according to the nature of the case may voluntarily come in, and, on motion, be admitted to become parties to the action, and thereupon the appeal shall be heard and determined as in other causes, and, if such representatives shall not so voluntarily become parties, then the opposing party may suggest the death upon the record, and thereupon, on motion, obtain an order that, unless such representatives shall become parties within the first five days of the ensuing term, the party moving for such order shall be entitled to have the appeal dismissed; or, if the party moving shall be the appellant, he shall be entitled to have the appeal heard and determined according to the course of the court: Provided, such order shall be served upon the opposing party. 47. When appeal abates. When the death of a party is suggested, and the proper representatives of the deceased fail to appear by the fifth day of the term next succeeding such suggestion, and no action shall be taken by the opposing party within the time to compel their appearance, the appeal shall abate, unless otherwise ordered. OPINIONS. 48. When certified down. The clerk shall, on the first Monday in each month, transmit, by some safe hand, or by mail, to the clerks of the superior courts, certificates of the decisions of the supreme court, which shall have been on file ten days, in cases sent from said court. Revisal 1905. § 1549. But the court in its discretion may order an opinion certified down at an ear THE JUDGMENT DOCKET. 49. How kept. The judgment docket of this court shall contain an alphabetical index of the names of the parties in favor of whom and against whom any judgment for costs, or interlocutory or upon the merits is entered. On this docket the clerk of the court will enter a brief memorandum of every final judgment affecting the right to real property, and of every judgment requiring, in whole or in part, the payment of money-stating the names of the parties, the term at which such judgment was entered, its number on the docket of the court; and when it shall appear from the return on the execution, or from an order for an entry of satisfaction by this court, that the judgment has been satisfied, in whole or in part, the clerk, at the request of any one interested in such entry, and on the payment of the lawful fee, shall make a memorandum of such satisfaction, whether in whole or in part, and refer briefly to the evidence of it. EXECUTION. 50. Teste of executions. When an appeal shall be taken after the commencement of a term of this court, the judgment and teste of the execution shall have effect from the time of the filing of the appeal. 51. Issuing and return of. Executions issuing from this court may be directed to the proper officers of any county in the State. At the request of a party in whose favor execution is to be issued, it may be made returnable on any specified day after the commencement of the term of this court next ensuing its teste. In the absence of such request, the clerk shall, within thirty days after the certificate of opinion is sent down, issue such execution to the county from which the cause came, making it returnable on the first day of the next ensuing term. The execution may, when the party in whose favor judgment is rendered shall so direct, be made returnable to the term of the superior court of said county held next after the date of its issue, and thereafter successive executions will only be issued from said superior court, and, when satisfied, the fact shall be certified to this court, to the end that an entry to this effect be made here. Executions for the costs of this court, adjudged against the losing party to appeals, may be issued after the determination of the appeal, returnable to a subsequent day of the term; or they may be issued after the end of term, returnable, on a day named, at the next succeeding term of this court. The officer to whom said executions are prescribed by law for failure to make due and proper return thereof. PETITION TO REHEAR. 52. When filed. clerk's office at the same term, or during the A petition to rehear may be filed in the vacation succeeding the term of the court at which the judgment was rendered, or not later than the third Monday of the succeeding term. 53. What to contain. The petition must assign the alleged error of law complained of; or the matter overlooked; or the newly-discovered evidence; and allege that the judgment complained of has been performed or secured. Such petition shall be accompanied with the certificate of at least two members of the bar of this court, who have no interest in the subject-matter, and have never been of counsel for either party to the suit, and each of whom shall have been at least five years a member of the bar of this court; that they have carefully examined the case and the law bearing thereon and the authorities cited in the opinion; and they shall summarize succinctly in such certificate the points in which they deem the opinion erroneous. The petitioner shall endorse upon the petition, of which he shall file two copies, the names of the two justices, neither of whom dissented from the opinion, to whom the petition shall be sent by the clerk, and it shall not be docketed for rehearing unless both of said justices endorse thereon that it is a proper case to be reheard: Provided, however, that when there have been two dissenting justices, it shall be sufficient for the petitioner to file only one copy of the petition and designate only one justice, and his approval in such case shall be sufficient to order the petition docketed. The clerk shall endorse on the petition the date on which it was received, and it shall be delivered by him to the justice or justices designated by the petitioner. There shall be no oral argument before the justices or justice thus designated, before it is acted on by them, and if they order the petition docketed, there shall be no oral argument thereon before the court (unless the court of its own motion shall direct an oral argument), but it shall be submitted on the record at the former hearing, the printed petition to rehear, and a brief to be filed by the petitioner within ten days after the petition is ordered to be docketed, and a brief to be filed by the respondent within twenty days after such order to docket. Such briefs shall not be the briefs on the first hearing, but shall be new briefs directed to the errors assigned in the petition, and shall be printed. by the petitioner, the petition will be dismissed, and for default in either particular by the respondent the cause will be disposed of without such brief. sioner professes to act was made; the amount and character of the investment, and the security for the same, and his opinion as to the sufficiency of such security. In every subse the fund, and any change made in the amount or character of the investment, and every payment made to any person entitled thereto. 56. Report recorded. The petition may be ordered docketed forquent report he shall state the condition of a rehearing as to all points recited by the two certifying counsel (who cannot certify to errors not alleged in the petition), or it may be restricted to one or more of the points, thus certified as may be directed by the justices who grant the application. When a petition to rehear is ordered to be docketed, notice shall at once be given by the clerk to counsel on both sides. 54. Stay of execution. The reports required by the preceding paragraph shall be examined by the court, or some member thereof, and their or his approval indorsed shall be recorded in a wellbound book, kept for the purpose, in the office of the clerk of the supreme court, entitled "Record of Funds," and the cost of recording the same shall be allowed by the court and paid out of the fund. The report shall be filed among the papers of the action or matter to which the fund belongs. BOOKS. 57. Books taken out. brary shall be taken therefrom except into No book belonging to the supreme court lithe supreme court chamber, unless by the justices of the court, the governor, the attor When a petition to rehear is filed with the clerk of this court, the justice or justices designated by the petitioner to pass upon it may, upon application and in his or their discretion, stay or restrain execution of the judgment or order until the certificate for a rehearing is either refused or, if allowed, until this court has finally disposed of the case on the rehearing. Unless the party applying for the rehearing has already stayed execution in the court below, when the appeal was taken, by giving the required security, he shall at the time of applying to the justice or justices for a stay tender sufficient security for that purpose, which shall be approv-ney general, or the head of some department ed by the justice or justices. Notice of the application for a stay must be given to the other party, if deemed proper by the justice or justices, for such time before the hearing of the application and in such manner as may be ordered. If a certificate for a rehearing is denied, or if granted and the petition is afterwards dismissed, the stay shall no longer continue in force and execution may issue at once or the judgment or order be otherwise enforced unless, in case the petition is dismissed, the court shall otherwise direct. When a stay is granted the order shall run in the name of this court and be signed and issued by the clerk under its seal, with proper recitals to show the authority under which it was issued. CLERK AND COMMISSIONERS. of the executive branch of the state govern ment, without the special permission of the marshal of the court, and then only upon the application in writing of a judge of a superiter in the city of Raleigh, the president of or court, holding court or hearing some matthe senate, the speaker of the house of repre sentatives, or the chairman of the several committees of the general assembly; and in such cases the marshal shall enter in a book kept for the purpose the name of the officer requiring the same, the name and number of the volume taken, when taken, and when returned. CLERK. 58. Minute book. The clerk shall keep a permanent minute book, containing a brief summary of the proceedings of this court in each appeal disposed of. and sent to judges. 55. Report of funds in hands of. The clerk and every commissioner of this court who, by virtue or under color of any 59. Clerk to have opinions typewritten order, judgment or decree of the supreme court, in any action or matter pending therein, has received, or shall receive, any money or security for money, to be kept or invested for the benefit of any party to such action or matter, or of any other person, shall, at the term of said court held next after the first day of January in each year, report to the court a statement of said fund, setting forth the title and number of the action or matter, the term of the court at which the order or After the court has decided a cause, the judge assigned to write it shall hand the opinion, when written, to the clerk, who shall cause five typewritten copies to be at once made and a copy sent in a sealed envelope to each member of the court, to the end that the same may be carefully examined, and the bearing of the authorities cited may be considered prior to the day when the opinion shall be finally offered for adoption by the Revised and Adopted by the Justices of the Supreme Court, RULES. 1. Entries on records. No entry shall be made on the records of the superior courts (the summons docket excepted) by any other person than the clerk, his regular deputy, or some person so directed by the presiding judge or the judge himself. each case, or upon appeal from a justice of the peace. 3. Opening and conclusion. In all cases, civil or criminal, when no evidence is introduced by the defendant, the right of reply and conclusion shall belong to his counsel. 4. Examination of witnesses. 2. Surety on prosecution bond and bail. When several are employed on the same No person who is bail in any action or pro- side, the examination, or cross-examination, ceeding, either civil or criminal, or who of each witness shall be conducted by one is surety for the prosecution of any suit, or counsel; but the counsel may change with upon appeal from a justice of the peace, or each successive witness, or with leave of is surety in any undertaking to be affected the court, in a prolonged examination of a by the result of the trial of the action, shall single witness. When a witness is sworn appear as counsel or attorney in the same and offered, or when testimony is proposed cause. And it shall be the duty of the clerks to be elicited, to which objection is made of the several superior courts to state, on by counsel of the opposing party, the counthe docket for the court, the names of the sel so offering shall state for what purpose ings in the action in the order of time in which they occurred, and the several processes or orders, and they shall be arranged to follow each other in order as nearly as practicable. is offered; whereupon the counsel objecting | the supreme court, to set forth the proceedshall state his objection and be heard in support thereof, and the counsel so offering shall be heard in support of the competency of the witness and of the proposed evidence in conclusion, and the argument shall proceed no further, unless by special leave of the court. 5. Motion for continuance. When a party in a civil suit moves for a continuance on account of absent testimony, such party shall state, in a written affidavit, the nature of such testimony and what he expects to prove by it, and the motion shall be decided without debate, unless permitted by the court. (The above rules substantially prescribed by the supreme court at January term, 1815.) 6. Decision of right to conclude not appealable. In any case where a question shall arise as to whether the counsel for the plaintiff or the counsel for the defendant shall have the reply and the conclusion of the argument, the court shall decide who is so entitled, and, except in the cases mentioned in rule 3, its decision shall be final and not reviewable. Judgments shall be docketed as provided and directed in The Revisal, §§ 573 and 574. 9. Transcript of judgment. Clerks of the superior courts shall not make out transcripts of the original judgment docket, to be docketed in another county, until after the expiration of the term of the court at which such judgments were rendered. 10. Docketing magistrates' judgments. Judgments rendered by a justice of the peace upon summons issued and returnable on the same day as the cases are successively reached and passed on, without continuance as to any, shall stand upon the same footing, and transcripts for docketing in the superior court shall be furnished to applicants at the same time after such rendition of judgment, and, if delivered to the clerk of such court on the same day, shall create liens on real estate, and have no priority or precedence the one over the other, if all are, or shall be, entered within ten days after such delivery to said clerk. 11. Transcript to supreme court. In every case of appeal to the supreme court, or in which a case is taken to the supreme court by means of the writ of certiorari as a substitute for an appeal, it shall be the duty of the clerk of the superior court, The pages of the transcript shall be plainly numbered, and there shall be written on the margin of each a brief statement of the subject-matter, opposite to the same. On the first page of the transcript of the record, there shall be an index in the following or some equivalent form: Every clerk of the superior court, and every commissioner appointed by such court, who, by virtue or under color of any order, judgment or decree of the court in any ac tion or proceedings pending in it, has received or shall receive any money or security for money, to be kept or invested for the benefit of any party to such action, or of any other person, shall, at the term of such court held on or next after the first day of January in each year, report to the judge a statement of said fund, setting forth the title and number of the action, and the term of the court at which the order or orders under which the officer professes to act, were made, the amount and character of the investment, and the security for the same, and his opinion as to the sufficiency of the security. In every report, after the first, he shall set forth any change made in the amount or character of the investment since the last report, and every payment made to any person entitled thereto. The report required by the next preceding paragraph shall be made to the judge of the superior court holding the first term of the court in each and every year, who shall examine it, or cause it to be examined and, if found correct, and so certified by him, it shall be entered by the clerk upon his book of accounts of guardians and other fiduciaries. 14. Recordari. The superior court shall grant the writ of recordari only upon the petition of the party applying for it, specifying particularly the grounds of the application for the same. The |