persons shall transact business as trader or merchant, with the addition of the words "factor," "agent," "and company" or "and Co.,” or shall conduct such business under any name or style other than his own, except in case of corporation, and fail to disclose the name of his principal or partner by a sign placed conspicuously at the place wherein such business is conducted; or if any married woman shall conduct such business through her husband or any other agent, or if any husband or agent of any married woman shall conduct such business for her without displaying the Christian name of such married woman, and the fact that she is a feme covert, by a sign placed conspicuously at the place wherein such business is conducted, then all the property, stock of goods and merchandise, and choses in action purchased, used and contracted in the course of such business shall, as to creditors, be liable for the debts contracted in the course of such business by the person in charge of same. Any married woman conducting such business as aforesaid without complying with the provisions of this section shall for all purposes be deemed and treated, as to all debts contracted in the course of such business, as a free trader as fully as if she had in all respects complied with the provisions of this subchapter: Provided, this section shall not apply to any person transacting business under license as an auctioneer, broker or commission merchant. In all actions under this section it shall be incumbent on such trader, merchant or married woman to prove compliance with the same.

1905, c. 443.

NOTE. For marriage settlements, see ss. 963, 964, 2108.

For effect of marriage settlement on creditors, see Conveyances, s. 963.

For judgment entered against married women, see Civil Procedure, s. 563.

2119. What are. Every water grist-mill, steam mill, or windmill, that shall grind for toll, shall be a public mill.

Code, s. 1846; R. C., c. 71, s. 1; 1777, c. 122, s. 1.

2120. Grind according to turn; toll taken. All millers of public mills shall grind according to turn, and shall well and sufficiently grind the grain brought to their mills, if the water will permit, and shall take no more toll for grinding than one-eighth part of the indian corn and wheat, and one-fourteenth part for chopping grain of any kind; and every miller and keeper of a mill making default therein shall, for each offense, forfeit and pay five dollars to the party injured: Provided, that the owner may grind his own grain at any time: Provided further, that owners of public mills in Person county, when operated by gasoline, steam or any other motive power, may charge as toll one-seventh part of wheat and indian

corn.

Code, s. 1847; R. C., c. 71, s. 6; 1777, c. 122, s. 10; 1793, c. 402; 1905, c. 694.

2121. Measures kept, toll by weight. All millers shall keep in their mills the following measures, namely, a half-bushel and peck of full measure, and also proper toll-dishes for each measure; but the toll allowed by law may be taken by weight or measure at the option of the miller and customer.

Code, s. 1848; 1885, c. 202; R. C., c. 71, s. 7; 1777, c. 122, s. 11.

NOTE. Keeping false toll-dishes a misdemeanor, see s. 3679.

II. WATER MILLS ESTABLISHED.

2122. Procedure. Any person wishing to build a water mill, who hath land on only one side of a stream, shall issue a summons returnable to the superior court of the county in which the land sought to be condemned, or some part of it, lies, against the persons in possession and the owners of the land on the opposite side of the stream, and against such others as have an interest in the controversy, and the procedure shall be as is provided in other special proceedings, except so far as the same may be modified by this chapter.

Code, s. 1849; 1868-9, c. 158, s. 1.

2123. Commissioners appointed, how. If no just cause should be shown against the building of such mill, the court shall appoint three freeholders, one of whom shall be chosen by the plaintiff, another by the defendants, and the third by the court, or if the plaintiff or defendants shall refuse or fail, or unreasonably delay to name a commissioner, the court shall name one in lieu of such delinquent party. These commissioners may be changed from time to time by permission of the court for just cause shown.

Code, s. 1850; 1868-9, c. 158, s. 2.

2124. What commissioner presides; penalty for failure to perform duty. The third commissioner shall cause the others to be notified of the time and place of meeting, and shall preside at their meetings. They may, if necessary, summon and examine witnesses, who shall be sworn by the presiding commissioner; any commissioner named by or for either of the parties, who, without just cause, shall fail to attend any meeting notified by the president, shall forfeit and pay to the opposite party fifty dollars; and if the president shall, in like manner, unreasonably delay to notify the other commissioners of a meeting, or fail to attend one that is appointed, he shall forfeit and pay to the plaintiff fifty dollars, and to the defendant a like sum.

Code, s. 1851; 1868-9, c. 158, s. 3.

2125. Duty of commissioners. The commissioners shall be sworn by some officer qualified to administer an oath to act impartially between the parties, and to perform the duties herein imposed on them honestly and to the best of their ability. They shall view the premises where the mill is proposed to be built, and shall lay off and value a portion of the land of the plaintiff, not to exceed one acre in area, and an equal area of the land of the defendants opposite thereto, and report their proceedings to the court within a reasonable time, not exceeding sixty days.

Code, s. 1852; 1868-9, c. 158, s. 4.

2126. Report contains what. The report of the commissioners shall set forth

1. The location, quantities and value of the several areas laid off by them.

2. Whether either of them includes houses, gardens, orchards or other immediate conveniences.

3. Whether the proposed mill will overflow another mill or create a nuisance in the neighborhood.

4. Any other matter upon which they shall have been directed by the court to report, or which they may think necessary to the doing of full justice between the parties.

Code, s. 1853; 1868-9, c. 158, s. 5.

2127. When mill not allowed. If the area laid off on the land of either party take away houses, gardens, orchards, or other immediate conveniences; or if the mill proposed will overflow another mill, or will create a nuisance in the neighborhood, the court shall not allow the proposed mill to be built.

Code, s. 1854; 1868-9, c. 158, s. 6.

2128. Power of court on return of report. If the report be in favor of building the proposed mill, and is confirmed, then the court may, in its discretion, allow either the plaintiff or defendant to erect such mill at the place proposed, and shall order the costs, and the value of the opposite area, to be paid by the party to whom such leave shall be granted; and upon such payment, the party to whom such leave shall be granted shall be vested with title in fee to the opposite area. Such payment may be made into court for the use of the parties entitled thereto.

Code, s. 1855; 1868-9, c. 158, s. 7.

Note. For costs, see s. 1269.

2129. Built when; kept up. The person to whom leave shall be granted shall, within one year, begin to build such water mill, and shall finish the same within three years; and thereafter keep it up for the use and ease of such as shall be customers to it; otherwise, the said land shall return to the person from whom it was taken, or to such other person as shall have his right, unless the time for finishing the mill, for reasons approved by the court, be enlarged.

Code, s. 1856; 1868-9, c. 158, s. 8.

2130. Time in which must be rebuilt. If any water mill belonging to any person not being of age, a married woman, or of unsound mind, or imprisoned, falls, burns, or is otherwise destroyed, such person and his heirs shall have three years to rebuild and repair the same, and any person under any disability aforesaid shall have three years from the removal of the disability.

Code, s. 1857; 1903, c. 74, ss. 1, 2; 1868-9, c. 158, s. 9.

III. DAMS; BACKING AND CONVEYING WATER.

2131. Procedure. Any person who has land on one or both sides of a stream and wishes to build a water mill or has a water mill already built and may find it necessary for the better operation of said mill or the building of the said mill to convey water either to or from his mill by ditch, water-way, drain, mill-race or tail-race, or in any other manner, over the lands of any other person, or erect a dam to pond said water over the lands of any other person, or raise any dam already built, may make application by petition in writing to the clerk of the superior court of the county in which the said lands to be affected, or a greater part thereof, are situated, for the right to so convey the said water or pond the same by the erection of a dam or the raising of any dam already built; and the procedure shall be as in other special proceedings.

1905, c. 534, s. la, k.

2132. Petition to contain, what. The petition shall specify the lands to be affected, the name of the owner of said lands and the character of the ditch, race, water-way or drain or pond intended to be made, and said owner or owners shall be made parties defendant. The petition shall state the distance desired to be condemned on each side of the ditch, water-way or drain to be constructed or erected, and not more than thirty feet from each bank can be condemned. 1905, c. 534, s. 1, b.

2133. Commissioners appointed. Upon the hearing of the petition, if the prayer thereof be granted, the clerk shall appoint three disinterested persons qualified to act as jurors, and not connected either by blood or marriage with the parties, appraisers to assess the damage, if any, that will accrue to the said lands by the contemplated work, and shall issue a notice to them to meet upon the premises on a day specified, not to exceed ten days from the date of said notice.

1905, c. 534, s. 1, c.

2134. Commissioners; oath and duty. The appraisers having met, shall take an oath before some officer qualified to administer oaths to faithfully perform their duty and to do impartial justice in the case, and shall then examine all the lands in any way to be affected by the said work and assess the damage thereto and make report thereof under their hands and seals to the clerk from whom the notice issued, who shall have power to confirm the same.

1905, c. 534, s. 1, d.

2135. Damages assessed. In determining the amount of such compensation to be paid to the owners of the said lands and assessing the damages thereto by reason of the erection or construction of such water-way, ditch, drain or dam they shall make an allowance or deduction on account of any benefits which the parties in interest. may derive from the construction or erection of such water-way, ditch, drain or dam, and shall ascertain the damages, as near as may be, to the extent it may damage each acre of land so appropriated or occupied by the said mill-owner. The damages assessed by the appraisers under this subchapter shall include all damages that the owners shall thereafter suffer or be entitled to by reason of the construction of the said water-ways, races, ditches or dams.

1905, c. 534, s. 1, e, m.

2136. When mill not allowed. If the area laid off on the lands of either party take away houses, gardens, orchards or immediate conveniences, or if the mill proposed or erected will overflow another mill or pond water within two hundred feet of another mill or will