fendant had not been fined, this mistake as to fact renders the pardon void. McIntyre, 46 (1 Jones), 1.

APPEAL PENDING.-A pardon by the governor, after conviction, and while an appeal is pending in the supreme court, is valid. Alexander, 76-231.

DISTINGUISHING BETWEEN PARDON AND AMNESTY.-A pardon is granted by the governor to one who is guilty, either before or after conviction; amnesty is granted by the legislature to those who may be guilty, and this is done generally in classes and before trial. Blalock, 61 (Phil.), 242.

PEACE WARRANT.

Sec. 777 (3165). Who may issue.

The following magistrates shall have power to cause to be kept all the laws made for the preservation of the public peace, and in execution of that power to require persons to give security to keep the peace, in the manner provided in this chapter, namely: The chief justice and associate justices of the supreme court, the judges of the superior courts, and of any special courts which may hereafter be created, the justices of the peace, the mayors or other chief officers of all cities and towns.

Code, s. 1216; 1868-9, c. 178, subc. 2, s. 1.

Sec. 778 (3166). Complaint to obtain.

Whenever complaint shall be made in writing, and upon oath, to any such magistrate that any person has threatened to commit. any offense against the person or property of another, it shall be the duty of such magistrate to examine such complainant and any witnesses who may be produced on oath, to reduce such examination to writing, and to cause the same to be subscribed by the parties so examined.

Code, s. 1217; 1868-9, c. 178, subc. 2, s. 2.

Sec. 779 (3167). When to issue.

If it shall appear from such examination that there is just reason to fear the commission of any such offense by the person complained of, it shall be the duty of the magistrate to issue a warrant under his hand, with or without a seal, reciting the complaint, and commanding the officer to whom it is directed forthwith to apprehend the person so complained of, and bring him before such magistrate or some other magistrate authorized to issue such

warrant.

Code, s. 1218; 1868-9, c. 178, subc. 2, s. 3.

Sec. 780 (3168). Breach of peace in presence of court.

Every person who, in the presence of any magistrate specified in section three thousand one hundred and sixty-five, or in the presence of any court of record, shall make any affray, or threaten to kill or beat another, or to commit any offense against his person or property; and all persons who, in the presence of such magistrate or court, shall contend with hot and angry words, may be ordered by such magistrate or court, without any other proof, to give such security as above specified, and in case of failure so to do, may be committed as above provided.

Code, s. 1224; 1868-9, c. 178, subc. 2, s. 9.

Sec. 781 (3169). To whom directed.

The warrant shall be directed to the sheriff, coroner or any constable, each of whom shall have power to execute the same within his county; and if no sheriff, coroner or constable can conveniently be found, the warrant may be directed to any person whatever, who shall have power to execute the same within the county in which it is issued. No justice of the peace, or mayor, or other chief officer of any city or town shall direct his warrant to any officer outside the county of said justice or chief officer. Code, s. 1219; 1868-9, c. 178, subc. 2, s. 4.

Sec. 782 (3170). Proceeding on.

Whenever any person complained of on a peace warrant shall be brought before a justice of the peace, such person may be required to enter into recognizance, payable to the state of North Carolina, in such sum, not exceeding one thousand dollars, as such justice shall direct, with one or more sufficient sureties, to appear before. some justice of the peace within a period not exceeding six months, and not depart the court without leave, and in the meanwhile to keep the peace and be of good behavior towards all the people of the state, and particularly towards the person requiring such security.

Code, ss. 894, 1220; 1879, c. 92, s. 9.

NO APPEAL.-No appeal lies from the order of a justice of the peace requiring defendant in a peace warrant to enter into a recognizance to keep the peace. Walker, 94-857.

No appeal lies from the judgment of a justice of the peace requiring defendant to give bond to keep the peace. Lyon, 93-575.

Defendant, on appeal to the superior court, moved to quash the proceeding for want of sufficient averment in the affidavit upon which the warrant was

issued, but, upon motion of the solicitor, the appeal was dismissed: Held, no error, since the appeal did not lie. Gregory, 118-1199.

[NOTE. The defendant is now allowed to appeal by the statute. tion 785, Revisal section 3173.]

See sec

MAY BE WORKED ON ROADS.-One who fails to enter into bond to keep the peace or for good behavior may be worked on the public roads. Yandle, 119 -874.

WARRANT.-A peace warrant in which is alleged no threat, nor fact or circumstance from which the court can determine whether the fear of the prosecutor is well founded, should be quashed. Cooley, 78–538.

A peace warrant which simply alleges that the prosecutor "has reason to fear and doth fear" that defendant will do him serious bodily injury, is fatally defective for failure to allege a threat, fact, or circumstance from which the court can see that the fear of the prosecutor is well founded. Goram, 83— 664.

BOND CAN NOT BE TAKEN BY OFFICER MAKING ARREST.-A sheriff has no right to take a recognizance to keep the peace from a person arrested by him for a breach of the peace, or committed to his custody for want of sureties for keeping the peace. Hill, 25 (3 Ired.), 398.

JURISDICTION.-Where defendant is required by a justice of the peace to enter into a recognizance in the sum of $300 on a peace warrant, and the justice afterwards issues a notice to the sheriff reciting the fact that defendant had violated the conditions of the recognizance, and commanding him to make known to defendant that he appear before said justice to show cause why the recognizance should not be declared forfeited on a certain day, and, in default of defendant's appearance, declares it forfeited and orders it prosecuted according to law, there is no error, and the recognizance may be prosecuted in the court having jurisdiction. Oates, 88-668.

Sec. 783 (3171). When accused discharged.

If the complainant does not appear, the party recognized shall be discharged, unless good cause be shown to the contrary. If the respective parties appear, the court shall hear their allegations and proofs, and may either discharge the recognizance taken, or they may require a new recognizance, as the circumstances of the case may require, for such time as may appear necessary, not exceeding one year.

Code, s. 1226; 1868-9, c. 178, subc. 2, s. 12.

Sec. 784 (3172). When defendant imprisoned.

If such recognizance shall be given, the party complained of shall be discharged; if such person shall fail to find such security, it shall be the duty of the magistrate to commit him to prison until he shall find the same, specifying in the mittimus the cause of commitment and the sum in which such security was required. Code, s. 1221; 1868-9, c. 178, subc. 2, s. 6.

Sec. 785 (3173). Defendant may appeal.

In all proceedings on peace warrants the defendant may appeal from the decision of the justice of the peace to the superior court

by giving the bond required by the justice of the peace to keep the peace, in addition to the appeal bond, when the case shall be heard by the judge holding the court in the county.

1901, c. 66.

Sec. 786 (3174). How discharged after imprisonment.

Any person committed for not finding sureties of the peace as above provided, may be discharged by any magistrate upon giving such security as was originally required of such person, or by a justice of the supreme court, or judge of the superior or criminal court, by giving such other security as may be sufficient.

Code, s. 1222; 1868-9, c. 178, subc. 2, s. 7.

Sec. 787 (3175). When and where recognizance returned.

Every recognizance taken pursuant to the foregoing provisions shall be transmitted by the magistrate taking the same to the next term of the superior court for the county in which the offense is charged to have been committed.

Code, s. 1223; 1868-9, c. 178, subc. 2, s. 8.

A sheriff has no right to take a recognizance to keep the peace from a person committed to him for want of sureties for keeping the peace. Hill, 25 (3 Ired.), 398.

PEDDLING.

Sec. 788 (3789). Peddling without license.

If any person shall unlawfully hawk or peddle any goods, wares or merchandise, or shall fail, upon the application of the sheriff or his deputy, or any justice of the peace, to show his license as required by law, he shall be guilty of a misdemeanor, and fined not exceeding fifty dollars, or imprisoned not exceeding thirty days.

Code, s. 1091; 1889, c. 504; R. C., c. 34, s. 44; 1835, c. 17, s. 3.

SPECIAL VERDICT.-A special verdict which fails to find whether or not defendant had a license, or that he was required to exhibit one and failed to do so, is fatally defective, and a new trial will be awarded. Crump, 104-763.

MANUFACTURER.-One who merely mixes and boils certain drugs and medicines and sells them under the name of "Herbs of Life," is not entitled to the exemption from the payment of a peddler's tax given to persons who sell goods of their own manufacture, under Rev. Laws 1887, c. 135, sec. 23. Morrell, 100-506.

WHO IS A PEDDLER.-A peddler is one who sells and delivers the identical goods he carries about with him. Lee, 113–681.

SELLING RANGES BY SAMPLE.-One who sells ranges by sample and by taking orders for goods to be thereafter delivered and paid for, is not indict able for failure to pay the tax imposed upon the business of peddling ranges, etc., by sec. 28, c. 294, acts of 1893. Lee, 113-681.

PRIVILEGES ONLY.-Peddling is not a matter of right, but it is a privilege, and it is discretionary with the county commissioners whether they will grant a license. Rhyne, 119–905.

PRIVILEGE PERSONAL.-The permission to sell articles of one's own manufacture is personal to the manufacturer, and does not extend to an agent employed to sell the goods. Rhyne, 119-905.

SELLING BY SAMPLE WHO IS A PEDDLER.-One who sells goods by sample, which goods are shipped to purchaser in care of one who sold them and delivered by him, is a peddler under acts 1899, c. 11, sec. 25. Franks, 127— 510.

A person who travels from house to house on foot selling goods by sample, and afterwards delivers them on foot, is not a peddler within the meaning of acts 1901, c. 9, ss. 54, 103. Frank, 130–724.

A peddler is primarily one who travels around on foot selling or bartering the very goods he carries. Frank, 130-724.

EVIDENCE SERIES OF ACTS.-While evidence of one or more acts is competent as tending to show that one is carrying on the business for which a license is required, such evidence is not per se conclusive to sustain the charge. Sheppard, 138-581.

Evidence that the manufacturers of lightning rods had, pursuant to a contract made with the purchaser by another person as the agent of the manufacturers, sold certain rods to the purchaser, and that the defendant delivered them and superintended the hands in putting them up, does not make defendant guilty of carrying on the business of putting up rods. Sheppard, 138-581.

SELLING WATERMELONS.-A person selling watermelons in wholesale lots in a city to be shipped from a near-by town, and only delivering to those from whom he had taken orders, is not an itinerant merchant or peddler. Ninestein, 132-1039.

LIGHTNING RODS EVIDENCE.-The possession of more rods than were necessary to rod a particular house is not of itself a violation of the statute, though it may be a circumstance tending to show the carrying on of the business. Sheppard, 138-581.

A license is not required for a single act of putting up lightning rods, but for carrying on the business. Sheppard, 138-579.

PENALTIES.

The legislature has power to give "penalties," which must be sued for, either wholly or in part to whomsoever shall sue for the same, and only the proceeds of such as accrue to the state go to the school fund. Maultsby, 139-583.

By "clear proceeds" of a penalty is meant the total sum less only the sheriff's fees for collection, when the penalties and costs are collected in full, Maultsby, 139–583.