15. Forms. [Acts of 1868-'69, Chapter 137, Section 26.] The following forms shall be substantially followed in proceedings under this act: [No. 1.] I. APPRAISERS' RETURN. I. WHEN THE HOMESTEAD IS VALUED AT LESS THAN ONE THOUSAND DOLLARS, AND PERSONAL PROPERTY ALSO APPRAISED. The undersigned having been duly summoned, and sworn to act as appraisers of the homestead and personal property exemptions of A. B., of Township, County, by C. D., Sheriff, (or Constable, or Deputy) of said county, do hereby make the following return: We have viewed and appraised the homestead of the said A. B., and the dwelling and buildings thereon, owned and occupied by said A. B. as a homestead, to be one thousand dollars (or any less sum) and that the entire tract, bounded by the lands of and is therefore exempted from sale under execution according to law. At the same time and place we viewed and appraised at the values annexed, the following articles of personal property selected by said A. B. [Here specify the articles and their value, to be selected by the debtor or his agent.] Which we declare to be a fair valuation, and that the said articles are exempt under said execution. We hereby certify that we are not related by blood or marriage to the judgment debtor or the judgment creditor in this execution, and have no interest, near or remote, in the above exemptions. Given under our hands and seals this .... day of 18... O. K. (L. S.) The above return was made and subscribed in my presence, day and date above given. C. D., (Sheriff or Constable.) [No. 2.] II. PETITION FOR HOMESTEAD BEFORE A JUSTICE OF THE PEACE. In the matter of A. B. 2 Before . J. P. County. A B respectfully shows that (he, she or they, as the case may be,) is or are) entitled to a homestead exempt from execution in certain real estate in said county, bounded and described as follows: (Here describe the property.) The true value of which (he, she or they, as the case may be,) believe to be one thousand dollars, includ ng the dwelling and buildings thereon. He (she or they) further shows, that he (she or they, as the case may be,) is (or are) entitled to a personal property exemption from execution, to the value of (here state the value) consisting of the following property: (Here specify.) He (she or they, as the case way be,) therefore prays your worship to appoint three disinterested persons qualified to act as jurors or assessors to view the premises, allot and set apart to your petitioner his homestead and personal property exemption, and report according to law. [No. 3.] III. PERSONAL PROPERTY ALONE APPRAISED. The undersigned having been duly summoned and sworn to act as appraisers of the personal property of A. B., of.........Township, ..County, and to lay off the exemption given by law thereto, by C. D., (sheriff ar other officer,) of said county, do hereby make and subscribe the following return: We viewed and appraised at the values annexed the following articles of personal property selected by the said A. B., to-wit: which we declare to be a fair valuation, and that said articles are exempt under said execution. We hereby certify, each for himself, that we are not related by blood or marriage, to the judgment debtor or judgment creditor in this execution, and have no interest, near or remote, in the above exemptions. Given under our hands and seals this........day of.. .18.... O. K., (L. S.) L. M., (L. S.) The above return was made and subscribed to in my presence, day and date above given. C. D., (Sheriff or Constable.) [No. 4.] IV. CERTIFICATE OF QUALIFICATION TO BE ENDORSED ON RETURN The within named B. F., G. H. and J. R. were summoned and qualified according to law, as appraisers of the... exemption of the said A. B., under an execution in favor of X. Y., this... day of..... .18.... C. D., (Sheriff.) CHAPTER VII. MANDAMUS. [Acts 1871-72, Chapter 75.] SEC. 1. Applications for writs of SEC. 3. Manner in which summons mandamus. 2. Summons in applications for 21.-Application for writs of mandamus. shall be made returnable. 4. Complaints to be verified. 5. Acts repealed. 6. Acts to be in force when. All applications for writs of mandamus shall be made by summons and complaint. 2.-Manner in which summons for applications for writs of mandamus shall issue. In all applications when the plaintiff seeks to enforce a money demand, the summons shall issue and be made returnable as is prescribed by the second section of chapter seventy-six, of the laws of one thousand eight hundred and sixty-eight and one thousand eight hundred and sixty-nine, entitled "An Act to suspend the Code of Civil Procedure in certain cases," and that the subsequent pleadings and practice in such cases shall be the same as is prescribed for civil actions by the third, fourth and fifth sections of said act. [See page 314, ante.] 3.—Manner in which summons shall be made returnable, proviso. In all applications when the plaintiff seeks other relief than the enforcement of the payment of a money demand, the summons shall be made returnable before a Judge of the Superior or Supreme Court at chambers, or in term, at a day specified in the summons, not less than ten days after the service of the summons and complaint upon the defendant, at which time the court, except for good cause shown, shall proceed to hear and determine the cause, both as to law and fact: Provided however, That in cases arising under this section where issue of fact is raised by the pleadings, it shall be the duty of the conrt, upon the application of either party, to continue the same till said issue of fact can be decided by a jury of the next regular term of the court. 4.-Complaint to be verified. All complaints in applications for mandamus shall be verified according to law. That all laws and clauses of laws in conflict with this act are hereby repealed: Provided however, That this act shall not apply to actions commenced before the ratification of this act. 5.-Act to be in force when. This act shall be in force from and after its ratification. Quare? Whether a mandamus can be revived in any case. Carson v. Com'rs of Cleaveland, 64-566. A plaintiff who has obtained a judgment against a county is not entitled to an execution against it. His remedy is by a writ of mandamus against the board of commissioners of the county, to compel them to levy a tax for the satisfaction of the judgment. Gooch v. Gregory, 65-142 The eighth section of the ordinance of the Convention of 1868, having provided that when the President and Chief Engineer of the North-western North Carolina Railroad Company should have complied with certain terms, in respect to the first division of the said road, the Governor should direct that the Public Treasurer should make a loan to the Company, by issue of a certain amount of State bonds, and the terms having been complied with, It was held, that the Company was entitled to have a peremptory mandamus to compel the Treasurer to issue the bonds notwithstanding the subsequent leg. islation contained in the acts of 1868-'69, chapter 32, of 1869-'70, chapters 71 and 100, as all those acts, taken together, left the ordinance above mentioned in full force and effect. North-western N. C. R. R. Co. v. The Treasurer, 65-173. Where a party has established his debt against a county by judgment, and payment cannot be enforced by an execution, he is entitled to a writ of mandamus against the board of commissioners of said county, to compel them to levy a sufficient tax to pay off and discharge his said judgment. Lutterloh v. Commissioners of Cum berland County, 65-403. There is no provision in the Code of Civil Procedure regulating the proceedings in writs of mandamus, and in such cases "the practice heretofore in use may be adopted so far as necessary to prevent a failure of justice.” (C. C. P. Ŝec. 392.) Lutterloh v. Com'rs of Cumberland County, 65-403. This writ can only be used by the express order of a court of superior jurisdiction, and is not embraced in the rule established in Tate v. Powe, 64-644, which makes out the distinction between civil actions and special proceedings. Lutterloh v. Com'rs of Cumberland Co., 65-403. Where the plaintiff's demand may involve disputed facts, the proper application is for an alternative mandamus. Where, however, the plaintiff's claim is based upon a judgment, then the proper process is a peremptory mandamus. Lutterloh v. Com'rs Cumberland Co., 65-403. The general rule is, that no return to a peremptory mandamus is sufficient except that it has been obeyed; but if a statute be enacted, after such peremptory order, forbidding obedience and making obedience impossible, such new matter will, of necessity, constitute a sufficient return, provided the statute is constitutional and within the law-making power. Sedberry v. Com'rs Chatham Co., 66-486. Whether a mandamus can be used to try the title to an office under any circumstances?-Quere. But not being provided for by the C. C. P., it must, by virtue of Section 392, be governed by the former practice, and hence, must be moved for, and be made returnable in term time. Howerton v. Tate, 66-231. Mandamus is not the appropriate remedy to try title to an office. Mott v. Tate, 66-231. Mandamus will not lie to compel the Treasurer to pay money on any claim against the State, until the same has been passed upon and a warrant issued by the Auditor for that purpose. Bayne . The Treasurer, 66-356. In an action of mandamus instituted against the justices of a county, Commissioners elected under the Constitution cannot be substituted as parties, and this error is not waived by answer, but may be taken advantage of at any stage of the proceedings. Thomas v. Com'rs of Carteret Co., 66-522. A mandomus against the commissioners of a county, should run against them as a board," and not against the individuals comprising such board. Thomas v. Com'rs of Carteret, 66-522. Where a mandamus was issued, commanding the board of commissioners of a county to levy a tax sufficient to pay the plaintiff's claim against the county, and a rule was afterwards served upon them to show cause why they should not be attached for disobedience to the order: Held, that an answer to the rule, that they had lévied a sufficient tax, and placed the lists in the hands of the sheriff, was responsive and the rule ought to be discharged. Johnson v. Com'rs of Cleaveland, 67–101. The justices of a county having failed, for many years, to levy a tax to pay the interest on bonds issued by the county to aid in building a railroad, the board of commissioners should not be required at the suit of the creditors, to raise in one year, by taxation, the whole amount of the interest in arrear. In case of a mandamus ordering the commissioners to levy a tax and pay the interest due to creditors, it was a prudent exercise of a discretion to raise part by taxation, and issue county bonds in order to raise the remainder. Johnston v. Com'rs of Cleaveland, 67-101. In an action against the board of commissioners of a county, a demand is necessary, without regard to the fact whether the claim is expressed to be payable at any particular time or place, and in a mandamus, the writ should show expressly, by the averment of a demand and refusal, or an equivalent, that the prosecutor, before his application to the court, did all in his power to obtain redress. Alexander v. Com'rs McDowell Co., 67–330. It would seem that in an action against the commissioners of a county, the action should be brought in the county in which they are officers. (C. C. P., Sec. 67.) Alexander v. Com'rs McDowell Co., 67-330. Where an act of the legislative branch of the government directs an executive officer to do a specific act, which does not involve any |