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Full text of "Code of laws of South Carolina, 1912"

The 

University of South Carolina 




CblemanKaiesh 
Lawlibraiy 



Digitized by the Internet Archive 

in 2010 with funding from 

Lyrasis IVIembers and Sloan Foundation 



http://www.archive.org/details/codeoflawsofsout02andr 



CODE OF LAWS 



OF 



SOUTH CAROLINA 



1912 



IN TWO VOLUMES 



ANDREW J. BETHEA 
Code Commissioner of South Carolina, 191 1 -1921 



VOLUME II 



THE CODE OF CIVIL PROCEDURE 

THE CRIMINAL CODE 

THE CONSTITUTIONS OF THE UNITED STATES AND 
SOUTH CAROLINA 

AND 

RULES OF COURTS 



The Michie Company, Law Publishers 

CharlottesvilI/E, Va. 

1912 






Copyright, 1912 

BY 

State of South Carolina. 



COLEMAN KARE3H LAW LiBRARY 
University of SouLh Caroliaa 



TABLE OF CONTENTS. 
Code of Civil Procedure. 



TITLE I. PAGE 

The Code of Procedure 1 



PART I. 

OF THE COURTS OF JUSTICE AND THEIR JURISDICTION. 

TITLE I. 

Of Courts of Justice;. 

Their Designation 3 

TITLE II. 
Supreme Court 3 

TITLE III. 
Circuit Courts 10 

TITLE IV. 
Probate Court -. 21 

TITLE V. 
Courts of Magistrates 30 

TITLE VI. 
Of the Civil and Criminal Court of Charleston 39 



PART n. 

« OF CIVIL ACTIONS. 

TITLE I. 
Form of Civil Actions 44 

TITLE II. 
Time of Commencing Civil Actions. 

Chapter I. — Actions Generally 45 

Chapter II. — For the Recovery of Real Property 46 

Chapter III. — Time of Commencing Action Other than for the Recovery of Real 

Property 50 

Chapter IV. — General Provisions as to the Time of Commencing Actions 53 

TITLE III. 
Parties to Civil Actions 56 



32871 



IV TABLE OP CONTENTS. 

TITLE IV. PAGt 

Of the Place of Trial of Civil Actions , 61 

TITLE V. 
Manner of Commencing Civil Actions 63 

TITLE VI. 
Of the Pleadings in Civil Actions. 

Chapter I. — The Complaint 71 

Chapter II. — The Demurrer 73 

Chapter III. — The Answer 75 

Chapter IV.— The Reply 77 

Chapter V. — General Rules of Pleadings 78 

Chapter VI. — Mistakes in Pleadings and Amendments 85 

TITLE VII. 
Oe the Provisional Remedies in Civil Actions. 

Chapter I. — Arrest and Bail 90 

Chapter II. — Claim and Delivery of Personal Property 96 

Chapter III. — Injunction 98 

Chapter IV. — Attachment 102 

Chapter V. — Provisional Remedies Ill 

TITLE VIII. 
Of the Trial and Judgment in Civil Actions. 

Chapter I. — Judgment upon Failure to Answer, etc , 115 

Chapter II. — Issues and the Mode of Trial ■ 117 

Chapter III. — Trial by Jury 122 

Chapter IV. — Trial by the Court 125 

Chapter V. — Trial by Referees 126 

Chapter VI. — Manner of Entering Judgment 129 

TITLE IX. 
Oe the Execution oe the Judgment in Civil Actions. 

Chapter I. — The Execution 132 

Chapter II. — Proceedings Supplementary to the Execution 137 

TITLE X. 
Of the Costs in Civil Actions 141 

TITLE XL' ^ 

Oe Appeals in Civil Actions. 

Chapter 1. — Appeals in General 145 

Chapter II. — Appeals to the Supreme Court 147 

Chapter III. — Appeals to the Circuit Court from an Inferior Court 153 

TITLE XII. 
Of the Miscellaneous Proceedings in Civil Actions, and General Provisions. 

Chapter I. — Submitting a Controversy without Action 159 

Chapter II. — Proceedings against Joint Debtors 159 

Chapter III. — Confession of Judgment without Action 160 

Chapter IV. — Offer of the Defendant to Compromise the Whole or a Part of 

the Action 162 

Chapter V. — Admission or Inspection of Writings ■ • 163 

Chapter VI. — Examination of Parties 163 

Chapter VTI. — Examination of Witnesses 165 



TABLB OF CONTHNTS. 



V 



PAGfi 

Chapter VIII. — Motions and Orders 168 

Chapter IX.— Entitling Affidavits 1''0 

Chapter X. — Computation of Time 170 

Chapter XL — Notices, and Filing and Service of Papers 171 

Chapter XII. — Miscellaneous Provisions 172 

TITLE XIII. 
Actions in Particular Cases. 

Chapter I. — Actions against Foreign Corporations 173 

Chapter II. — Action in Place of Scire Facias, Quo Warranto, and of Informa- 
tions in the Nature of Quo Warranto 174 

TITLE XIV. 
General Provisions ^'''9 

Index to Code of Civil Procedure 181 

Table of Sections in Code of Civil Procedure of 1902 — Where Found in Code of 

Civil Procedure of 1912 '■ 807 

Table of Civil Procedure Statutes Since Code of Civil Procedure of 1902 Included 

in Code of Civil Procedure of 1912 809 



.nmina 



ICod 



e. 



TITLE I. 
Criminai. Procedure. 

PAGE 

Chapter I. — Of Arrest, Examination, Commitment and Bail 215 

Chapter II. — Jurisdiction of Magistrates and Their Courts 220 

Chapter III. — Criminal Proceedings in Municipal Courts 227 

Chapter IV. — Proceedings in Courts of General Sessions 232 

Chapter V. — Of the Rights of Persons Accused 235 

Chapter VI.— Of Trials 236 

Chapter VII.— Of Appeals and New Trials 241 

Chapter VIII. — Of Judgment and Execution 244 

Chapter IX.— Of the Writ of Habeas Corpus 247 

TITLE II. 
Crimes and Misdemeanors. 

Chapter X. — Offenses against the Person 253 

Chapter XI. — Offenses against Property 267 

Chapter XII. — Offenses against Public Policy 291 

Chapter XIII. — Offenses against the Public Peace 305 

Chapter XIV. — Offenses against Public Justice 310 

Chapter XV. — Offenses against Chastity, Morality, Decency, etc 319 

Chapter XVI.— Offenses against the Public Health 323 

Chapter XVII. — Offenses of Selling Property under Lien, Violation of Contracts, 

Regulation of Trade in Certain Cases, etc 337 

Chapter XVIII. — Offenses against the Currency 360 

Chapter XIX.— Offenses by Certain Officers 362 

Chapter XX. — Violation of the Provisions Regulating the Establishing and 

Repairing of Highways 377 

Chapter XXI. — Offenses by Railroad Companies, Their Agents and Employees, 
and Offenses Committed against Rights of Railroad Com- 
panies 392 

Chapter XXII. — Violation of the Law Regulating the Assessment and Collec- 
tion of Taxes 398 

Chapter XXIIL— Bastardy 399 

Chapter XXIV.— Vagrancy 401 

Chapter XXV. — Non-Observance of the Lord's Day, and Disturbing Religious 

Worship 402 

Chapter XXVL— Gambling 403 

Chapter XXVII. — Protection of Birds and Game, and Regulation of Hunting.... 406 

Chapter XXVIIL— Protection of Fish, Shell Fish and Terrapin 415 

Chapter XXIX. — Regulations in Reference to Alcoholic Liquors 425 

Chapter XXX. — Violations of the Insurance and Emigration Laws 450 

Chapter XXXI. — Violations of the Laws Concerning Sailors, Immigrants, etc... 456 

Chapter XXXII.— Cruelty to Animals 458 

Chapter XXXIII. — Felonies; Accessories; Aiders and Abettors 461 

TITLE III. 
Prisons and Imprisonment. 

Chapter XXXIV.— Jails and Prisoners 462 

Chapter XXXV.— State Penitentiary 466 



TABLE OF CONTENTS. vii 

TITLE IV. PAGE 

Chapter XXXVL— Of Inquests on Dead 479 



Index to Criminal Code 487 



Table of Sections in Criminal Code of 1903 — Where Found in Criminal Code 

of 1912 810 

Table of Criminal Statutes Since Criminal Code of 1902 Included in Criminal 

Code of 1912 812 



Con^itutions and Rules of Courts. 



PAGE^ 



Constitution of the United States of America, 1787 559 

Amendments 576 

Index to United States Constitution 585 

Constitution of the State of South Carolina, 1895 595 

Amendments 656' 

Index to South Carolina Constitution, 1895 661 

Constitution of the State of South Carolina, 1868 . . . .- 677 

Amendments 709 

Index to South Carolina Constitution, 1868 713 

Rules of the Supreme Court of South Carolina 719' 

Index to Rules of the Supreme Court of South Carolina 733 

Rules of Practice for the Circuit Courts of South Carolina 737 

Index to Rules of Practice for the Circuit Courts of South Carolina 757 

Rules of Practice for the Courts of Probate of South Carolina 763 

Index to Rules of Practice for the Courts of Probate of South Carolina., 767 

Rules of the Supreme Court of the United States 769 

Index to Rules of the Supreme Court of the United States 787 

Rules of Practice in the District Courts of the United States for the District of 

South Carolina 791 

Index to Rules of Practice in the District Courts of the United States for the Dis- 
trict of South Carolina 803 



TABLE OF CONTENTS. ix 



APPENDIX. 

'PAGE 

Table of Sections in Code of Civil Procedure of 1902 — Where Found In Code of 

Civil Procedure of 1912 807 

Table of Civil Procedure Statutes Since Code of Civil Procedure of 1902 Included 

in Code of Civil Procedure of 1912 , 809 

Table of Sections in Criminal Code of 1902 — Where Found in Criminal Code 

of 1912 810 

Table of Criminal Statutes Since Criminal Code of 1902 Included in Criminal 

Code of 1912 813 



The Code of Civil Procedure. 



TITLE I. 

THE CODE OF PROCEDURE.^ 

Sec. _ _ _ Sec. 

1. Division of remedies. 5. Definition of a criminal action. 

2. Definition of an action. 6. Definition of a civil action. 

3. Definition of a special proceeding. 7. Civil and criminal remedies not 

4. Division of actions into civil and merged in each other. 

criminal. 8. Division of the Code of Procedure. 

§ 1. Division of Remedies. — Remedies in the Courts of Justice are divided 
into: 1. Actions. 2. Special proceedings. 
ISTO, XIV, 423. § 1. 

■ nition of an Action. — An action is an ordinary proceeding in a 
*^ourt ot justice, by which a psrty prosecutes another party for the enforcement 
or protection of a right, the redress or prevention of a wrong, or the punishment 
of a pubHc offense. - 

1870, XIV, 423, § 2. 

§ 3. Definition of a Special Proceeding. — Every other remedy is a special 
proceeding.-' 

1870, XIV. 423. § 3. 

§ 4. Division of Actions into Civil and Criminal. — Actions are of two 
kinds: 1. Civil. 2. Criminal. 

1870, XIV. 423, § 4. 

§ 5. Definition of a Criminal Action. — A criminal action is prosecuted by 
the State, as a party, against a person charged with a public offense, for the 
punishment thereof.^ 

1870, XIV, 423, § 5. 

§ 6. Definition of a Civil Action. — Every other is a civil action. 

1870, XIV, 423, § 6. 

1. "The Code of Procedure has made no ma- method of applying the remedy for a wrong, and 

terial changes in the primary rights of parties, or the cause of action, or wrong itself, and the rem- 

in the different causes of action, nor undertaken edy, or object of the action, is clearly defined in 

to give any new redress; but has only changed the Bliss on Code Pleadings, 3d Ed., § 2. Nothing 

mode by which redress is reached and applied." constitutes a cause of action under the Code 

Anderson v. Lynch, 37 S. C. 575, 16 S. E. 773; which did not constitute 'a cause of action at 

Chapman z\ Eipscomb. 18 S. C. 222; Sullivan z'. law or suit in equity, prior to the adoption of the 

Sullivan, 20 S. C. 509. The only changes in the Code. Southern Porcelain Co. z'. Thew, 5 S. C. 

mode of redress are such as relate to the pleading 5: Parker z\ Jacobs, 14 S. C. 112. And a com- 

and its incidents. Price z'. Brown, 4 S. C. 144. plaint fails to state a cause of action under the 

It has not interfered with the essential and in- Code only when, upon the facts alleged, the 

herent distinctions between the different causes plaintiff is entitled to no relief, either at law or 

of actions. McConnell v. Kennedy, 29 S. C. 180, in equity. Mordecai v. Seignious, 53 S. C. 95, 

7 S. E. 76. Nor the distinctions between law and 30 S. E. 717; Eatham v. Harby, 50 S. C. 428, 

equity. "What was equitable before still remains 27 S. E. 862. Attachment being a form of proc- 

equitable, and what was legal is still legal, and ess incident to an action, is embraced in the term 

the mode of trial of each is still preserved." "action," is not a special proceeding. Campbell 

McMahan z: Hawkins, 22 S. C. 320: Knox z: z. Home Ins. Co., 1 S. C. 158; Allen v. Partlow, 

Campbell, 52 S. C. 461, 30 S. E. 485; Poston 3 S. C. 417. Appeal froin Probate Court to Cir- 

■I'. Ingram, 76 S. C. 167, 56 S. E. 780. "It al- cuit Court upon the merits is an action, not a 

lows only one form of action, and special pleas special proceeding. Henderson z'. Hyatt, 8 S. C. 

are not admitted." Smith z\ Chamberlain, 38 S- 112. 

C. 529, 17 S. E. 371. The General Statutes of 3. Rule against Sheriff for official misconduct 

1882 and the amended Code then adopted must is a special proceeding. Emory v. Davis, 4 _S. 

be regarded as one Act and construed together. C. 23. Attachment of crop under lien is a special 

Fooshe V. Merriwether, 20 S. C. 337; Citv Coun- proceeding. Johnstone v. Manigault, 13 S. C. 406; 

cil V. Weller, 34 S. C. 357, 13 S. E. 628." Sease v. Dobson, 33 S. C. 235, 11 S. E. 728, 36 

3. This definition has been substantially adopted S. C. 554, 15 S. E. 703. 

in all the Codes. Henderson v. Hvatt, 8 S. C. 4. Criminal prosecutions are actions. State Z'. 

112. The distinction between the' action, the Reynolds, 48 S. C. 384, 26 S. E. 679. 



2 CODB OF CIVIL PROCEDURE [ §§ 7-8 

§ 7. Civil and Criminal Remedies Not Merged in Each Other. — Where 
the violation of a right admits of both a civil and criminal remedy, the right 
to prosecute the one is not merged in the other.^ 

1870, XIV, 423, § 7. 

§ 8. Division of the Code of Procedure. — This Code of Procedure is di- 
vided into two Parts: the first relates to Courts of justice and their jurisdiction; 
the second relates to civil actions in the Courts of this State.*^ 

1870, XIV, 423, § 8. . 

5. Criminal prosecutions cannot be given in Pitts, 12 S. C. 180. The second part of the 

mitigation of damages for assault and battery. Code applies only to the Court of Common 

Edwards v. Wessinger, 65 S. C. 164, 43 S. E. 518, Pleas, except where express reference is made to 

95 Am. St. Rep. 789. inferior Courts. Doty v. Duval, 19 S. C. 43. 

e. Prior to the Act of 1884, XVIII, 737, the The provisions of § 438 expressly apply also to 

provisions of the Code as to proceedings on ap- criminal actions. State v. Reynolds, 48 S. C. 

peal did not apply to criminal cases. State v. 384, 26 S. E. 679. 



PART I 

Of the Courts of Justice and Their Jurisdiction 



TITLE I. 

OF COURTS OF JUSTICE. 



Their Designation. 

Sec. Sec. 

9. The several Courts of this State. 10. Their jurisdiction generally. 

§ 9. The Several Courts of This State.— The following are the Courts 
of justice in this State : 

1. The Court for Trial of Impeachments. 

2. The Supreme Court. 

3. The Circuit Courts, to wit: (1) A Court of Common Pleas; and (2) A 
Court of General Sessions. 

4. Probate Courts. 

5. County Courts. 

6. Courts of Magistrates. 

7. The City Court of Charleston. 

8. Court for the Arbitration of Mercantile Disputes in the City of Charleston. 

9. Mayors' and Municipal Courts. 
1870, XIV, 433, § 9; Con., Art. V, § 1. 

§ 10. Their Jurisdiction Generally.— These Courts shall exercise the juris- 
diction now vested in them respectively, except as otherwise prescribed by this 
Code of Procedure or the laws of the State. 

1870, XIV, 433, § 10. 



TITLE II. 

SUPREME COURT. 
Sec. Sec. 

11. Jurisdiction of Supreme Court. 14. Number to agree to constitute a 

13. Powers of Court in cases of appeal. judgment — When Circuit Judges to 

13. Time of meetings. sit also. 

15. Sheriffs to provide rooms, etc. 

16. Courts — Where held — Adjournment. 

§ 11. Jurisdiction of Supreme Court. — (A) The Supreme Court shall 
have power to issue writs or orders of injunction, mandamus, quo warranto, 
prohibition, certiorari, habeas corpus and other remedial and original writs : each 
of the Justices of the Supreme Court shall have the same power at chambers to 
administer oaths, issue writs of habeas corpus, mandamus, quo warranto, cer- 
tiorari, prohibition and interlocutory writs or orders of injunction as when in 
open Court : Provided, an appeal shall be allowed from his decision to the Su- 
preme Court.i 

1896, XXII, § 1. 

1. Appeals from a Justice are of same nature v. Spartanburg, 75 S. C. 549, 56 S. E. 381, 117 

as appeals from Circuit Court. Western Union Am. St. Rep. 917, 9 Am. & Eng. Ann. Cas. 829, 

Tel. Co. V. Winnsboro, 72 S. C. 43, 51 S. E. 528. 8 E. R. A., N. S., 412. 

Proceedings for injunction in original juris- Certiorari to Governor. Rawlinson v. Ansel, 

diction. British American Mortgage Co. v. 76 S. C. 395, 57 S. E. 185, 11 Am. & Eng. Ann. 

Jones, 76 S. C. 218, 56 S. E. 983; Dillingham Cas. 613. 



4 CODE OF CIVIL PROCEDURE [§ ^1 

(B) \A'hi;rE Issues di? Fact Arise;. — Whenever in the course of any such 
action or proceeding in the Supreme Court, arising in the exercise of the original 
jurisdiction conferred upon the Court by the Constitution and laws of the State, 
an issue of fact shall arise upon the pleadings, or when an issue of fact shall 
arise upon a traverse to return in mandamus, prohibition, certiorari, or whenever 
the determination of any question of fact shall be necessary to the exercise of 
the jurisdiction conferred upon the Supreme Court, the said Court shall have 
power to frame an issue therein and certify the same to the Circuit Court for 
the County wherein the cause shall have originated, or in case of original juris- 
diction to the Circuit Court of the County in which the cause of Action shall 
have arisen. The Supreme Court shall also have the same powers as are now pos- 
sessed by the Circuit Court of the State for the appointment of Referees to take 
testimony and report thereon, under such instructions as may be prescribed by 
said Court, in any cases arising in the Supreme Court wherein issues of fact shall 
arise. - 

1S96, XXII, § 1. 

(C) Appellate; Jurisdiction in Chancery. — The Supreme Court shall 
have appellate jurisdiction only in cases of chancery, and in such appeals they 
shall review the findings of fact as well as the law, except in chancery cases when 
the facts are settled by a jury and the verdict not set aside.-"^ 

1896, XXII, § 1. 

(D) Appellate Jurisdiction in Law Cases. — The Supreme Court shall have 
appellate jurisdiction for correction of errors of law in law cases, and shall re- 
view upon appeal : 

1. Any intermediate judgment, order or decree in a law case involving the 
merits in actions commenced in the Court of Common Pleas and General Ses- 
sions, brought there by original process, or removed there from any inferior 
Court or jurisdiction, and final judgments in such actions : Provided, If no 
appeal be taken until final judgment is entered, the Court may upon appeal from 
such final judgment review any intermediate order or decree necessarily affecting 
the judgment not before appealed from.'^ 

1896, XXII, § 1. 



4 



2. The Court has power to appoint a Referee An appeal from an order of reference on jitris- 
to take testimony of a party declining to make dictional grounds. Simms v. Phillips, 46 S. C. 
an affidavit in proceedings before it. State v. 149, 24 S. E. 99. 

Marks, 70 S. C. 448, 50 S. E. 14. An order of reference that deprives party of 

If in a case for an injunction to remove a mode of trial which the law allows him. Fergu- 

cloud on a title it becomes necessary to settle an son 7'. Harrison, 34 8. C. 169, 13 S. E. 332; Mc- 

issue of title, this Court can certify that issue to Laurin v. Hodges, 43 S. C. 187, 20 S. E. 991; 

the Circuit Court to be tried by a jury. Trustees Alston 7'. Limehouse, 61 S. C. 1, 39 S. E. 192. 

of University of South Carolina v. Trustees Orders that are based upon error in law and 

of Academy of Columbia, 85 S. C. 546, 555, 67 will prejudice trial. Bank v. Stelling, 32 S. C. 

S. E. 951. 102, 10 S. E. 766; Sease v. Dobson, 34 S. C. 345, 

3. In equity cases appellant has burden of show- 13 S. E. 530; Capell v. Moses, 36 S. C. 559, 15 
ing that the findings of the Appellate Court were S. E. 711; State v. P. R. & A. Ry. Co., 45 S. C. 
against the preponderance of the evidence. Boat- 470, 23 S. E. 383. 

wright V. Crosby, 83 S. C. 190, 65 S. E. 174; An appeal from an intermediate order, leaving 

Tindal v. Sublett, 82 S. C. 199, 63 S. E. 960. unaflfected a former order, is conclusive of appeal 

4. An order to involve the merits must finally from former order. Pringle z'. Sizer, 7 S. C. 131. 
determine some substantial right in the case. Hen- What orders do not involve the merits and are 
.'lerson 7'. Hyatt, 8 S. C. 112; Blakely z'. Frazier, not so reviewable before judgment: 

11 S. C. 122. Orders refusing inotions to make pleadings 

The terms "involving the merits" and "neces- more definite and certain. Fladger z'. fieckman, 

sarily affecting the judgment" are equivalent. 42 S. C. 547, 20 S. E. 790; Hawkins v. Wood, 60 

Blakely z: Frazier, 11 S. C. 122. S. C. 521, 39 S. F.. 9. 

What orders involve the merits and are so re- An order requiring secvirity for costs or non- 
viewable before judgment: suit, and an order discharging Clerk on rule for 

An order setting aside verdict for plaintiff with- refusing to enter judgment, and reinstating the 

nut notice to him. Williams v. Charleston, 7 S. case. McMillan z'. McCall, 2 S. C. 390. 

C. 71. Orders on motions to dissolve attachment. Allen 

An order refusing to change place of trial to z'. Patton, 3 S. C. 418; Clausen v. Eastcrling, 19 

County where defendant resides. Blakely z'. S. C. 519. 

Frazier, 11 S. C. 122. An order of Circuit Court allowing appeal. 

An order refusing an oral- demurrer. Elliott z'. which had been denied by Probate Court, as it 

Pollitzer, 24 S. C. 86; McCown z>. McSween, 29 merelv affects form of procedure. Henderson v. 

S. C. 130, 7 S. E. 45. Hyatt', 8 S. C. 112. 

An order refusing to allow amendment, upon An order refusing nonsuit. Agnew z'. Adams, 

legal grounds. Sibley v. Young, 26 S. C. 415, 2 24 S. C. 86. 

S. E. 314. Orders as to recommitting case to referee be- 



11 



OF SOUTH CAROLINA. 



2. An order affecting a substantial right made in an action, when such order 
in effect determines the action and prevents a judgment from which an appeal 
might be taken, or discontinues the action, and when such order grants or refuses 
a new trial ; or when such order strikes out an answer or any part thereof, or 
any pleading in any action ; upon any appeal from an order granting a new trial 



ing discretionary. Westfield z'. Westfield, 13 S. 
C. 482; Watkins v. Lang, 17 S. C. 13: Symmes v. 
S^mmes, IS S. C. 601; Lowndes v. Miller, 25 S. 
C. 119; Smith v. Thomason, 26 S. C. 607, 12 S. 
E. 96; Hubbard v. Camperdown Mills, 26 S. C. 
581, 2 S. E. 576. 

An interlocutory order of injunction, "without 
prejudice." Garlington v. Copeland, 25 S. C. 41. 

Ordcs on motions for continuance. State v. 
Dodson, 16 S. C. 459; Crawford v. Schmidt, 16 
S. C. 634; Symmes v. Symmes, 18 S. C. 601; 
Garvin 7'. Garvin, 21 S. C. 92; Douthit v. West- 
field, 22 S. C. 588; Sawyer v. Senn, 27 S. C. 251, 
3 S. E. 298; State v. Atkinson, 33 S. C. 100, 11 
S. E. 693; State j'. Wise, 33 S. C. 582, 12 S. E. 
556; Latimer v. Latimer, 42 S. C. 205, 20 S. E- 
159. 

An order referring it to Master to take testi- 
mony as to claims in case. Palmetto Co. v. Ris- 
ley, 25 S. C. 309; Jones v. Trumbo, 29 S. C. 26, 
6 S. E. 887. 

An order refusing a reference to take testi- 
mony in a chancery case. Farmers Ins. Co. v. 
Berry, 53 S. C. _ 129, 31 S. E. S3. 

An order refusing to refer issue to a jury in a 
chancerv case. Hammond v. Foreman, 43 *S. C. 
264, 21' S. E. 3. 

.-\n order transferring case from one calendar 
to another to try issues involved. Knox v. Camp- 
bell, 52 S. C. 461, 30 S. E. 485. 

An order granting a new trial nisi. Stuckey z'. 
Ry. Co., 57 S. C. 395, 35 S. E. 550. 

An order refusing motion to submit issues of 
fact to a jury in equity case. Dupont v. DuBos, 
33 S. C. 389, 11 S. E. 1073. 

It has been frequently held that an appeal 
will not lie from a verdict. All t'. Hiers, 59 S. 
C. 557, 558, 38 S. E. 157; Hutmacher v. Charles- 
ton ConsoL, etc., Co., 63 S. C. 123, 124, 40 S. E. 
1029; Brock v. Kirkpatrick, 69 S. C. 231, 233, 
48 S. E. 72. 

What orders reviewable on appeal from final 
judgment: 

An order sustaining a demurrer to complaint, 
with leave to amend on payment of costs. Cure- 
ton z: Hutchison, 3 S. C. 606. 

Order overruling demurrers. -Mobley v. Cure- 
ton, 6 S. C. 55. 

All material rulings and charges of Circuit 
Tudg'e excepted to. Brice v. Hamilton, 12 S. 
C. 35. 

An order denying the right to open and reply. 
Bennett :-. Sandifer, 15 S. C. 418. 

An order requiring referee's report to be 
printed for Circuit Court. Scott v. Alexander, 
27 S. C. 15, 2 S. E. 706. 

The Supreme Court is not restricted to such 
1 eviev.' of only such orders as have been appealed 
from within ten days and the cases for appeal 
thereon made up within thirty days; but it may 
review any orders affecting the final judgment, 
whether appealed from or not. Hyatt i\ Mc- 
Burnev. 17 S. C. 150; Lee v. Fowler, 19 S. C. 
607: Thatcher f. Massey. 20 S. C. 547: Bomar t-. 
R. Co., 30 S. C. 450, 9 S. E. 512; Sullivan v. 
Latimer, 32 S. C. 281, 10 S. E. 1071; McCrady ?'. 
Tones. 36 S. C. 136. 15 S. E. 430: Wallace v. R. 
Co.. 36 S. C. 599, IS S. E. 452; Morgan v. Smith, 
57 S. C. 49, 37 S. E. 44. And such review in- 
cludes ail rulings and charges material to the 
judgment though no motion for new trial was 
made to Circuit Cotirt. Brice ?'. Hamilton, 12 
S. C. 32. 

And upon appeal from a final, judgment, ren- 
dered after appeal from an intermediate order by 
one party, the other party may review such or- 
der. Hyatt 7: McBurney, l7 _S. C. 143. 

Is a decree which allows judgment for fore- 
closure "as soon as the amount is ascertained" 
such reviewable intei-mediate order? Wallace v. 
Carter, 32 S. C. 314, 11 S. E. 97. 

The better nractice is to await appeal from 
final order and then review intermediate orders. 
Capell V. Moses, 36 S. C. 559. 15 S. E. 711. 

What orders not so reviewable: 

An order of inferior Court not final nor in- 



volving the merits. McWilliam v. McCall, 2 S. 
C. 393; Donaldson v. Bank, 4 S. C. 114. 

Final judgments: 

The decision disposing of all the issues and di- 
recting judgment for amount, with interest, to be 
calculated by the Clerk, is a final judgment. 
Adickes v. Allison, 21 S. C. 245. In action at 
law, decision of judge is not the final Judg- 
ment, lb. 

The decision of two Trial Justices upon habeas 
corpus proceedings before them is not appealable 
to Supreme Court but to Ciicuit Court. State v. 
Duncan, 22 S. C. 88. 

This subdivision may not allow Supreme Court 
to hear appeal from City Court of Charleston. 
City Council v. Weller, 34 S. C. 357, 13 S. E. 
628. 

When appeal may be taken from a default 
judgment. McMahon v. Pugh, 62 S. C. 509, 40 
S. E. 961. A motion to recommit to Master is 
not appealable. Halk v. Stoddard, 62 S- C. 563, 
40 S. E. 957. 

Appeal to Supreme Court from verdict on Cir- 
cuit in condemnation proceedings. Mauldin v. 
Greenville, 64 S. C. 452, 42 S. E. 205. 

-Appeal lies from intermediate decree on merits. 
Cauthen v. Cauthen, 70 S. C. 176, 49 S. E. 321. 

Appeal lies from interlocutory order granting 
temporary injunction. Lamar %'. Groft, 73 S. C. 
410, S3 S. E. 540. 

-Appeals from Justice of Supreme Court are of 
same nature as appeals from Circuit Court. West- 
ern LTnion Tel. Co. v. Town of Winnsboro. 72 S. 
C. 43, 51 S. E. 528. 

Considered. Brock v. Kirkpatrick, 69 S. C. 233, 
48 S. E. 72. 

The decision of Judge on issues of fact in law 
case is fi-nal. Guignard v. Flanagan, 78 S. C. 487, 
59 S. E. 362. 

Unless it is entirely unsupported by evidence. 
In re Solomons' Estate, 74 S. C. 189, 191. 54 S. 
E. 207. 

In what cases Court mav review findings of 
fact. In re Solomons' Estate, 74 S. C. 189, 54 
S. E. 207. 

Not in law cases. Rippy v. Smith, 77 S. C. 
414, 57 S. E. 1097. 

May review findings in action to set aside a 
fraudulent transfer of assets. Townes, Trustee v. 
Stultz, 78 S. C. 366, 59 S. E. 983. 

Proceedings for admeasurement of dower are 
actions at law, and findings of fact are not re- 
viewable, llx parte Wallace, 73 S. C. 109, 52 S. 
E. 873. 

In action to set aside deed, all issues referred 
to Master by consent, there is no appeal on find- 
ings of fact. Johnson v. Jones, 72 S. C. 270, 51 
S. E. 805. 

In partitio'n suit where tenancy in common is 
denied, there is no appeal from findings of fact. 
Corbett V. Fogle, 72 S. C. 312, 51 S. E. 884. 

No appeal from order refusin.g to open a judg- 
ment and permit answer, unless there is abuse of 
discretion. McMahon v. Pugh, 62 S. C. 506, 40 
S. E. 963. 

No appeal from order refusing to revoke order 
of reference. Hoik v. Stoddard, 62 S. C. 564, 40 
S. E. 957. 

Order striking out two names of two bene- 
ficiaries in action under Lord Campbell's Act, 
does not involve the merits and is not appealable. 
McDaniel v. A. C. L. R. R. Co., 76 S. C. 15, 189, 
56 S. E. 543, 956. 

Nonsuit and new trial. Lamplev z'. A. C. L. 
R. R. Co., 77 S. C. 319, 57 S. E. "1104. 

Appeal on question of nonsuit on ground of 
contributory negligence. Lyon z'. C. & W. C. Ry., 
77 S. C. 328, 58 S. E. 12. 

An order to make pleadings more definite and 
certain is appealable, when it deprives appellant 
of some substantial right. Epstin v. Barman, 78 
S. C. 329, 58 S. E. 1013, citing Bolin v. Rv. Co., 
65 S. C. 226. 43 S. E. 665; Lynch z>. Spartan 
Mills, 66 S. C. 16, 44 S. E. 93. 

Order allowing temporary alimony is appeal- 



CODE OP CIVIL PROCBDURB 



[§ 11 



on a case made, or on exceptions taken, if the Supreme Court shall determine 
that no error was committed in granting the new trial, it shall render judgment 
absolute upon the right of the appellant; and after the proceedings are remitted 
to the Court from which the appeal was taken, an assessment of damages, or 
other proceedings to render the judgment effectual, may be then and there had 
in cases where such subsequent proceedings are requisite.^ 
1896, XXII, § 1; 1901, XXIII, 623. 



able. Order requiring party to show caitse is not 
appealable. Messervy v. Messervy, 79 S. C. 58, 
60 S. E. 692. 

Order allowing amendment to pleading not ap- 
pealable, when it in no respect affects the merits 
of the case. Buist v. Williams, 83 S. C. 321, 65 
S. E. 343. 

An appeal from interlocutory order reviewed on 
appeal from final order. Wallace v. Ry. Co., 36 
S. C. 599, 15 S. E. 452. Although appeal from 
interlocutory order has been dismissed. Morgan 
V. Smith, 59 S. C. 51. 

5. What orders are appealable under this sub- 
division : 

An order refusing leave to defendant to file his 
answer and giving judgment by default against 
him. Ayer v. Chassereau, 18 S. C. 597. 

Orders refusing nonsuit and, after verdict, a 
new trial. Moore v. Smith, 24 S. C 319. 

Doubted whether an order concerning security 
for costs is, unless it terminate action by nonsuit. 
Johnson v. Cobb, 29 S. C. 372, 7 S. ^. 601. 

An order granting or refusing new trial, where 
some question of law influenced the decision. 
Byrd v. Small, 2 S. C. 388; Durant v. Philpot, 

16 S. C. 116; Boyd v. Munro, 32 S. C. 249, 10 
S. E. 963. 

Orders as to amendments made upon clearly 
erroneous legal grounds. Bowden v. Winsmith, 
11 S. C. 411; Mason v. Johnson, 13 S. C. 23; 
Moore V. Johnson, 14 S. C. 436; Sibley v. Young, 
26 S. C. 415, 2 S. E. 314; Lilly v. R. Co., 32 S. 
C. 142, 10 S. E. 932; Waring v. Miller, 36 S. C. 
310, 15 S. E. 132._ 

"An order granting a new trial on a case made 
on exceptions taken" construed to embrace an or- 
der granting a new trial on the minutes. Caston 
V. Brock, 14 S. C. 104. 

Order granting new trial in Circuit Court on 
appeal from verdict of jury in condemnation pro- 
ceedings. Atlantic Coast Line R. R. Co. v. S. B. 
R. R. Co., 57 S. C. 317, 35 S. E. 555. 

Order of nonsuit taken by plaintiff appellant. 
Parsons v. Gibbes, 59 S. C. 215, 37 S. E. 753. 

An order sustaining a demurrer, which has the 
effect of striking out a part of the complaint, is 
appealable. Miles v. Charleston Light, etc., Co., 
87 S. C. 254, 257. 

What orders are not: 

An order, though it affect substantial right, un- 
less it prevent judgment. Allen v. Partlow, 3 S. 
C. 417; Garlington v. Copeland, 25 S. C. 41. 

An order sustaining demurrer to complaint, with 
leave to amend on payment of costs. Cureton v. 
Hutchinson, 3 _ S. C. 606. 

Order allowing amendment to pleading, where 
the amendment is acted on by appellant. Baker 
V. Ilornik, 51 S. C. 313, 28 S. E. 941; Clement v. 
Dean, 51 S. C. 317, 28 S. E. 943; Ruberg v. 
Brown, 50 S. C. 397, 27 S. E. 873. 

Orders on motion to open default judgment. 
Buttz V. Campbell, 15 S. C. 614; Truett v. Rains, 

17 S. C. 453. 

A judgment by default. Washington v. Hesse, 
56 S. C. 28, 33 S. E. 787. 

An order granting or refusing new trial for 
error of fact. Floyd v. Abney, 1 S. C. 114; El- 
more V. Scurry, 1 S. C. 139; Abrahams v. Kelly, 
2 S. C. 235; Byrd v. Small, 2 S. C. 388; Massey 
V. Adams, 3 S. C. 265; Winsmith v. Walker, 5 S. 
C. 473; Gibbes v. Elliott, 8 S. C. 50; Brickman 
V.V.. R., 8 S. C. 173; Clark v. Harper, 8 S. C. 
256; Bardin v. Drafts, 10 S. C. 493; Lanier v. 
Griffin, 11 S. C. 584; Steele v. R. R., 11 S. C. 
589; Warren v. Lagrone, 12 S. C. 46; Bank v. 
Gary, 14 S. C. 572; State v. Clark, IS S. C. 407; 
Donaldson v. Ward, 20 S. C. 585; Blakely v. Fra- 
zier, 20 S. C. 144; Altee v. S. C. Co., 21 S. C. 
559; Epstin v. Brown, 21 S. C. 599; Walker v. 
R. R., 25 S. C. 141; State v. Nance, 25 S. C. 



168; Wolfe v. R. R., 25 S. C. 379; Agnew v. 
Adams, 26 S. C. 101, 1 S. E. 414; Glover v. Bur- 
bridge, 27 S. C. 305, 3 S. E. 471; Dial v. Agnew, 
28 S. C. 454, 6 S. E. 295; Riggs v. Wilson, 30 
S. C. 172, 8 S. E. 848; McCord v. Blackwell, 31 
S. C. 126; Brown v. Thomson, 31 S. C. 436, 10 
S. E. 95; Cantrell v. Fowler, 32 S. C. 589, 10 S. 
E. 934; Johnston v. Holmes, 32 S. C. 434, 11 S. 
E. 208; State v. White, 34 S. C. 59, 12 S. E. 661; 
Durant v. Durant, 36 S. C. 49, 14 S. E. 929; 
Frick V. Wilson, 36 S. C. 65, IS S. E. 331; 
Pelzer v. Sun, 36 S. C. 213, 15 S. E. 562; State 
V. Haines, 36 S. C. SOS, 15 S. E. 555; Webber v. 
Ahrens, 36 S.. C. 585, 15 S. E. 732. 

Order granting or refusing continuance. State 
V. Atkinson, 33 S. C. 100, 11 S. E. 693; State v. 
Wyse, 33 S. C. 582, 12 S. E. 556. 

Generally as to this Section: 

The Supreme Court has appellate jurisdiction 
in cases of chancery alone; it can correct errors 
of l^w only in cases at law, and cannot review the 
facts. Cons., Art. 4, Sec. 4; Sullivan v. Thomas, 
3 S. C. 531; Whaley v. Bank, 5 S. C. 201; Gibbes 
V. Elliott, 8 S. C. 50; State v. Cardozo, 11 S. C. 
222; Toplin v. Carrier, 11 S. C. 329; Brice v. 
Hamilton, 12 S. C. 34; Maxwell v. Thompson, 
15 S. C. 612; Kappan v. Ryan, 16 S. C. 358; 
Cowan V. Neel, 17 S. C. 589; Crawford v. Craw- 
ford, 17 S. C. 523: Bowen v. R. R., 17 S. C. 
579; Chapman v. Lipscomb, 18 S. C. 231; Ross v. 
Lindler, 18 S. C. 605; Caulfield v. Charleston, 19 
S. C. 601; Ex parte Tieed, 19 S. C. 604; Blakely z/. 
Frazier, 20 S. C. 148; Donaldson v. Ward, 20 S. 
C. 585; Gaffney v. Peeler, 21 S. C. 66; Adickes v. 
Bratton, 21 S. C. 257; Copeland v. Young, 21 S. 
C. 287; Whitesides v. Barber, 22 S. C. SO; Davis 
V. Schmidt, 22 S. C. 133; McMahan v. Dawkins, 
22 S. C. 322; State v. Columbia, 17 S. C. 83; 
Nichols V. R. R., 23 S. C. 604; Calvert v. Nickles. 
26 S. C. 304, 2 S. E. 116; Hornsby v. R. Co., 26 
S. C. 187, 1 S. E. 594; State v. Prater, 26 S. C. 
199, 2 S. E. 108; Duren v. Kee, 26 S. C. 219, 
2 S. E. 4; Moultrie v. Dixon, 26 S. C. 296, 2 S. 
E. 24; Calvert v. Nickles, 26 S. C. 304, 2 S. E. 
116; Hubbard v. Camperdown Mills, 26 S. C. 581, 

2 S. E. 576; Glover v. Burbridge, 27 S. C. 305, 

3 S. E. 471; State v. Glover, 27 S. C. 602, 4 S. 
E. 564; Dial v. Agnew, 28 S. C. 454, 6 S. E. 
295; Johnston v. Llolmes, 32 S. C. 434, 11 S. E. 
208; Miller v. R. Co., 33 S. C. 359, 11 S. E- 
1093; Dobson v. Cothran, 34 S. C. 518, 13 S. E. 
679; Draffin v. R. R., 34 S. C. 464, 13 S. E. 427; 
State V. Robinson, 35 S. C. 340, 14 S. E. 766; 
Redfearn v. Douglass, 35 S. C. 569, 15 S. E. 244; 
Thomson v. Dillinger, 35 S. C. 608, 14 S. E. 776; 
Durant ■r: Durant, 36 S. C. 49, 14 S. E. 391. 

Appeals allowed under subdivisions 1 and 2 are 
those arising in the course of actions, and are 
intended to affect the final judgment. Subdivision 
3 provides appeals in matters of an independent 
nature or collateral to an action arising upon a 
special proceeding, or in matters arising_ upon a 
summary proceeding in an action after judgment, 
and such proceedings are not intended to disturb 
or to affect the judgment, but to give it efficiency. 
The summary applications under subdivision 3 are 
proceedings based upon the judgment and assum- 
ing its correctness, and if the object is to affect 
a judgment by setting it aside, reversing or modi- 
fying it, the appeal must be authorized by sub- 
divisions 1 or 2. Cureton v. Hutchinson, 3 S. C. 
606; Gibbes v. Elliott, 8 S. C. 62. 

An order refusing petition to be made a party 
is appealable. Rutledge v. Tunno, 63 S. C. 205, 
41 S. E. 308. 

Powers of Supreme Court hereunder. Lampley 
V. A. C. L. R. Co., 77 S. C. 319, 57 S. E. 1104. 

Refusal to strike out irrelevant and redundant 
allegations not appealable. Harbert v. Atlanta & 
Charlotte Air Line Ry., 74 S. C. 13, 53 S. E- 



12] 



OF SOUTH CAROLINA. 



3. A final order affecting a substantial right made in any special proceeding, 
or upon a summary application in any action after judgment, and upon such 
appeal to review any intermediate order involving the merits and necessarily 
affecting the order appealed from.^' 

1896, XXII, § 1. 

4. An interlocutory order or decree in the Court of Common Pleas, grant- 
ing or continuing or modifying or refusing an injunction, or else granting or 
continuing or modifying or refusing the appointment of a Receiver hereafter 
granted in any action : Provided, That the notice of appeal must be given 
within ten days from written notice of the filing of such interlocutory order or 
decree ; and such appeal shall take precedence in the Supreme Court ; and the 
proceedings in other respects in the Court below shall not be stayed during the 
pendency of such appeal unless otherwise ordered by the Court belowJ 

1896. XXII, § 1. 

§ 12. Powers of Court in Cases of Appeal. — The Supreme Court may 
reverse, affirm or modify the judgment, decree or order appealed from in whole 
or in part, and as to any or all of the parties, and the judgment shall be reinitted 
to the Court below to be enforced according to law. When a judgment or decree 
is reversed or affirmed by the Supreme Court, every point made and distinctly 
stated in the cause and fairly arising upon the record of the case shall be consid- 
ered and decided, and the reason thereof shall be concisely and briefly stated in 
writing and preserved in the record of the case. 

1896, XXII. 

Decisions — Whe:n FiIvEd. — The Justices of the Supreme Court shall file their 
decisions in sixty days from the last day of the Court at which the cases were 
heard. 

1896, XXII. 



1001; Cooper v. Railroad Co., 78 S. C. S6S, 59 
S. E. 704. 

An order refusing new trial in an action where 
there is no evidence to support verdict is appeal- 
able. Gunter v. Fallow, 78 S. C. 457, 59 S. E. 
70; State v. Shaw, 64 S. C. 569, 43 S. E. 14, 92 
Am. St. Rep. 817, 60 E. R. A. 801n; Colvin v. Oil 
Co., 66 S. C. 61, 77, 44 S. E. 380. 

Order refusing petition to be made a party is 
appealable. Rutledge v. Tunno, 63 S. C. 205, 41 
S. E. 308. 

Order refusing to strike out matter in plead- 
ings as irrelevant or redundant is not appealable. 
Harbert v. Ry. Co., 74 S. C. 13, 53 S. E. 1001; 
Strait V. Mortgage Co., 77 S. C. 367, 57 S. E. 
1100; Cooper v. Ry. Co., 78 S. C. S6S, 59 S. E. 
704. 

Order of reference, being purely administrative, 
•is not appealable. Eockwood v. Lockwood, 73 S. 
C. 198. S3 S. E. 87; Hall v. McBride, 73 S. C. 
227, 53 S. E. 368; Association ?-. Berrv, 53 S. C. 
129, 31 S. E. 53; Tones v. Haile Gold Min. Co., 
79 S. C. 47, 54, 60 _ S. E. 35. 

Order extending time to answer after default 
not appealable. Bell v. Western Union Telegraph 
Co., 73 S. C. 208, 53 S. E. 177. 

As to new trials see: Eampley v. A. C. E. R. 
Co., 77 S. C. 319. 57 S. E. 1104; Kennedy v. 
Greenville, 78 S. C. 128, 58 S. E. 989; Pace v. 
Rv. Co., 83 S. C. 33, 64 S. E. 915; Dixon v. Ry. 
Co., 83 S. C. 395, 65 S. E. 351; DesChamps v. 
Ry. Co., 83 S._ C. 192, 65 S. E. 176. 

Order requiring answer to be made more defi- 
nite and certain is not appealable. Dawkins v. 
Ry. Co., 82 S. C. 166, 63 S. E. 746. 

6. An order setting aside assignment of home- 
stead, made upon a summary application after 
judgment, affects a substantial right, and is ap- 
pealable. Weatherby v. Jackson, 3 S. C. 228. 

Such final order on rule against Sheriff is ap- 
pealable. Emory v. Davis, 4 S. C. 23. So is 
judgment in special proceeding under Agricul- 
tural Lien Act. .Johnstone v. Manigault, 13 S. 
C. 403. An order refusing appeal costs in special 
proceeding. Sease v. Dobson, 36 S. C. 554, 15 S. 
E. 703. But an order dissolving attachment is 
not. Allen v. Partlow, 3 S. C. 417. 



An order refusing a writ of mandamus is. Bx 
parte Mackey, 15 S. C. 328. 

Order refusing to vacate order of arrest, under 
final process, is such final order and appealable; 
not reviewable under, as an intermediate order, 
on appeal from decree refusing to allow prisoner 
Ijcnefit of Insolvent Debtors' Act. Hurst v. 
Samuels, 29 S. C. 476, 7 S. E. 822. 

Order in qiio zvarranto containing a preliminary 
injunction does not involve the merits and is not 
appealable. State v. Westmoreland, 29 S. C. 1, 6 
S. E. 847. 

Order in certiorari permanently staying pro- 
ceedings below is such final order. Coleman v. 
Keels, 30 S. C. 614, 9 S. E. 270. 

Appeal in condemnation proceedings. Mauldin 
V. Greenville, 64 S. C. 452, 42 S. E. 202. _ 

Error in granting new trial cannot be reviewed 
on appeal from judgment on a subsequent trial. 
Kennedy v. Greenville, 78 S. C. 129, 58 S. E. 
98?. 

7. This Act of 1901 does not apply to orders 
made before its ratification. Alston v. Eime- 
house, 61 S. C. 1, 39 S. E. 192. Prior to this 
Act, an order dissolving a temporary injunction 
to restrain a sale under mortgage was held ap- 
I'ealable. Strom v. American Mortgage Co., 42 
S. C. 97, 20 S. E. 16. So also an order refusing 
to restrain a sale. Salinas v. Aultman, 49 S. C. 
325, 27 S. E. 385. So, generally, where the in- 
junction is essential to the preservation or asser- 
tion of a legal right. Seabrook v. Mostowitz, 51 
S. C. 433, 29 S. E. 202. But an order granting 
an interlocutory order of injunction is not ap- 
pealable. S. C. & G. R. Co. V. Am. Tel., etc., 
Co., 58 S. _C. 21, 35 S. E. 797. Interlocutory or- 
der granting temporarv injunction appealable. 
Lamar v. Croft, 73 S. C. 407, 53 S. E. 540. 

Order denying injunction apoealable. South 
Bound R. R. V. Burton, 63 S. C. 348, 41 S. E. 
451. Interlocutory order restraining operation of 
ginnery appealable. Williams v. Jones, 62 S. C 
472, 40 S. E. 881; Lamar v. Croft, 73 S. C. 411, 
53 S. E. 540. 

Appeal from order dissolving temporary injunc- 
tion not aopealable after nuisance is abated. 
Wright V. Columbia, 77 S. C. 416, 57 S. E. 1096. 



8 CODE OF CIVIL PROCBDURB [ § 13 

Opinion Attached by ClErk to Judgment — Fees. — The Clerk of the Su- 
preme Court shall attach to the judgment remitted to the Court below, a copy 
of the opinion of the Supreme Court, if any, rendered in such cases, and shall 
receive as his fee for services in remitting the judgment and opinion the sum of 
one dollar and fifty cents in each case, to be taxed against the losing party, by 
the Clerk of the Court of Common Pleas, and when collected, by any officer or 
attorney, shall be remitted to the Clerk of the Supreme Court ; and he shall be 
entitled to charge and collect a fee of one dollar and fifty cents for any opinion, 
judgment or order which he may furnish any party ordering same.^ 

1904, XXIV, 389. 

§ 13. Time of Meetings. — The Supreme Court shall hold annually at the 
seat of government two sessions, the one commencing on the fourth Tuesday in 
November, and the other the third Tuesday in April, and each of said terms 
shall be continued for so long a period as the public interests may require. Ad- 
ditional terms may be appointed and held at such times and places as the Court 
may direct, when the public interest may require it. When any two of the Jus- 
tices request the Chief Justice to call an extra term he shall do so. The Court 
may by general rules require and provide what cases shall have preference on the 
Calendar. 

On a second and each subsequent appeal to the Supreme Court, or when an 
appeal has once been dismissed for defect or irregularity, the cause shall be placed 
upon the Calendar as of the time of filing the first appeal, and may be noticed 
and put on the Calendar for any succeeding term ; and whenever, in any action 
or proceeding in which the State, or any State officer, or any Board of State 
officers, is or are sole plaintiff or defendant, an appeal has been, or shall be, 
brought up from any judgment or order for or against him or them, in any 
Court, such appeal shall have preference in the Supreme Court, and may be 
moved by either party out of the order on the Calendar.'-' 

1870, XIV, .314. 

Supreme Court to Order Time Aelotted to Hearing oe Causes from Each 
Circuit. — The Supreme Court shall on or before the last day of any stated term 
make and file an order designating the order in which the causes from the several 
circuits shall be called at the stated terms of the Court next ensuing, which order 
shall designate the time to be allotted to the hearing of the causes from each cir- 
cuit. 

1897, XXII, 488. 

May Call Extra Term, etc. — If the cases from the several circuits cannot 
be heard in the period allotted as prescribed in the following Section, the Court 
shall continue the same to be heard after the regular call of the Circuits, or may 

8. Therefore, it has no power to grant leave to titvir is issued, and not when filed below. Ex 

defendant to answer over. Johnson v. Dawkins, parte Dunovant, 16 S. C. 300; Brooks v. Brooks, 

20 S. C. 533. It cannot originally determine the 16 S. C. 621. And cannot entertain a motion 

right to counsel fees. Otis v. Brown, 20 S. C. for rehearing after it is issued. _ Sullivan v. 

586. It can make no original decision upon a Speights, 14 S. C. 360; E.r parte Dial, 14 S. C. 

point not ruled below. Railroad Com. v. Rail- 585. 

road Co., 22 S. C. 231; Dulaney v. Elford, 22 S. The judgment when remitted cannot be altered 

C. 313. or modified by the Circuit Court, but must be en- 

In case at law it cannot modify the judgment forced. Pringle i\ Sizer, 3 S. C 337; Ex parte 

below; can only reverse or affirm. Hasford v. Dunovant, 16 S. C. 300; Ex parte Knox, 17 S. C. 

Wynn, 22 S. C. 313. 217. 

Filing of petition for rehearing does not stay If judgment be affirmed, it needs no further 

remittitur; there must be an order of one of the action by the Circuit Court. Adger v. Pringle, 

justices. Ex parte Dunovant, 16 S. C. 300. Stay 13 S. C*. 36. And action of Circuit Court is not 

of remittitur refused. State v. Jacobs, 28 S. C. affected by pending motion to recall remittitur. lb. 

609, 6 S. E. 577. Stay of remittitur rescinded. A remittitur which orders a new trial in effect 

Ex parte Smith, 35 S. C. 606, 1 5 S. E. 800. Mo- sets aside the verdict and judgment appealed from, 

tion to recall remittitur refused. State v. Merri- State t'. Stephens, 13 S. C. 287. 

man, 35 S. C- 607_, 14 S. E. 394. After remittitur is sent down, this Court has 

A remittitur which states that judgment below no power to order it returned so as to correct 

is affirmed is sufficient transcript of the judgment errors. Carpenter v. Lewis, 65 S. C. 403, 43 S. 

above. Ex parte Dial, 14 S. C. 586. E. 881. 

Supreme Court loses jurisdiction when remit- !). Ex pa"te Eason, 35 S. C. 602, 15 S. E. 800. 



§§ 14-16] OF SOUTH CAROLINA. 9 

call an extra term for the hearing of the same or continue them until the next 
stated term thereafter. 
1896, XXII, 1. 

§ 14. Number to Agree to Constitute a Judgment — When Circuit 
Judges to Sit Also. — In all cases decided by the Supreme Court the concur- 
rence of three of the Justices shall be necessary for a reversal of the judgment 
below; but if the four Justices equally divide in opinion the judgment below shall 
be affirmed, subject to the provisions hereinafter prescribed. Whenever upon 
the hearing of any cause or cjuestion before the Supreme Court, in the exercise 
of its original or appellate jurisdiction, it shall appear to the Justices thereof, 
or any two of them, that there is involved a question of Constitutional law, or 
of conflict between the Constitution and laws of this State and of the United 
States, or between the duties and obligations of her citizens under the same, 
upon the determination of which the entire Court is not agreed ; or whenever 
the Justices of the said Court, or any two of them, desire it on any cause or 
question so before said Court, the Chief Justice, or in his absence the presiding 
Associate Justice, shall call to the assistance of the Supreme Court all the Judges 
of the Circuit Court: Provided, That when the matter to be submitted is in- 
volved in an appeal from the Circuit Court the Circuit Judge who tried the case 
shall not sit. A majority of the Justices of the Supreme Court and Circuit 
Judges shall constitute a quorum. The decision of the Court so constituted, or 
a majority of the Justices and Judges sitting, shall be final and conclusive. In 
such case the Chief Justice, or in his absence the presiding Associate Justice, 
shall preside. Whenever the Justices of the Supreme Court and the Judges of 
the Circuit Court meet together for the purposes aforesaid, if the number thereof 
qualified to sit constitute an even number, then one of the Circuit Judges must 
retire, and the Circuit Judges present shall determine by lot which of their num- 
ber shall retire. Whenever the Circuit Judges are called to sit with the Jus- 
tices of the Supreme Court for the determination of any cause or causes, the 
actual traveling and other expenses of each Judge so attending shall be paid by 
the Governor out of his civil contingent fund upon an itemized statement made 
out and certified to by each Judge. ^"^ 

1870, XIV, 314. 

§ 15. Sheriffs to Provide Rooms, etc. — If, at any term of the Supreme 
Court, proper and convenient room, both for the consultation of the Judges and 
the holding of the Court, with furniture, attendants, fuel, lights and stationery, 
suitable and sufficient for the transaction of its business, be not provided for in 
the place where by law the Court may be held, the Court may order the Sheriff 
of the County to make such provision', and the expenses incurred by him in car- 
rying the order into effect shall be paid from the State Treasury. 

1870, XIV, 495. 

§ 16. Courts — Where Held — Adjournment. — The Supreme Court may be 
held in other buildings than those designated by law as places for holding Courts, 
and at a different place, in the same city or town, from that at which it is ap- 
pointed to be held. Any one or more of the Judges may adjourn the Court with 
the like effect as if all were present. 

1870, XIV, 314. 

10. Tho Supreme Co-urt cannot modify or set of such judgment. State v. Adams, 83 S. C. 
aside a judgment of the Court en banc. Effect 150, 55 S. E. 220. 



10 



CODE OF CIVIL PROCBDURB 



[ §§ 1M8 



TITLE III. 

CIRCUIT COURTS. 



Sec. 

17. 
18. 
19. 
30. 
21. 
22. 



State divided into twelve Circuits. 
Courts in First Circuit. 
Courts in Second Circuit. 
Courts in Third Circuit. 
Courts in Fourth Circuit. 
Courts in Fifth Circuit. 



23. Courts in Sixth Circuit. 

24. Courts in Seventh Circuit. 

25. Courts of Eighth Circuit. 

26. Courts in Ninth Circuit. 

27. Courts in Tenth Circuit. 

28. Courts in Eleventh Circuit. 

29. Terms of Court in Twelfth Circuit. 

30. Court of Common Pleas after Gen- 

eral Sessions. 



Sec. 

31. Judge's power to adjourn Court of 

Common Pleas. 

32. Power to open Common Pleas before 

completion of criminal business. 

33. Special Sessions of Circuit Courts. 

34. Petit jurors in Common Pleas and 

General Sessions. 

35. Adjournment of Circuit Courts. 

36. Before whom Circuit Judge may- 

qualify. 

37. Circuit Courts made Courts of rec- 

ord. 

38. Clerk and Deputy Clerk of Circuit 

Courts. 



§ 17. State Divided into Twelve Circuits. — The State is divided into 
twelve Judicial Circuits, as follows : 

The First Circuit shall be composed of the Counties of Berkeley, Calhoun, 
Dorchester and Orangeburg. 

The Second Circuit shall be composed of the Counties of Hampton, Aiken, 
Bamberg and Barnwell. 

The Third Circuit shall be composed of the Counties of Clarendon, Lee, Sum- 
ter and Williamsburg. 

The Fourth Circuit shall be composed of the Counties of Chesterfield, Darl- 
ington, Marlboro and Dillon. 

The Fifth Circuit shall be composed of the Counties of Kershaw and Richland. 

The Sixth Circuit shall be composed of the Counties of York, Chester, Lancas- 
ter and Fairfield. 

The Seventh Circuit shall be composed of the Counties of Cherokee, Spartan- 
burg and Union. 

The Eighth Circuit shall be composed of the Counties of Abbeville, Newberry, 
Laurens and Greenwood. 

The Ninth Circuit shall be composed of the Counties of Charleston, Colleton 
and Beaufort. 

The Tenth Circuit shall be composed of the Counties of Anderson, Greenville, 
Pickens and Oconee. 

The Eleventh Circuit shall be composed of the Counties of Lexington, Saluda 
and Edgefield. 

The Twelfth Circuit shall be composed of the Counties of Florence, George- 
town, Horry and Marion. 

1870, XIV, § 17; 1868, XIV, 5, 72; 1869, XIV, 198; 1872, XV, 146; XVI, 376; Id., 
296; 1871, XIV, 659, § 2; 1882, XVII, 682; 1889, XX, 518; 1871, XIV, 696, § 6; 1897, 
XXII, 583, § 10 and 597, § 5; 1897, XXII, 592, § 7; 1897, XXII, 609, § 11; Con., 1895, 
page 96 and 1896, XXII, 250, § 6; 1899, XXIII, 31, § 5; 1898, XXII, 879; 1899, XXIII, 
179, § 4; 1908, XXV, 1002, 1283; 1910, XXVI, 867. 

§ 18. Courts in First Circuit. — The Courts of the First Circuit shall be 
held as follows : 

L Orangi^burg County. — The Court of General Sessions at Orangeburg, 
for the County of Orangeburg, on the second Monday in January, first Monday 
in May, and the first Monday in September; and the Court of Common Pleas, 
at the same place, on the third Monday in March, first Monday in June, and the 
first Monday in October. 

1886, XIX, 473; 1898, XXII, 684; 1908, XXV, 1010; 1909, XXVI, 230. 



§19] OF SOUTH CAROLINA. 11 

2. Berkeley County. — The Court of General Sessions at Monck's Corner, 
for the County of Berkeley, on the first Monday in March, the first Monday in 
July, and the first Monday in November; and the Court of Common Pleas, at the 
same place, on the A\'ednesdays following the days named. 

1886, XIX, 473; 1898, XXII, 684; 1908, XXV, 1010; 1909, XXVI, 230. 

3. Dorchester County. — The Court of General Sessions at St. George's, 
for the County of Dorchester, on the first Monday in April and the third Ision- 
day in October ; and the Court of Common Pleas, at the same place, on the Tues- 
days succeeding the Mondays herein fixed for the holding of the Court of Gen- 
eral Sessions at said place, and also a Court of Common Pleas, at said place, on 
the second Monday in July; said last named Court to be held without juries. 

1897, XXII, 597; 1898, XXII, 684; 1901, XXII, 624; 1908, XXV, 1010; 1909, XXVI, 
230. 

4. Calhoun County. — The court of General Sessions at St. Matthew's, for 
the County of Calhoun, on the third Monday in May, and the third Monday in 
November; and the Court of Common Pleas, at the same place, on the Tuesdays 
following the days named. 

1908, XXV, 1010; 1909, XXVI, 230; 1911, XXVII, 88. 

§ 19. Courts in Second Circuit. — The Courts of the Second Circuit shall 
be held as follows : 

1. Aiken County. — The Court of General Sessions at Aiken, for the County 
of Aiken, on the fourth Monday in February, two weeks ; the second Monday in 
June, one week, and the first Monday in September ; and the Court of Common 
Pleas, at the same place, on the second Monday in April and on Wednesday after 
the fourth Monday in September: Proznded, That the April and September 
terms may hold longer than three weeks : And provided, further, That at the 
time allotted for the Court of General Sessions the Court of Common Pleas can 
be opened for the purpose of granting judgments by default and the hearing 
of any matter in the Common Pleas Court by consent of counsel. 

1897, XXII, 444; 1910, XXVI, 542; 1911, XXVII, 87. 

2. Hampton County. — The Court of General Sessions at Hampton, for the 
County of Hampton, on the third Monday in February, the third Monday in 
June, and the fourth Monday in October ; and the Court of Common Pleas, at 
the same place, on Wednesday after the third Monday in February, on Wednes- 
day after the third Monday in June, and on Wednesday after the fourth Mon- 
day in October : Provided, That each of said Courts shall not continue longer 
than two weeks. 

1896. XXII, 20; 1910, XXVI, 542; 1911, XXVII, 87. 

3. Bamberg County. — The Court of General Sessions at Bamberg, for the 
County of Bamberg, on the first Monday in Ad^arch, on the first Monday in July, 
and the second Monday in November; and the Court of Common Pleas, at the 
same place, on Tuesday after the first Monday in March, on Tuesday after the 
first Monday in July, and on Tuesday after the second IMonday in November : 
Provided, That the IMarch and November Courts shall not hold longer than two 
weeks, and the July Court not longer than one week ; Provided, further, That 
no jury trials shall be had at the July Court on the Common Pleas side of the 
Court unless by consent of counsel. 

1897, XXII, 585; 1910, XXVI, 542; 1911, XXVII, 87. 

4. Barnwell County. — The Court of General Sessions at Barnwell, for the 
County of Barnwell, on the third Monday in March, on the second Monday in 
July, and on the fourth Monday in November; and the Court of Common Pleas, 
at the same place, on \\^ednesday after the third Monday in March, on the third 
Monday in May, two weeks, on Wednesday after the second Monday in July, 
and on Wednesday after the fourth Monday in November : Provided, That 



12 CODE OF CIVIL PROCBDURB [ § 20' 

the Alarch Court shall not continue longer than three weeks, and the November 
Court not longer than four weeks, and the July Court not longer than three 
weeks. 

1897, XXII, 444; 1910, XXVI, 542; 1911, XXVII, 87. 

§ 20. Courts in Third Circuit.— The Courts of the Third Circuit shall be 
held as follows : 

1884, XVIII, 886; 1896, XXII, 22; 1899, XXII, 32; 1900, XXIII, 311; 1901, XXIII, 
625; 1910, XXVI, 541. 

1. Clarendon County. — The Court of General Sessions at Manning, for 
the County of Clarendon, on the fourth Monday in January, the first Monday in 
June, and the third Monday in September ; and the Court of Common Pleas, at 
the same place, on the Wednesdays first succeeding the Mondays herein fixed for 
holding the Court of General Sessions at said place : Provided, That no per- 
emptory call of Calendar No. 1 shall be made in said County of Clarendon at 
the fall term of the Court of Common Pleas before the Monday succeeding the 
\\'ednesday herein fixed for the opening of said Court: Provided, further, 
That there shall be no trial of jury cases at the summer term of the Court of 
Common Pleas, except by consent. 

2. Lee County. — The Court of General Sessions at Bishopville, for the 
County of Lee, on the fifth Monday after the fourth Monday in January, the 
second Monday in June and the second Monday in September ; and the Court 
of Common Pleas, at the same place, on the seventh Monday after the fourth 
^Monday in January, the Wednesday first succeeding the second Monday in June 
and the sixth Monday after the second Monday in September : Provided, That 
jury trial of civil cases shall not be had at the summer term, except by consent. 

3. Williamsburg County. — The Court of General Sessions at Kingstree, 
for the County of Williamsburg, on the fourth Monday after the fourth Monday 
in January, the third Monday in June and on the third Monday after the second 
Alonday in September; and the Court of Common Pleas, at the same place, on 
the sixth Monday after the fourth Monday in January, on the Wednesday first 
succeeding the third Monday in June and on the eleventh Monday after the sec- 
ond Monday in September: Provided, That no jury trial of civil cases shall 
be had at the summer term, except by consent. The petit juries for the first 
and third terms of the Court of General Sessions shall not be required to attend 
the first and third terms of the Court of Common Pleas, but separate juries shall 
be drawn and summoned for said Courts. 

4. Sumter County. — The Court of General Sessions at Sumter, on the sec- 
ond Monday after the fourth Monday in January, on the fourth Monda)^ in 
June : Provided, That the Court of General Sessions provided to convene on 
the fourth Monday in June for Sumter County may continue its session until 
the business thereof may be disposed of ; and the fourth Monday after the sec- 
ond Monday in September; and the Court of Common Pleas, at the same place, 
on the eighth Monday after the fourth Monday in January, on the first Monday 
after the fourth Monday in June, and on the eighth Monday after the second 
Monday in September. 

5. Separate Juries for General Sessions and Common Pleas. — Separate 
juries are to be drawn for the Court of General Sessions and the Courts of Com- 
mon Pleas for all terms for Sumter County and for the first and third terms for 
Lee and Williamsburg Counties. 

6. Opening Court oe Common Pleas. — Should the business of the Court 
of General Sessions for any of said counties, at any term, be completed or sus- 
pended before the time fixed by law for the opening of the Court of Common 
Pleas, the presiding Judge shall open the Court of Common Pleas for said 
County, for the trial of all cases and the transaction of all business pending 
therein, except the trial of jury cases, which may be tried at such time only by 



21 ] OF SOUTH CAROLIXA. 13 



the consent of the parties or their attorneys. The Courts of Common Pleas in 
said counties shall be open at all terms of the Courts of General Sessions for 
the purpose of rendering judgments by default and by the consent of the par- 
ties or their attorneys, for the trial of such equity cases as may be ready for hear- 
ing, for granting orders of reference, and other orders of course, and for the 
purpose of transacting all other business of a regular term of the Court of Com- 
mon Pleas, except trial by jury. 

§ 21. Courts in Fourth Circuit. — The Courts of the Fourth Circuit shall 
be held as follows, to wit : 

1883, XVIII, 305; 188T. XIX, 999; 1897, XXII, 404; 1901, XXIII, 627; 1910, XXVI, 
544; 1911, XXVII, 89. 

■1. General Sessions for Dillon County. — The Court of General Ses- 
sions at Dillon, for the County of Dillon, on the ]\Ionday before the last Mon- 
day in February, the second Monday in Jtine, and the second ^Monday in Sep- 
tember. 

2. General Sessions for Darlington County. — Court of General Sessions 
at Darlington, for the County of Darlington, on the last Monday in February, 
the third ^londay in Jwne, and the third Monday in September. 

3. General Sessions for Chesterfield County. — The Court of General 
Sessions at Chesterfield, for the County of Chesterfield, on the first [Monday 
after the last IMonday in February, the fourth Monday in June, and the fourth 
IMonday in September. 

4. General Sessions for AIarlboro County. — The Court of General Ses- 
sions at Bennettsville, for the County of Marlboro, on the second Monday after 
the last IMonday in February, the first ^Monday after the fourth Monday in June, 
and the first Monday after the fourth Monday in September. 

The Courts of Common Pleas for the Fourth Circuit shall be held as follows, 
to wit : 

1. Common Pleas for Dillon County. — The Court of Common Pleas at 
Dillon, for the County of Dillon, on the third Monday after the last ^londay in 
February and on the second Monday after the fourth Monday in June, and the 
second Monday after the fourth Monday in September. 

2. Common Pleas for Darlington County. — The Court of Common Pleas 
at Darlington, for the County of Darlington, on the fifth ]Monday after the last 
Monday in February, and on "the third ^Monday after the fourth Monday in June, 
and the sixth Monday after the fourth ]Monday in September. 

3. Common Pleas for Chesterfield County. — The Court of Common 
Pleas at Chesterfield, for the County of Chesterfield, on the seventh Monday after 
the last IMonday in February, on the fourth Monday after the fourth Alonday 
in June, and the fourth Monday after the fourth Monday in September. 

4. Common Pleas for Marlboro County. — The Court of Common Pleas at 
Bennettsville, for the County of Marlboro, on the ninth Monday after the last 
Monday in February, and on the fifth IMonday after the fourth Monday in 
June, and the eighth Monday after the fourth Monday in September. 

Time Pleadings, etc.. Are Returnable. — All the recognizances, pleadings, 
notices and papers, whether dated heretofore or hereafter, shall be returnable 
and applicable to the terms of the Court as fixed by this Section, and the Clerk 
■of the Court for each County in this Fourth Judicial Circuit shall give two \yeeks' 
notice of each and every term of the Court in some newspaper published in the 
County, stating the day of the month on which the next Court will open for the 
County. 

Opening Court of Common Pleas. — As to all the Courts of the Fourth Judi- 
cial Circuit, the presiding Judge of the Court of General Sessions is hereby 
authorized to open the Court of Common Pleas, render judgment by default. 



14 CODE OF CIVIL PROCEDURE [ §§ 22-23 

and by consent of parties to try (at any time between the days on which said 
Courts of General Sessions open and close) any civil action in the same man- 
ner and with the same effect as if said action should be tried at a regular term 
of the Court of Common Pleas. 

§ 22. Courts in Fifth Circuit.— The Courts of the Fifth District shall be 
held as follows : 

1877, XVI, 299; 1896, XXII, 24; 1899, XXIII, 33; 1910, XXVI, 541. 

1. Richland County. — The Court of General Sessions at Columbia, for the 
County of Richland, on the first Monday in January, on the fourth Monday in 
May, and on the first Tuesday in September; and the Court of Common Pleas, 
at the same place, on the first Monday in February, on the third Monday in 
March, on the first Monday in May, on the second Monday in June, and on the 
first Monday in October, and on the fourth Monday in November; and that at 
each of said terms of Court of Common Pleas, not exceeding three weeks shall 
be devoted to the trial of jury cases. Whenever the business of the Sessions Court 
is concluded, and the same is not immediately followed by the Court of Common 
Pleas, the presiding Judge shall open the Court of Common Pleas, without 
juries, and hear causes on Calendars two and three as prepared by the Cle.rk of 
Court for the preceding term of the Court of Common Pleas, and shall order 
docketed all default cases presented and give judgment therein according to law. 

2. KERSHAW County. — The Court of General Sessions at Camden, for the 
County of Kershaw, on the first Monday in March, on the first Monday of July, 
and on the second Monday in November ; and the Court of Common Pleas on the 
Thursday following the first Monday in March, the first Monday in July, and 
the second Monday in November. 

3. Terms of Court. — The Courts held under this Section in said Circuit dur- 
ing the first four months of the year, shall be known as the Spring Terms of the 
Court of General Sessions and the Court of Common Pleas, respectively ; dur- 
ing the next four months as the Summer Terms of said Courts, respectively; 
and the last four months as the Fall Terms of said Courts, respectively; and 
the two sessions of the Court of Common Pleas for Richland County, appointed 
by this Section, to be held in each of the three periods above designated, shall 
be known as the first and second sessions thereof, respectively. 

§ 23. Courts in Sixth Circuit. — The Courts of the Sixth Circuit shall be 
held as follows : 

1885, XIX, 223; 1899, XXII, 34; 1900, XXIII, 312; 1907, XXV, 617; 1911, XXVII, 64. 

1. Fairfield County. — The Court of General Sessions at Winnsboro, for 
the County of Fairfield, on the third Monday of February, the second Monday 
in June, and the third Monday in September ; and the Court of Common Pleas, 
at the same place, on the Wednesdays following the third Monday of February, 
and the third Monday of September : "Provided, That no cause on Calendar 
1 shall be forced to trial without agreement of attorneys until the Mondays fol- 
lowing the third Monday in February, and the third Monday in September. 

2. Tancastfr County. — The Court of General Sessions at Lancaster, for 
the County of Lancaster, on the second Monday of March, the third Monday of 
June, and the second Monday in October; and the Court of Common Pleas, at 
the same place, on the Wednesday following the second Monday in March, and 
the Wednesday following the second Monday in October : Provided, That no 
jury cases shall be tried before the third Monday in March and the third Monday 
in October, except by consent. 

3. Chester County. — The Court of General Sessions at Chester, for the 
County of Chester, on the fourth Monday in March, the first Monday in July, 
and the third Monday after the second Monday in October ; and the Court of Com- 
mon Pleas, at the same place, on the Wednesdays following the fourth Monday in 



§24] OF SOUTH C4R0UNA. 15 

March, and the third Monday after the second Monday in October : Provided, 
That Calendar 1 shall not be called peremptorily before the Monday following 
the fourth Monday in March, and the third Monday after the second Monday in 
October. 

4. York County. — The Court of General Sessions at Yorkville, for the 
County of York, on the third Monday after the fourth Monday in March, on 
the second Monday in July, and on the fourth Monday in November, unless 
there be five Mondays in October, in which event the Court shall begin on the 
third Monday in November ; and the Court of Common Pleas, at the same place, 
on the first Mondays in February and September, and on the Wednesdays first 
following the Mondays fixed for the holding of the Court of General Sessions, 
at said place : Provided, That nothing herein contained shall be held to limit 
the Court of General Sessions to two days, if the work before the Court is not 
concluded in such time : And provided, further. That Calendar 1 shall not 
be called peremptorily at the terms first following the Court of General Sessions 
until the Mondays following the Mondays fixed for holding of the Court of Gen- 
eral Sessions at said place, but this latter provision shall not apply to the Sum- 
mer Term. 

5. Busine;ss at Si^SSIons' Te;rms. — Whenever in this Section provision is 
made for Courts of General Sessions only, the Judge presiding shall, at the con- 
clusion of any such Court of General Sessions, open the Court of Common Pleas 
without juries, and give judgments by default on Calendar 3, hear and determine 
equity cases, and transact all other business of a regular term of Court of Com- 
mon Pleas, except trials by jury. 

6. Time: for Equity Cases. — There shall be allowed, for the trial of jury 
cases, equity cases, motions and special matters, if the business of the Court 
demands it, at least two weeks each at the Spring and Winter Terms of Court 
of Common Pleas for Fairfield, Chester and York counties, and one week at the 
Spring Term and two weeks at the Winter Term of Court of Common Pleas 
for the County of Lancaster. And in each of said Counties, upon the demand 
of either party, equity cases shall be tried in open Court, upon testimony then 
and there offered ; the same to be taken down by the Court Stenographer as a 
part of his official duty. 

§ 24. Courts in Seventh Circuit. — The Courts of the Seventh Circuit shall 
be held as follows : 

1889, XX, 359; 1896, XXII, 25; 1898, XXII, 685; 1899, XXIII, 35; 1906, XXV, 48, 
49; 1908, XXV, 1011. 

1. Spartanburg County. — The Court of General Sessions at Spartanburg, 
for the County of Spartanburg, on the first Monday in January (two weeks), the 
second Monday in April (one week), the second Monday in July (one week), 
the last Monday in September (one week), and the third Monday in November 
(one week). The Court of Common Pleas, on the third Monday in March 
(three weeks), the third Monday in May (three weeks, the last of which shall 
be for business requiring a jury, only), the third Monday in July (three weeks, 
the last of which shall be for business not requiring a jury only), the first Mon- 
day in October (three weeks, the last of which shall be for business not requir- 
ing a jury, only), and the fourth Monday in November (two weeks). 

2. Union County. — The Court of General Sessions at Union, for the County 
of Union, the first Monday in February (one week), the second Monday in 
June (one week), and the first Monday in September (one week). The Court 
of Common Pleas, at the same place, on the Mondays following the first Mon- 
day in February, the second Monday in June, and the first Monday in September 
(two weeks in February and September and one week in June). 

3. Cherokef County. — The Court of General Sessions at Gaffney, for the 
County of Cherokee, on the fourth Monday in February (one week), the fourth 



16 CODB OF CIVIL PROCBDURB [ § 25 

^Monday in June (one week), and the fourth Monday in October (one week). 
The Court of Common Pleas, at the same place, on the first Monday in March 
(two weeks) ; the Monday after the fourth Monday in June (one week), and 
the Alonday following the fourth Monday in October (two weeks). 

4. Court of Ge;ne;ral Sessions. — Should the business of the Court of Gen- 
eral Sessions for any of said Counties, at any term, be completed or suspended 
before the time fixed by this Section for the opening of the Court of Common 
Pleas, the presiding Judge shall open the Court of Common Pleas for said 
County, for the trial of all causes and the transaction of all business pending 
therein, except the trial of jury causes, which may be tried at such times, only 
bv the consent of the parties or their attorneys. Whenever the Court of General 
Sessions is open, the Court of Common Pleas for the same County shall also be 
deemed open for the purpose of rendering judgment by default, for the trial of 
such equity causes as may be ready for hearing, and for granting orders of ref- 
erence and other orders of course or by consent of parties, or their attorneys, 
or by guardians ad litem. 

5. Powers op Special Judge. — Whenever, for any reason, a special Judge 
shall be appointed to hold any Court in any County of this Circuit, he shall have 
all the powers throughout the Circuit that a regular Judge would have, if pre- 
siding. 

§ 2 5. Courts of Eighth Circuit.— The Courts of the Eighth Circuit shall 
be held as follows : 

The Court of General Sessions at Abbeville, for the County of Abbeville, on 
the fourth Monday in February; the Court of General Sessions for the County 
of Greenwood, at Greenwood, on the first Monday after the fourth Monday in 
February ; the Court of General Sessions for the County of Laurens, at Laurens, 
on the second Monday in March ; the Court of General Sessions for the County 
of Newberry, at Newberry, on the third Monday in March ; the Court of Com- 
mon Pleas for Abbeville County, at Abbeville, on the fourth Monday in March, 
to last for two weeks, if so much be necessary ; the Court of Common Pleas for 
Greenwood County, at Greenwood, on the second Monday in April to last for 
two weeks, if so much be necessary ; the Court of Common Pleas for the County 
of Laurens, at Laurens, on the fourth Monday in April, to last for two weeks, 
if so much be necessary ; the Court of Common Pleas for the County of New- 
berry, at Newberry on the second Monday in May ; the Court of General Ses- 
sions for Abbeville County, at Abbeville, on the first Monday in June ; the Court 
of General Sessions for the County of Newberry, at Newberry, on the second 
Monday in June ; the Court of General Sessions for Laurens County, at Lau- 
rens, on the third Monday in June ; the Court of General Sessions for the County 
of Greenwood, at Greenwood, on the fourth Monday in June ;^ the Court of 
Common Pleas for the County of Laurens, at Laurens, on the second Monday 
in July, to continue for three weeks, if so much be necessary ; the Court of Gen- 
eral Sessions for Abbeville County, at Abbeville, on^ the first Monday in Sep- 
tember ; the Court of Common Pleas for Newberry County, at Newberry, on 
the third Monday in September ; the Court of General Sessions for Laurens 
County, at Laurens, on the second Monday in September ; the Court of Com- 
mon Pleas for Greenwood County, at Greenwood, on the fourth Monday in Sep- 
tember ; the Court of Common Pleas for Abbeville County, at Abbeville, on the 
second Monday in October ; the Court of General Sessions for Greenwood 
County, at Greenwood, on the fourth Monday in October ; the Court of Common 
Pleas for Laurens County, at Laurens, on the first Monday in November ; the 
Court of Common Pleas for Newberry County, at Newberry, on the third Mon- 
day in November ; the Court of General Sessions for Newberry County, at New- 
berry, the fourth Monday in November. No civil business requiring a jury shall 

1. State V. Washington, 82 S. C. 341, 344, (A S. E. 386. 



§§ 26-27] OF SOUTH CAROLINA. 17 

be tried at the summer term of the Court of Common Pleas in the Counties of 
Abbeville and Greenwood ; but the Court of Common Pleas in all the Counties 
in the Eighth Judicial Circuit shall be open at all terms of the Courts of General 
Sessions, for the purpose of rendering judgments by default, and for the trial 
of such equity cases as may be ready for hearing, and for granting orders of 
reference and other orders in civil cases. 

1889, XX, 360; 1891, XX, 1113; 1896, XXII, 26; 1899, XXIII, 37; 1900. XXIII, 314; 
1901, XXIII, 629; 1910, XXVI, 538. 

§ 26. Courts in Ninth Circuit.— The Courts of the Ninth Circuit shall be 
held as follows : 

1884, XVIII, 686; 1887, XIX, 987; 1894, XXI, 717; 1896, XXII, 20; 1898, XXII, 
683; 1899, XXIII, 31 and 258; 1900, XXIII, 309, 310; 1901, XXIII, 624; 1909, XXVI, 
163. 

1. Charleston County. — The Court of General Sessions at Charleston, 
for the County of Charleston, on the second Monday in February, the first Mon- 
day in June, and the fourth Monday in September; and the Court of Common 
Pleas, at the same place, the first Monday in April, second Monday in June, and 
the first Alonday in October. In case the business of the Court of General Ses- 
sions be completed before the said last mentioned days, but after the day herein 
fixed for holding of said April and October Terms of Court of Common Pleas, 
then the Circuit Judge may peremptorily call and hear equity cases and motions 
to refer issues of fact in such cases to a jury, and to give judgment by default, 
and transact all other business except trial by jury. 

2. Colleton County. — The Court of General Sessions at Walterboro, for 
the County of Colleton, on the first JMonday in March, first Monday in July, and 
the third jMonday in November; and the Court of Common Pleas on the 
Wednesday following the first Monday in March, first Monday in July, and the 
third Alonday in November. 

3. Beaufort County. — The Court of General Sessions at Beaufort, for the 
County of Beaufort, on the first JMonday in January, third Monday in May,' and 
the first JMonday in September ; and the Court of Common Pleas on the Wednes- 
day following the first Monday in January, third Monday in May, and first Mon- 
day in September. 

§ 27. Courts in Tenth Circuit. — The Courts of the Tenth Circuit shall be 
held as follows : 

1908, XXV, 1013. 

1. Greenville County. — The Court of General Sessions at Greenville, for 
the County of Greenville, on the third Monday in January, the first JMonday in 
JMay, and the first Monday in September; and the Court of Common Pleas, at 
the same place, on the fourth JMonday in March, the second JMonday in June, 
and the third JMonday in November. 

2. Anderson County. — The Court of General Sessions at Anderson, for the 
County of Anderson, on the second JMonday in January, the third JMonday in 
JMay, and the third Monday in September ; and the Court of Common Pleas, at 
the same place, on the first Monday in February, the fourth JMonday in June, 
and the second Monday in October. 

3. Pickens County. — The Court of General Sessions at Pickens, for the 
County of Pickens, on the fourth JMonday in February, the first JMonday in June, 
and the fourth Monday in September ; and the Court of Common Pleas, at the 
same place, on Wednesday after the fourth Monday in February, on Wednesday 
after the first JMonday in June, and on W^ednesday after the fourth Monday in 
September. 

4. Oconee County. — The Court of General Sessions at Walhalla, for the 
County of Oconee, on the Second Monday in March, the first Monday in July', 

2 S C C— 2 



18 CODB OF CIVIL PROCBDURB [ § 29 

and the first Monday in November ; and the Court of Common Pleas, at the 
same place, for said County, on the Wednesdays next following the second Mon- 
day in March, the first Monday in July, and the first Monday in November. 

§ 28. Courts in Eleventh Circuit. — The Courts in the Eleventh Circuit 
shall be held as follows : 

1877, XVI, 299; 1896, XXII, 24; 1897, XXII, 433; 1899, XXIII, 33, 685; 1909, XXVI, 
169. 

1. Saluda County. — The Court of General Sessions for the County of Sa- 
luda, at Saluda Courthouse, on the fourth Monday in February, the first Mon- 
day in July, and the first Monday in October ; and the Court of Common Pleas, 
at the same place, on the fourth Monday in March, fourth Monday in July, and 
the first Monday in December. 

2. Le;xington County. — The Court of General Sessions for the County of 
Lexington, at Lexington, on the second Monday in January, the second Monday 
in June, and the third Monday in September ; and the Court of Common Pleas, 
at the same place, on the first Monday in February, the third Monday in June, 
and the first Monday in November. 

3. Edgefield County. — The Court of General Sessions for the County of 
Edgefield, at Edgefield, on the first Monday in March, the second Monday in 
August, and the second Monday in October ; and the Court of Common Pleas, 
at the same place, on the second Monday in March, on Wednesday after the 
second Monday in August, and the third Monday in October ; and the same 
panel of petit jurors shall be eligible to serve for both the Courts of General 
Sessions and Common Pleas at the August Term of Court. 

4. Calling of Calendars. — The presiding Judge shall call Calendars two 
and three peremptorily at the close of the Sessions Court, if there be time for 
the same, in the Counties of Lexington and Saluda, after the work of the Ses- 
sions Court shall have been concluded. 

§ 29. Terms of Court in Twelfth Circuit.— The Courts of the Twelfth 
Circuit shall be held as follows : 
1909, XXVI, 23. 

1. General Sessions for Horry County. — The Court of General Sessions 
at Conway, for the County of Horry, on the last Monday in February, the fourth 
Monday in May, and the fourth Monday in September; and the Court of Com- 
mon Pleas, at the same place, on the Wednesdays succeeding the Mondays herein 
fixed for the holding of the Court of General Sessions at said place. 
• 2. General Sessions for Marion County. — The Court of General Ses- 
sions at Marion, for the County of Marion, on the first Monday after the last 
Monday in February, the first Monday after the fourth Monday in May, and the 
first Monday after the fourth Monday in September. 

3. General Sessions for Florence County. — The Court of General Ses- 
sions at Florence, for the County of Florence, on the second Monday after the 
last Monday in February, the second Monday after the fourth Monday in May, 
and the second Monday after the fourth Monday in September. 

4. General Sessions for Georgetown County. — The Court of General 
Sessions at Georgetown, for the County of Georgetown, on the third Monday 
after the last Monday in February, the third Monday after the fourth Monday 
in May, and the third Monday after the fourth Monday in September; and the 
Court of Common Pleas, at the same place, on the Wednesdays succeeding the 
Mondays herein fixed for the holding of the Court of General Sessions at said 
place : Provided, That no peremptory call of Calendar No. 1 shall be made 
in said County of Georgetown at the March and November Terms of said Court 
of Common Pleas before the Fridays first succeeding the days herein fixed for 
the opening of said Court. 



§§ 30-33] OF SOUTH CAROLINA. 19 

5. Common Pleas for Horry County. — The Court of Common Pleas at 
Conway, for the County of Horry, on the fifth Monday after the last Monday in 
February, and on the fifth Monday after the fourth Monday in September. 

6. Common Pleas for Marion County. — The Court of Common Pleas at 
Marion, for the County of Marion, on the sixth Monday after the last Monday 
in February, and on the eighth Monday after the fourth Monday in September. 

7. Common PlFas for FlorFncf County. — The Court of Common Pleas 
at Florence, for the County of Florence, on the eighth Monday after the last 
Monday in February, and the sixth Monday after the fourth Monday in Septem- 
ber. 

8. Court of General Sessions of Twelfth Circuit. — As to all of the ' 
Courts of the Twelfth Judicial Circuit aforesaid, except said Courts for the 
Counties of Horry and Georgetown, the presiding Judge of the Court of General 
Sessions is authorized to open the Court of Common Pleas, render judgments 
by default, try equity causes, and by consent of parties to try (at any term be- 
tween the days on which said Courts of General Sessions open and close) any 
civil action, in the same manner and with the same effect as if said action should 
be tried at a regular term of the Court of Common Pleas. 

§ 30. Court of Common Pleas after General Sessions. — Whenever in 
this title provision is made for Courts of General Sessions only, the Judge 
presiding shall, at the conclusion of any such Court of General Sessions, open 
the Court of Common Pleas without juries, and give judgments by default on 
Calendar 3, hear and determine equity causes, and transact all other business 
of a regular term' of a Court of Common Pleas, except trials by jury: Provided, 
That in the County of Hampton, all cases in the Court of Common Pleas for 
said County may be tried at the summer terms of said Court.^ 

1878, XVI, 703; 1883, XVIII, 586; 1904, XXIV, 422. 

§ 31. Judge's Power to Adjourn Court of Common Pleas. — Should the 
business before the Court of General Sessions at any term not be completed on 
the arrival of the day fixed by law for the holding of the Court of Common Pleas 
for said County, the Judge presiding may, in his discretion, adjourn said Court 
of Common Pleas until the business of the Court of General Sessions shall have 
been concluded. But the provisions of this Section shall not apply to the Courts 
held in the County of Newberry .^ 

1870, XIV, § 27; 1889, XX, 359. 

§ 32. Power to Open Common Pleas before Completion of Criminal 
Business. — Should the business before the Court of General Sessions at any 
term in any Circuit in this State be completed or suspended before or after the 
day fixed by law for the opening of the Court of Common Pleas for any County 
in the State, the presiding Judge may, in his discretion, before the completion of 
the criminal business, open the Court of Common Pleas for the trial of all causes 
or the dispatch of all business that may be pending in said Court in which the 
parties interested are ready to be heard. 

1883, XVIII, 346. 

§ 33. Special Sessions of Circuit Courts. — Special Sessions of the 
Courts of Common Pleas or General Sessions may be held whenever so ordered, 
either by the Chief Justice or by the Circuit Judge at the time holding the Cir- 

2. Applies wherever provisions is made by the 3. It is necessary to such adjournment that the 

statute for opening the general sessions only. Bur- Court of Common Pleas should be first opened on 

well & Dunn Co. v. Chapman, '59 S. C. 581, the day fixed for its holding. McKellar v. Parker, 

38 S. E. 224. Though the Common Pleas so 29 S. C. 237, 7 S. E. 295. But where the of- 

opened is not a regular term within the meaning ficers and machinery are present in courthouse on 

of § 335. McLaurin v. Kelly, 40 S. C. 486, 19 the fixed day, that Court is then opened by opera- 

S K 143 tion of law, without any formality. Hardin v. 

Term of Common Pleas. Burwell v. Chapman, Trimmier, 30 S. C. 391, 9 S. E. 342; Miller v. 

59 S. C. 581, 38 S. E. 224; Ward v. Tel. Co., 62 George, 30 S. C. 526, 9 S. E. 659; State z;. Hasty, 

S. C. 274, 40 S. E. 670. 76 S. C. 115, 56 S. E. 669. 



20 CODB OF CIVIL PROCBDURB [ §§ 34-38 

ciiit Court of the County for which the extra term may be ordered, of which 
extra term such notice shall be given as the Chief Justice or the Circuit Judge 
so ordering the same may direct. If such extra term of either or both the Courts 
aforesaid be ordered by the Chief Justice, he may order any one of the Circuit 
Judges to hold the same; but if such extra term be ordered by a Circuit Judge, 
as hereinbefore provided, then such extra term shall be held only by the Circuit 
Judge so ordering the same. No cause shall be tried at any extra term of the 
Court of Common Pleas for any Circuit unless the said cause shall have been 
previously docketed upon some one of the Calendars of the last preceding regu- 
lar term of said Court. 

The Clerk of such Court shall, at least fifteen days before the commencement of 
such special session, cause the time and place for holding the same to be notified, 
for at least two weeks successively, in one or more of the newspapers published 
nearest the place where the session is to be holden. All processes, writs, and 
recognizances of every kind, whether respecting juries, witnesses, bail, or other- 
wise, which relate to the cases to be tried at the said special session, shall be con- 
sidered as belonging to such session in the same manner as if they had been 
issued or taken in reference thereto. All business depending for trial at any spe- 
cial session shall at the close thereof be considered as of course removed to the 
next stated term of Court. Said special session shall be held in pursuance of an 
order which shall be transmitted to the Clerk of the Court, and by him entered on 
the records of the Court.^ 

1873, XIV, § 28; 1878, XVI, 395, § 3; 1884, XVIII, 770. 

§ 34. Petit Jurors in Common Pleas and General Sessions. — Petit 
jurors summoned to attend the Court of General Sessions in any County, except 
the County of Charleston, shall also attend and serve as jurors for the Court of 
Common Pleas next ensuing in and for said County, except as otherwise provided 
in Section 4033 of the Civil Code of 1912. 

1870, XVI, § 39. 

§ 35. Adjournment of Circuit Courts. — The Judge of the Circuit Court 
shall have power to direct any Circuit Court in his Circuit to be adjourned over 
to a future day designated in a written order to the Clerk of said Court, when- 
ever there is a dangerous and general disease at the place where said Court is 
usually holden.^ 

1870, XVI, § 30. 

§ 36. Before Whom Circuit Judge May Qualify.— The Circuit Judges of 
this State, upon their election, shall qualify by taking the oaths required by the 
Constitution of this State before a Justice of the Supreme Court, a Circuit 
Judge, a Clerk of the Supreme Court, or a Clerk of the Court of Common Pleas, 
or a Probate Judge of the County, and shall forthwith enter upon their duties ; 
and said oaths must be filed in the office of the Secretary of State. 

1870, XVI, § 31; XVII, 502; 1898, XXII, £88. 

§ 37. Circuit Courts Made Courts of Record. — The Circuit Courts herein 
established shall be Courts of record, and the books of record thereof shall, at 
aU times, be subject to the inspection of any person interested therein. 

1870, XIV, § 32. 

§ 38. Clerk and Deputy Clerk of Circuit Courts. — The Clerk elected in 
each County pursuant to Section 27 of Article V of the Constitution shall be 

4. An order of reference cannot be granted at 5. Such adjournment having been ordered, no 
a special term in any case not docketed at the inquiry can be made as to whether conditions ex- 
preceding regular term. Simms v. Phillips, 46 S. isted. Adickes v. yVllison, 21 S. C. 256. But 
C. 149, 24 S. E. 97. But if no objection be raised, when the term of Court fixed by^ law has expired, 
any cause may be heard. Rivers v. Priester, 58 the Judge has no power to continue its existence 
S. C. 194, 36 S. E. 543. and convene it at another time. Ex parte Lilly, 

Requirement as to publication does not apply 7 S. C. 373. But Judge may order adjournment 

to the Special Court ordered under Civil Code, of Court from day to day till a fixed day before 

§§ 3841, 3842. State v. Davis, 88 S. C. 204, 210. the next succeeding Court, and try a cause on 

that day. DeLeon ■-.•. Barrett, 22 S. C. 412. 



§ 39 



OF SOUTH CAROLINA. 



21 



Clerk of the Courts of General Sessions and Common Pleas, and may appoint 
a deputy, who may perform the duties of Clerk, for whose acts such Clerk shall 
be responsible, and a record of whose appointment shall be made in the Clerk's 
office, and such appointment may be revoked at the pleasure of the Clerk; and 
in case no Clerk exists, the Judge shall have authority to appoint a person who 
shall perform the duties of Clerk, and said Deputy Clerk, or the one appointed 
by the Judge, shall be required to give the usual bond before entering on the 
duties of the office.*^ 

1870, XVI, § 33. 



TITLE IV. 

PROBATE COURT. 



Sec. 

60. Adjournment of Court — When by- 
Clerk. 

61. Appellate jurisdiction of Circuit 
Court. 

62. Jurisdiction of Supreme Court in 
probate matters. 

63. Appeal to Circuit Court to be taken 
within fifteen days. 

64. Certified copies of record to be filed 
in Circuit Court. 

65. Proceedings stayed by appeal. 

66. How Circuit Court may proceed to 
trial. 

67. Appellant neglecting to enter appeal 
judgment affirmed with costs. 

68. Final decision to be certified to Pro- 
bate Court. 

69. Probate Judge no voice in determin- 
ing appeal — When may practice 
law. 

70. Proceedings may be commenced by 
petition. 

71. Supreme Court to make rules — 
County Commissioners to provide 
furniture, etc., for office. 

72. May punish for contempt. 

73. Enrollment of decrees. 

74. To keep index of decrees enrolled. 

75. Empowered to issue executions. 

76. Judge may commit lunatics, etc., to 
State Hospital for Insane. 

77. Police officers to apprehend aban- 
doned children — Investigation by 
Probate Judge — Rescue Orphan- 
ages. 

78. Rights and authority of Orphanage. 

79. Orphanage may intrust children to 
individual or family. 

§ 39. Sessions. — A Court of Probate is hereby established in each of the 
several Counties in this State, which shall hold a session on the first Monday in 
each month, at or near the Courthouse, and continue thereafter so long as the 
business may require. 

1868, XIV, 76; 1869, XIV, 241; 1870, XIV, § 35. 



Sec 

39. Sessions. 

40. Court of record — Clerk. 

41. Duties of Clerk. 

42. Jurisdiction of Judges. 

43. In relation to guardians. 

44. Administration and probate of wills. 

45. Settlement of estate in County where 

will proved — Sale of real estate. 

46. Certain probate notices or citations 

not required to be published. 

47. When to grant discharge to adminis- 

trators, etc. 

48. Proceedings relative to estates under 

guardianship. 

49. Judges not to act when interested — 

When Judges of adjoining County 
to act. 

50. Power to administer oaths. 

51. Probate Court may issue warrants 

and processes. 

52. In cases of contumacy, may commit 

to jail. 

53. When depositions may be taken and 

used. 

54. Exclusive jurisdiction after once ac- 

quired. 

55. Jurisdiction not to be collaterally im- 

peached. 

56. When minor may choose guardian — 

Guardian interested — Where ap- 
pointed. 

57. Authorized to permit sale and settle 

accounts of guardian. 

58. Judges may appoint times and places 

for holding Courts. 

59. Open at all times for certain busi- 

ness. 



6. Generally as to this Title: Proceedings of 
a Circuit Court, held by the Judge of another 
Circuit, at a time ttnauthorized by law, are void. 
Ex parte DeHay, 3 S. C. 564. 

Where, after the regular session of a Circuit 
Court has commenced, an Act transfers the County 
to another Circuit and fixes another day for hold- 
ing the Court, it has jurisdiction to continue its 



session and to try cases. Shelton v. Mabin, 4 S- 
C. 541. 

Circuit Judges are confined, in the _ perform- 
ance of their judicial duties, to the Circuits to 
which they are respectively elected, except when 
authorized by statute to go beyond that limit. 
Const., Art. IV, §§ 13-14; Ex parte Parker, 6 S. 
C. 472; State v. Parker, 7 S. C. 235. 



22 



CODE OF CIVIL PROCBDURB 



[ §§ 40-43 



§ 40. Court of Record — Clerk.— The Court of Probate shall be a Court 
of record, and have a seal; may appomt a Clerk, and may remove him at pleas- 
ure; and on failure of the Court to appoint such Clerk, the Judge of the Court 
shall perform all the duties of Clerk : Provided, That no person holding the 
office of Clerk of the Probate Court under and by virtue of the appointment of 
the Probate Judge of any County of this State, shall practice in such Court as 
an attorney or counsellor at law.^ 

1870, XIV, § 36; 1877, XVI, 233. 

§ 41. Duties of Clerk. — The Clerk of the Court of Probate shall keep a 
true and fair record of each order, sentence, and decree of the Court, and of all 
other things proper to be recorded; and, on the legal fees being paid, shall give 
true and attested copies of the files and proceedings of the Court. All copies 
so attested shall be legal evidence in the Courts of this State. 

1870, XIV, § 37. 

§ 42. Jurisdiction of Judges. — Every Judge of Probate, in his County, 
shall have jurisdiction in all matters testamentary and of administration, in busi- 
ness appertaining to minors, and the allotment of dower, in cases of idiocy and 
lunacy, and of persons non compos mentis? 

1870, XIV, § 38. . 

§ 43. In Relation to Guardians. — The Judge of Probate shall have juris- 
diction in relation to the appointment and removal of guardians of minors, insane 
and idiotic persons, and persons non compos mentis, and in relation to the duties 
imposed by law on such guardians, and the management and disposition of the 
estates of their wards. He shall exercise original jurisdiction in relation to trus- 
tees appointed by will.-^ 

1870, XIV, § 39; Con., Art. V, § 19. 



1. Being a Court of record, it is not an in- 
ferior Court within the limits of its jurisdiction, 
which is large. Thomas v. Poole, 19 S. C. 323; 
Turner v. Malone, 24 S. C. 398; State v. Burn- 
side, 33 S. C. 276, 11 S. E. 787. Facts appearing 
on its record cannot be attacked collaterally. 
Tedcrall v. Bouknight, 25 S. C. 275. 

2. As to matters testamentary: 

Phcenix Bridge Co. v. Castleberry, 131 Fed. 
175, 176.^ 

What is the extent of such jurisdiction, con- 
ferred by the Constitution, has not been de- 
termined. Thomas v. Poole, 19 S. C. 323. 

It does not include action by cestui que trust 
against his trustee for accounting, unless it in- 
volves matters testamentary. Poole v. Brown, 12 
S. C. 556. 

Nor action of one legatee against another to re- 
cover money paid to her in excess of her share as 
found bv decree of Probate Court. Miller v. 
Stark, 29 S. C. 325. 

In probate of wills the jurisdiction extends 
only to its execution, and not to its construction. 
Prater v. Whittle, 16 S. C. 40. 

Letters testamentary cannot be granted to one 
as executor not nominated by the will. Blakely v. 
Frazier, 20 S. C. 144. 

Probate Court may settle an estate upon peti- 
tion of the executors as being a matter testamen- 
tary. In re Covin Kst.. 20 S. C. 476. 

What are not cases of "matters testamentary or 
of administration." Caldwell v. Little, 15 S. C. 
236. 

As to matters of administration: 

Such jurisdiction does not embrace a case 
against administrator in his personal character for 
wrong done in course of administration. Roberts 
V. Johns, 10 S. C. 109. 

As to business of minors: 

What the extent of this jurisdiction has not 
been determined. Thomas v. Poole, 19 S. C. 
323. 

It is questionable whether it embraces proceed- 
ings by a ward having attained majority to com- 
pel his guardian to account. Waller v. Cresswell, 
4 S. C. 355. 



Probate Court may appoint guardians ad litem 
for minors in causes in the Court of Common 
Pleas. Trapier v. Waldo, 16 S. C. 289. 

As to dower: 

The jurisdiction is concurrent with the juris- 
diction of the Court of Common Pleas. Witte v. 
Clark, 17 S. C. 323. _ 

Such jurisdiction is not ousted because ques- 
tions of facts are involved. Stewart v. Blease, 44 
S. C. 37. Nor limited to cases where there is no 
dispute as to the right of dower or the title of 
the land. Tibbett v. Langley Man. Co., 12 S. C. 
465. 

As to idiocy, lunacy and non compos mentis. 

The jurisdiction is not exclusive, but is con- 
current with that of Court of Common Pleas. 
Walker v. Russel. 10 S. C. 82. But the Probate 
Court cannot grant leave to traverse an inquisi- 
tion in lunacy; that can only be done in the 
Court of Coinmon Pleas. Ih. 

Ascertaining claims against decedent's estate. 
Dyson v. Tones, 65 S. C. 308, 317, 43 S. E. 667; 
GSston 7^. "Gaston, 80 S. C. 157, 61 _ S. K. 393._ 

3. Question whether such jurisdiction as to du- 
ties of guardians reaches the case where the ward 
is of age. Waller ik Cresswell, 4 S. C. 355. 

He has no jurisdiction to appoint another trus- 
tee in place of deceased testamentary trustee. 
Thomas v. Poole, 19 S. C. 323. 

Duty of Probate Judge in case of jeopardy to 
rninors' estate to require new bond. Probate 
Court not inferior Court, but Court of inde- 
■ pendent and general jurisdiction of special sub- 
jects. Williams V. Weeks. 70 S. C. 4. 48 S. E. 
619: Dunlap v. Bank. 69 S. C. 272, 48 S. E. 49. 

Does not expressly confer on Probate Court 
power to appoint guardian of persons or minors. 
Ex parte Davidge. 72 S. C. 22, 51 S. E. 269. 

Jurisdiction of Probate Judge to grant adminis- 
tration upon estate of nonresident cannot be at- 
tacked in another proceeding unless record shows 
that greater part of estate was not in the county. 
Durl^o V. Savings Bank, 69 S. C. 272, 48 S. 
E. 49.' 



§§ 44-47 ] OF SOUTH CAROLINA. . . 23 

§ 44. Administration and Probate of Wills. — The probate of the will 
and the granting of administration of the estate of any person deceased -shall 
belong to the Judge of Probate for the County in which such person was last 
an inhabitant; but if such person was not an inhabitant of this State, the same 
shall belong to the Judge of Probate in any County in which the greater part of 
his or her estate may be.^^ 

1870, XIV, § 40. 

§ 45. Settlement of Estate in County Where Will Proved — Sale of 
Real Estate. — All proceedings in relation to the settlement of the estate of any 
person deceased shall be had in the Probate Court of the County in which his 
will was proved or administration of estate was granted. And whenever it shall 
appear to the satisfaction of any Judge of Probate that the personal estate of 
any person deceased is insufficient for the payment of his debts, and all persons 
interested in such estate being first summoned before him, and showing no cause 
to the contrary, such Judge of Probate shall have power to order the sale of the 
real estate of such person deceased, or of so much thereof as may be necessary 
for the payment of the debts of such deceased person, upon such terms and in 
such manner as he may think best; may grant orders of injunction to stay actions 
or proceedings against the executors or administrators of such deceased person, 
and such other orders as may be necessary to secure the marshalling and admin- 
istering the assets of such deceased person, such proceedings to be by summons 
and complaint, the practice wherein shall conform as nearly as may be to the 
form and practice in the Courts of Common Pleas of this State."^ 

1870, XIV, § 41; 1873, XV, 496. 

§ 46. Certain Probate Notices or Citations Not Required to Be Pub- 
lished. — It shall not be necessary to publish in any newspaper, any notice or 
citation relating to any estate in the courts of probate, where the value of such 
estate, or estates, does not exceed two hundred dollars: Provided, That in such 
cases the notices required by law shall be posted at the door of courthouse of 
the county where such estate or estates may be situated, for the time required 
by law. 

1911, XXVII, 135. 

§ 47. When to Grant Discharge to Administrators, etc. — It shall not 
be lawful for any Judge of Probate in this State to grant a final discharge to 
any executor, administrator, trustee, guardian, or committee, unless such exec- 
utor, administrator, trustee, guardian or committee shall have finally accounted 
for the estate in his hands, and have given notice in a newspaper of the County 
(if there be no newspaper published in the County, then in some newspaper hav- 
ing the greatest circulation therein) for the space of at least one month, that on 
a day certain application will be made to the said Judge of Probate for a final 

.^a. Phoenix Bridge Co. v. Castleberry, 131 Pleas. lb. Nor can he be controlled by maw- 
Fed. 175. dawns from that Court in making such sales or 

Jtirisdiction cannot be attacked in another ■ executing titles. Burnett v. Burnside, 33 S. 

proceeding because the record does not show af- C. 276, 11 S. E. 787. He can determine the 

firmatively that the greater part of decedent's es- validity of an alleged deed under which one of 

tate was in such county, where record shows that defendants claim title from intestate. Gregory v. 

the decedent had property in such county. Dun- Rhoden, 24 S. C. 90. He can only sell the in- 

lap V. Savings Bank, 69 S. C. 270, 48 _S. E. 49. terest of the deceased in the land, not the rights 

4. The Constitution confers the jurisdiction to of the parties to the action therein as heirs of 

make such sale of real estate. McNamee v. another party. McLaurin v. Rion, 24 S. C. 411. 

Waterbury, 4 S. C. 156. It is concurrent with Cannot sell as land of deceased land surrendered 

the jurisdiction of the Court of Common Pleas to distributees of deceased by his mortgagor. Har- 

in such_ cases. Jordan v. Moses, 10 S. C. 431. rison v. Lightsey, 32 S. C. 293, 10 S. E. 1010. 
Either in an action by a creditor for that pur- Court of Common Pleas has concurrent juris- 

pose. Finley v. Robertson, 17 S. C. 435; Scruggs diction with Probate Court of an action against 

'o. Foot, 19 S. C. 274. But not until the will has an administrator for account, and the Court first 

l>een probated or letters of administration granted. acquiring jurisdiction should retain it. Epperson 

Whitesides v. Barber, 24 S. C. 373. Or in^ such v. Jackson, 83 S. C. 157. 65 S. E. 217. 
action by the personal representative. McNamee Probate court has jurisdiction to sell real es- 

'iK Waterbury, 4 S. C. 156; Shaw v. Barksdale. 25 tste in aid of assets, and may marshal and ad- 

S. C. 204. The Probate Judge must determine mini=ter the assets of a decedent. Dyson v. Jones, 

the necessity of such sale. " Hodge v. Fabian, 31 65 S. C. 308. 318. 43 S. E. 667. 
S. C. 212, 9 S. K. 820. His decree directing the Phoenix Bridge Co. v. Castleberry, 131 Fed. 

snle of more land than necessarv for the nurpose 175. 
■cannot be questioned in the Court of Common 



24 . CODE OF CIVIL PROCEDURE [ §§ 48-54 

discharge. No such discharge shall affect any distributee, legatee, cestui que 
trust,, ward, or lunatic, who has not been made a party to such application, either 
by personal service of the notice, or by publication in the mode provided for 
absent defendants. ^ 

1869, XIV. 263, § 1; 1894, XXI, 719. 

§ 48. Proceedings Relative to Estates under Guardianship. — All pro- 
ceedings in relation to the property or estate of any person under guardianship 
shall be had in the Court of Probate of the County in which the guardian was 
appointed. 

1870. XIV, § 42. 

§ 49. Judges Not to Act When Interested — When Judges of Adjoin- 
ing County to Act. — No Judge of Probate shall act as such in the settlement 
of any estate wherein he is interested as heir or legatee, executor or adminis- 
trator, or as guardian or trustee of any person ; in every such case the Judge of 
Probate of any adjoining County shall have jurisdiction, and it shall be his duty, 
upon application, to attend at some term of the Court of Probate in which such 
case may be pending, which shall not interfere with the duties of his own County, 
and hear and determine such case.*^ 

1870, XIV, § 43. 

§ 50. Power to Administer Oaths. — The Judge or Clerk of the Probate 
Court shall have power to administer all oaths necessary in the transaction of 
business before the Probate Court, and all oaths required by law to be adminis- 
tered to persons executing trusts under the appointment of said Court. 

1870, XIV, § 44. 

§ 51. 'Probate Court May Issue Warrants and Processes. — Probate 
Courts may issue all warrants and processes, in conformity to the' rules of law, 
which may be necessary to compel the attendance of witnesses, or to carry into, 
effect any order, sentence, or decree of such Courts, or the powers granted them 
by law. 

1870, XIV, § 45. 

§ 52. In Cases of Contumacy, May Commit to Jail. — If any person shall 
refuse or neglect to perform any lawful order, sentence, or decree of a Probate 
Court, such Court may issue a warrant, directed to any Sheriff or Constable in 
the State, requiring him to apprehend and imprison such person in the common 
jail of the County, and if there be no jail in the County, then in the jail of the 
adjoining County, until he shall perform such order, sentence or decree, or be 
delivered by due course of law. 

1870, XIV, § 46. 

§ 53. When Depositions May Be Taken and Used. — When a witness 
whose testimony is necessary to be used before any Probate Court shall reside 
out of this State, or out of the County where said Court is holden, or more than 
thirty miles from the County seat, or by reason of age or bodily infirmity, shall 
be unable to attend in person, the Court may issue a commission to one or more 
competent persons to take the testimony of such witness ; and depositions taken 
according to the provisions of the law for taking deposition to be used on the 
trial of civil causes may be used on the trial of any question before the Probate 
Court where such testimony may be proper. 

1870, XIV, § 47. 

§ 54. Exclusive Jurisdiction after Once Acquired. — When any Probate 
Court shall have first taken cognizance of the settlement of the estate of a de- 

.">. The provisions of this Section and of §§ 54, Court of Common Pleas. Jordan v. Moses, 10 S. 
55 and 87 were only intended to prescribe the C. 431. 

limits of the jurisdiction of the Probate Court as "At least one month" means calendar month.- 

between themselves, and not to limit that of the P>rock v. Kirkpatrick, 72 S. C. 492, 52 S. E. 592. 

«. In re Estate of Mears, 75 S. C. 483, 56 S.. 
E. 7, 9 Am. &• Eng. Ann. Cas. 960. 



§§ 55-61 ] OF SOUTH CAROLIXA. - 25 

ceased person, such Court shall have jurisdiction of the disposition and settle- 
ment of all the personal estate of such deceased person to the exclusion of all 
other Probate CourtsJ 
1870, XIV, § 48. 

§ 55. Jurisdiction Not to Be Collaterally Impeached. — The jurisdiction 
assumed by an}^ Probate Court in any case, so far as it depends on the place of 
residence or the location of the estate, shall not be contested in any suit or pro- 
ceeding whatever, except in an appeal from the Probate Court in the original 
case, or when the want of jurisdiction appears on the record.'* 

1870, XIV, § 49. 

§ 56. When Minor Maj; Choose Guardian — Guardian Interested — 
Where Appointed. — When, by law, a guardian is required to be appointed of 
a minor, who is interested as heir or legatee, or representative of such heir or 
legatee, in any estate which is in a course of settlement, such guardian shall be 
appointed by the Probate Court before which such estate is in course of settle- 
ment ; but afterwards, if the minor shall reside in another County, and is of the 
age of fourteen years, he may choose and have a guardian appointed in the 
County where he shall reside ; and in that case the powers of the former guard- 
ian shall cease, and to such proceedings he shall be made a party. In all other 
cases, guardians shall be appointed by the Probate Court of the County where 
the persons for whom the guardian shall be appointed shall reside. 

1870, XIV, § 50. 

§ 57. Authorized to Permit Sale and Settle Accounts of Guardian. — 

The Probate Court by which a guardian shall be appointed shall have jurisdic- 
tion of the estate of the ward, and shall be alone authorized to permit the sale 
of such estate, and settle such guardian's accounts. ^ 

1870, XIV, § 51. 

§ 58. Judges May Appoint Times and Places for Helding Courts. — Ex- 
cept as provided in the thirty-fourth Section, the Probate Court in each County 
shall appoint such times and places for holding Courts, or for hearing any special 
matter, as shall be judged most convenient for all persons interested, and shall 
give notice of such times and places to the parties interested. 

1870, XIV, § 52; 1873, XV, 496. 

§ 59. Open at All Times for Certain Business. — The Probate Court shall 
be deemed open at all times for the transaction of ordinary business which may 
be necessary, when previous notice is not required to be given to the persons 
interested. 

1870, XIV, § 53. 

§ 60. Adjournment of Court — When by Clerk. — A Probate Court may 
be adjourned as occasion may recjuire ; and when the Judge is absent at the time 
for holding a Court, the Clerk may adjourn it. 

1870, XIV, § 54. 

§ 61. Appellate Jurisdiction of Circuit Court. — The Circuit Court shall 
have appellate jurisdiction of all matters originally within the jurisdiction of the 
Probate Court. i<* 

1870, XIV, § 55. 

7. Jordan v. Moses, 10 S. C. 431. Court not inferior court, but court of independent 

Grant of letters of administration is taking and general jurisdiction of special subjects. Wil- 

cognizance of the settlement of the estate, and is Hams v. Weeks, 70 S. C. 4, 48 S. E. 619. 

the first act that can be properly so considered. 10. The hearing by the Circuit Court is strictly 

Phoenix Bridge Co. v. Castleberry, 131 Fed. 175, on appeal, limiting the presiding Judge to a re- 

178. view of, and judgment on, the evidence taken 

S. Jordan v. Moses, 10 S. C. 431; Dunlap v. below, except as to questions of fact to be de- 
Savings Bank, 69 S. C. 272, 48 S. E. 49; Phoenix cided by jury under § 66. Stewart v. Blease, 4 
Bridge Co. v. Castleberry. 131 Fed. 175. S. C: 44; Stark v. Hopson, 22 S. C. 42: Ex parte 

9. Duty of Probate Judge in case of jeopardy White, 33 S. C. 442, 12 S. E. 5. Findings of 

to minors estate to require new bond. Probate fact by Probate Court ought not to be disturbed 



26 CODE OF CIVIL PROCEDURE [ §§ 62-66 

§ 62. Jurisdiction of Supreme Court in Probate Matters. — The Su- 
preme Court shall have jurisdiction of all questions of law arising in the course 
of the proceedings or the Circuit Court, in probate matters, in the same manner 
as provided by law in other cases. ^^ 

1870, XIV, § 56. 

§ 63. Appeal to Circuit Court to Be Taken within Fifteen Days. — Any 
person interested in any final order, sentence, or decree of any Probate Court, 
and considering himself injured thereby, may appeal therefrom to the Circuit 
Court in the same County, at the stated session next after such appeal. The 
grounds of appeal shall be filed in the office of the Probate Court, and a copy 
thereof served on the adverse party, within fifteen days after notice of the de- 
cision appealed from.^^ 

1870, XIV, § 57; 1839, XI, 60, § 13. 

§ 64. Certified Copies of Record to Be Filed in Circuit Court. — The 

person appealing shall procure and file in the Circuit Court to which such appeal 
is taken a certified copy of the record of the proceedings appealed from, and of 
the grounds of the appeal filed in the Probate Court, together with the proper 
evidence that notice has been given the adverse party according to law.^^ 

1870. XIV, § 60. 

§ 65. Proceedings Stayed by Appeal. — When an appeal, according to 
law, is taken from, any sentence or decree of the Probate Court, all proceedings 
in pursuance of the order, sentence, or decree appealed from, shall cease until 
the judgment of the Circuit or Supreme Court is had ; but if the appellant in 
writing waives his appeal before the entry of such judgment, proceedings may 
be had in the Probate Court as if no appeal had been taken. ^^ 

1870, XIV. § 61. 

§ 66. How Circuit Court May Proceed to Trial. — When such certified 
copy shall have been»filed in the Circuit Court, such Court shall proceed to the 
trial and determination of the question, according to the rules of law; and if 
there shall be any question of fact or title to land to be decided, issue may be 
joined thereon under the direction of the Court, and a trial thereof had by jury.^^ 

1870, XIV, § 62. 

unless clearly erroneoys. Gunning z'. Erwin, 13 161, 15 S. E. 912. Filing transcript of record to 

S. C. 37. But Circuit Judge may remand the perfect appeal. Davenport v. Davenport, 61 S. 

cause or any particular issue therein to the Pro- C. 389, 39 S. E. 548. Appeal by warrantor from 

bate Court, with instructions to take further tes- order making him a party, prior to judgment, pre- 

timony and report the same. Twitty v. Houser, mature. Robertson v. Curlee, 59 S. C. 454, 38 

7 S. C. 153. On appeal the Circuit Court re- S. E. 116. Person adjudged non compos mentis 

views findings of fact. Thames v. Rouse, 82 S. may appeal. E.r parte Gregory, 58 S. C. 114, 36 

C. 40, 62 S. E. 254; E.v parte Small, 69 S. C. S. E. 433. 

46, 48 S. E. 40. Concurrent jurisdiction of Cir- Order granting letters is final and is appeal- 

cuit Court. Epperson v. Jackson, 83 S. C. 158, able. Ex parte Small, 69 S. C. 46, 48 S. E. 40; 

65 S. E. 217. Watson v. Pollitzer, 72 S. C. 387, 51 S. E. 914. 

Probate of will in Probate_ Court is a law case, 1.3. Watson v. Pollitzer, 72 S. C. 388, 51 S. 

and findings by Circuit Judge on appeal from E. 914. 

Probate Court in such case are not reviewable 14. Probate Court cannot grant administration 

here. Jn re Solomon's Estate, 74 S. C. 189, 54 during pendency of appeal from its judgment on 

S. E. 207. nuestion of "will" or "no will." Iti re Estate of 

11. Supreme Court, on appeals in such matters, Seay, 63 S. C. 130, 41 S. E. 17. 
may refer an issue of fact to a jury. Shaw v. 15. "According to the rules of law" construed 

Cunningham. 9 S. C. 271. It will not disturb io mean "according to the rules regulating the 

concurrent findings of fact by Probate Tudee and hearing of appeals." Ex parte White, 33 S. C. 

Circuit Judge. Black v. White, 13 S. C. 37. An 442. 12 S. E. 5. 



order of Circuit Court, without hearing appeal 



remanding the case to Probate Judge for further Court. Davenport v. Davenport, 61 S. C. 389, 39 
hearing, with leave to take further testimony, is S. E. 548. 



appealable. Ex parte White, 33 S. C. 442, 12 S 
E. 5. 

Supreme Court cannot review findings of Cir 

cuit Court as to "will" or "no will." Thames v 

Rouse, 82 S. C. 42, 62 S. E. 254. 

12. The only parties who can appeal are nar- 

ties to the cause. Witte v. Clarke, 17 S. C. 313 



in time is appealable. Henderson v. Wyatt, 8 S 
C. 112. 

On appeal to Circuit Court from order disal 
lowire claim, appellant is not entitled, of right 



What constitutes the return to the Circuit 



All issues of fact involved in such appeal must 
be determined de novo by the Circuit Judge, ex- 
cept such issues as are triable by jury under § 297, 
and except such issues as may be referred to jury 
under Rule 28 of Circuit Court; and it is fatal 
error to so refer such issues without notice to 
appellant. Stewart ■:•. Blease. 4 S. C. 37; Luchen 



A decree refusing appeal because it was not taken t'. Wichman. 5 S. C. 411: Prater v. Whipnle, 16 



C. 40: Rollins v. Whipper. 17 S. C. 32; Ex 
f^arte White, 33 S. C. 442. 12 S. E. 5: In re 
Shier's Estate. 35 S. C. 417, 14 _S. E. 931. 

On appeal from order disallowing claim against 



to trial by jury. Hughes v. Kirkpatrick, 37 S. C. estate appellant is not entitled as of right to trial 



§§ 67-73 ] OF SOUTH CAROLINA. 27 

§ 67. Appellant Neglecting to Enter Appeal Judgment Affirmed with 
Costs. — If the person appealing" from the proceedings of the Probate Court, as 
provided in this Title, shall neglect to enter his appeal, the Circuit Court to which 
such appeal shall be taken, on motion, and producing attested copies of such 
appeal by the adverse party, shall affirm the proceedings appealed from, and may 
allow costs against the appellant. ^"^ 

1870, XIV, § 64. 

§ 68. Final Decision to Be Certified to Probate Court. — The final deci- 
sion and judgment in cases appealed, as hereinbefore provided, shall be certified 
to the Probate Court by the Circuit Court or Supreme Court, as the case may 
be, and the same proceedings shall be had in the Probate Court as though such 
decision had been made in such Probate Court. ^'^ 

1870, XIV, § 65. 

§ 69. Probate Judge No Voice in Determining Appeal — When May 
Practice Law. — No Judge of any Probate Court shall be admitted to have any 
voice in judging or determining any appeal from his decision, or be permitted 
to act as attorney or counsel thereon, or receive fees as counsel in any matter 
pending in the Probate Court of which he is Judge : Provided, It shall be law- 
ful for Judges of Probate to practice law in other Courts in such cases as are 
not cognizable in the Courts of Probate. 

1870, XIV, § 66. 

■■ § 70. Proceedings May Be Commenced by Petition. — Proceedings in 
the Court of Probate may be commenced by petition to the Judge of Probate for 
the County to which the jurisdiction of the subject matter belongs, or by com- 
plaint, briefly setting forth the facts or grounds of the application. A summons 
shall be issued to the defendants in such proceedings, wherein the manner of 
service, time for answering, and other proceedings relating to the trial (except 
trial by jury), shall conform as nearly as may be to the practice in the Courts 
of Common Pleas as provided in this Code of Procedure. ^^ 
1870, XIV, § 67. 

§ 71. Supreme Court to Make Rules — County Commissioners to Pro- 
vide Furniture, etc., for Office. — The Supreme Court may, from time to time, 
make rules regulating the practice and conducting the business in the Courts of 
Probate, in all cases not expressly provided for by law ; and the County Com- 
missioners of each County shall provide all books necessary for keeping the 
records of such Court ; also a seal and necessary office furniture : Provided, 
Said furniture shall not exceed in cost the sum of one hundred dollars. 

1870, XIV, § 68. 

§ 72. May Punish for Contempt. — The Judge may keep order in Court, 
and punish any contempt of his authority in like manner as such contempt might 
be punished in the Circuit or Supreme Court. 

1870, XIV, § 69. 

§ 73. Enrollment of Decrees. — Any party in whose favor an order or de- 
cree for the payment of money may be made by a Court of Probate, may cause 
such order of decree to be enrolled at any time within one year after making the 
same, and for that purpose shall prepare and deliver to the Judge of Probate a 
brief or abstract, setting forth the title of the proceedings wherein such order 
or decree was made, the parties thereto, and the date when the same was made; 

by jury. Hughes v. Kirkpatrick, 37 S. C. 161, IS mav submit issue to jury for trial. Ex parte 

S. E. 912. Gantt, 75 S. C. 368. 53 S. E. 892. 

It is proper practice to try de novo issue of will 16. Watson v. Pollitzer, 72 S. C. 388, 51 S. 

or no ■'.vill in Circuit Court on apoeal from Pro- E. 914. 

bate Court. Ex parte Jackson, 67 S. C. 55, 45 S. 17. That Circuit order affirming: judgment of 

E. 132. Probate Court has not been certified to Probate 

Construed. Watson v. Pollitzer, 72 S. C. 388, Court not ground for reversal. Watson v. Pol- 

51 S. E. 914. litzer. 72 S. C. 388. 51 S. E. 914. 

On appeal from Probate Court, Circuit Court IS. Ex parte Conrad, 75 S. C. 1, 54 S. E. 799. 



28 CODE OF CIVIL PROCBDURB [ §§ 74-75 

also the date of the said order and the names of the parties bound thereby, to- 
gether with such other particulars as may be necessary to identify the said order 
with the proceedings, and to exhibit the grounds for making the same and the 
oi>eration and effect thereof ; and the Judge of Probate shall annex thereto the 
said order or decree, or an exact copy thereof, certified by him, together with 
the time when the same was made and entered ; and shall endorse on the record 
the day of the month and year when the brief or abstract was lodged in his office, 
and shall deposit the same in a case in his office with the records pertaining to 
the cause. And no order or decree of any Court of Probate for the payment of 
money shall, as to third persons, without express notice, have any effect as a lien 
on the real estate of the person intended to be bound thereby but from the day 
when the said brief or abstract shall have been delivered to or lodged with the 
said Judge of Probate as aforesaid, and a transcript of the docket thereof in the 
index of money decrees hereinafter prescribed has been filed in the office of the 
Clerk of the Court of Common Pleas for the same County and duly entered by 
said Clerk on the calendar of judgments kept in his office. Nor shall such order 
or decree rank as a judgment against the estate of any person deceased, unless 
such abstract was duly filed and indexed, and a transcript of the entry in the 
index filed with the Clerk of the Circuit Court for the same County and duly 
docketed by the said Clerk on the calendar of judgments of the Court of Com- 
mon Pleas before the death of such deceased person ; except that the lien of de- 
crees and orders for the payment of money made prior to December 20th, 1878, 
shall not be affected ; and after the transcript of the docket in the index of money 
decrees has been duly entered upon the calendar of judgments kept in office of 
the Clerk of the Court of Common Pleas, such order or decree shall have like 
force and effect as judgments of the Courts of Common Pleas : Provided, That 
such enrollment of any order or decree for the payment of money shall not de- 
prive any party thereto of the right to appeal therefrom ; but when notice of such 
appeal shall be duly given, execution upon the said order or decree, issued as 
herein provided, shall be lodged to bind only, and shall not be enforced until such 
appeal shall have been dismissed ; and if such order or decree shall be reversed, 
set aside, or modified on appeal, the enrollment thereof shall be amended or 
wholly vacated accordingly.^^ 
1878, XVI, 710. 

§ 74. To Keep Index of Decrees Enrolled. — Every Judge of Probate 
shall provide and keep in his office an index of money decrees, in which every 
enrolled order or decree for the payment of money shall be entered, with the 
names of every party or estate bound thereby, alphabetically arranged, together, 
with the names of the parties plaintiff, and (besides the title of the package in 
which the order or decree is contained and the number in the package) shall 
exhibit the amount ordered to be paid, the costs (if any), date of enrollment, 
date of execution, and date of satisfaction, where satisfaction has been entered. 
Said book shall be of convenient size, of durable paper, and well bound, and the 
expense of providing the same shall be defrayed by the County Commissioners 
of the respective Counties. ^o 

1878, XVI, 711. 

§ 75. Empowered to Issue Executions. — Judges of the Probate Court 
are authorized and empowered to issue executions against property, when such 
process is necessary to carry into effect any order, sentence, or decree of such 
Court, or for costs accruing therein. And they may issue executions against 
property in their respective Counties, to enforce decrees from the Probate Courts 
of other Counties, upon a transcript of such decree, and certificate of enroll- 

11). Probate Judge cannot arrest and imprison ecutor is prima facie evidence against devisees, 
an administrator for failtire to comply with the Brock v. Kirkpatrick, 72 . S. C. 491, 500, 52 S. E. 
terms of a money decree. Gilliam v. McTunkin, 592. 

2 S. C. 442. Judgment for claim against ex- 20. Brock v. Kirkpatrick, 72 S. C. 491, 500, 52 

S. E. 592. 



■§§76-78] . OF SOUTH CAROLINA. 29 

ment of the same, being filed in the office of the Probate Court from which such 
execution is to issue, and also in the office of the Clerk of the Court of Com- 
mon Pleas of the County in which it is to issue. But no execution shall be issued 
iDy any Judge of Probate to enforce the collection of money under any order or 
decree of a Court of Probate until an abstract or brief has been prepared and 
filed according to the direction of Section 73, and the proper minute thereof has 
been entered in the index of money decrees, and the proper transcript of such 
minute has been filed in the office of the Circuit Court for the same County, and 
entered upon the calendar of judgments of the Court of Common Pleas kept in 
his office. And when any such execution has been duly returned satisfied to the 
office of the Judge of Probate from whence it issued, it shall be the duty of the 
Judge of such Court of Probate to have such satisfaction recorded upon the 
proper transcript in the office of the Clerk of the Circuit Court, and entered upon 
the docket thereof on the calendar of judgments of the Court of Common Pleas 
kept in said Clerk's office. When no form for a warrant or process is prescribed 
by statute or rules of Court, the Probate Judge shall frame one in conformity 
to the rules of law and the usual course of proceedings in this State. Any 
Sheriff or Constable in this State shall execute the orders or process of said 
Court, in the same manner as the orders or process of the Circuit or Supreme 
Courts.-^ 

1870, XIV, § 71; 1872, XV, 23; 1878, XVI. 458. 

§ 76. Judge May Commit Lunatics, etc., to State Hospital for Insane. 

— The Judge of the Probate Court may commit to the State Hospital for the 
Insane any idiot, lunatic, or person non compos mentis, who, after due examina- 
tion, may be found to be so furiously mad as to render it manifestly dangerous 
to the peace and safety of the community that such person should be at large ; 
and also in all such other cases provided by law. In all cases the Judge shall 
certify in what place such person resided at the time of the commitment, and 
such certificate shall be conclusive evidence of such residence. 
1870. XIV. § 72. 

§ 77. Police Officers to Apprehend Abandoned Children — Inves- 
tigation by Probate Judge — Rescue Orphanages. — Whenever any girl under 
the age of fourteen, or boy under the age of ten years, shall be found by 
any policeman, sherifif, constable or other person in any county, city or town 
in circumstances of destitution or suffering, or of abandonment, exposure or 
neglect, or of beggary, or in any house of ill fame, it shall be lawful for, and 
the duty of, such officer to make report thereof to the Probate Judge of said 
•County. Thereupon, such Probate Judge shall forthwith fix a time for the hear- 
ing and investigation of such case, as speedily as possible, and give notice of 
such hearing to the parent or parents, if known, or to the guardian or custodian 
of such child, if known. And such Probate Judge shall hear all the evidence 
■offered before him and investigate fully the circumstances and surroundings of 
such child. And if upon such investigation the said officer shall find that said 
child is abandoned, or is being brought up in immoral or vicious surroundings, or 
without any adequate or proper care and custody, it shall be lawful for, and the 
duty of, such officer to issue a warrant of commitment, committing said child to 
Ihe custody, care and rearing of the Rescue Orphanage, situated at Columbia, 
S. C, or to any similar orphanage in the State devoted to the relief and care 
of such children. 

1911, XXVII, 135, 136. 

§ 78, Rights and Authority of Orphanage: — The said orphanage and any 
other orphanage, devoted to the relief of children who are destitute, abandoned 
or being raised in immoral and vicious surroundings, shall have full care and 
control over any child committed to it, as provided in Section 77 above; subject 

31. Brock v. Kirkpatrick, 72 S. C. 495, 52 S. E. 592. 



30 



CODE OF CIVIL PROCBDURB 



[ §§ 79-80 



always to the right of the courts to inquire into the propriety and sufficiency of 
the care and maintenance being provided for any such child, and to modify or 
change the care and custody of any child, as the court may deem proper. 
1911, XXVII, 135, 136. 

§ 79. Orphanage May Intrust Children to Individual or Family. — Any 

such orphanage to which a child has been committed, as provided in the last two 
preceding sections, shall have the right to intrust any such child, for its care, 
maintenance, rearing, education, and adoption to the care and custody of any 
individual or family, which it may deem proper, upon such guarantees as may 
be required by such orphanage. But this right shall be subject to the supervision, 
investigation and control of the Courts of Common Pleas of said State of South 
Carolina, upon application made to such courts. 
1911, XXVII, 135, 136. 



TITLE V. 



COURTS OF MAGISTRATES. 



Sec. 

80. 

81. 
82. 
83. 
84. 

85. 
86. 

87. 
88. 
89. 



Civil jurisdiction. 
Qualifications of bail. 
Justification of bail. 
Allowance of bail. 

Property — How taken when con- 
cealed in building or enclosure. 
Property — How kept. 
Claim of property by third person. 
No jurisdiction in certain cases. 
Answer of title. 
Written undertaking by defendant. 



90. Suit discontinued on undertaking of 

defendant. 

91. If undertaking not given. 

92. Same. 

93. New action. 

94. Costs. 

95. Answer of title as to one cause of 

action. 
Docketing judgments — Transcript — 

Operation — Sale — Setting aside 

judgment — New trial. 
Rules. 



96 



97 



§ 80. Civil Jurisdiction. — Magistrates shall have civil jurisdiction in the 
following actions :^ 

1870, XIV, § 74; Con., Art. 5, §§ 20 and 21. 

1. In actions arising on contracts for the recovery of money only, if the sum 
claimed does not exceed one hundred dollars. ^ 

2. An action for damages for injury to rights pertaining to the person, or the 
personal or real property, if the damages claimed do not exceed one hundred 
dollars, and in cases of bastardy.^ 

3. An action for a penalty, fine, or forfeiture, where the amount claimed or 
forfeited does not exceed one hundred dollars."^ 



1. In order to give magistrate jurisdiction it 
must _ appear on the record tliat the defendant is 
a resident of the county. Hall v. Sullivan, 70 S. 
C. 397, SO S. E. 27. 

2. It is no objection to the jurisdiction of a 
magistrate that the plaintiff reduced his demand 
to bring it within the jurisdiction of the magis- 
trate; but where, in so reducing his claim, the 
plaintiff leaves out an item which he could have 
included in his cause of action, he cannot after- 
wards sue thereon. Catawba Mills v. Hood, 42 
S. C. 203, 20 S. E. 91. A magistrate is deprived 
of jurisdiction by a counterclaim for an amount 
exceeding $100. Haygood v. Boney, 43 S. C. 63, 
20 S. E. 803. Magistrate cannot entertain coun- 
terclaim for over $100. Corley v. Evans, 69 S. 
C. 522, 48 S. E. 4, '59. 

Party in a magistrate court may claim and sue 
for less than due on note, so as to give magis- 
trate jurisdiction. Brunson v. Furtick, 72 S. C. 
S79, 52 _S. E. 424, 5 Am. & Eng. Ann. Cas. 307. 

3. This gives concurrent jurisdiction with the 
Court of Common Pleas in such action for dam- 
ages. State V. Fillebrown, 2 S. C. 404; Rhodes z/. 
Railroad, 6 S. C. 385. Such jurisdiction does not 
embrace actions for damages claimed above one 



hundred dollars. Stegall v. Bolt, 11 S. C. 522. 
Nor for damages indefinite in amount, given by 
statute. State v. Weeks, 14 S. C. 400. Action by 
landlord against constable for proceeds of crop in 
his hands applicable to rent, is such an action for 
damages for injury to rights pertaining to per- 
sonal property. Sullivan v. Ellison, 20 S. C. 481. 
Jurisdiction of magistrate in matters of contract 
determined by amount claimed, not by amount 
due. Brunson v. Furtick, 72 S. C. 582, 52 S. E. 
424, 5 Am. & Eng. Ann. Cas. 307. 

This necessarily involves suits against corpora- 
tions. Dennis v. Atlantic Coast Eine Railroad, 
86 S. C. 258, 259, 68 S. E. 465. 

4. A forfeiture of twenty dollars, under a stat- 
ute which provides for its recovery in a Court of 
record, cannot be recovered hereunder. State v. 
Weeks, 14 S. C. 400. 

Jurisdiction of a foreign corporation. Best v. 
Seaboard Air Eine Railway, 72 S. C. 479, 480, 
52 S. E. 223. 

Jurisdiction in another county than which the 
cause of action arose by appearance of carrier, 
pleading and participating in trial. Jenkins v. 
Atlantic Coast Line R. Co., 84 S. C. 343, 349. 66 
S. E. 409. See, also. Best 7'. Seaboard Air Line 
Railway, 72 S. C. 479, 480, 52 S. E. 223. 



§80] OP SOUTH CAROLINA. 31 

4. An action commenced by attachment of property, as now provided by Stat- 
ute, if the debt or damages claimed do not exceed one hundred dollars.^ 

5. An action upon bond conditioned for the payment of money, not exceeding 
one hundred dollars, though the penalty exceed that sum, the judgment to be given 
for the sum actually due. Where the payments are to be made by installments, 
an action may be brought for each installment as it becomes due.*^ 

6. An action upon a surety bond taken by them, where the penalty or amount 
claimed does not exceed one hundred dollars. 

7. An action upon a judgment rendered in a Court of a Magistrate or an in- 
ferior Court, where such action is not prohibited by Section 116. 

8. To take and enter judgment on the confession of a defendant, where the 
amount confessed shall not exceed one hundred dollars, in the manner prescribed 
by law. 

9. An action for damages, fraud in the sale, purchase, or exchange of personal 
property, if the damages claimed do not exceed one hundred dollars. 

10. In all matters between landlord and tenant, and the possession of land as 
provided in Chapter LXIII, Code of 1912. 

11. An action to recover the possession of personal property claimed, the value 
of which, as stated in the affidavit of the plaintiff, his agent, or attorney, shall 
not exceed the sum of one hundred dollars. 

The plaintiff in such action, at the time of issuing the summons, but not after- 
wards, may claim the immediate delivery of such property as hereinafter provided. 

Before any process shall be issued in an action to recover the possession of 
personal property, the plaintiff, his agent, or attorney, shall make proof by affi- 
davit, showing: 

(1) That the plaintiff is the owner, or entitled to immediate possession, of 
the property claimed, particularly describing the same. 

(2) That such property is wrongfully withheld or detained by the defendant. 

(3) The cause of such detention or withholding thereof, according to the best 
kr^pwledge, information, and belief of the person making the affidavit. 

(4) That said personal property has not been taken for any tax, fine, or as- 
sessment, pursuant to Statute, or seized by virtue of an execution or attachment 
against the property of said plaintiff; or, if so seized, that it is exempt from 
such seizure by Statute. 

(5) The actual value of said personal property.''' 

12. On receipt of such affidavit, and an undertaking, in writing, executed by 
one or more sufficient sureties, to be approved by the Magistrate before whom 
such action is commenced, to the effect that they are bound in double the value 
of such property as stated in said affidavit, for the prosecution of the said action, 
and for the return of said property to the defendant, if return thereof be ad- 
judged, and for the payment to him of such sum as may, for any cause, be re- 
covered against said plaintiff, the Magistrate shall endorse upon said affidavit a 
direction to any Constable of the County in which said Magistrate shall reside, 

5. Includes cases where defendant is a non- erty; it is sufficient to allege that the defendant 
resident. Burckhalter v. Jones, 59 S. C. 89, 36 is in unlawful possession of property belonging to 
S. E. 495. Jurisdiction of foreign corporation. the plaintiff. Dillard -j. Samuels, 25 S. C. 318. 
Best V. S. A. Iv. Ry., 72 S. C. 480, 52 S. E. 223. This provision allowing such action for recov- 

6. Hagood v. Blythe, 37 Fed. 249, 252. Trial ery of property less in value than _ one hundred 
Justice has jurisdiction of action on bond to re- dollars is not in conflict with Constitution, which 
cover the amount thereby secured and due, which limits jurisdiction in actions ex delicto, where 
is less than one hundred dollars, though the pen- damages do not exceed one hundred dollars. Dil- 
alty exceed that amount. C'avender v. Ward, 28 lard v. Samuels, 25 S. C. 318. 

S. C. 470, 6 S. E. 302. On appeal Circuit Court may hear affidavits to 

7. Variance between affidavit and pleadings .''how demand before action of claim and delivery, 
amended. Ehrhardt v. Breeland, 57 S. C. 142, 35 Burton v. Laurens Cotton Mills, 64 S. C. 224, 41 
S. E. 537. S. E. 975. 

Affidavit must state that value of the property Magistrate has no jurisdiction where chattels are 

does not exceed one hundred dollars. Williams v. alleged to be of value of $100 and damages are 

Irbv, 10 S. C. 371. _ _ claimed in addition. Reynolds v. Philips, 72 S. 

But whether such statement is necessary in C. 33, 51 S. E. 523. 
Circuit Court, on appeal, not decided. lb. Is summons necessary in Magistrate's Court? 

It is not necessary to allege in summons that Hasten Furniture Co. z'. Southern Ry. Co., 82 S. 

plaintiff is entitled to the possession of the prop- C. 238, 242, 64 S. E. 223. 



32 CODE OF CIVIL PROCBDURB [ § 81 

requiring said Constable to take the property described therein from the de- 
fendant, and keep the same, to be disposed of according to law; and the said 
INIagistrate shall at the same time issue a summons, with a copy of the under- 
taking, directed to the defendant, and requiring him to appear before said Mag- 
istrate at a time and place to be therein specified, and not more than twenty days 
from the date thereof, to answer the complaint of said plaintiff ;' and* the said 
summons shall contain a notice to the defendant that, in case he shall fail to 
appear at the time and place therein mentioned, the plaintiff will have judgment 
for the possession of the property described in said affidavit, with the costs and 
disbursements of said action. ^ 

1879, XVII, 28. 

13. The Constable to whom said affidavit, endorsement and summons shall 
be delivered, shall forthwith take the property described in said affidavit, if he 
can find the same, and shall keep the same in his custody. He shall, thereupon, 
without delay, serve upon said defendant a copy of such affidavit, notice and 
summons, by delivering the same to him personally, if he can be found in said 
County : if not found, to the agent of the defendant in whose possession said 
property shall be found ; if neither can be found, by leaving such copies at the 
last or usual place of abode of the defendant, with some person of suitable age 
and discretion. And he shall forthwith make a return of his proceedings thereon, 
and the manner of serving the same, to the Magistrate who issued the said 
summons. 

14. The defendant may at any time after such service, and at least two days 
before the return day of said sumimons, serve upon plaintiff, or upon the Consta- 
ble who made such service, a notice in writing that he excepts to the sureties in 
said bond or undertaking; and if he fail to do so, all objection thereto shall be 
waived. If such notice be served, the sureties shall justify, or the plaintiff give 
new sureties, on the return day of said summons, who shall then appear and 
justify, or said Magistrate shall order said property delivered to defendant, and 
shall also render judgment for defendant's costs and disbursements.'^ • 

15. At any time before the return day of said summons, the said defendant 
may, if he has not excepted to plaintiff's sureties, require the return of said 
property to him upon giving to the plaintiff, and filing same with the Magistrate, 
a written undertaking, with one or more sureties, who shall justify before said 
Magistrate on the return day of said summons, to the effect that they are bound 
in double the value of said property, as stated in plaintifl:'s affidavit, for the de- 
livery thereof to said plaintiff, if such delivery be adjudged, and for the payment 
to him of such sum as may for any cause be recovered against said defendant; 
and if such return be not required before the return day of said summons, the 
property shall be delivered to said plaintiff. 

§ 81. Qualification of Bail. — The qualification of bail must be as follows: 

1. Each of them must be a resident, and householder or freeholder within the 
State. 

2. They must each be worth the amount specified in the order of arrest, ex- 
clusive of property exempt from execution ; but the Judge or a Magistrate, on 
justification, may allow more than two bails to justify severally in amounts less 
than that expressed in the order, if the whole justification be equivalent to that 
of two sufficient bail. 

1870, XIV, § 75. 

S. Endorsement of approval on undertaking. nemore, 47 S. C. 2S6, 25 S. E. 134. 

Cromer v. Watson, 59 S. C 488, 38 S. E. 126. Immaterial whether the summons ts addressed 

Such undertaking not necessary unless the plain- to the defendant or officer. Bell v. Pruitt, 51 S. 

tiff claims the immediate delivery of the property. C. 344, 29 S. E. 6. 

Dillard v. Samuels, 25 S. C. 318. Refers exclusively to actions of claim and de- 

The summons is fatally defective if it name a livery. Hasten Furniture Co. t. Southern Rail- 
day for trial more than twenty days after its date. way, 82 S. C. 238, 242, 64 S. E. 223. 
Simmons v. Cochran, 29 S. C. 31, 6 S. E. 859. J). Waiver of any irregularity or defect m un- 

This case distinguished in State v. Smith, 38 S. dertaking by not excepting. Cromer v. Watson, 

C. 270, 16 S. E. 997; reaffirmed in Kelley v. Ken- 59 S. C. 488, 38 S. E. 126. 



§§ 82-86] ' OF SOUTH CAROLINA. 33 

§ 82. Justification of Bail. — For the purpose of justification, each of the 
bail shall attend before the Judge or a Magistrate at the time and place men- 
tioned in the notice, and may be examined on oath, on the part of the plaintifif, 
touching his sufficiency, in such manner as the Judge or Magistrate, in his dis- 
cretion, may think proper. The examination shall be reduced to writing, and 
subscribed by the bail, if required by the plaintiff. 

1870, XIV, § 76. ■ 

§ 83. Allowance of Bail. — If the Judge or INIagistrate find the bail suffi- 
cient he shall annex the examination to the undertaking, endorse his allowance 
thereon, and cause them to be filed with the Clerk; and the Sheriff shall, there- 
upon, be exonerated from liability. 

1870, XIV, § 77. 

§ 84. Property — How Taken When Concealed in Building or Enclo- 
sure. — If the property, or any part thereof, be concealed in a building or enclo- 
sure, the Constable shall publicly demand its delivery. If it be not delivered, he 
shall cause the building or enclosure to be broken open, and take the property 
into his possession ; and, if necessary, he may call to his aid the power of his 
County. 

1870, XIV, § 78. 

§ 85. Property — How Kept. — When a Constable shall have taken property, 
as in this Chapter provided, he shall keep it in a secure place, and deliver it to the 
party entitled thereto, upon receiving his lawful fee for taking, and his necessary 
expenses for keeping the same. 

1870, XIV, § 79. 

§ 86. Claim of Property by Third Person. — If the property taken be 
claimed by any other person than the defendant or his agent, and such person 
shall make affidavit to his title thereto, and right to the possession thereof, stating 
the grounds of such right and title, and serve the same upon the Constable, the 
Constable shall not be bound to keep the property or deliver it to the plaintiff, 
unless the plaintiff, on demand of him or his agent, shall indemnify the Constable 
against such claim, by an undertaking, executed by two sufficient sureties, ac- 
companied by their affidavits, that they are each worth double the value of the 
property as specified in the affidavit of the plaintiff, and are freeholders and 
householders of the County. And no claimi to such property, by any other person 
than the defendant or his agent, shall be valid against the Constable, unless made 
as aforesaid; and notwithstanding such claim, when so made, he may retain the 
property a reasonable time to demand such indemnity. 

The actions so commenced shall be tried in all respects as other actions are 
tried in the Magistrates' Courts. 

The judgment for the plaintiff may be for the possession, or for the recovery 
of the possession, or the value thereof, in case a delivery cannot be had, and of 
damages for the detention. If the property have been delivered to the plaintiff, 
and the defendant claim a return thereof, judgment for the defendant may be 
for a return of the property, or the value thereof, in case a return cannot be had, 
and damages for taking and withholding the same. An execution shall be is- 
sued thereon and if the judgment be for the delivery of the possession of personal 
property, it shall require the officer to deliver the possession of the same, par- 
ticularly describing it, to the party entitled thereto, and may, at the same time, 
require the officer to satisfy any costs or damages recovered by the same judg- 
ment out of the personal property of the party against whom it was rendered, 
to be specified therein, if a delivery thereof cannot be had. The execution shall 
be returnable within sixty days after its receipt by the officer of the Magistrate 
who issued the same. 

In all actions for the recovery of the possession of personal property, as herein 
provided, if the property shall not have been delivered to plaintiff, or the defend- 

2 S C C— 3 



34 CODE OF CIVIL PROCEDURB [ §§ 87-90 

ant by answer shall claim a return thereof, the Magistrate or jury shall assess 
the value thereof, and the injury sustained by the prevailing party by reason 
of the taking or detention thereof, and the Magistrate shall render judgment 
accordingly, with costs and disbursements. 

If it shall appear by the return of a Constable that he has taken the property 
described in the plaintiff's affidavit, and that defendant cannot be found, and 
has no last place of abode in said County, or that no agent of defendant could 
be found, on whom service could be made, the Magistrate may proceed with the 
cause in the same manner as though there had been a personal service. 

For the endorsement on said affidavit the Magistrate shall receive an additional 
fee of twenty-five cents, which shall be included in the costs of the suit.^^ 

1870, XIV, § 80. 

§ 87. No Jurisdiction in Certain Cases. — But no Magistrate shall have 
cognizance of a civil action : 

1. In which the State is a party, excepting for penalties not exceeding one 
hundred dollars. 

2. Nor where the title to real property shall come in question. ^^ 

3. Nor of a civil action for an assault, battery, false imprisonment, libel, 
slander, malicious prosecution, criminal conversation, or seduction, where the 
damages claimed exceed one hundred dollars. 

1870, XIV, § 81; 1873. XV, 496. 

§ 88. Answer of Title. — In every action brought in a Court of Magistrate 
where the title to real property shall come in question, the defendant may, either 
with or without other matter of defense, set forth in his answer any matter show- 
ing that such title will come in question. Such answer shall be in writing, signed 
by the defendant or his attorney, and delivered to the Magistrate. The Mag- 
istrate shall thereupon countersign the same and deliver it to the plaintiff.^^ 

1870, XIV, § 82. 

§ 89. Written Undertaking by Defendant. — At the time of answering,, 
the defendant shall deliver to the Magistrate a written undertaking, executed by 
at least one sufficient surety, and approved by the Magistrate, to the effect that 
if the plaintiff shall, within twenty days thereafter, deposit with the Magistrate 
a summ,ons and complaint in an action in the Circuit Court for the same cause, 
the defendant will, within twenty days after such deposit, give an admission in 
writing of the service thereof. 

Where the defendant was arrested in the action before the Magistrate the 
undertaking shall further provide that he will, at all times, render himself 
amenable to the process of the Court during the pending of the action, and to 
such as may be issued to enforce the judgment therein. In case of failure to 
comply with the undertaking, the surety shall be liable not exceeding one hun- 
dred dollars. ^2 

1870, XIV, § 83. 

§ 90. Suit Discontinued on Undertaking of Defendant.— Upon the de- 
livery of the undertaking to the Magistrate the action before him shall be dis- 
continued, and each party shall pay his own costs. The costs so paid by either 
party shall be allowed to him if he recover costs in the action to be brought for 

lO. Such jurlgment may be given for value of to pleadings for more particular description of 

the property, though the demand is only for its property. Verdict in this case sufficient compli- 

recovcry and damages for its detention. Joplin v. ance with statute. Bossard v. Vaughn, 68 S. C. 

Carrier, 11 S._ C. 327. It cannot be given in case 9^, 98, 46 S. E. 523. 

where party is entitled to general damages. Ih. "It. Does not include proceedings to e.iect ten- 

But where there are proper allegations, plaintiff a»"t. Plate v. Fickling, 10 S. C. 30; State v. 

may, on appeal, in Circuit Court, eltct to treat Marshall, 24 S. C. 507. Does not apply to crimi- 

the action as one for damages. Williams v. Irby, nal cas-js. State v. Holcomb, 63 S. C. 60, 40 S. 

16 S. C. 371. Where verdict is mt in pron^^r K. 1017. 

form, the trial JiT^tice cannot change it; ''ew trial 13. High v. Wingo, 84 S. C. 246, 66 S. E. 

is the remedy. DuBose v. Armstrong, 29 S. C. 185. See. also, note to § 87. 

290. 6 S. _K. 934. ^ 13. High v. Wingo, 84 S. C. 246, 248, 66 S. %. 

Verdict in claim and delivery may be referred 185. 



§§91-96] OF SOUTH CAROLINA. 35 

the same cause in the Circuit Court. If no such action be brought within thirty 
days after the deHvery of the undertaking, the defendant's costs before the 
Magistrate may be recovered of the plaintiff.^"* 
1870, XIV, § 84. 

§ 91. If Undertaking Not Given. — If the undertaking be not dehvered to 
the Magistrate he shall have jurisdiction of the cause, and shall proceed therein ; 
and the defendant shall be precluded, in his defense, from drawing the title 
in question. 

1870, XIV, § 85. 

§ 92. Same. — If, however, it appear on the trial, from the plaintiff's own 
showing, that the title to real property is in question, and such title shall be dis- 
puted by the defendant, the Magistrate shall dismiss the action and render judg- 
ment against the plaintiff for the costs. 

1870, XIV, § 86. 

§ 93. New Action. — When a suit before a Magistrate shall be discontinued 
by the delivery of an answer and undertaking, as provided in Sections 88, 89 and 
90, the plaintiff" may prosecute an action for the same cause in the Circuit Court, 
and shall complain for the same cause of action only on which he relied before 
the Magistrate, and the answer of the defendant shall set up the same defense 
only which he made before the Magistrate. ^^ 

1870, XIV, § 87. 

§ 94. Costs. — If the judgment in the Circuit Court be for the plaintiff, he 
sjiall recover costs ; if it be for the defendant, he shall recover costs, except that 
upon a verdict he shall pay costs to the plaintiff, unless the Judge certify that 
the title to real property came in question on the trial. 

1870, XIV, § 88. 

§ 95. Answer of Title as to One Cause of Action. — If, in an action before 
a Magistrate, the plaintiff have several causes of action, to one of which the 
defense of title to real property shall be interposed, and, as to such cause, the 
defendant shall deliver an answer and undertaking, as provided in Sections 88 
and 89, the Magistrate shall discontinue the proceedings as to that cause, and' the 
plaintiff may commence another action therefor in the Circuit Court. As to the 
other causes of action, the Magistrate may continue his proceedings. 

1870, XIV, § 89. 

§ 96. Docketing Judgments — Transcript — Operation — Sale — Setting 
Aside Judgment — New Trial. — A Magistrate, on the demand of a party in whose 
favor he shall have rendered a judgment, shall give a transcript thereof, which 
may be filed and docketed in the office of the Circuit Court of the County where 
the judgment was rendered. The time of the receipt of the transcript by the 
Clerk shall be noted thereon and entered in the Abstract of Judgments, and 
from that time the judgment shall be a judgment of the Circuit Court, but no 
sale shall be made under any execution issued upon such judgment in the Circuit 
Court until the time for appealing from the judgment in the Magistrate's Court 
has expired, nor pending such appeal. If the judgment is set aside in the Mag- 
istrate's Court, it shall have the effect of setting aside the judgment filed and 
docketed in the Circuit Court. The filing and docketing such transcript in the 
Circuit Court shall not affect the right of the Magistrate to grant a new trial. 
A certified transcript of such judgment may be filed and docketed in the Clerk's 

14. High V. Wingo, 84 S. C. 246, 248, 66 S. E. tinued," action brought in Circuit Court must be 
185.^ on same cause of action. Notice of plaintiff that 

15. Where, in suit for wilfully cutting and re- case is withdrawn and discontinued, served after 
moving timber defendant sets up title in himself order of magistrate, is not binding on defendant, 
and tenders proper undertaking, and magistrate High v. Wingo, 84 S. C. 246, 66 S. E. 185. 
indorses on summons, "This action is discon- 



36 CODE Of CIVIL PROCEDURE [ § 97 

office of an}- other County, and with hke effect, in every respect, as in the County 
where the judgment was rendered. i^' 
1870, XIV, § 90; 1887, XIX, 831. 

§ 97. Rules. — The following rules shall be observed in the Courts of Mag- 
istrates : 

1870, XIV, 423; 1870, XIV, § 91. 

1. The pleadings in the Courts are: 1. The complaint by the plaintiff. 2. The 
answer by the defendant. 

2. The pleadings may be oral or in writing: if oral, the substance of them 
shall be entered by the Magistrate in his docket ; if in writing, they shall be filed 
by him, and a reference to them shall be made in the docket. ^'^ 

3. The complaint shall state, in a plain and direct manner, the facts consti- 
tuting the cause of action. 

4. The answer may contain a denial of the complaint, or any part thereof, 
and also a notice, in a plain and direct manner, of any facts constituting a defense 
or counterclaim.^^ 

5. Pleadings are not required to be in any particular form, but must be such 
as to enable a person of common understanding to know what is intended. ^^ 

6. Either party may demur to a pleading of his adversary, or to any part 
thereof, when it is not sufficiently explicit to enable him to understand it, or it 
contains no cause of action or defense, although it be taken as true.^^ 

7. If the Court deem the objection well founded, it shall order the pleading 
to be amended ; and, if the party refuse to amend, the defective pleading shall- 
be disregarded.^^ *" 

8. Proof of Service and No Answer — Liquidated and Unliquidated De- 
mand — Proof of Ceaim. — In any action on contract where a defendant does not 
appear and answer, the plaintiff may file proof of the service of the summons 
and complaint, or of the summons, on one or more of the defendants, and that 
no answer or demurrer has been served upon him. When the action is for the 
recovery of money only, judgment may be given for the plaintiff by default, if 
the demand be liquidated, and if unliquidated, and the plaintiff itemize his ac- 
count and append thereto an affidavit that it is true and correct and no part of 
the sum sued for has been paid by discount or otherwise, and a copy be served 
with the summons on the defendant, and the defendant shall neither answer or 
demur, the plaintiff shall have judgment for the sum sued for, as in the case of 
liquidated demands. In all other cases where the defendant fails to appear and 

16. There is no limit of time within which the IS. Notice of counterclaim must be given. Wil- 

transcripl rrnist be filed. Rhoad v. Patrick, 37 S. liams v. _ Irby, IS S. C. 4S8. Counterclaim can- 

C 517 16 S. E. 536. ^°' be interposed in action to recover a specific 

Such transcript of a valid judgment only of the chattel. lb. 
trial justice can be so filed: if judgment is null, In action to recover balance due farm laborer 

the transcript is null. Barron v. Dent, 17 S. C. for services, a counterclaim may be based on the 

75. And the transcript must show everything allegation that he killed a horse while working 

necessary to give jurisdiction to the trial Justice, it. Haygood v. Boney, 43 S. C. 63, 20 S. E. 803. 
to make the judgment valid. Benson v. Carrier, 19. Dillard v. Samuels, 25 S. C. 318; Riggs v. 

28 S C. 119, 5 S. E. 272. Wilson. 30 S. C. 172, 8 S. E. 848. 

Such transcript is properly signed by an au- Not necessary for summons in civil suit before 
thorized clerk of the trial Justice. Brown v. Magistrate to show residence of defendant in 
Buttz, 15 S. C. 490. Trial Justice has no power county; sufficient if record shows it. Hall. v. Sui- 
te vacate judgment after the transcript has been livan, 70 S. C. 397, SO S. E. 27. See Jenkins v. 
filed in the Circuit Court. lb.; Lawrence v. Southern Ry., 73 S. C. 295, S3 S. E. 481; Brun- 
Isear, 27 S. C. 244, 3 S. E. 222. When tran- son v. Furtick, 72 S. C. 581, 52 S. E. 424, S Am. 
script filed the judgment becomes the judgment & Eng. Ann. Cas. 307. _ 
of the Court of Common Pleas. Rhoad v. Pat- Complaint m suit for per diem penalty provided 
rick, 37 S. C. 517, 16 S. E. 536. in 24 Stat. 671 sufficient. Farrell v. Atlantic 

And execution is to h)e issued thereon by the Coast Line R. Co., 82 S. C. 410, 64 S. E- 226. 
Clerk of the Circuit Court. Amick v. Amick, 59 20. Holladay v. Hodge, 84 S. C. 91, 92, 65 S. 

Q c* 1 c\ ^1 ^ T<" "^Q E 952 

'l7. Holladay •!;.' Hodge, 84 S. C. 91, 92, 65 S. 21. Holladay v. Hodge, 84 S. C. 91, 92, 65 S. 

E. 952. E. 952. . . 

The defendant may plead orally to written com- Leave to amend: strictness m order not re- 

nlaint. Williams t. Irby, 15 S. C. 458. auired. Medicine Co. v. Hare, 56 S. C. 436, 35 

S. E. 130., 



§97] OF SOUTH CAROLINA. 37 

answer, the plaintiff cannot recover without proving his case.-- 

1887, XIX, 833. 

9. Action or Defensii; Founded upon an Account. — In an action or defense 
founded upon an account, or an instrument for the payment of money only, it 
shall he sufficient for a party to deliver the account or instrument to the Court, 
and to state that there is due to him thereon, from the adverse party, a specified 
sum, which he claim,s to recover or set off.--^ 

1870, XIV, 423, § 91. 

10. Variance. — A variance between the proof on the trial and the allegations 
in a pleading shall be disregarded, as immaterial, unless the Court shall be sat- 
isfied that the adverse party has been misled to his prejudice thereby. 

11. Amendment of Pleadings. — The pleadings may be amended at any time 
before the trial, or during the trial, or upon appeal, when, by such amendment, 
substantial justice will be promoted. If the amendment be made after the joining 
of the issue, and it be made to appear to the satisfaction of the Court, by oath, 
that an adjournment is necessary to the adverse party, in consequence of such 
cmendment, an adjournment shall be granted. The Court may also, in its dis- 
cretion, require as a condition of an amendment, the payment of costs to the 
adverse party.-* 

12. Issuance oe Magistrates' Executions — SaeEs Thereunder. — Execu- 
tion may be issued on a judgment heretofore or hereafter rendered in Magis- 
trates' Courts at any time after the rendering of such judgment, and within 
three years after the rendition thereof, and shall be returnable sixty days from 
date of the same, but no sale thereunder shall be made until after the time for 
appealing has expired, nor pending such appeal : Provided, That in cases for 
the claim and delivery of personal property where bond for the property claimed 
has been properly given by either party, the status of such property shall not 
be changed until after the expiration of the time for appealing has expired, 
or until such appeal has terminated. ^ -5 

1887, XIX, 832. 

13. Issuance of Execution to Sheriff. — If the judgment be docketed with 
the Clerk of the Circuit Court, the execution shall be issued by him to the Sher- 
iff of the County, and have the same effect, and be executed in the same manner, 
as other executions and judgments of the -Circuit Court.-'^ 

14. Refusing Exhibit of Account or Statement of Nature. — The Court 
may, at the joining of the issue, require either party, at the request of the other, 
at that or some other specified time, to exhibit his account, or state the nature 
thereof as far as may be in his power, and, in case of his default, preclude him 
from giving evidence of such parts thereof as shall not have been so exhibited or 
stated. . 

15. Forms of Action, Parties, Evidence, Commencement of Action and 
Service on Corporations. — The provisions of this Code of Procedure, respect- 

22. The last clause applies to cases by de- Complaint, amended by permission of Court, in 

fault. Barron v. Dent, 17 S. C. 75. Court after demurrer sustained, should be served 

And the fact of endorsements upon the summons on defendant. Holladay v. Hodge, 84 S. C. 91, 

that there was a hearing and examination of wit- 65 S. E. 952. 

nesses is not sufficient to show that defendant ap- 25. When execution may issue: after tran=criDt 

peared and defended. lb. is filed in Circuit Court. Rhoad v. Patrick, 37 

Nor can such showing be made by parol testi- S. C. 517, 16' S. E. 536; Amick v. Amick, 59 S. 

mony. lb. _ _ C. 70, 37 S. E. 39. 

Is a summons necessary in a magistrate court? In issuing execution trial Justice acts judicially 

Hasten Furniture Co. v. Southern Railway, 82 S. and is not liable in damages th-^refor unless it 

C. 238, 64 S. E. 223. "was do^e wilfully and corruptly. McCall v. Cohen, 

There is no express requirement for a sum- 16 S. C. 445: Abrams v. Carlisle, 18 S. C. 242. 

mons except in § 80. _ lb. Can trial Justice issue execution within the five 

2.^. Do'is not nullify last clause of preceding days allowed for motion for new trial? Abrains v. 

subdivision: does not apply to default cases. Bar- Carlisle, 18 S. C. 242. 

ron f. Dent, 17 S. C. 75. 26. Lawrence v. Isear, 27 S. C. 244. 3 S. 

24. Amendment allowed during trial. Harby E. 222: .\mick v. Amick, 59 S. C. 70, 37 S. E. 

r. Wells, 52 S. C. 156. 29 S- E. .563 See. 31==.-., 39: Braec^ v Thomn-on. 19 S. C. 572: Rhoad v. 

Medicine Co. v. Hare. 56 S. C. 462, 35 S. E. 130. Patrick, \^7 S. C. 517, 16 S. E. 536. 



38 CODE OF CIVIL PROCBDURB [ § 97 

ing forms of actions, parties to actions, the rules of evidence, the times of com- 
mencing actions, and the service of process upon corporations, shall apply to 
these Courts. 

The defendant may, on the return of process, and before answering, make 
an offer in writing to allow judgment to be taken against him for an amount, to 
be stated in such offer, with costs. The plaintiff shall thereupon, and before 
any other proceeding shall be had in the action, determine whether he will 
accept or reject such offer. If he accept the offer, and give notice thereof in 
writing, the Magistrate shall file the offer and the acceptance thereof, and render 
judgment accordingly. If notice of acceptance be not given, and if the plain- 
tiff fail to obtain judgment for a greater amount, exclusive of costs, than has 
been specified in the offer, he shall not recover costs, but shall pay to the defend- 
ant his costs accruing subsequent to the offer.^^ 

16. Time; for Serving Complaint — WhE-n and How Shortened. — When 
twenty-five or more dollars is demanded, the complaint shall be served on the 
defendant not less than twenty days ; and where less than that sum is demanded, 
not less than five days before the day therein fixed for trial: Provided, That 
if the plaintiff shall make out that he is apprehensive of losing his debt by such 
delay, and the Magistrate considers that there is good reason therefor (the 
grounds of such apprehension being set out in an affidavit and served with a 
copy of the complaint), he may make such process returnable in such time as 
the justice of the case may require.^^ 

1891, XX, 1113. 

17. New Trials. — Any Magistrate Court of this State shall have power to 
grant a new trial in any case tried in the said Courts for reasons for which new 
trials have usually been granted in the Courts of law of this State. The grant- 
ing of a new trial shall in no wise affect the right and duty of such Magistrate 
to change the venue of said case, as provided in Subdivision 19 of this Section.^^ 

1876, XVI, 60; 1908, XXV, 1032. 

18. Time eor Motion egr New Trial. — No motion for a new trial shall 
be heard unless made within five days from the rendering of the judgment: 
Provided, That the right of appeal from the judgment shall exist for five days 
after the refusal of a motion for a new trial.^^ 

2-7. Wideman v. Patton, 64 S. C. 408, 42 S. must be stated to show that the debt would other- 

E. 190. wise be lost. Moore v. Southern Ry., 76 S. C. 

It is error in trial Justice to refuse to allow de- 335, 56 S. E. 971. Dating is not requisite to 

fendant's counsel to cross-examine generally plain- validity of summons. Butler Bros. v. Welch, 76 

tiff's witness. _ Dillard v. Samuels, 25 S. C. 318. S. C. 130, 56 S. E- 668. 

Plaintiff is liable for all costs of the case, sub- Service on one member of partnership, binds 

sequent to defendant's offer, if he refuses to ac- partnership property and property of member 

cept it, and recover less. Williford v. Gadsden, served. Pierce v. Varn, 76 S. C. 359, 57 S. E. 

27 S. C. 87, 2 S. E. 858. 184; Hasten Furniture Co. v. Southern Ry., 82 

^ Provision as to forms of actions. Kelley v. S. C. 240, 64 S. E. 223. 

Kennemore, 47 S. C. 256, 25 S. E. 134._ Where magistrate, on motion made on day set 

May appoint guardian ad litem. Wideman v. for trial to make paper served more definite as 

Patton, 64 S. C. 410, 42 S. E- 190. _ complaint, holds paper served was onh' summons 

38. Summons requiring appearance on twentieth and then permits plaintiff to file complaint, he 

day void. Adkins v. Moore, 43 S. C. 173, 20 S. should give defendant twenty days to answer com- 

E. 985; Paul z'. So. Ry. Co., 50 S. C. 23, 27 S. plaint. Hasten Furniture Co. v. Southern Rail- 

E. 526. But summons to appear on twenty-first way, 82 S. C. 238, 64 S. E. 223. 

day was held sufficient in Wildeman v. Pruitt, 52 29. A motion for a new trial is not required 

S. C. 84, 29 S. E. 405. as a condition precedent to an appeal. Minnick 

Defendant may waive the twenty days' notice; v. Fort, 13 S. C. 215. 

and if he goes to trial on less notice, without He cannot so relieve against his own judgments 

objection, he is bound by the judgment. IBenson v. on grounds of mistake, inadvertence, surprise or 

Carrier, 28 S. C. 119, 5 S. E. 272. As to the neglect; that can only be done by appeal. lb. 

proviso, applied. Cavender v. Ward, 28 S. C. So as to judgments by default, that may be satis- 

470, 6 S. E. 302. The summons under this pro- factorily excused. Lawrence v. Isear, 27 S. C. 

viso may be made returnable on the same day it 244, 3 S. E. 222. New trial will not be granted 

is served. Cothran v. Knight, 47 S. C. 243, 25 where irrelevant testimony is received against ob- 

S. E. 142. jection, which could not have affected the verdict. 

Defect in summons is waived by appearance Riggs v. Wilson, 30 S. C. 172, 8 S. E. 848. Ap- 

and pleading to the merits. Williams v. Garvin, peal lies to the Circuit Court from an order grant- 

51 S. C. 399, 29 S. E. 1; Rosamond v. Earle, 46 ing a new trial. Redfearn v. Douglass, 35 S. C. 

S. C. 9, 24 S. E. 44; Bird v. Sullivan, 58 S. C. 569, 15 S. E. 244. 

52, 36 S. E- 494. 30. Notice of motion must be given within five 

It may be waiver by appearing without objecting days. Doty v. Duvall, 19 S. C. 143. But need 

to jurisdiction of the Court. Grant v. Clinton not be in writing. Mitchell v. Bates, 57 S. C. 

Mills, 56 S. C. 557, 35 S. E. 193. 44, 35 S. E. 420. The hearing (Whetstone v. 

Where time for answer is shortened, some fact 



§§ 98-99] OF SOUTH CAROLINA. 39 

19. Change of Venue;. — Magistrates shall have the power to change the 
venue in all cases, civil and criminal, pending before them : Provided, That in 
Counties where they have separate and exclusive territorial jurisdiction the 
change of venue shall be to another Magistrate's district in the same County. 
Whenever either party in a civil case, or the prosecutor or accused in a crim- 
inal case, which is to be tried before a Magistrate, shall file with the Magistrate 
issuing the paper an affidavit to the effect that he does not believe he can ob- 
tain a fair trial before the Magistrate, the papers shall be turned over to the 
nearest Magistrate not disqualified from hearing said cause in the County, who 
shall proceed to try the case as if he had issued the papers : Provided, Such 
affidavit shall set forth the grounds of such belief, and in civil cases two days' 
notice of the application for change of venue shall be given to the adverse party. 
One such transfer only shall be allowed each party in any case.^^ 

1887, XIX, 787; 1896, XXII, 13. 



TITLE VI. 

OF THE CIVIL AND CRIMINAL COURT OF CHARLESTON. 

Sec. Sec 

98. Court established. 108. Appeal allowed. 

99. Jurisdiction. 109. Entry of judgments, execution and 
100. Presiding Judge — Compensation. transcript. 

• 101. Ministerial Magistrates. 110. Rule of practice, pleadings, forms 

102. Jury trial — Jury box. and mode of procedure; and 

103. Preparation of jury box — Custody — time for holding court. 

Statements filed. 111. Vacancy — How filled. 

104. Criminal cases. . 113. Judicial Magistrate's Court abol- 

105. May punish for contempt. ished. 

106. Judge may appoint clerk — Duties. 113. Reenacting clause. 

107. Jury to serve without pay in cer- 

tain cases. 

§ 98. Court Established. — A court inferior to the Circuit Courts, and to 
be known as "The Civil and Criminal Court of Charleston," is hereby established 
for the city of Charleston, and the territory adjacent thereto in the county of 
Charleston, within the late parish of St. Philips, outside of said city, and north 
of Line street therein, between the Ashley and Cooper rivers. 

1911, XXVI, 16. 

§ 99. Jurisdiction. — The said Civil and Criminal Court shall have such 
jurisdiction as is now provided for by law for the Judicial Magistrate's Court 
in said city and county, and in all other actions heretofore cognizable within the 
said territorial limits, wherein the amount sued for or the value of the property 
claimed, exclusive of costs, does not exceed five hundred dollars ; but such juris- 
diction shall not extend to cases where the title to real estate is in question, nor 

Livingston, 54 S. C. 539, 32 S. E. S61) and de- have given two days' notice. Mayes v. Evans, 80 

cision may be later. Speer v. Meschine, 46 S. S. C. 362, 61 S. E. 216. 

C. 505. 24 S. E. 229, 331. And the motion may Affidavit should state facts, not opinions. Witte 

Ije made on a legal holiday. Mitchell v. Bates, v. Cave, 73 S. C. IS, 52 S. E. 736; State v. Conkle, 

supra. 64 S. C. 371, 42 S. E. 173: Maves v. Evans, 80 

31. The party must make the affidavit himself. S. C. 362. 61 S. E. 216; Bacot v. Deas, 67 S. 

Cromer v. Watson, 59 S. C. 126, 38 S. E. 126, C. 245, 45 S. E. 171. 
128. Where party files sufficient affidavit, grant of 

Affidavit for change of venue in Magistrate's change of venue is mandatory. State v. Conkle, 

Court must state reasons whv fair trial cannot 64 S. C. 371, 42 S. E. 173. 

be had. Bacot v. Deas. 67 S. C. 245, 45 S. E. 171. Strict compliance with requirements necessary 

Affidavit should contain such statement of facts to make duty mandatory. Mayes v. Evans, 80 

as would form basis of indictment for perjury. S. C. 362, 61 S. E. 216. 
Witte V. Cave, 7i S. C. 15, 17, 52 S. E. 736. Affidavit cannot be amended at hearing. Bacot 

Two days' notice necessary for motion of v. Deas, 67 S. C. 245, 45 S. E. 171._ 
change of venue before Magistrate, unless facts Affidavit that magistrate had said in presence 

stated in affidavit show that applicant became of parties that mover did not have case is not 

aware of the facts at a time when he could not sufficient to warrant change of venue. Mayes v. 

Evans, 80 S. C. 362, 61 S. E. 216. 



40 CODE OF CIVIL PROCEDURB [ §§ 100-102 

to cases in chancery, and shall be concurrent with the Courts of Common Pleas 
therein, in matters within the jurisdiction of the court herein estabhshed. 
1911, XXVI, 16. 

§ 100. Presiding- Judge — Compensation. — The present judicial magis- 
trate in said city and county, shall be the presiding Judge of said Civil and 
Criminal Court, and shall be by the Governor commissioned as such, subscribe 
the oath of office therefor, until the next' ensuing general election hereafter, 
when his successor shall be elected in the same manner as is now provided by law 
for the election of a Probate Judge in the county of Charleston. He shall be 
an attorney of law, resident within said territory, and shall be the presiding 
Judge of said Civil and Criminal Court, and shall hold his office for a term of 
four years, and until his successor has been elected and qualified. He shall re- 
ceive as compensation for his services the sum of twelve hundred dollars per 
annum, from the time of the issuance of his commission, to be paid by the County 
Treasurer of said county of Charleston, as the judicial magistrate and all other 
magistrates therein have heretofore and are now paid, and he is prohibited from 
practicing as an attorney in said court, or any court inferior to the Circuit Court, 
except the Probate Court. 

1911, XXVI, 16. 

§ 101. Ministerial Magistrates. — All summons and other process for said 
Civil and Criminal Court shall be issued exclusively by one of the ministerial 
magistrates in said territorial jurisdiction, except in cases wherein the amount 
sued for or the value of the property claimed exceeds one hundred dollars, 
wherein the practice, pleadings, forms and modes of procedure of force in the 
Courts of Common Pleas shall be, and they are hereby, made applicable to and 
to be followed in said Civil and Criminal Court. The jurisdiction, powers and 
duties of the said ministeriab magistrates being hereby and in no way increased 
or diminished, but they are to perform the same to the said Civil and Criminal 
Court as they do now to the Judicial Magistrate's Court, and in lieu and stead 
thereof. 

1911, XXVI, 16. 

§ 102. Jury Trial — Jury Box. — Any party in any civil cause in said court 
shall be entitled to a jury trial, the jury to consist of six persons, to be sum- 
moned and empanelled as follows : The Judge of said Court and the clerk thereof 
shall constitute a Board of Jury Com'missioners : Provided, In case either of 
said board fail to attend for the purpose of drawing a jury the other may act. 
They shall perform the duties required of them as jury commissioners without 
compensation. Whenever a jury trial may be demanded by any party thereto 
entitled in this court, said jury commissioners shall draw from the jury box 
hereinafter provided for, indiscriminately, fifteen names, which said names shall 
be written on three pieces of paper and numbered consecutively from one to 
fifteen, and shall constitute the jury list; one copy of which shall be retained 
by the court and one copy to be given to each of the parties litigant. The 
names on said list shall be stricken off by numbers, from which said list the 
parties or their attorneys shall alternately strike, until there shall be but seven 
left, the first six of which shall constitute the jury to try the case, unless for 
any cause any of them shall not appear and serve, in which case the seventh shall 
act. If, for any cause, a full jury should fail to appear, the parties may agree 
to a trial by the number actually appearing. Upon the selection of the seven 
names, as hereinabove described, the Clerk of said Court shall issue a writ of 
venire facias, directed to each of said jurors, and shall therein require regular 
attendance on the day stated therein, and such other days as the court may order. 
Each juror serving in said court shall receive the sum, of fifty cents per day, to 
be paid in advance by the party demanding the jury. If any person summoned 



§§ 103-106] OF SOUTH CAROLINA. 41 

10 attend upon said court shall neglect or refuse to appear, without sufficient 
legal excuse, he shall forfeit and pay to the said county a fine of five dollars, 
for which judgment may be forthwith entered in said court against him, and 
execution issued therefor, together with the sum of five dollars cost, for the 
officer of said court entering such judgment and levying such execution, and 
such judgment and execution shall be of the same force and effect as are all 
other judgments and executions for said court. 
1911, XXVI, 16. 

§ 103. Preparation of Jury Box — Custody — Statements Filed. — The 

jury box hereinabove referred to shall be prepared as follows : The Board of 
Registration for the county of Charleston, together with the County Treasurer 
and County Auditor, shall, during the month next succeeding the approval of 
this Act, and thereafter during the month of January next succeeding every gen- 
eral election for State officers, prepare a list of not less than fifteen hundred of 
the qualified electors, now or hereafter qualified by law to act as jurors, and 
appearing upon the lists of registration on the 31st of December, 1910, and 
thereafter appearing upon such list at the time of each next preceding general 
election, and shall cause the said names, each one to be written on a separate 
piece of paper or ballot, and shall fold up such pieces of paper or ballots so as to 
resemble each other as much as possible, so that the name thereon shall not 
be visible from the outside, and shall place them in a jury box to be furnished 
by the County Commissioners for that purpose, and all names for jurors for 
said court shall thereafter be drawn from said box, in the manner herein pro- 
vided. It shall be the duty of the Clerk of said Court to keep said jury box in 
his custody, and such jury box shall be provided with two locks, each different; 
a key to one lock shall be kept by the Clerk of said Court, and one by the 
judge of said Court, so that neither of said parties shall hold keys to the same 
lock. And it shall be the duty of the County Board of Commissioners for the 
county of Charleston to furnish to the said Board of Registration for the county 
of Charleston, the County Auditor and the County Treasurer, a jury box of 
sufficient size and without any compartments therein, so that when all the sep- 
arate pieces of paper or ballots aforesaid shall be folded and enclosed therein 
they may be capable of being readily shaken out and intermixed in such box. 
As soon as all of the said names shall have been placed in said box the Board 
of Registration for the countv of Charleston, the County Auditor and County 
Treasurer, shall file with the Clerk of said Court their several statements, under 
oath, that they have so prepared such list and placed all of the names in such 
box, as required by the provisions of this Act. 
1911, XXVI, 16. 

§ 104. Criminal Cases. — In all criminal cases the prosecution may be 
represented b}^ any reputable attorney of law, employed by the prosecution, or 
the solicitor of the circuit mav be required to attend and be in charge thereof, 
in the discretion of the presiding Judge, or of his own volition. 

1911, XXVI, 16. 

§ 105. May Punish for Contempt. — The said Civil and Criminal Court 
shall have full power and authority to punish for contempt committed during 
the session thereof and in the presence of said court ; and for such contempt may 
impose punishment by fine not exceeding fifty dollars, and imprisonment not ex- 
ceeding forty-eight hours, either or both. 

1911, XXVI, 16. 

§ 106. Judge May Appoint Clerk — Duties. — The Judge of said Court 
shall have the authority to appoint a clerk for said court, who shall hold the 
term of office for two years from date of appointment ; said clerk shall also 
be invested with the same powers and duties as are now or which hereafter may 



42 CODB OF CIVIL PROCEDURE [ §§ 107-111 

be devolved upon magistrate's constables. He shall give bond and qualify as 
a constable of said court, and shall receive as compensation the sum of twenty- 
five dollars per month, to be paid in the same manner as is now paid the sal- 
ary of the clerk or constable of the judicial magistrate. The duties of said clerk 
shall be the same as those now performed by the clerk of the judicial magistrate 
and to preserve order in said court and call to his aid a person or persons to 
preserve order therein, who shall be compensated by him out of the fees here- 
inafter provided for, and such person or persons, when so called, shall have 
the like powers of the magistrate's constable. 
1911, XXVI, 16. 

§ 107. Jury to Serve without Pay in Certain Cases. — In all criminal 
cases the jury shall serve and be summoned without compensation. In civil cases 
and special proceedings, where the amount involved is less than one hundred 
dollars, there shall be paid in advance to the said clerk the sum of fifty cents, 
and in all larger amounts the sum of one dollar, as a docketing fee, and in lieu 
of all other costs in said court whatsoever, except that where a jury trial is de- 
manded there shall be paid to the clerk in advance by the party demanding the 
same, as hereinafter provided, the sum of fifty cents per day for each of the 
six jurors, and the further sum of fifty cents for procuring the attendance of 
same. 

1911, XXVI, 16. 

§ 108. Appeal Allowed. — Appeal shall be from the said Civil and Crim- 
inal Court, in all cases now allowed by law from the ordinary magistrate's courts, 
to be presented in the same manner and under the same regulations as therein 
prescribed, except that instead of the testimony being in all cases taken down in 
writing and signed by the witnesses, any party shall have the right to have the 
testimony taken stenographically by a stenographer, to be appointed by the Judge 
of said Court, or the Judge may appoint a stenographer: Provided, That such 
party shall pay the charges of such stenographer for taking the testimony, or 
the payment for same provided for otherwise by said Judge. 

1911, XXVI, 16. 

§ 109. Entry of Judgments, Execution and Transcript. — All judgments 
shall be entered, execution issued thereon, or transcript thereof be made, as now 
provided by law for the judgment rendered in said Judicial Magistrate's Court. 

1911, XXVI, 16. 

§ 110. Rule of Practice, Pleadings, Forms and Mode of Procedure; 
and Time for Holding Court. — The rules of practice, pleadings, forms and 
modes of procedure now applicable to and heretofore governing the said Ju- 
dicial Magistrate's Court, shall be applicable to and govern the said Civil and 
Criminal Court, except as herein otherwise provided for. The said court shall 
be held on every day of the week except Monday, Saturday, Sunday and public 
holidays, and may be held on any secular day. The presiding Judge may set 
aside any sufficient time during each week or month for the trial of jury cases 
only. The place for holding such court shall be provided by the County Com- 
missioners of Charleston county, and may be the place at which the Judicial 
Magistrate's Court has heretofore been held ; and all books, dockets and other 
stationery necessary for the business of said court shall likewise be provided 
by said County Commissioners. 
'l9il, XXVI, 16. 

§ 111. Vacancy — How Filled. — In case of the disability, inability from 
any cause, absence from the State, death or resignation of the Judge of said 
Court, the Governor shall appoint some member of the bar, resident in said 



§§112-113] OP SOUTH CAROLINA. • 43 

jurisdiction and learned in the law, to temporarily fill the place without compen- 
sation, unless compensated by the Judge of said Court. 
1911, XXVI, 16. 

§ 112, Judicial Magistrate's Court Abolished. — The present Judicial 
Magistrate's Court for the city of Charleston and the territory adjacent thereto, 
in the county of Charleston, be, and the same is hereby, abolished. 

1911, XXVI, 16. 

§ 113. Reenacting Clause. — All laws and parts of laws not inconsistent 
with the provisions of this Act be, and the same are specifically, enacted. 
1911, XXVI, 16. 



PART II 

Of Civil Actions^ 



Title I. Form of Civil Actions, 44. 

Title; II. Time of Commencing Civil Actions, 45. 

Title III. Parties to Civil Actions, 56. 

Title IV. Of the Place of Trial of Civil Actions, 61. 

Title V. Manner of Commencing Civil Actions, 63. 

Title VI. Of the Pleadings in Civil Actions, 70. 

Title VII. Of the Provisional Remedies in Civil Actions, 90. 

Title VIII. Of the Trial and Judgment in Civil Actions, 115. 

Title IX. Of the Execution of the Judgment in Civil Actions, 132. 

Title X. Of the Costs in Civil Actions, 141. 

Title XL Of Appeals in Civil Actions, 145. 

Title XII. Of the Miscellaneous Proceedings in Civil Actions, and General 

Provisions, 158. 

Title XIII. Actions in Particular Cases, 173. 

Title XIV. General Provisions, 179. 



TITLE I. 

FORM OF CIVIL ACTIONS. 

Sec. Sec. 

114. One form of action established. 116. Actions on judgments. 

115. Parties — How designated. 117. Feigned issues not allowed. 

§ 114. One Form of Action Established. — There shall be in this State 
but one form of action for the enforcement or protection of private rights and. 
the redress of private wrongs, which shall be denominated a civil action. ^ 

1870, XIV, § 9.2. 

§ 115. Parties — How Designated. — In such action the party complain- 
ing shall be known as the plaintiff, and the adverse party as the defendant. 
1870, XIV, § 93. 

§ 116. Actions on Judgments. — No action shall be brought upon a judg- 
ment rendered in any Court in this State, except a Court of Magistrate, between 
the same parties, without leave of the Court, for good cause shown, on notice 
to the adverse party ; and no action on a judgment rendered by a Magistrate 
shall be brought in the same County within five years after its rendition, except 

1. Tliis part, as to appeals, does not apply in at law or a bill in equity. Southern Man. Co. v. 
criminal cases; they are governed by the old Tew, S S. C. 5. 

practice before the Code. State v. Pitts, 12 S. C. Whether legal or equitable, such rights must 
180. It applies only to Courts of Common Pleas, alike be enforced or protected by the same form 
except when express reference is made to inferior of action. Parker v. Jacobs, 14 S. C. 112: Chap- 
Courts. Doty V. Duvall, 19 S. C. 143. Nor does man v. Lipscomb, 18 S. C. 222; Scaife v. Thomp- 
it apply to proceedings by prohibition or man- son, IS S. C. 337. No change is made between 
danms. S. C. Society v. Gerney, 3 S. C. S3. See legal and equitable causes of action. Chapman v. 
note to Section 8. Lipscomb, 18 S. C. 222; Sullivan v. Sullivan, 20 
This Code does not apply to special statutory S. C. S09. But while causes of action are dis- 
proceedings to enforce builder's lien. Tenny v. tinct from remedies, they are enforcible by the 
Power Co., 67 S. C. 11, 17, 45 S. E. 111. _ one form of remedy. Emory v. Hazard Powder 

2. No action lies unless a cause of action exists Co.. 22 S. C. 476. 

which would formerly have maintained an action See note as to changes made by Code, § 1. 



}§ 117-119] 



OF SOUTH CAROLINA. 



45 



in case of liis death, resignation, incapacity to act, or removal from the County, 
or that the process was not personally served on the defendant, or on all the 
defendants, or in case of the death of some of the parties, or where the docket 
or record of such judgment is or shall have been lost or destroyed.-^ 
1870. XIV. § 94. 

§ 117. Feigned Issues Not Allowed.— Feigned issues shall not be al- 
lowed, and, instead thereof, or when a question of fact, not put in issue by the 
pleadings, is to be tried by a jury, an order for the trial may be made stating 
distinctly and plainly the question of fact to be tried; and such order shall be the 
only authority necessary for a trial. 

1870, XIV, § 95. 



TITLE II. 

TIME OF COMMENCING CIVIL ACTIONS. 



Chapter I. Actions Generally, 45. 

Chapter II. For the Recovery of Real Property, 46. 

Chapter III. Time of Commencing Action Other than for the Recovery of 

Real Property, 50. 
Chapter 1\. General Provisions as to the Time of Commencing Actions, S?>. 



CHAPTER I. 

Actions Generally. 



Sec. 
119. Time for commencing actions, etc. 



Sec. 
118. Limitation not to apply when action 
commenced or right of action 
accrued. 

§ 118. Limitation Not to Apply When Action Commenced or Right of 
Action Accrued. — The provisions of this Title shall not extend to actions al- 
ready commenced, or to cases where the right of action has already accrued; 
but the statutes then in force shall be applicable to such cases, according to the 
subject of the action and without regard to the form.^ 

1870, XIV, § 96. 

§ 119. Time for Commencing Actions, etc. — Civil actions can only be 
commenced within the periods prescribed in this Title, after the cause of action 
shall have accrued, except where, in special cases, a different limitation is pre- 
scribed by Statute, and in the cases mentioned in Section 118. But the objection 
that the action was not commenced within the time limited can only be taken by 
answer. 2 

1870, XIV, § 97. 



3. Does not appb'' to action by creditor of de- 
cedent to subject lands in possession of devisees 
to iiidgment. Brock v. Kirkpatrick, 60 S. C. 322, 
38 S E 779 

1. Shand v. Gage, 9 S. C. 188; Hayes v. Clink- 
scales, 9 S. C. 450; Bratton v. Guy, 12 S. C. 42; 
Bolt V. Dawkins, 16 S. C. 210; Nichols v. Briggs, 
IS S. C. 473; State r. Pinckney, 22 S. C. 484; 
Colvin V. Phillips, 25 S. C. 228; Rehkopf v. Kuh- 
land. 30 S- C 234, 9 S. E. 99; Lyles v. Roach, 
30 S. C. 291, 9 S. E. 334; Heyward v. Farmers 
Mining Co., 42 S. C. 138, 19 S. E. 963; Cheatham 
V. Evlins. 160 Fed. 802; Young v. McNeill, 78 
S. C. 143, 154, 59 S. E. 986. 

There are only three exceptions to the operation 
of the limitations in this Title: 1. Where the ac- 



tion was already commenced. 2. Where the right 
of action had already accrued. 3. Where a dif- 
ferent limitation is prescribed by statute. Stod- 
dard V. Owings, 42 S. C. 88, 20 S. E. 25; Glover 
V. Floyd, 76 S. C. 292, 57 S. E. 25. Right of ac- 
tion defined. lb. 

Applies to bond and mortgage executed prior 
to adoption of Code, but maturing afterwards. 

2. The statute cannot avail unless so pleaded. 
Coney v. Tinimons, 16 S. C. 378; Cureton v. 
Westfield, 22 S. C. 583; Moore v. Smith, 29 S. 
C. 254, 7 S. E. 485; Foggeth v. Gaffnev, 33 S. C. 
303. 12 S. E. 260; Jones v. Bovkin, 70 S. C. 309, 
315, 49 S. E. 877; Guerard i: Tenkins, 80 S. C. 
224, 61 S. E. 258. 

Defendant failing to so object by answer is 



46 



CODE OP CIVIL PROCEDURB 



[ §§ 120-122 



CHAPTER n. 
For the Recovery of Real Property. 



Sec. Sec. 

120. When State will not sue. 

121. When action cannot be brought by 

grantee from State. 127. 

122. When action by State or their gran- 

tees to be brought within ten 128. 
years. 

123. Seizin within ten years — When nee- 129. 

essary — Plaintiff limited to two 
actions. 130. 

124. Seizin within ten years — When nec- 

essary in action or defense 131. 
founded on title, etc. 

125. Action after entry, or right of en- 132. 

try. 133. 

126. Possession — When presumed — Oc- 134. 



cupation when deemed under le- 
gal title. 

Occupation under written instru- 
ment, etc. 

Adverse possession under written 
instrument, etc. 

Premises actually occupied held ad- 
versely. 

Adverse possession under claim of 
title not written. 

Relation of landlord and tenant, as 
affecting adverse possession. 

Descent cast — Effect of. 

Persons under disability. 

After forty years, no action what- 
ever allowed. 



§ 120. When State Will Not Sue. — The State will not sue any person for 
or in respect to any real property, or the issues or profits thereof, by reason of 
the right or title of the State to the same unless : 

1. Such right or title shall have accrued within twenty years before any ac- 
tion or other proceeding for the same shall be commenced; or unless 

2. The State, or those from whom it claims, shall have received the rents and 
profits of such real property, or of some part thereof, within the space of twenty 
years.i 

1870, XIV, § 98; 1873, XV, 496. 

§ 121. When Action Cannot Be Brought by Grantee from State. — 

No action shall be brought for or in respect to real property by any person claim- 
ing by virtue of letters patent or grants from the State, unless the same might 
have been commenced by the State as herein specified, in case such patent or 
grant had not been issued or made. 
1870, XIV, § 99. 

§ 122. When Action by State or Their Grantees to Be Brought 
within Ten Years. — When letters patent or grants of real property shall have 
been issued or made by the State, and the same shall be declared void by the 
determination of a competent Court, rendered upon an allegation of a fraudulent 
suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material 
fact, or wrongful detaining, or defective title, in such case an action for the re- 
covery of the premises so conveyed may be brought either by the State, or by 



larred from making that defense on trial. Jones 
V. Massey, 9 S. C. 376. 

But such defense does not preclude other de- 
fenses, even though inconsistent. Cohrs v. Fraser, 
5 S. C. 355. 

Statement of reasons which actuated defendant 
to plead such limitation properly stricken out of 
answer as irrelevant. Nichols v. Briggs, 18 S. C. 
473. 

When it need not be formally pleaded by de- 
fendants. Tackson v. Plyler, 38" S. C. 496, 500, 
17 S. E. 257: Sutton v. Clark, 59 S. C. 440, 38 
S. E. 154; Bank v. Gadsden, 56 S. C. 313, 33 S. 
E. 575. 

Adverse possession may be shown under gen- 
eral denial. Lloyd v. Rawl, 63 S. C. 219, 41 S. E. 
312. 

Plea of statute of limitations must be set up 
by the answer; it cannot be made effective by de- 
murrer. Guerard v. Jenkins, 80 S. C. 224, 61 
S. E. 258. 



Statute of limitations not applicable to action 
for specific performance. Boston v. Ingraham, 76 
S. C. 167, 170, 56 S. E. 780; Miller v. Saxton, 
75 S. C. 237, 55 S. E. 310. 

Laches. Robertson v. Blair, 56 S. C. 96, 104, 
34 S. E. 11; Brock v. Kirkpatrick, 72 S. C. 491, 
502, 52 S. E. 592; Miller v. Saxton, 75 S. C. 237, 
55 S. E. 310; Jones v. Haile Gold Mining Co,, 
79 S. C. 50, 60 S. E. 35; Shute v. Shute, 82 S. 
C. 264, 64 _S. E. 145. 

Presumption after lapse of twenty years. Young 
V. McNeill, 78 S. C. 143, 59 S. E. 986. 

1. Does not operate retrospectively. State v. 
Pinckney. 22 S. C. 484; Hey ward v. Farmers 
Mining Co., 42 S. C. 138, 19 S. E. 963. _ Until 
this Section was passed, in 1870, the doctrine of 
nullum tempus prevailed in this State. State v. 
P. G. Co., 22 S. C. SO. As to its effect, it re- 
mains to be construed. State v. Pinckney, 22 S. 
C. 484; Glover v. Floyd, 76 S. C. 296, 57 S. E. 25. 



§§ 123-126] OF SOUTH CAROLINA. 47 

any subsequent patentee or grantee of the premises, his heirs or assigns, within 
ten years after such determination was made, but not after that period. 
1870, XIV, § 100; 1873, XV, 496. 

,§ 123. Seizin within Ten Years — When Necessary — Plaintiff Limited 
to Two Actions. — 1. No action for the recovery of real property, or for the 
recovery of the possession thereof, shall be maintained, unless it appear that the 
plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the 
premises in question within ten years before the commencement of such action. ^ 

1870, XIV, •§ 101; 1873, XV, 496. 

2. Plaintiff Limited to Two Actions for Recovery of Real Property. 
— The plaintiff in all actions for recovery of real property or the recovery of the 
possession thereof, is hereby limited to two actions for the same, and no more : 
Provided, That the costs of the first action be first paid, and the second ac- 
tion be brought within two years from the rendition of the verdict or judgment 
in the first action, or from the granting of a non-suit or discontinuance therein.^ 

1879, XVII, 76. 

§ 124. Seizin within Ten Years — When Necessary in Action or Defense 
Founded on Title, etc. — No cause of action, or defense to an action, founded 
upon a title to real property, or to rents or services out of the same, shall be 
effectual, unless it appear that the person prosecuting the action or making the 
defense, or under whose title the action is prosecuted or the defense is made, 
or the ancestor, predecessor, or grantor of such person, was seized or possessed 
of the premises in question within ten years before the committing of the act in 
respect to which such action is prosecuted or defense made.* 

1870, XIV, § 102; 1873, XV, 496. 

§ 125. Action after Entry, or Right of Entry. — No entry upon real es- 
tate shall be deemed sufficient or valid as a claim, unless an action be commenced 
thereupon within one year after the making of such entry, and within ten years 
from the time when the right to make such entry descended or accrued. 

1870, XIV, § 103; 1873, XV, 496. 

§ 126. Possession — When Presumed^Occupation When Deemed un- 
der Legal Title. — In every action for the recovery of real property, or the 
possession thereof, the person establishing a legal title to the premises shall be 
presumed to have been possessed thereof within the time required by law ; and 
the occupation of such premises by any other person shall be deemed to have 
been under and in subordination to the legal title, unless it appear that such 

2. Adverse possession for ten years confers and I. Co., 42 S. C. 488, 20 S. E. 378. Dismissal 

good title which may be asserted affirmatively. of second action for failure to pay costs of first 

Duren v. Kee, 50 S. C. 444, 27 S. E. 87S ; Har- action, precludes plaintiff from bringing another, 

relson v. Sarvis, 39 S. C. 14, 17 S. E. 368; Busby lb., 47 S. C. 117, 25 S. E. 48. This subdivision 

V. Railroad Co., 45 S. C. 312, 23 S. E. 50; Cave does not apply to actions for partition. Elmore v. 

V. Anderson, 50 S. C. 293, 27 S. E. 693. Adverse Davis, 49 S. C. 1, 26 S. E. 898; Foster v. Foster, 

possession. Kolb v. Jones, 62 S. C. 193, 40 S. E. 81 S. C. 307, 62 S._ E. 320. Nor to action for 

168; Epperson v. Stansill, 64 S. C. 485, 42 S. E. damages and injunction against trespasses. Tomp- 

426; Williams v. Halford, 73 S. C. 119, 126, 53 kins t-. R. R. Co., 30 S. C. 479, 9 S. E. 521. Pay- 

S. E. 88; Harman v. Southern Ry., 72 S. C. 228, ment of witnesses' costs in first action. Mitchell 

234, 51 S. E. 689; Southern Railway v. Gossett, ■:'. Barrs, 64 S. C. 197, 41 S. E. 962. 

79 S. C. 372. 382, 60 S. E. 956; Southern Railway Time runs from date of nonsuit in fir.=t action 

V. Howell, 79 S. C. 286, 60 S. E. 677; C, N. & and is not suspended by appeal. Richardson v. 

E. Ry. V. Laurens Mills, 82 S. C. 24, 61 S. E- Riley, 67 S. C 53, 45 S. E. 104. 

1089, 62 S. W. 1119. Payment of costs in first action a condition prec- 

Jn action for special relief under § 3128 plea edent and should be alleged. Peterman v. Pope, 

under this section inapplicable and can only be 74 S. C. 296. 54 S. E. 569. 

considered with plea of adverse possession. Wil- Statute applies where action is brought by a 

liams T'. Halford, 73 S. C. 119, 126. trustee for an infant cestui que trustent. Ben- 

?.. See Geiger v. Kaigler, 15 S. C. 271; Turn- bow v. Levi, 50 S. C. 120, 27 S. E. 655. 

bull V. Ross, 141 Fed. 649. _ _ Williams v. Halford, 73 S. C. 126, 53 S. E. 

If action is not renewed or recommenced within 88a. 

two years after discontinuance or verdict in first Time at which two-year limitation begins to run 

action, the title is determined to be in the de- is date of verdict and not filing of remittitur on 

fendant. Dyson v. Leek, 5 Strob. 141; Binda v. adjudication of appeal in first action. Love v. 

Benbow, 11 Rich. 24. The two actions are al- Turner, 84 S. C. 178, 65 S. E. 1043. 

lowed subsequent to Act. Duren v. Kee, 41 S. C. 4. Love v. Turner, 71 S. C. 330, 51 S. E. 101; 

171, 19 S. E. 492. As to payment of costs of Shute z: Shute, 79 S. C. 420, 60 S. E. 961. 
first action. Columbia W. P. Co. v. Columbia L- 



48 



CODE OF CIJ^IL PROCEDURE 



[§ 127 



premises have been held and possessed adversely to such legal title for ten years 
before the commencement of such action/'^ 
ISTO, XIV, § 104; 1873, XV, 496. 

§ 127. Occupation under Written Instrument, etc. — Whenever it shall 
appear that the occupant, or those under whom he claims, entered into the pos- 
session of premises under claim of title, exclusive of any other right, founding 
such claim upon a written instrument, as being a conveyance of the premises in 
question, or upon the decree or judgment of a competent Court, and that there 
has been a continued occupation and possession of the premises included in such 
instrument, decree, or judgment, or of some part of such premises under such 
claim for ten years, the premises so included shall be deemed to have been held 
adversely; except that where the premises so included consist of a tract divided 
into lots, the possession of one lot shall not be deemed a possession of any other 
lot of the same tract."^ 

18T0, XIV, § 105; 1873, XV, 496. 



5. Adverse possession cannot give title as 
against a town. Crocker v. Collins, 37 S. C. 328, 

15 S. E. 951. 

Such adverse possession gives no right until 
the expiration of the ten years. Ellen v. Ellen, 
10 S. C. 132. 

There can be no adverse possession by pur- 
chaser under contract to purchase the land against 
vendor until he has paid the purchase money. 
Blackwell v. Ryon, 21 b. C. 112. Nor by pur- 
chaser trom mortgagor, with notice of the mort- 
gage, against the mortgagee. Norton v. Lewis, 3 
t>. C. 25; Clark z: Smith, 13 S. C. 585; Lynch v. 
Hancock, 14 S. C. 66. But there can be by pur- 
chaser against a judgment. Goldsmith v. Jacobs, 
14 S. C. 624. There can be no adverse possession 
against any of the cotenants, unless it is against 
.ad. Scaife v. Thompson, 15 S. C. 337. Before 
there can be adverse possession as to cotenants 
there must be proof of ouster. Stone v. Fitts, 38 S. 
C. 394, 17 S. E. 136; Mole v. Folk, 45 S. C. 265, 
22 S. E. 882. An attempt by one cotenant to 
convey all the land amounts to ouster. Garrett v. 
Weinberg, 48 S. C. 29, 26 S. E. 3. 

But successive purchasers cannot tack posses- 
-sion so as to give such title. Pegues v. Warlev, 
14 S. C. 180; Ellen v. Ellen, 16 S. C. 132; Gar- 
rett V. Weinberg, 48 S. C. 29, 26 S. E. 3. 

There can be no adverse possession where no 
trespass is committed against owner. Massey v. 
Duren, 3 S. C. 34; Mosely v. Hankinson, 25 S. 
C. 519; Sutton z: Clark, 59 S. C. 440, 38 S. E. 
154. 

Hence, where a woman married before the Con- 
stitution of 1868 did not have the right to the 
possession of her land required before that time, 
until the death of her husband, the statute did not 
■commencfi to run against her until her husband's 
death. Garrett z: Weinberg, 48 S. C. 29, 26 S. 
E. 3. See, also, Boykin v. Ancrum, 28 S. C. 
486, 6 S. E. 305; Rawles v. Johns, 54 S. C. 394, 
32 S. E. 451; Bell v. Talbird, Rich. Eq. 361; Joyce 
V. Gunnels, 2 Rich. Eq. 259; Bannister v. Bull, 

16 S. C. 220; Covar v. Cantelou, 25 S. C. 35; 
Moseley v. Hankinson, 25 S. C. 519. 

Adverse possession under Act 1871 to ripen 
into title must run twenty years, and is not lim- 
ited to ten years' duration, as fixed in this Sec- 
tion bv amendment of 1873. Rehkopf v. Kuhland, 
30 S. 'C. 234, 9 S. E. 99; Lyles v. Roach, 30 S. 
C. 291, 9 S. E. 334. But adverse possession, be- 
gun in 1883, is controlled by this Section, then 
in force. Johnson v. Cobb, 29 S. C. 372, 7 S. 
E. 601. Adverse possession. Lloyd v. Rawl, 63 
S. C. 219, 41 S. E. 312. Adverse possession — 
•claiming title under common ancestor — disclaiming 
title. Langston v. Cothran, 78 S. C. 23, 58 S. 
E. 956. Occasional trespass by third party does 
not interrupt continuity of possession of one 
claiming under title. Love v. Turner, 78 S. _ C. 
513, 59 S. E. 529. Ten years' adverse possession 
gives title except against the State. Kolb v. Tones, 
62 S. C. 195, 40 S. E. 168. Possession of ancestor 
and heir may be tacked. Epperson v. Stansill, 
64 S. C. 485, 42 S. E. 426: Brucke v. Hubbard. 74 
S. C. 144, 54 S. E. 249; Powers v. Smith, 80 S. 
C. 110, 61 S. E. 222; Bardin z'. Commercial Ins. 
& Trust Co., 82 S. C. 358, 64 S. E. 165. Statute 



does not run between tenants until actual ouster. 
Green z\ Cannady, 71 S. C. 317, 51 S. E. 92. 
Nor against remainderman during continuance of 
prior estate. Mitchell z: Cleveland, 76 S. C. 432, 
57 S. E. 33. Adverse possession against remain- 
dermen. Young z: McNeill, 78 S. C. 143, 155, 
59 S. E. 986. 

Adverse possession against trustees bind cestm 
que trnstent. Trustees v. Jennings, 40 S. C. 168; 
Benbow v. Levy, 50 S. C. 120; Few v. Killer, 63 
S. C. 154, 41 S. E. 85; Young v. McNeill, 78 S. 
C. 155, 59 S. E. 986; Pope z: Patterson, 78 S. C. 
334, 58 S. E. 945. 

Occupancy which is mere trespass without claim 
of title cannot ripen into good title. Carr v. 
Mouzon, 86 S. C. 461, 68 S. E- 661. 

Presumption of ouster from twenty years ex- 
clusive possession by cotenant. Powers v. Smith, 
SO S. C. 110, 61 S. E. 222. 

Where step-father goes into possession of tract 
of land after bidding it off at partition sale, with- 
out doing anything more to perfect sale, his pos- 
session will not be presumed to be under parti- 
tion sale, but under marital rights of wife and 
as tenant in common with his step-children. Sibley 
z: Sibley. 88 S. C. 184. 

6. Godfrey v. Burton Lumber Co., 88 S. C. 
132, 138. 

Occupancy of one of two adjoining parcels of 
land included within lines of plat held as color 
of title does not confer title by adverse posses- 
sion of the other parcel. Massey v. Duren, 3 S. 
C. 34. 

Sufficiency of written instrument. Garrett v. 
Weinberg, 48 S. C. 29, 26 S. E. 3. 

Devisee's possession of devised lands under will 
in order to be adverse can only have starting 
point where right of action accrues in favor of 
creditor. Brock v. Kirkpatrick, 69 S. C. 231, 48 
S. E. 72. Adverse possession by son entering un- 
der permission of father. McCutchen v. Mc- 
Cutchen, 77 S. C. 138, 57 S. E. 678, 12 L. R. 
A., N. S., 1140n. By agent against principal. 
Crawford v. Crawford, 77 S. C. 205, 57 S. E- 
837. Presumption of ouster from ,twenty years' 
exclusive possession by cotenant. Powers v. 
Smith, 80 S. C. Ill, 61 S. E. 222._ 

Adverse possession cannot ordinarily be claimed 
against one under whom defendant entered into 
possession, but this does not apply where there 
lias been an adverse holding for a sufficient 
length of time to presume a grant. Mitchell z'. 
Allen, 81 S. C. 341, 61 S. E. 1087, 62 S. E. 399; 
McCutchen v. McCutchen, 77 S. C. 129. 57 S. E. 
678, 12 L. R. A., N. S., 1140n. Possession of 
landlord through successive tenants deemed con- 
tinuous. Mahoney v. Southern Railway, 82 S. 
C. 215, 64 S. E. 228. 

In perfecting title by adverse possession under 
color of title it is not necessary that possession 
of portions of tract or lot be continuous in one 
jiarticular place for statutory period. Mahoney z'. 
Southern Railway, 82 S. C. 215, 64 S. E. 228. 

Claim of title may be inferred from _ particular 
actions, or general course of occupant in dealing 
with land. Carr v. Mouzon, 86 S. C. 461, 468, 
68 S. E. 661. Not necessary to prove express 
notice to owner of claim of title. lb. 



§§ 128-133] OF SOUTH CAROLINA. 49 

§ 128. Adverse Possession under Written Instrument, etc. — For the 

purpose of constituting an adverse possession, by any person claiming a title 
founded upon a written instrument or a judgment or decree, land shall be deemed 
to have been possessed and occupied in the following cases : 

1. Where it has been usually cultivated or improved. 

2. Where it has been protected by a substantial enclosure. 

3. AA'here, although not enclosed, it has been used for the supply of fuel or 
of fencing timber, for the purposes of husbandry, or the ordinary use of the oc- 
cupant. 

4. W'here a known farm or a single lot has been partly improved, the portion 
of such farm or lot that may have been left not cleared or not enclosed, according 
to the usual course and custom of the adjoining country, shall be deemed to have 
been occupied for the same length of time as the part improved and cultivated."^ 

1870, XIV, § 106. 

§ 129. Premises Actually Occupied Held Adversely. — W^here it shall 
appear that there has been an actual continued occupation of premises, under a 
claim of title, exclusive of any other right, but not founded upon a written in- 
strument or a judgment or decree, the premises so actually occupied, and no 
other, shall be deemed to have been held adversely. ^ 

isro, XIV, § 107. 

§ 130. Adverse Possession under Claim of Title Not Written. — For 

the purpose of constituting an adverse possession by a person claiming title not 
founded upon a written instrument or a judgment or decree, land shall be 
deemed to have been possessed in the following cases only : 

1. A^'^here it has been protected b}^ a substantial enclosure. 

2. Where it has been usually cultivated or improved.'' 

1870, XIV, § 108. 

§ 131. Relation of Landlord and Tenant, as Affecting- Adverse Pos- 
session. — AA'henever the relation of landlord and tenant shall have existed be- 
tween any persons, the possession of the tenant shall be deemed the possession 
of the landlord until the expiration of ten years from the termination of the 
tenancy; or, where there has been no written lease, until the expiration of ten 
years from the time of refusal to pay rent, notwithstanding that such tenant 
may have acquired another title, or may have claimed to hold adversely to his 
landlord. But such presumptions shall not be made after the periods herein 
limited. 

1870, XIV, § 109; 1873. XV, 496. 

§ 132. Descent Cast — Effect of. — The right of a person to the possession 
of any real property shall not be impaired or affected by a descent being cast in 
consec[uence of the death of a person in possession of such property.^*' 

1870, XIV, § 110. 

§ 133. Persons under Disability. — If a person entitled to commence any 
action for the recovery of real property, or make an entry or defense founded 

7. Carr .■. Mouzon, 86 S. C. 4G1, 468, 68 S. which presumed that the possession was rightful. 

E. 661. Geiger "■. Kaigler, IS S. C. 262; Duren v. Kee, 

Possession of landlord not broken by interval 26 S. C. 219, 2 S. E. 4. When the heir is seized of 
of time elapsing between departure and entry of his ancestor's possession and there is no new en- 
successive tenants, cultivating parts of land. l\Ia- try, the possession of the heir is that of the an- 
honey v. Southern Railway, 82 S. C. 215, 64 S. cestor. Duren v. Kee, 26 S. C. 219. And their 
E. 228. Use of woodlands. Bardin v. Com- possession mav be tacked. Burnett v. Crawford, 
mercial Ins. & Trust Co., 82 S. C. 358, 64 S. E. 50 S. C! 161, 27 S. E. 645; Turpin v. Sudduth. 
165. 53 S. C. 295, 31 S. E. 245; Kilgore v. Kirkland, 

S. Carr v. Mouzon, 86 S. C. 461. 468, 68 S. 69 S. C. 78, 48 S. E- 44. But where the posses- 

E. 661. sion of the ancestor has been interrupted or put 

9. Carr v. Mouzon, 86 S. C. 461, 468, 68 S- an end to, the entry of the heir is a new tres- 
E. 661. pass, and the possessions do not unite to rnaka 

10. This changes common law doctrine as to title in heir. C'ongdon t. Morgan, 14 S. C. 587; 
transmission of possession from ancestor to heir. Johnson v. Cobb, 29 S. C. 372, 7 S. E. 601. 

2 S C C— 4 



50 



CODE OP CIVIL PROCBDURB 



[ §§ 134-135 



on the title to real property, or to rents or services out of the same, be, at the 
time such title shall first descend or accrue, either : 

1. Within the age of twenty-one years ; or, 

2. Insane; or, 

3. Imprisoned on a criminal or civil charge, or in execution upon conviction 
of a criminal offense for a term less than for life — 

The time during which such disability shall continue, shall not be deemed any 
portion of the time in this Chapter limited for the commencement of such action 
or the making of such entry or defense ; but such action may be commenced, or 
entry or defense made, after the period of ten years, and within ten years after 
the disability shall cease, or after the death of the person entitled who shall die 
under such disability; but such action shall not be commenced, or entry or de- 
fense made, after that period. ^^ 

1870, XIV, § 111; 1873, XV, 496. 

§ 134. After Forty Years, No Action Whatever Allowed. — No action 
shall be commenced in any case for the recovery of real property, or for any in- 
terest therein, against a person in possession under claim of title by virtue of a 
written instrument, unless the person claiming, his ancestor or grantor, was 
actually in the possession of the same or a part thereof, within forty years from 
the commencement of such action. And the possession of a defendant, sole or 
connected, pursuant to the provisions of this Section, shall be deemed valid 
against the world after the lapse of said period.^^ 

1873, XV, 496. 



CHAPTER III. 

Time of Commencing Action Other than for the Recovery of Real Prop- 
erty. 

Sec. 

135. Limitation prescribed. 

136. Twenty years. 

137. Six years. 

138. Three years. 

139. Two years. 

140. One year. 



Sec. 
142. 
143. 
144. 



145. 



Actions for penalties. 

Actions for other relief. 

Clause in contract not in conformity 

to statute of limitation declared 

void. 
Actions by State. 



141. Actions upon current account. 

§ 135. Limitation Prescribed. — The periods prescribed in Section 119 for 
the commencement of actions other than for the recovery of real property shall 
be as follows :^ 

1870, XIV, § 112. 



11. The disability must exist when the cause 
of action first accrues. Satcher v. Grice, S3 S. 
C. 126, 31 S. E. 3; Maccaw v. Crawley, 59 S. C. 
342, 37 S. E. 934. Effect of minority of one co- 
tenant. Garrett v. Weinberg, 48 S. C. 28, 26 S. 
E. 13. 

The statute does not run during the continuance 
of the disability. Rice v. Bamberg, 59 S. C. 498, 
38 S. E. 209. _ 

Applies to limitation in case of tax sale. Jones 
V. Boykin, 70 S. C. 310, 49 S. E. 877. See Glover 
V. Floyd, 76 S. C. 292, 57 S. E. 25; Cheatham v. 
Evans, 160 Fed. 802. 

Minority. Brucke v. Hubbard, 74 S. C. 144, 54 
S. E. 249; Cheatham v'. Edgefield Mfg'. Co., 1 
Fed. 118; Cheatham v._ Evans, 160 Fed. 802. 

Where cause of action accrued before statute 
was amended but disability was not removed until 
after such time, the original statute controls. 
Cheatham v. Evans, 160 Fed. 802. 

12. Does this apply to cases of adverse posses- 



sion begun before its adoption? Sutton v. Clark, 
59 S. C. 440, 38 S. E. 154. 

Does not apply to cases in which the cause of 
action had accrued when it was enacted, or be- 
fore it has been in force for forty years. Young 
V. McNeill, 78 S. C. 143, 59 S. E. 986. 

Mitchell V. Cleveland, 76 S. C. 432, 57 S. E. 33. 

1. Laches. Brock v. Kirkpatrick, 72 S. C. 502, 
52 S. E. 592; Hellams v. Prior, 64 S. C. 296, 42 
S. E. 106; Miller v. Saxton, 75 S. C. 237, 55 S. 
E. 310; Person v. Fort, 64 S. C. 502, 42 S. E. 
594; Poston v. Ingraham, 76 S. C. 170, 56 S. E- 
780. 

The lex fori governs as to limitation of actions 
for personal injuries. See Note, 48 E. R. A. 
638. 

Accounting between trustee and cestui que 
trustent. Hayes v. Walker, 70 S. C. 53, 48 S. 
E. 989. Committee and heirs of lunatics. Cauthen 
V. Cauthen, 70 S. C. 176, 49 S. E. 321. Executor 
and devisee. Carlisle v. Farrow, 74 S. C. 527, 54 
S. E. 766. Heir and creditor. Divine v. Miller, 
70 S. C. 225, 49 S- E. 479, 106 Am. St. Rep. 743. 



§§ 136-137] OF SOUTH CAROLINA. 51 

§ 136. Twenty Years. — Within twenty years: 

1. An action upon a judgment or decree of any Court of the United States, 
or any State or Territory within the United States. - 

1870, XIV, § 113. 

2. An action upon a bond, or other contract in writing, secured by a mort- 
gage or real property; an action upon a sealed instrument other than a sealed 
note and personal bond for the payment of money only, whereof the period of 
limitation shall be the same as prescribed in the following Section.^ 

1880, XVII, 415. 

§ 137. Six Years. — ^^'ithin six years : 

1870, XIV, § 114. 

1. An action upon a contract, obligation, or liability, express or implied, ex- 
cepting those provided for in Section 136.^^ 

2. An action upon a liability created by Statute, other than a penalty or for- 
feiture.^ 

3. An action for trespass upon or damage to real property. °^ 

4. An action for taking, detaining, or injuring any goods or chattels, includ- 
ing action for the specific recovery of personal property.^ 

5. An action for criminal conversation, or for any other injury to the per- 
son or rights of another, not arising on contract, and not hereinafter enumerated.'^ 

6. Any action for relief on the ground of fraud, in cases which, heretofore, 
were solely cognizable by the Court of Chancery, the cause of action in such 
case not to be deemed to have accrued until the discovery by the aggrieved party 
of the facts constituting the fraud. ^ 

7. Actions may be brought in any of the Courts of this State properly hav- 
ing jurisdiction thereof on any policies of insurance, either fire or life, whereby 

2. Action on judgment distinguished from pro- action accrues to endorser on note. McCrady v. 
ceeding under § 349. Rowland v. Shockley, 43 Jones, 44 S. C. 406, 22 S. D. 414. 

S. C. 246, 21 S. E. 21. Applies to actions on de- 5. Action on decree for equality of partition is 

crees for equality of partition. McKibben v. Sa- not. Arthur v. Screven, 39 S. C. 77, 17 S. E. 

linas, 41 S. C. 105, 19 S. E. 302; Simms v. Kearse, 641. 

42 S. C. 43, 20 S. E. 19. Action for recovery of taxes due six years be- 

Lien on land after termination of homestead fore action barred. Milster v. Spartanburg, 68 

exemption. Anderson v. Baughman, 69 S. C. 42, S. C. 36, 46 S. E. 539. 

48 S. E. 38. See Williams v. Halford, 73 S. C. 125, 53 S. 

Ten years' adverse possession is good against E. 88: Randolph v. Walker, 78 S. C. 157, 59 S. 

judgment. Dupont v. Bridge Co., 65 S. C. 534, E. 856. 

44 S. E- 86. 5a. Charleston, etc., R. Co. v. Reynolds, 69 

Waiver of statutory bar by administrator. Brant- S. C. 481, 517, 48 S. E. 476. 
ley v. Bittle, 72 S. C. 179, 51 S. E. 561. Injury to property from obstructing stream. 

See Glover v. Floyd, 76 S. C. 296, 57 S. E. 25. Lawton v. S. A. L. Ry., 75 S. C. 82, 55 S. E- 

3. Subdivision 2 does not apply to action for 128. Injury to property by change of grade in 
breach of warranty in deeds made before 1870. streets. Greenville v. Earle, 80 S. C. 321, 60 S. 
Bratton v. Guy, 12 S. C. 42. Nor to seal note E. 1117. 

which matured before that time. Nichols v. Briggs, 6. Applies to action to recover houses on land 

18 S. C. 473. But mortgage given to secure it sold to plaintiff by party in possession. Dominick 

might be foreclosed at any time within twenty v. Farr, 22 S. C. 585. To action to recover amount 

years. lb. Nor to bond executed before that of mistake in compromise settlement of note. Mc- 

time. Neely v. Yorkville, 10 S. C. 141; State v. Makin v. Gowan, 18 S. C. 502. 

Lake, 30 S. C. 43, 8 S. E. 322. But it does ap- 7. Where goods held for safekeeping are de- 
ply to official bond executed since that time. stroyed, this limitation begins to run from date 
Strain r. Babb, 30 S. C. 342, 9 S. E. 271. of loss or of owner's notice thereof, and not 

Applies to actions to foreclose mortgages matur- from time of demand. Cohrs v. Frazier, 5 S. C. 

ing after enactment of statute. Jennings v. Peay, 51 356. 

S. C. 327, 28 S. E. 949. Execution purchaser of 8. Subdivision 6 applied. Means v. Feaster, 4 

mortgagor may plead the statute, although the S. C. 257; Beattie v. Pool, 13 S. C. 379; Kibler v. 

mortgagor is out of the State. Arthur v. Screven, McUwain. 16 S. C. 550; Suber v. Chandler, 18 

39 S. C. 77, 17 S. E. 641. S. C. 526; Richardson v. Mounce, 19 S. C. 477; 

See Evles v. Lyles, 71 S. C. 391, 51 S. E. 113; McSween v. McCown, 23 S. C. 342; City Council 

Montague v. Priester, 82 S. C. 492, 64 S. E. 393; v. Bank, 22 S. C. 410; Amaker v. New, 33 S. C. 

Coleman 7'. Coleman, 74 S. C. 567, 54 S. E. 758. 28, 11 S. E. 386; Harrell v. Kea, 37 S. C. 369, 

4. Applies to actions on warrantv in deed. 16 S. E. 42; Jackson v. Plyler, 38 S. C. 496, 17 
Bratton z;. Guy, 12 S. C. 42. _ " _ S. E. 257; Brbwn v. Brown, 44 S. C. 378, 22 S. 

In actions against heirs or devisees to subject E. 412; Eenhardt v. French, 57 S. C. 493. 35 S. 

real estate in their possession to payment of debts E. 761; Toole v. Johnson, 61 S. C 34, 39 S. E- 

of ancestor or devisor, nine months must be added 254. 

to the six 5'-ears. Cleveland ''. Mills, 9 S. C. 430. Complaint must allege that fraud was not dis- 

Applies to note executed prior to but maturing covered until a period within which the action 

after the enactment of the statute. Stoddard v. may be brought. Smith v. Linder, 77 S. C. 541, 

Owings, 42 S. C. 88, 20 S. E. 25; Jennings v. 58 S. E. 610; Williams v. Halford, 73 S. C. 125, 

Peay, 51 S. C. 327, 28 S. E. 949. When cause of 53 S. E. 88. . 



52 CODB OF CIVIL PRO'CBDURB [ §§ 138-144 

any person or property, resident or situate in this State, may be or may have 
been insured, or for or on account of any loss arising thereunder, within six 
years from the date of such loss, or from the accrual of the cause of action under 
said policy, any clause or condition in the said policies or limitations therein con- 
tained to the contrary notwithstanding.^ 

1891, XX, 1042. 

§ 138. Three Years. — Within three years: 

1870, XIV, § 115. 

l.» An action against a Sheriff, Coroner or Constable, upon a liability incurred 
by the doing of an act in his official capacity, and in virtue of his office, or by the 
omission of an official duty, including the non-payment of money collected upon 
an execution. But this Section shall not apply to an action for an escape.^*^ 

2. An action upon a Statute, for a penalty or forfeiture, where the action is 
given to the party aggrieved, or to such party and the State, except where the 
Statute imposing it prescribes a different limitation. ^^ 

§ 139. Two Years. — Within two years: 

1870, XIV, § 116. 

1. An action for libel, slander, assault, battery, or false imprisonment. 

2. An action upon a Statute, for a forfeiture or penalty to the State. ^- 

§ 140. One Year. — Within one year: 

1870, XIV, § 117. 

An action against a Sheriff or other officer for the escape of a prisoner ar- 
rested or imprisoned on civil process. 

§ 141. Actions upon Current Account. — In an action brought to recover 
a balance due upon a mutual, open, and current account, where there have been 
reciprocal demands between the parties, the cause of action shall be deemed 
to have accrued from the time of the last item proved in the account on either 
side.i^ 

1870, XIV, § 118. 

§ 142. Actions for Penalties. — An action upon a Statute, for a penalty 
or forfeiture given, in whole or in part, to any person who will prosecute for 
the same, must be commenced within one year after the commission of the 
offense; and, if the action be not commenced within the year by a private party, 
it may be commenced within two years thereafter, in behalf of the State, by the 
Attorney General, or the Solicitor of the Circuit where the offense was committed, 
unless a different limitation be prescribed in the Statute under which the action 
is brought. ^^ 

1870, XIV, § 119. 

§ 143. Actions for Other Relief. — An action for relief not hereinbefore 
provided for, must be commenced within ten years after the cause of action shall 
have accrued. ^^ 

1870, XIV, § 120. 

§ 144. Clause in Contract Not in Conformity to Statute of Limitation 
Declared Void. — No clause, provision or agreement in any contract of whatso- 

i). Does not apply to contracts entered into 1.". A sealed note on one side and open account 

prior to its enactment. Sample v. Ins. Co., 46 S. on the other do not constitute such open mutual 

C. 491, 24 S. E. 334. account. Chapman v. Chapman, 31 S. C. 405, 

10. See State v. Cornell, 70 S. C. 413, 50 S. 10 S. E. 106. 

E. 22. 14. Applicable to actions for violation of sepa- 

11. Earle v. Owings, 72 S. C. 365, 51 S. E. rate coach law. Sturkie v. Southern Ry., 71 S. C. 
980; State v. Cornell, 70 S. C. 413, 50 S. E. 22. 208, 211, 50 S. E. 782. 

12. State V.' Cornell, 70 S. C. 409, 412, SO S. 15. McMakin v. Gowan. 18 S. C. 502; Bank v. 
E. 22. • Gadsden, 56 S. C. 313, 33 S. E. 575. 

. An agreed forfeit of a certain amount to State Statute does not run in favor of devisee until 

for breach of contract is stipulated damages and remedy against executor is exhausted. Brock v. 

not a technical penalty, and action therefor is Kirkpatrick, 69 S. C. 231, 48 S. E. 72. 

not hereby barred in two years., I.ipscomb v. Williams v. Halford, 73 S. C. 125, 53 S. E. 88; 

Seegers, 19 S. C. 425. Smith v. Under, 77 S. C 535, 541, 58 S. E. 610. 



§§ 145-147] OF SOUTH CAROLINA. 53 

ever nature, verbal or written, whereby it is agreed that either party shall be barred 
from bringing suit upon any cause of action arising out of said contract if not 
brought within a period less than the time prescribed by the statute of limitation, 
for similar causes of action, shall bar such action, but the same may be brought 
notwithstanding such clause, provision or agreement if brought within the time 
prescribed by the statute of limitations in reference to like causes of action. 
1911, XXVII, 130. 

§ 145. Actions by State. — The limitations prescribed by this Chapter shall 
apply to actions brought in the name of the State, or for its benefit, in the same 
manner as to actions by private parties. 

1870, XIV, § 121. 



CHAPTER IV. 

General Provisions as to the Time of Commencing Actions. 

Sec. ^ Sec 

146. When action deemed commenced. 154. Two or more disabilities. 

147. Exception — Defendant out of State. 1.55. This title — When not to apply. 

148. Exception as to persons under dis- 156. Same. 

abilities. 157. New promise must be in writing. 

149. Death of person entitled before lim- 158. Partners only liable for their own 

itation expires. acts after dissolution of partncr- 

150. Suits by aliens. ship. 

151. Where judgment reversed. 159. Suits on causes saved from bar of 
153. Stay of action by injunction, etc. statute by part payment, etc. 
153. Disability must exist when right ac- 
crued. 

§ 146. When Action Deemed Commenced. — An action is commenced as 
to each defendant when the summons is served on him, or on a codefendant, 
who is a joint contractor, or otherwise united in interest with him. An attempt 
to commence an. action is deemed equivalent to the commencement thereof, 
within the meaning of this Title, when the summons is delivered with the in- 
tent that it shall be actually served, to the Sheriff or other officer of the County 
in which the defendant or one of them usually or last resided ; or, if a corporation 
be defendant, to the Sheriff or other officer of the County in which such corpo- 
ration was established by law, or where its general business was transacted, or 
where it kept an office for the transaction of business.^ 

1870, XIV, § 122. 

§ 147. Exception — -Defendant Out of State. — If, when the cause of ac- 
tion shall accrue against any person, he shall be out of the State, such action may 
be commenced within the terms herein respectively limited after the return of 
such person into this State ; and, if, after such cause of action shall have accrued, 
such person shall depart from and reside out of this State, or remain continuously 
absent therefrom for the space of one year or moje, the time of his absence shall 
not be deemed or taken as any part of the time limited for the commencement of 
such action. 2 

1870, XIV, § 123. 

1. Cureton v. Dargan, 12 S. C. 122; State v. suit, and absent from the State over one year 
Cohen, 13 S. C. 198; Montague v. Stelts, 37 S. C. prior to a proceeding to revive the decree therein. 
200, 15 S. E. 968; Morgan v. Morgan, 45 S. C. Morgan v. Morgan, 45 S. C. 323, 23 S. E. 64. It 
323, 23 S. E. 64; Norris v. Insurance Co., 55 embraces persons who come into the State without 
S. C. 450, 33 S. E. 566. a previous residence here. Burrows v. French, 

Provision as to when action is commenced re- 14 S. C. 165. Where the statute has once com- 

fers only to statute of limitations. Jordan v. me-nced to run against a resident of this State his 

Wilson, 69 S. C. 260, 48 S. E. 224. voluntarv removal therefrom will rot arrest its 

2. Ewbank v. Ewbank, 64 S. C. 434, 435, 42 currencv. Maccaw z: Crawley, 59 S. C. 342, 37 
S. E. 194. , S. E. ,934. 

Subsequent purchaser of mortgaged premises Applied. Cauthen v. Cauthen, 70 S. C. 177. 49 

may plead statute. Where the mortgagor is out S. E. 321. 

of the State. Arthur v. Screven, 39 S. C. 77. 17 Statute runs against a foreign corporation. Cook. 

S. E. 640. Applies to one who was a party to a r. Carpenter, 212 Pa. 165, 1 L. R. A., N. S., 901. 



zen 



54 CODE OF CIVIL PROCEDURB [ §§ 148-153 

§ 148. Exception as to Persons under Disabilities. — If a person en- 
titled to bring an action mentioned in the last Chapter except for a penalty or 
forfeiture, or against a Sheriff or other officer for an escape, be, at the time the 
cause of action accrued, either : 

1. Within the age of twent3^-one years; or, 

2. Imprisoned on a criminal or civil charge, or in execution under the sen- 
tence of a criminal Court for a less term than his natural life — 

The time of such disability is not a part of the tim,e limited for the commence- 
ment of the action ; except that the period within which the action must be 
brought cannot be extended more than five years by any such disability, except 
infancy ; nor can it be so extended, in any case, longer than one year after the 
disability ceases.^ 

1870, XIV, § 124. 

§ 149. Death of Person Entitled before Limitation Expires. — If a 

person entitled to bring an action die before the expiration of the time limited 
for the commencement thereof, and the cause of action survive, an action may be 
commenced by his representatives, after the- expiration of that time and within 
one year from his death. If a person against whom an action may be brought 
die iDefore the expiration of the time limited for the commencement thereof, 
and the cause of action survive, an action may be commenced against his execu- 
tors or administrators after the expiration of that time, and within one year after 
the issuing of letters testamentary or of administration.* 

1870, XIV, § 125. 

150. Suits by Aliens. — When a person shall be an alien subject, or citi- 
^^.. of a country at war with the United States, the time of the continuance of 
the war shall not be a part of the period limited for the commencement of the 
action. 

1870, XIV, § 126. 

§ 151. Where Judgment Reversed. — If an action shall be commenced 
within the time prescribed therefor, and a judgment therein be reversed on ap- 
peal, the plaintiff, or, if he die and the cause of action survive, his heirs or rep- 
resentatives may commence a new action within one year after the reversal. 

1870, XIV, § 127. 

§ 152. Stay of Action by Injunction, etc. — When the commencement of 
an action shall be stayed by injunction or statutory prohibition, the time of the 
continuance of the injunction or prohibition shall not be part of the time limited 
for the commencement of the action. 

1870, XIV, § 128. 

§ 153. Disability Must Exist When Right Accrued. — No person shall 
avail himself of a disability, unless it existed when his right of action accrued.^ 
1870, XIV, § 129. 

S. An infant has as much time within which to time must be added to the statutory period. Cleve- 

bring h's action a,s persons not under disability, land v. Mills, 9 S. C. 435; Hayes v. Clinkscales, 

and under this Section he has one additional year 9 S. C. 450; Moore v. Smith, 29 S. C. 254, 7 S- 

after his majority, but no longer, to do so, if the K. 485. 

time limited expire before or within that addi- Where action is in form ex delicto, and de- 

tional year. Fricks v. Lewis, 26 S. C. 237, 1 S. fendant die, it cannot be revived against his per- 

E. 884; Anderson v. Simms, 29 S. C. 247, 7 S. sonal representatives. _ HuiT v. Watkins, 20 S. C. 

B. 289. _ 477; except as to actions for injurv to real orop- 

4. Only applies to cases where the statute com- erty under § 3182. Civil Code. Allen v. Union 

menced to run in lifetime of decedent, and statu- Oil Co., 59 S. C. 571, 38 S. E. 274. 
tory period expired before administration. Strain Applies only to those cases where no adminis- 

V. Babb, 30 S. C. 342, 9 S. E. 271. It_ must be tration is taken out until after the expiration of 

shown that the action was commenced within one the statutory period. Gaston z'. Gaston, 80 S. C. 

year after letters testamentary or of administra- 164, 61 S. E. 393. 

tion were granted, or the plea of statute of limita- 5. Maccaw v. Crawley, 59 S. C. 342, 37 S. E. 

tions will not avail. Foggeth v. Gaffnev, 33 S. C. 934: Shubrick v. Adams, 20 S. C. 52; Fewell v. 

303, ]2_ S. E. 260. Where statutory period has Collins, 3 Brev. 286; Adamsot. v. Smith, 2 Mills 

not expired before administration, the executor or Const. Reports 269; Faysoux v. Prather, 1 N. & 

administrator, under the law protecting adminis- McC. 296. 
trator or executor from suit for nine months, that 



§§154-159] OP SOUTH CAROLINA. 55 

§ 154. Two or More Disabilities. — When two or more disabilities shall 
coexist at the time the right of action accrues, the limitation shall not attach 
until they all be removed. 

1870, XIV, § 130. 

§ 155. This Title— When Not to Apply.— This Title shall not affect ac- 
tions to enforce the payment of bills, notes, or other evidences of debt, issued by 
moneyed corporations, or issued or put in circulation as money. 

1870, XIV, § 131. 

§ 156. Same. — This Title shall not affect actions against directors or stock- 
holders of a moneyed corporation, or banking associations, to recover a penalty 
or forfeiture imposed, or to enforce a liability created by law ; but such actions 
must be brought within six years after the discovery by the aggrieved party of 
the facts upon which the penalty or forfeiture attached, or the liability was cre- 
ated, unless otherwise provided in the law under which such corporation is 
organized.^ 

1870, XIV, § 132. 

§ 157. New Promise Must Be in Writing. — No acknowledgment or 
promise shall be sufficient evidence of a new or continuing contract, whereby to 
take the case out of the operation of this Title, unless the same be contained in 
some writing signed by the party to be charged thereby; but payment of any 
part of principal or interest is equivalent to a promise in writing.'^ 

1870, XIV, § 133. 

§ 158. Partners Only Liable for Their Own Acts after Dissolution of 
Partnership. — No acknowledgment, payment or part payment or renewal of 
any debt or obligation of a firm, made after notice of the dissolution of the copart- 
nership, shall have any force or effect to bind any member of the firm, or con- 
tinue his liability to pay said copartnership debt, other than the person by whom 
such acknowledgment, payment or part payment or renewal shall be made, or in 
any wise affect their right to plead the Statute of Limitations or the presumption 
of payment from lapse of time.^ 

1900, XXIII, 349. 

§ 159. Suits on Causes Saved from Bar of Statute by Part Pay- 
ment, etc. — All actions upon causes of action which would be barred by the 
Statute of Limitations but for part payment or a written acknowledgment, shall 
be brought on the original cause of action, and the part payment or written ac- 
knowledgment shall be evidence, to prevent the bar of the Statute of Lim- 
itations.^ 

1900, XXIII, 345. 

6. Applied in Parljer v. Savings Bank, 53 S. statute are renewed by {)art payment on the note. 
C. 583, 31 S. E. 673. Ewbank v. Ewbank, 64 S. C 434, 42 S. E. 194. 

7. Gregory v. Perry, 71 S. C. 246, 248, SO S. Entries of interest by bookkeeper of creditor, and 
E. 787. endorsements on the back of note by creditor, do 

This Section has reference only to the evidence not operate to toll the statute. Bulcken v. 

necessary to establish an acknowledgment or new Rohde, 81 S. C. 503, 62 S. E. 786. Payment on 

promise, but does not change the pre-existing law note by direction of payer arrests statute, 

as to what acknowledgments will continue a debt Walker v. Cassels, 70 S. C." 271, 49 S. E. 86'2. 

not barred or what new promises will create a Payment after death of debtor does not arrest 

new contract. Ester v. Wood, 21 S. C. 600; Hill statute. Divine v. Miller, 70 S. C. 225, 49 S. E. 

-z'. Hill, 51 S. C. 134, 28 S. E. 309; Park v. 479. Promise by administrator only binds per- 

Brooks, 38 S._ C. 300, 17 S. E. 24. sonal estate. lb. 

Parol promise not to plead the statute cannot 8.' Payments by one of the joint contractors do 

operate as a waiver or as an agreement, or by not bind the others and deorive them of the pro- 

■way of estoppel to subvert this Section. Hill v. tection herein provided. Smith v. Townsend, 9 

Perrin, 21 S. C. 356. Rich. 44; Smith v. Caldwell, 15 Rich. 374; Shu- 

A verbal promise to pay a debt after d-'-chr-- brick v. Adams, 20 S. C. 49; Walter v. Kraft, 

in bankruptcy is not affected by this Section, but 23 S. C. 578. 

is valid. _ Lanier t'. Tolleson, 20 S. C. 57. f). Prior to this Act, if payments had been 

Administrator putting due bill made by him made by debtor, the action, after expiration of 

upon his inventory is not such new promise. six years, must have been on new promise im- 

Black V. White, 13 S. C. 37. plied from payment, and not on note. Fleming 

Endorsement of payment by pavor on sealed v. Fleming, 33 S. C. 505, 12 S. E. 257. 
note sufficient to toll statute. Cook v. Tennings, Does not apply to judgment obtained before 
40 S. C. 204, 18 S. E. 640. A partial " payment ?doption of Code, under § 118. Colvin v. Phil- 
sufficient to toll_ statute. Park v. Brooks, 38 S. lips, 25 S. C. 22S. 

C. 300. 17 S'. E. 24. But is not equivalent to a An allegation of a payment by defendant on a 

promise under the Statute of Frauds. Millwee v. dav certain is an allegation of a new promise. 

Jay, 47 S. C. 430, 25 S. E. 299. McBrayer v. Mills, 62 S. C. 36, 39 S. E. 788. 

An equitable mortgage and note barred by the 



CODB OF CIVIL PROCBDURB 



[§§ 160-161 



TITLE III. 

PARTIES TO CIVIL ACTIONS. 



Sec. 

167. Who may be defendants. 

168. One or more may sue or defend for 

all. 

169. One action against the different par- 

ties to bills and notes. 

170. Action — When not to abate. 

171. Court to decide controversy, etc. — 

Inter-pleading. 



Sec. 

160. Party in interest to sue — Action by 

grantee of land held adversely. 

161. Assignment of thing in action. 

162. Actions by executor, trustee, etc. 

163. Actions by and against married 

w^omen. 

164. Infants — Actions by and against. 

165. Guardian — How appointed. 

166. Who may be plaintiffs. 

§ 160. Party in Interest to Sue — Action by Grantee of Land Held 
Adversely. — Every action must be prosecuted in the name of the real party in 
interest, except as otherwise provided in Section 162; but this Section shall not 
be deemed to authorize the assignment of a thing in action not arising out of 
contract. But an action may be maintained by a grantee of land in the name 
of the grantor, or his or her heirs or legal representatives, when the grant or 
grants are void by reason of the actual possession of a person claiming under 
a title adverse to that of the grantor at the time of the delivery of the grant, and 
the plaintiff shall be allowed to prove the facts to bring the case within this 
provision.^ 

1870, XIV, § 134. 

§ 161. Assignment of Thing in Action. — In the case of an assignment 
of a thing in action, the action by the assignee shall be without prejudice to any 
set-off or other defense existing at the time of, or before notice of, the assign- 
ment ; but this Section shall not apply to a negotiable promissory note or bill of 
exchange, transferred in good faith, and upon good consideration, before due.^ 

1870, XIV,' § 135. 



1. Peoples, etc.. Fertilizer Co. v. Charleston, 
etc.. Railway, 83 S. C. S30, 534, 65 S. E. 733. 

This Section docs no more than express a long 
established principle, that all parties at interest 
should be made parties. Cathcart v. Sugenheimer, 
18 S. C. 123. 

Only the real party in interest can sue. Sulli- 
van V. Hellams, 6 8. C. 184. _ 

A county, as real party in interest, may sue on 
official bond of County Treasurer. Greenville Co. 
r. Runion, 9 S. C. 1. 

Distributees may sue in their own narnes upon 
tl'.e bond of administrator of their intestate. 
Kaminer i'. Hope, 9 S. C. 253; or they may join 
as coplaintiffs with the Probate Judge. McCorkle 
V. Williams, 43 S. C. 66, 20 S. E- 744. 

Action may be brought in name of State alone 
on official bond of Clerk. State v. Moses, 18 S. 
C. 366. 

A mortgage given to City Council of Charles- 
ton to secure certain bonds issued by _ them to 
mortgagor is properly sued in name of City Coun- 
cil. City Council v. Caulfield, 19 S. C. 201. 

Probate Judge, as successor of the Ordinary, 
cannot, as Veal party in interest, sue on adminis- 
tration bond given to his predecessor. Johnson v. 
Dawkins, 20 S. C. 528. 

This prevents prosecution of an action • by 
plaintiff after the extinguishment of his interest. 
Matthews v. Cantey, 48 S. C. 588, 26 S. E. 894. 

Action at law to recover property of lunatic or 
damages for its detention must be brought in 
name of lunatic by his committee. Cathcart v. 
Susenheimer, 18 S. C. 123. 

The State a necessary party. Hopkins v. Clem- 
son Agricultural College. 77 S. C. 12, 57 S. E. 
551. Insurer, subrogated to rights of insured, is 
only necessary party, ^tna Ins. Co. ?'. C. & W. 
C. 'R. Co., 76 S. C. 103. 56 S. E. 788. Real party 
in interest, for whose benefit a contract is made, 
may sue on contract. Cousar v. Heath, 80 S. C. 
466, 61 S. E. 973. 

3. In action by assignee of sealed note against 
maker, defendant may set up debt due him by 



assignor before notice of assignment as equitable 
defense, though pleaded by counterclaim, without 
demand for judgment thereon. Sullivan v. Blythe, 
14 8. C. 621. 

So assignee of share of distributee, who is 
surety on administration bond, takes subject to 
his liability on such bond. Bobo v. A^'aiden, 20 S.. 
C. 271. And assignee of bond and mortgage 
takes subject to credits that should go on them. 
Moffett V. Hardin, 22 S. C. 9. 

The assignee of mortgage takes subject to 
equities. Patterson v. Rabb, 38 S. C. 138, 17 S. 
E. 463. So assignee of insurance policy. West- 
bury V. Simmons, 57 S. C. 467, 35 S. E. 765. 
The burden of proof to show cause of covinter- 
claim or defense accrued since the assignment is 
on the plaintiff assignee. Bank v. Gadsden, 56 S. 
C. 313, 33 S. E. 575. 

This Section does not apply where party moves 
to set off judgment against hiin by a judgment 
he holds against the other party, when the judg- 
ment against him has been assigned by the other 
party for value. Simmons v. Reid, 31 S. C. 389, 
9 S. .E. 1058. 

This Section does not affect rights. Hodgman 
7'. Western R. Co., 7 How. Pr. 492. Equitable 
defenses against note of corporation under seal. 
McLaughlin v. Braddv, 63 S. C. 433, 41 S. E. 
523. 

Assignee maj'' show acts of negligence not 
known by him though known by his assignor. 
Maxwell v. Foster, 67 S. C. 385. 45 S. E- 92'- 
Copeland v. Southern Railway, 76 S. C. 47S, 57 
S. E. .535. 

Equitable defenses against note of corporation 
under seal. McLaughlin v. Brady, 63 S. C. 433, 
41 S. E. 523. 

Purchaser for value of bank stock assigned in 
blank, without notice of equities existing between 
assignor and assignee, takes stock free from such 
equities. Maxwell v. Foster, 67 S. C. 377. 45 S. 
E. 927. 



162-164 ] 



OF SOUTH CAROLINA. 



57 



§ 162. Actions by Executor, Trustee, etc. — An executor or administra- 
tor, a trustee of an express trust, or a person expressly authorized by Statute, 
may sue, without joining with him the person for whose benefit the action is 
prosecuted. A trustee of an express trust, within the meaning of this Section, 
shall be construed to include a person with whom, or in whose name, a contract 
is made for the benefit of another .^ 

1870, XIV, § 136. 

§ 163. Actions by and against Married Women. — When a married 
woman is a party, her husband must be joined with her, except that : 

1. When the action concerns her separate property, she may sue or be sued 
alone : Provided, That neither her husband nor his property shall be liable for 
any recovery against her in any such suit; but judgment may be enforced by 
execution against her sole and separate estate in the same manner as if she were 
sole. 

1870, XIV, § 137. 

2. When the action is between herself and her husband, she may sue or be 
sued alone; and in no case need she prosecute or defend by a guardian or next 
friend.^ 

1870, XIV, § 137. 

§ 164. Infants — Actions by and against. — When an infant is a party, 
he must appear by guardian, who may be appointed by the Court in which the 
action is prosecuted, or by a Judge thereof, or a Judge of Probate, Clerk of 
Court, or by a Master in those Counties where the office of Master now or may 
hereafter exist.^ 

1870, XIV, § 138; 1879, XVII, 32; 1898, XXII, 688. 



3. Commissioner in Equity could sue in his 
own name on bond given to him for benefits of 
others, although it had been turned over to the 
clerk, his successor. Billings v. Williamson, 6 S. 
C. 119. 

Administrator may sue in his own name on note 
pa^'able to him as such, though it had been trans- 
ferred, and suit is for benefit of assignee. Car- 
roll I'. Still, 13 S. C. 430: and any time before 
final discharge. Hill v. Hill, SI S. C. 134, 28 S. 
E. 309. 

_ Clerk of Court is proper party to sue on bond 
given to former Commissioner in Equity in his 
county. Daniels ?'. Moses, 12 S. C. 130; Clark v. 
Smith, 13_ S. C. 585. 

Succeeding committee may bring action against 
executors of deceased committee for an account, 
without joining the lunatic as a party. Ashley v. 
Holman, IS S. C. 97. 

Where equitable relief as to estate of lunatics 
is sought, it seems that the committee ■ may sue 
alone. Cathcart v. Sugenheimer, 18 S. C. 123. 
But he cannot sue in action at law. Griffin v. 
Griffin, 20 S. C. 486. 

Superintendent of Penitentiary may sue in his 
own name for amounts due State by hirer of con- 
victs for their escape. Lipscomb v. Seesers, 19 
S. C. 425. 

Probate_ Judge, as successor of Ordinary, may 
sue in his own name upon administration bond 
given to his predecessor. Johnson v. Dawkins, 20 
S. C. 528. See, also, McCorkle v. Williams, 43 S. 
C. 66, 20 S. E. 744. Guardian may sue' without 
joining ward. Barnwell v. Marion, 54 S. C. 223, 
32 S. E._ 313. Stranger to trust may sue trustee 
without joining beneficiaries. Price ' v. Krasnoff, 
60 S.C. 172, 38 S. E. 413, 416. 

Action by trustee. Watford v. Windham, 64 
S. C. 509, 42 S. E. 597. 

One making contract in his own name for bene- 
fit of himself and another may sue thereon in his 
individual capacity. Cou=ar v. Heath, etc., Co., 
SO S. C. 466, 61 S. E. 973. 

In suit on such _ contract trustee should aver for 
whose benefit action is brought and facts from 
which trust relation arises, but here refusal of 
motion_ to require plaintiff to so amend his com- 
plaint is not prejudicial error. Copeland v. South- 
ern Railway, 76 S. C. 476, 57 S. E. 535. 



Applies where insured gives insurer receipt 
upon payment for loss assigning and subrogating 
insurer to any rights insured had against railroad 
company for damages for loss. Peoples, etc.. Fer- 
tilizer Co. V. Charleston, etc., Railway, 83 S. C. 
530, 65 S. E. .733. 

4. Where wife is sued upon contract other than 
for necessary support, the husband is a formal and 
not a substantial party. Ross v. Linder, 12 S. 
C. 592. 

Where an action against a married woman does 
not concern her separate property, her husband 
is a necessary party; where it does, he is only a 
proper party. Eowry v. Jackson, 27 S. C. 318, 3 
S. E. 473; Seibels v. Railway Co., 80 S. C. 139, 
61 S. E. 435, 16 L. R. A., N. S., 1026n. 

Infant married woman must sue by guardian 
ad litem. Hiers v. Railroad Co., 75 S. C. 311, 55 
S. E. 457, 9 Am. & Eng. Ann. Cas. 1114. When 
not necessary. Messervy v. Messervy, 82 S. C. 
559, 64 S. E. 753. 

But where the action does concern her separate 
property and the husband has a vested right in it, 
then he is a necessary party. Bannister v. Bull, 
16 S. C. 220. 

When not necessary. Messervy ' v. Messervy, 
82^S. C. 559, 64 S. E. 753. 

5. Probate Judge may appoint guardian ad 
litem for infants parties to actions in the Court of 
Common Pleas. Trapier v. Waldo, 16 S. C. 276; 
Eyles V. Haskell, 35 S. C. 391, 14 S. E. 829. A 
Magistrate may appoint a guardian ad litem in 
action before him. Wideman v. Patton, 64 S. C. 
408, 42 S. E. 190. 

Infant must appear by guardian ad litem. 
Mitchell V. Cleveland, 76 S. C. 432, 57 S. E. 33; 
Hiers 7'. A. C. h. R. Co., 75 S. C. 311, 55 S. E. 
457, 9 Am. & Eng. Ann. Cas. 1114. Reference to 
ascertain facts as to apoointment. Jones v. Haile 
Gold Min. Co., 79 S. C. 47, 60 S. E. 35. 

Judgment not vacated because Clerk appointed 
guardian ad litem. Middleton z:. Stokes, 71' S. C. 
17. 50 S. E. 539. 

Failure to appoint guardian ad litem may be a 
harmless irregularitv. Jones v. Haile Gold Min. 
Co., 79 S. C. 51, 60 S. E. 35: Robertson v. Blair, 
56 S. C. 104, 34 S. E. 11. Void appointment by 
Clerk validated by order of Circuit Court. B.v 
parte Pearson, 79 S. C. 302, 60 S. E. 706. 



58 CODE OF CIVIL PROCBDURB [ §§ 165-167 

§ 165. Guardian — How Appointed. — The guardian shall be appointed as 
follows : 

1. When the infant is plaintiff, upon the application of the infant, if he be of 
the age of fourteen years; or, if under that age, upon the application of his gen- 
eral or testamentary guardian, if he has any, or of a relative or friend of the 
infant; if made by a relative or friend of an infant, notice thereof must first be 
given to such guardian, if he has one; if he has none, then to the person with 
whom such infant resides. 

1870, XIV, § 139. 

2. When the infant is defendant, upon the application of the infant, if he be 
of the age of fourteen years, and apply within twenty days after the service of 
the sumfnons. If he be under the age of fourteen, or neglect so to apply, then 
upon the application of any other party to the action, or of a relative or friend 
of the infant, after notice of such application being first given to the general or 
testamentary guardian of such infant, if he has one within this State ; if he has 
none, then to the infant himself, if over fourteen years of age, and within the 
State; or, if under that age, and within the State, to the person with whom such 
infant resides. And in an action for the partition of real property, or for the 
foreclosure of a mortgage or other instrument, when an infant defendant resides 
out of the State, or is temporarily absent therefrom, the plaintiff may apply to 
the Court in which the action is pending, or to a Judge, Clerk, or Master thereof, 
and will be entitled to an order designating some suitable person to be the guard- 
ian of the infant defendant, for the purposes of the action, unless the infant 
defendant, or some one in his behalf, within a number of days after the service 
of a copy of the order, which number of days shall be in the said order specified, 
shall procure to be appointed a guardian for the said infant ; and the Court or 
officer appointing shall give special directions in the order for the manner of 
the service thereof, which may be upon the infant. 

And in case an infant defendant, having an interest in the event of the action, 
shall reside in any State with which there shall not be a regular communication 
by mail, on such fact satisfactorily appearing to the Court, the Court may ap- 
point a guardian ad litem for such absent infant party, for the purpose of pro- 
tecting the right of such infant in said action, and on such guardian ad litem, 
process, pleadings, and notices in the action may be served in the like manner 
as upon a party residing in this State.^ 

1870, XIV, § 139. 

§ 166. Who May Be Plaintiffs. — All persons having an interest in the 
subject of the action, and in obtaining the relief demanded, may be joined as 
plaintiffs, except as otherwise provided in this Title.''' 

1870, XIV, § 140. 

§ 167. Who May Be Defendants. — Any person may be made a defend- 
ant who has or claims an interest in the controversy adverse to the plaintiff, or 
who is a necessary party to a complete determination or settlement of the ques- 

6. What is sufficient notice of application for cured by subsequent proceedings. Kasterby v. 

appointment of guardian ad litem. Lyles v. Has- Mcintosh, 51 S. C. 397, 29 S. E. 87. 
kell. 35 S. C. 391, 14 S. E. 829. For mere irregularity in appointment of guajrd' 

No jurisdiction of the persons of infants can ian decree will not be set aside. Middleton , v, 

he obtained except by exact compliance with the Stokes, 71 S. C. 21, SO S. E. 539. 
requirements of this Section. Finley ?'. Robert- 7. The joinder here is permissive. Bliss Code 

son. 17 S. C. 435; Riker v. Vaughn, 23 S. C. 187; Pleadings, 61; Roberts v. Johns, 10 S. C. 101 

Tederall v. Bouknight, 25 S. C. 275. Hellams v. Switzer, 24 S. C. 39; Stallings i/. Bar 

Jurisdiction of a minor under fourteen is ob- rett, 26 S. C. 474, 2 S. E. 483; McCorkle v. Wil- 

taiied by service on her of summons and com- Hams, 43 S. C. 66, 20 S. E. 744. 
plaint, and acceptance by her father, who is her Citizens and taxpayers of county may maintain 

general guardian, of service of the summons and action in equity to enjoin commissioners ap- 

complaint, and notice of apnointment of guardian pointed by Governor to have preliminary surveys 

ad litem, although she resides with another, and made for proposed new county. Lamar v. Croft, 

appointment of puardian ad litem upon petition 73 S. C. 407, S3 S. E. 540. 

of her father. Barrett v. Moise, 61 S. C. 569, All parties to contract must be joined in suit 

39 S. E. 755. Irregularity in service and appoint- thereon. Park v. Southern R. Co., 78 S. C. 308, 

ment of guardian ad litem for infant may be 58 S. E. 951. 



§§ 168-1/0 ] OF SOUTH CAROLINA. ■ 59 

tions involved therein, and in an action to recover the possession of real estate, 
the landlord and tenant thereof may be joined as defendants; and any person 
claiming title or a right of possession to real estate may be made parties plaintiff 
or defendant, as the case may require, to any such actions. ^ 

1870, XIV, § 141. 

§ 168. One or More May Sue or Defend for AIL— Of the parties to the 
action, those who are united in interest must be joined as plaintiffs or defend- 
ants ; but if the consent of any one who should have been joined as plaintiff can- 
not be obtained, he may be made a defendant, the reason thereof being stated 
in the complaint ; and when the question is one of a common or general interest 
of many persons, or when the parties are very numerous and it may be imprac- 
ticable to bring them all before the Court, one or more may sue or defend for 
the benefit of the whole. ^ 

1870, XIV, § 142. 

§ 169. One Action against the Different Parties to Bills and Notes. — 

Persons severall}' liable upon the same obligation or instrument, including the 
parties to bills of exchange and promissory notes, may all, or any of them, be 
included in the same action, at the option of the plaintiff.^*^ 
1870, XIV, § 143. 

§ 170. Action — When Not to Abate. — No action shall abate by the death, 
marriage, or other disability of a party, or by the transfer of any interest therein, 
if the cause of action survive or continue. In case of death, marriage, or other 
disability of party, the Court, on motion, at any time within one year thereafter, 
or afterwards, on a supplemental complaint, may allow the action to be continued 
by or against his representative or successor in interest. In case of any other 
transfer of interest, the action shall be continued in the name of the original 
party, or the Court may allow the person to whom the transfer is made to be 
substituted in the action. 

S. A joint action upon a joint and several One who asserts distinct claim, peculiar to him- 

bond, by two obligors, may be brought against the self, cannot join other creditors or claimants with 

survivor of them and the executor of the de- him. Warren v. Raymond, 17 S. C. 163. 

ceased one. Trimmier -■. Thompson, 10 S. C. 164; Where plaintiffs sue for benefit of whole class 

Susong V. Vaiden, Ih. 247; Weisenfield v. Byrd, the judgment is binding and conclusive upon all 

17 S. C. 106. parties of the class who stand out. State v. C. & 

In action for tort, one cause of action against L. R. Co., 13 S. C. 290. 
two defendants cannot be joined with a cause of It is only where one or more may sue or de- 
action a.eainst one of them. Himes v. Jarrett, 26 fend for the benefit of the whole class that coun- 
S. C. 4?0, 2 S. E. 393. sel fee can be allowed out of the common fund. 

In actions for foreclosure, a party in possession, Wilson v. Kelly, 30 S. C. 483, 9 S. E. 523. 

claiming title to land, was properlv made a party First clause of section is mandatory. Murray 

defendant. Sale v. Meggett, 25 S. C. 72. Drug Co. v. Harris, 77 S. C. 412, 57 S. E. 1109. 

Personal representatives and grantees of a de- Rights of remote residuary legatees may be ad- 

cedent are proper parties to action to marshal his judicated by making one member of the class a 

assets and set aside convevances as fraudulent. party to represent the class. Faber v. Faber, 76 

Sheppard v. Green, 48 S. C." 165, 26 S. E. 224. S. C. 156. 56 S. E. 677. 

Joinder of party interested in result of action Remaindermen not in esse. Bernard v. Bernard, 

discretionarv. Murrav Drug Co. v. Harris, 77 S. 79 S. C. 364, 60 S. E. 700, 128 Am. St. Rep. 

C. 412, 57 'S. E. 1109. _ 852; Hunt r. Gower, 80 S. C. 80, 61 S. E. 218, 

Grantee of cotenant necessarv oarty in partition 28 Am. St. Rep. 862. 

proceedings. Ex parte Union Mfg. & Pr. Co.. 81 Infant remaindermen not made party not bound 

S. C. 265, 62 S. E. 259, 128 Am. St. Rep. 908. bv judgment. Mitchell i\ Cleveland, 76 S. C. 

One cotenant has right to make all his cotenants 432, 67 S. E. 33. Jurisdiction where proper par- 
parties. Whitaker v. Man=on, 84 S. C. 29, 33, 65 ties are before Court. Kolb v. Booth, 80 S. C. 
S. E. 953, 137 Am. St. Rep. 835. 501, 61 S. E. 942. 

9. Action by a few members on behalf of an One cotenant may bring action for possession 

unincoroorated association. Stemmerman v. Lilien- of land against stranger in his own name in be- 

thal. 54 S. C. 440, 32 S. E. 535. half of himself and for benefit of those deriving 

This provision a'polies to legal as well as equi- title in common with him, where parties are very 

table action; but does not abolish entirely the numerous and it is imoracticable to bring them 

common law requirements in leeal actions for all before the Court. Whitaker v. Manson. 84 S- 

torts. Hellams v. Switzer. 24 S. C. 39; Himes v. C. 29, 65 S. E. 953, 137 Am. St. Ren. 835, dis- 

Jarrett. 26 S. C. 480, 2 S. E. 393. tineuishing Bannister v. Bull, 16 S. C. 220, and 

Two tenants in common can join in action to Wilson v. Kelly. 30 S. C. 483. 9 S. E. 523. 

recover possession of their shares in land from a Showing insufficient to render it necessary for 

st-aneer without making other cotenants parties. one alleged to be interested in transaction to be 

Bannister v. Bull, 16 S. C. 220. made party defendant. Murray Drug Co. v. Har- 

An action bv single creditor against receiver ris. 77 S. C. 410, 57 S. E. 1109. 

and stockholder' of an insolvent bank for his debt Springfield, etc., Ins. Co. v. Richmond, etc., R. 

is defective for want of parties; it should be Co.. 48 Fed. 360. ^ „ . <- 

brought bv plaintiff on behalf of himself and 10. Trimmier i: Thompson, 10 S. C. 164: Su- 

other creditors. Terry v. Calnan, 4 S. C. 514. song v. Vaiden, Ih. 247; Weissenfield v. Byrd, 17 

And it should be against all the stockholders, and S. C. 106. 
not one alone. Terry v. Martin, 10 S. C. 263. 



60 



CODE OF CIVIL PROCBDURB 



171 



After a verdict shall be rendered in any action for a wrong, such action shall 
not abate by the death of any party, but the case shall proceed thereafter in the 
same manner as in cases where the cause of action now survives by law. 

At any time after the death, marriage or other disabiHty of the party plaintiff, 
the Court in which action is pending, upon notice to such person as it may direct, 
and upon appHcation of any person aggrieved, may, in its discretion, order that 
the action be deemed abated, unless the same be continued by the proper parties, 
within a time to be fixed by the Court, not less than six months nor exceeding 
one year from the granting of the order.^^ 

1870, XIV, § 144. 

§ 171. Court to Decide Controversy, etc. — Inter- Pleading. — The Court 
may determine any controversy between the parties before it, when it can be 
done without prejudice to the rights of others, or by saving their rights; but 
when a complete determination of the controversy cannot be had without the 
presence of other parties, the Court must cause them to be brought in. And 
when, in an action for the recovery of real or personal property, a person not a 
party to the action, but having an interest in the subject thereof, makes applica- 
tion to the Court to be made a party, it may order him to be brought in by the 
proper amendment. 

A defendant against whom an action is pending upon a contract, or for specific, 
real, or personal property, may, at any time before answer, upon affidavit that a 
person not a party to the action, and without collusion by him, makes against him 
a demand for the same debt or property, upon due notice to such person and the 
adverse party, apply to the Court for an order to substitute such person in his 
place, and discharge him from liability to either party, on his depositing in Court 
the amount of the debt, or delivering the property, or its value, to such person 
as the Court may direct; and the Court may, in its discretion, make the order.^- 

1870, XIV, § 145. 



11. Does not authorize continuance of action 
in name of the pledgee of notes, as securities, 
after the extinguishment of his interest. Matthews 
■:■. Cantey, 48 S. C. 588, 26 S. E. 894. 

Proceedings by rule to show cause wliy the ac- 
tion should not be continued against the new jDar- 
ties in interest; practice thereon. Dunham v. Car- 
son, 42 S. C. 383, 20 S. E. 197; De Loach v. 
Sarratt, 55 S. C. 254, 33 S. E). 2; Pickett v. Fi- 
delity and Casualty Co., 60 S. C. 477, 38 S. E. 
160; Shull V. Bradford, 59 S. C. 573, 37 S. E. 
30; Shull V. Caughman, 54 S. C. 203, 32 S. E. 
301; Quick v. Campbell, 44 S. C. 386, 22 S. E. 
479. 

Action for rents and profits continued against 
executrix of person in possession of land. Rabb 
V. Patterson, 42 S. C. 528, 20 S. E. 540. 

An agreement to arbitrate, which does not name 
nor provide number and appointment of the arbi- 
trators, does not discontinue action after death of 
plaintiff, revived by administratrix. Eynch ''. 
Goodwin, 6 S. C. 144. 

This Section does not determine what actions so 
survive, but the common law rule still governs; 
and an action ex delicto does not survive. Htiff v. 
Watkins, 20 S. C. 477. 

No leave is necessary to file such supplemental 
complaint. Parnell v. Maner, 16 S. .C. 348: 
Arthur v. Allen, 22 S. C 432.^ And this right 
to so revive is not limited in point of time. Best 
V. Sanders, 22 S. C. 589. 

Where action is so continued by order, with 
notice to appear and answer, it is not requisite 
that there be a summons also. Lyles v. Haskell, 
35 S. C. 391, 14 S. E. 829. But where continued 
by supplemental complaint, summons is neces- 
sary. Arthur v. Allen, 22 S. C. 432. 

Rule to show cause why action should not be 
continued need not have summons. Sims v. 
Davis, 70 S. C. 362, 376, 49 S. E. 872. Proper 
practice on substitution. Marion v. Charleston, 
72 S. C. 576, 52 S. E. 418. 

13. Where plaintiff thinks a third person is a 
necessary party to the complete determination of 
the action, he should take proper steps to have 
liim made defendant. Eakin v. Knox, 6 S. C. 14. 



In action by single creditor against receiver of 
insolvent corporation and number of individual 
stockholders, all creditors are necessary parties 
and should be brought in. Terry v. Calnan, 4 S. 
C. 508. 

As to substituting defendant. Patterson v. Pa- 
gan, 18 S. C. 584. 

Where land is sold under execution after ac- 
tions commenced to foreclose mortgages on it and 
notices of lis pendens filed, the purchaser at such 
sale may intervene by petition as a proper party, 
charging the mortgages to be fraudulent. Ex 
parte Mobley, 19 S. C. 337. 

The provision for interpleader applies only 
where the claimant is not a party to the action. 
Brock V. Southern Ry. Co., 44 S. C. 444, 22 S. 
E. 602. 

Judge has discretionary power to add names of 
defendants. Hellams v. Prior, 64 S. C. 544, 43 
S. E. 25; Greenwood Loan and Guarantee As- 
sociation V. Williams, 71 S. C. 425, 51 S. E. 272; 
Hellams v. Prior, 64 S. C. 296, 42 S. E. 106. 

Purchasers at judicial sales become parties to 
action. Ex parte Quails, 71 S. C. 87, SO S.' E. 
646; Corbett v. Figle, 72 S. C. 321, 51 S. E. 
884. Partition where parts of land have been 
conveyed by cotenants to different parties. Wood- 
ward T. Lumber Co., 7o S. C. 31, 52 S. E. 733, 
114 Am. St. Rep. 76. 

Whether one interested in the result of a suit 
should be made a party is within discretion of 
the trial Judge. Murray Drug Co. v. Harris, 77 
S. C. 410, 57 S. E. 1109. 

Provision that other parties must be brought in 
must be read in connection with § 168 and does 
not apply in an action at law in a Federal Court 
as these provisions are derived from the practice 
in equity. Springfield, etc., Ins. Co. v. Rich- 
mond, etc., R. Co., 48 Fed. 360. 

In action by mortgagor of a chattel after con- 
dition broken, against a third party for negligent 
injury to the chattel, defendant may protect him- 
self by having mortgagee brought in. Wilkes v. 
Southern Railway, 85 S. C. 346, 350, 67 S. E. 
292, 137 Am. St. Rep. 890, 21 Am. & Eng. Ann. 
Cas. 79. 



§§ 172-173] OF SOUTH CAROLINA. 61 

TITLE IV. 

OF THE PLACE OF TRIAL OF CIVIL ACTIONS.^ 

Sec. _ Sec. 

173. Actions to be tried where subject 175. Suits against insurance companies 

matter situated. may be brought in Count}' where 

173. Actions to be tried where cause of loss occurs. 

action arose. 176. Changing place of trial. 

174. Actions to be tried in County where 

defendant resides — Proviso. 

§ 172. Actions to Be Tried Where Subject Matter Situated.— Actions 

for the following causes must be tried in the County in which the subject of the 
action, or some part thereof, is situated, subject to the power of the Court to 
change the place of trial, in the cases as hereinafter provided : 

1. For the recovery of real property, or of an estate or interest therein, or for 
the determination in any form of such right or interest, and for injuries to real 
property. 

2. For the partition of real property. 

3. For the foreclosure of a mortgage of real property. 

4. For the recovery of personal property distrained for any cause : Provided, 
That nothing in this Section contained shall be so construed as to prevent the 
hearing of any of the said actions by consent of the parties or their attorneys, 
and of the guardian ad litem of any infant party to said action, in a County other 
than that in which said action may have been brought and may be pending, or 
other than that in which the property is situated.^ 

1870, XIV, § 146; 1887, XIX, 835; 1894, XXI, 793. 

§ 173. Actions to Be Tried Where Cause of Action Arose. — Actions 
for the following causes must be tried in the County where the cause, or some 
part thereof, arose, subject to the like power of the Court to change the place of 
trial : 

1. For the recovery of a penalty or forfeiture imposed by Statute, except that, 
when it is imposed for an offense committed on a lake, river, or other stream of 
water, situated in two or more Counties, the action may be brought in any County 
bordering on such lake, river, or stream, and opposite to the place where the of- 
fense was committed.^ 

1. The regulations of this Title are intended value of real estate bought with trust funds in 
solely for the benefit of the parties to the action, her own name, is not embraced in actions under 
and parties outside have no rights in the matter. Subdivision 1. Bell v. Fhidd, 28 S. C. 313, S S. 
Trapier v. Waldo, 16 S. C. 276. E. 510. 

2. V/etmore v. Scalf, 85 S. C. 285, 67 S. E. Circuit Judge has power at chambers to hear 
293. an action for partition, while in the county in 

The words "must be tried" are imperative and which land is situate. Woodward v. Elliott, 27 

'Cannot be disregarded. Judgment in any other S. C. 368, 3 S. E. 477. 

county is a nullity. Trapier v. Waldo, 16 S. C. Section 3055 of the Civil Code prior to amend- 

276; Steele v. Exum, 22 S. C. 276; Bacot v. ment of 1899 construed in connection with this. 

Lowndes, 24 S. C. 392; Ware :;■. Henderson, 25 Woodward v. Elliott, 27 S. C. 368, 3 S. E. 477; 

S. C. 385; Silcox v. Jones, 80 S. C. 488, 61 S. Kaminsky r._ Trantham. 45 S. C. 8, 22 S. E. 746. 
E. 948. This Section governs in action quare claiisum 

This Section does not embrace an action by fregit. Henderson ''. Bennett, 58 S. C. 30, 36 S. 

creditors of estate for account and marshaling of E. 2. 

assets in county where executor resides. Jordan Consent cannot give jurisdiction over lands in 

V. Moses, 10 S. C. 431. county other than that in which lands are situ- 

In such action in one county, a part of the ated. Silcox v. Jones, 80 S. C. 488, 61 S. E. 948. 

lands Ij'ing in that county and a tract in another Partition for sale of lands lying partly in two 

county, the title to that tract may be tried in counties. Connor v. McCoy, 83 S. C. 173, 65 S. 

county whe'-p action is brought. Barret v. Watts, E. 257. Consent decree may be rendered any- 

13 S. C. 441. But where the land devised has where. Weathersbee z'. Weathersbee, 82 S. C. 12, 

Ijeen transferred by devisees, and such action 62 S. E. 838. Consent need not be in writing, 

seeks first to set aside the deeds, it comes within Ex parte Pearson, 79 S. C. 309, 60 S. E. 7^6. 
this Section and must be tried in county where Action in claim and delivery for possession of 

iard is situate. Bacot v. Eowndes, 24 S. C. 392.' animais in another county. All v. Williams, 87 

Where action is against one defendant residing in S. C. 101, 68 S. E. 1041. 

county of P and another defendant residing in 3. Jurisdiction for penalty under Act, 24 Stat, 

another county, and to foreclose their mortgage 81, va.s.y be acquired by magistrate in another 

on their respective lands situate in both counties, county by appearance, pleading and participating 

the Court in county F has jurisdiction. Wagener in trial. Jenkins v. Atlantic Coast Line R. Co., 

■V. Swygert, 30 S. C. 296, 9 S. E. 107. 84 S. C. 343, 66 S. E. 409. 

Action against trustee for an accounting for 



62 



CODE OF CIVIL PROCBDURE 



[ §§ 174-175 



2. Against a public officer, or person specially appointed to execute his duties, 
for an act done by him in virtue of his office, or against a person who, by his 
command or in his aid, shall do anything touching the duties of such officer.^ 

1870, XIV, 423, § 147. 

§ 174. Actions to Be Tried in County Where Defendant Resides — 
Proviso. — In all other cases the action shall be tried in the County in which the 
defendant resides at the time of the commencement of the action; and if there 
be more than one defendant, then the action may be tried in any County in which 
one or more of the defendants to such action resides at the time of the com- 
mencement of the action ; or if none of the parties shall reside in the State, the 
sam,e may be tried in any County which the plaintiff shall designate in his com- 
plaint, subject, however, to the power of the Court to change the place of trial 
in the cases as provided by law : Provided, That any administrator or adminis- 
tratrix, heretofore or hereafter appointed by any Probate Court of this State, 
may be sued in the County where such administration has or shall be granted; 
any executor or executrix may likewise be sued in the County where the testa- 
tor's will is proved or admitted to probate ; and any guardian may likewise be 
sued in the County in which the letters of guardianship may be issued : Provided, 
That nothing in this Section contained shall be so construed as to prevent the 
hearing of any of the said actions by consent of the parties or their attorneys 
and of the guardian ad litem of any infant party to said action, in a County other 
than that in which said action may have been brought and may be pending, or 
other than that in which the property is situated.^ 

1870, XIV, § 148; 1875, XV, 913; 1898, XXII, 687; 1905, XXIX, 848. 

§ 175. Suits against Insurance Companies May Be Brought in County 
Where Loss Occurs. — All suits brought against any and all fire, life, or other 
insurance companies doing business in this State, may be brought in the County 
where the loss occurs : Provided, however, That nothing herein contained shall 



4. The words "must be tried" are imperative. 
Judgment in any other county is a nullity. Trapier 
V. Waldo, 16 S. C. 276; Steele v. E;xum, 22 S. 
C. 276; Bacot v. Lowndes, 24 S. C. 392; Ware v. 
Henderson, 25 S. C. 385; Fishburne v. Minott, 72 
S. C. 572, 574, 52 S. W. 646. 

Applies to proceedings in mandamus. Lamotte 
V. Smith, SO S. C. 558, 27 S. E. 933._ 

Action against public officers. Fishburne v. 
Minott, 72 S. C. 574, 52 S. K 646. Does not 
apply to mandamus. State ex rel. Kirven v. Scar- 
borough, 70 S. C. 294, 49 S. F. 860. 

Riley & Son v. Southern Railway, 81 S. C. 387, 
62 S. E. 509; Silcox & Co. v. Jones, 80 S. C. 484, 
488, 61 S. F. 948. 

5. The language as to trial of action in county 
where defendant resides is imperative, and places 
the exclusive jurisdiction there. Blakely v. Fra- 
zier, 11 S. C. 122; Trapier v. Waldo, 16 S. C. 
276; Steele v. Exum, 22 S. C. 276; Bacot v. 
Ivowndes, 24 S. C. 392; Ware v. Henderson, 25 
S. C. 385; Bell v. Fludd, 28 S. C. 313, 5 S. E. 
810. If judgment be rendered in another county, 
the objection to jurisdiction may be first raised 
in Supreme Court. Ware v. Henderson, 25 S. 
C. 385; Bell v. Fludd, 28 S. C. 313, 5 S. E. 810; 
McGrath V. Piedmont Mutual Ins. Co., 74 S. C. 
71, 54 S. E. 218. 

The action against more than one defendant 
may be tried in county where one resides. Wage- 
ner v. Swygert, 30 S. C. 296, 9 S. E. 107. 

Where none of parties to action reside in State, 
the county designated in complaint is proper 
coimty for trial. Steele v. Exum, 22 S. C. 276. 

Applies to confessions of iudgment. Ex parte 
Ware _ Furniture Co., 49 S. C. 20, 27 S. E. . 9. 

Actions against railroads must be tried in a 
county through which their road runs. Tobin t'. 
Railroad Co., 47 S. C. 387, 25 S. E. . 283. 

Residence depends on party's intention as evi- 
denced by his acts and declarations. Barfield v. 
Coker, 73 S. C. 181, S3 S. E. 170. 



If more than one defendant, action may be tried 
in any county in which one or more of them re- 
side. Elms V. Southern Power Co., 79 S. C. 502, 
60 S. E. 1110; Barfield v. Coker, supr'S. 

Action against partnership for receivership may 
be brought in any county in which any partner 
resides. Whilden v. Chapman, 80 S. C. 84, 61 
S. E. 249. 

Evidence as to residence. Lehardy, etc., Co. v. 
Dibble, 80 S. C. 482, 61 S. E. 950. 

Right to change of venue not waived by an- 
swer to merits. Nixon v. Piedmont Mut. Ins. Co., 
74 S. C. 438, 54 S. E. 657. Domestic insurance 
company cannot be sued in county in which it 
issued a policy unless it had an agent. lb. Con- 
strued. Fishburne v. Minott, 72 S^_ C. 575, 52 S. 
E. 646. As to mandamus see Kirven v. Scar- 
borough, 70 S. C. 294, 49 _S. E. .860. 

A domestic corporation is resident in any 
county in the State where it maintains an agent 
and conducts its corporate business and must be 
sued in the county where it resides. Elms v. 
Power Co., 78 S. C. 325, 58 S. E. 809. 

Suit for foreclosure must be brought in the 
county in which the land is situated. Silcox v. 
Jones, 80 S. C. 488, 61 S. E. 948. 

Foreign insurance company can be sued any- 
where. ■ Berry v. Virginia State Ins. Co., 83 S. 
C. 13, 64 S. E. 859. 

Magistrate has jurisdiction of foreign corpora- 
tion in any county in which plaintiff may elect to 
sue. Dennis v. Atlantic Coast Line R. Co., 86 
S. C. 258, 68 S. E. 465. 

Court of county of residence of insolvent mu- 
tual fire insurance company in action to wind up 
affairs of company, may ascertain and adjudicate 
liability of members, without respect to_ their 
places of residence, and may enforce liens on 
lands of such members without respect to loca- 
tion. Wetmore v. Scalf, 85 S. C. 285, 67 S. E. 
298. 



§§ 176-177 ] 



OF SOUTH CAROLINA. 



63 



be so construed as to prevent the Court from changing the place of trial for any 
of the causes provided for in Section 176. 
1906, XXV, 111. 

§ 176. Changing Place of Trial. — The Court may change the place of trial 
in the following cases : 

1. When the County designated for that purpose in the complaint is not the 
proper County. 

2. When there is reason to believe that an impartial trial cannot be had 
therein. 

3. When the convenience of witnesses and the ends of justice would be pro- 
moted by the change. 

When the place of trial is changed, all other proceedings shall be had in the 
County to which the place of trial is changed, unless otherwise provided by the 
consent of the parties, in writing, duly filed, or order of the Court; and the papers 
shall be filed or transferred accordingly.^ 

1870, XIV, § 149; 1879, XVII, 14. 



TITLE V. 



MANNER OF COMMENCING CIVIL ACTIONS. 



Sec. 

177. Actions — How commenced. 

178. Summons — Requisites of. 

179. Notice to be inserted in summons. 

180. Complaint need not be served with 

summons. 

181. Defendant unreasonably defending. 

182. Notice of lis pendens. 

183. Summons — By whom served — Fees 

for service. 



Sec 

184 



Summons — How served. 

185. Publication of summons. 

186. Proceedings when part only of de- 
fendants served — Partners. 

187. When service by publication com- 
plete. 

188. Proof of service. 

189. When jurisdiction of action ac- 
quired. 

§ 177. Actions — How Commenced. — Civil actions in the Courts of record 
of this State shall be commenced by service of a summons. ^ 
1870, XIV, § 150. 



6. This Section controls the preceding Section 
of this Title, so far as applicable. Steele v. 
Elxum, 22 S. C. 276. And under it the Court has 
jurisdiction to order place of trial to be changed 
to proper county. lb.; Bell v. Fludd, 28 S. C. 
313, 5 S. E. 810. Geiser Mfg. Co. v. Sanders, 26 
S. C. 70, 1 S. E. 159. And it is its imperative 
duty to, do so. Blakely v. Frazier, 11 S. C. 122. 
But Court in wrong county has no jurisdiction to 
try case on merits, even when no demand is made 
for change to proper county. Ware v. Hender- 
sorK 25 S. C. 385. 

The order of Circuit Judge refusing to change 
place of trial on grounds stated in Subdivision 3 
is final and conclusive. Gower v. Thomson, 6 S. 
C. 313. 

Subdivision 3 constitutional. Utsey v. Railroad 
Co., 38 S. C. 399, 17 S. E. 141. 

This Section must be construed in connection 
with § 3054 of the Civil Code and the ten days' 
notice of motion there required given. Willoughby 
V. N. E. R. Co., 46 S. C. 317, 24 S. E. 308. The 
power tp grant change is discretionary. McFail v. 
Barnwell County, 54 S. C. 368, 32 S. E. 417; 
McCown V. N. E. R. Co., 55 S. C. 384, 33 S. E. 
506, and other cases cited under note to Civil 
Code, § 3054. 

A motion for change of venue may be tried at 
chambers on the first and third grounds above, 
but not on second ground. Castles v. Lancaster 
County, 74 S. C. 512, 55 S. E. US. 

Order may be granted at chambers, and before 
issue joined. Motion should be made without 



unnecessary delay. Fishburne v. Minott, 72 S. C. 
575, 52 S. E. 646. 

Motion on first ground on four days' notice. 
Fishburne v. Minott, 72 S. C. 575, 52 S. E. 646. 

Where action is brought in another county than 
one where defendant resides, Court has jurisdic- 
tion to change place of trial, but should not dis- 
miss action. Rafield v. Atlantic Coast Line R. 
Co., 86 S. C. 324, 68 S. E. 631. 

Court of Common Pleas has no jurisdiction of 
action in claim and delivery for possession of 
animals in another county, but has jurisdiction to 
order change of venue. Defendant's remedy is 
not demurrer, but motion for change of venue. 
All V. Williams, 87 S. C. 101, 68 S. E. 1041. 

Domestic insurance corporation cannot be sued 
in county in which it has issued policy unless, it 
has agent in such county. This jurisdiction of 
Court is of subject matter, and right to change 
of venue is not waived by answer to merits. 
Baker v. Irvine, 62 S. C. 283, and Garrett v. 
Herring Furniture Co., 69 S-. C. 278, 48 S. E. 
254, distinguished. Are these cases overruled? 
Nixon V. Piedmont Mutual Ins. Co., 74 S. C. 438, 
54 S. E. 657. 

1. Actual service necessary to show knowledge 
or notice of action. Norris v. Ins. Co., 55 S. C. 
450, 33 S. E. 566; cited in Tillinghast v. Boston 
Lumber Co., 39 S. C. 484, 18 S. E. 120. 

Member of Congress not exempt from service 
of summons in civil action. Worth v. Norton, 56 
S. C. 56, 33 S. E. 792. The summons is the 
process by which jurisdiction of defendant's per- 



64 CODE OF CIJ'IL PROCEDURE [ §§ 178-182 

§ 178. Summons — Requisites of. — The summons shall be subscribed by 
the plaintiff or his attorney, and directed to the defendant, and shall require him 
to answer the complaint, and serve a copy of his answer on the person whose 
name is subscribed to the summons, at a place within the State, to be therein 
specified, in which there is a postoffice, within twenty days after the service of 
the summons, exclusive of the day of service. ^ 

1870, XIV, § 151. 

§ 179. Notice to Be Inserted in Summons. — The plaintiff shall also in- 
sert in the summons a notice, in substance: That if the defendant shall fail to 
answer the complaint within twenty days after the service of the summons, the 
plaintiff will apply to the Court for the relief demanded in the complaint. 

1870, XIV, § 152. 

§ 180. Complaint Need Not Be Served with Summons. — A copy of the 
complaint need not be served with the summons. In such case, the svuTimons 
must state where the complaint is or will be filed, and if the defendant, within 
twenty days thereafter, causes notice of appearance to be given, and, in person 
or by attorney, demands, in writing, a copy of the complaint, specifying the place 
within the State where it may be served, a copy thereof must, within twenty days 
thereafter, be served accordingly ; and, after such service, the defendant has 
twenty days to answer ; but only one copy need be served on the same attorney .•=* 

1870, XIV, § 153. 

§ 181. Defendant Unreasonably Defending. — In the case of a defendant 
against whom no personal claim is made, the plaintiff may deliver to such de- 
fendant, with the summons, a notice subscribed by the plaintiff or his attorney, 
setting forth the general object of the action, a brief description of the prop- 
erty affected by it, if it affects specific real or personal property, and that no 
personal claim is made against such defendant, in which case no copy of the 
complaint need be served on such defendant, unless, within the time for answer- 
ing, he shall, in writing, demand the same. If a defendant, on whom such notice 
is served, unreasonably defend the action, he shall pay costs to the plaintiff.^ 

1870, XIV, § 154. 

§ 182. Notice of Lis Pendens. — In an action affecting the title to real 
property, the plaintiff, at the time of filing the complaint, or at any time after- 
wards, or whenever a warrant of attachment, under Chapter 4 of Title 7, Part 2, 
of this Code of Procedure, shall be issued, or at any time afterwards, the plain- 
tiff, or a defendant, when he sets up an affirmative cause of action in his answer, 
and demands substantive relief, at the time of filing his answer, or at any time 
afterwards, if the same be intended to affect real estate, may file with the Clerk 
of each County in which the property is situated, a notice of the pendency of the 
action, containing the names of the parties, the object of the action, and the de- 
scription of the property in that County affected thereby; and if the action be 
for the foreclosure of a mortgage, such notice must be filed twenty days before 
judgment, and must contain the date of the mortgage, the parties thereto, and the 
time and place of recording the same. From the time of filing only, shall the 
pendency of the action be constructive notice to a purchaser or encumbrancer of 

son is acquired. Wren v. Johnson. 62 S. C. 533, Bros. v. Welch, 76 S. C. 131, 56 S. E. 668. 
40 S. E. 937; Little z: Christie, 69 S. C. 57, 48 In action against a corporation, judgment by 
S. E. 89. default will not be set aside because the sum- 
Presumption of service to sustain jurisdiction. mons, properly entitled, was served upon the 
Kaylor 7'. Hiller, 77 S. C. 397, 58 S. E. 2. Does president and general agent, and notified* "judg- 
not anply to Magistrate's Court. Hasten Furni- ment will be taken against vou" upon failure to 
ture Co. V. Southern R. Co., 82 S. C. 238, 64 S. E. answer._ Clark t'. Porcelain Co., 8 S. C. 45. 

223. Sufflciencv of summons cannot be considered on 
Power to grant temporary injunction without appeal in the absence of exceptions thereto. P.eat- 

notice. Jordan v. Wilson, 69 S. C. 256, 48 S. E. tie v. Latimer, 42 S. C. 313, 20 S. E. S3. 

224. 3. What constitutes filine. Dunton v. Harper. 
2. Form of summons. Bell v. Pruitt, 51 S. C. 64 S. C. 343, 42 S. E. 154. 

344. 29 S. E. 5. 4. Defendant answering after such notice must 

The date is not one of the requisites of a sum- be regarded as a volunteer. Wylie z'. Lyle, 7 S. 



mons 



Smith z: Walker, 6 S. C. 169; Butler C. 206. 



§§ 183-184] OF SOUTH CAROLINA. 65 

the property affected thereby ; and every person whose conveyance or encum- 
brance is subsecjuently executed or subsequently recorded shall be deemed a sub- 
sequent purchaser or encumbrancer, and shall be bound by all proceedings taken 
after the filing of such notice to the same extent as if he were made a party to 
the action. For the purposes of this Section, an action shall be deemed to be 
pending from the time of filing such notice : Provided, however, That such notice 
shall be of no avail, unless it shall be followed by the first publication of the sum- 
mons, or an order therefor, or by the personal service thereof, on a defendant 
within sixty days after such filing. And the Court in which the said action was 
commenced may, in its discretion, at any time after the action shall be settled, 
discontinued, or abated, as is provided in Section 170, on application of any 
person aggrieved, and on good cause shown, and on such notice as shall be di- 
rected or approved by the Court, order the notice authorized by this Section to be 
cancelled of record by the Clerk of any County in whose office the same may have 
been filed or recorded ; and such cancellation shall be made by an endorsement 
to that effect on the margin' of the record, which shall refer to the order, and 
for which the Clerk shall be entitled to a fee of twenty-five cents. ^ 
1870, XIV, § 155. 

§ 183. Summons — By Whom Served — Fees for Service. — The summons 
may be served by the Sheriff of the County where the defendant may be found, 
or by any other person not a party to the action. The service shall be made, 
and the summons returned, with proof of the service, to the person whose name 
is subscribed thereto, with all reasonable diligence. The person subscribing the 
summons may, at his option, by an endorsement on the summons, fix a time for 
the service thereof, and the service shall then be made accordingly: Provided, 
That no costs shall be taxed to any person for the service of any summons, com- 
plaint, answer, demurrer, subpoena, or other legal process issuing out of the 
Courts of Common Pleas and Courts of Probate, not made by the Sheriff of 
the County where such process is served, or his legally constituted deputies.® 

1870, XIV, § 156; 1874, XV, 640. 

§ 184. Summons — How Served. — The summons shall be served by de- 
livering a copy thereof as follows : 

1870, XIV, § 15.7. 

1. If the suit bye against a corporation, to the President or other head of the 
corporation, Secretary, Cashier, Treasurer, a Director or agent thereof. Service 
upon any person occupying an office or room in any railway station, and attend- 
ing to and transacting therein any business of any railroad, shall be deemed serv- 
ice upon the corporation under the charter of which such railroad is authorized 
by law ; and such person shall be deemed the agent of said corporation, notwith- 
standing he may claim to be the agent of any other person or corporation claim- 
ing to operate said railroad by virtue of any lease, contract or agreement.^ 

."5. Sale of land under execution levied, before notice of lis pendens. Vance z: Wesley, 85 Fed. 

lis pendens was filed in action to foreclose mort- 157. See, also, Wesley v. Tindal, 81 Fed. 612, 

gage on it, gave good title to purchaser; and he 614. 

had right as a proper party, by petition in the Judgment is notice to one acquiring possession 

action, to contest the mortgage. Ex mrte Mobley, after entry of judgment, although no notice of 

19 S. C. 337. lis pendens was filed. Wesley v. Tindal, 81 Fed. 

Filing lis pendens has no effect except in the 612. 

cases here specifically provided for. Armstrong v. 6. Smith v. Walker, 6 S. C. 169; Cureton v. 

Carwile, 56 S. C. 463, 35 S. E. 196. Dargan, 12 S. C. 122. Gives jurisdiction of non- 
Purchaser whose deed is recorded before filing resident served within the State, though he has 

of lis pendens is not affected thereby. Green- no property here. Ford v. Calhoun, S3 S. C. 106, 

wood, etc., Ass'n v. Childs, 67 S. C. 251, 45 S. E. 30 S. E. 831. 

167. Lis pendens binds subsequent tenant and When nonresident witness or party temporarily 

the crop standing at time of sale belongs to pur- in State exempt from service. Breon v. Miller 

chaser under foreclosure. Tittle v. Kennedy, 71 Lumber Co., 83 S. C. 221, 65 S. E. 214, 137 Am. 

S. C. 1, SO S. E. 544, 4 Am. & Eng. Ann. Cas. St. Rep. 803, 24 L. R. A., N. S., 276n. 

^g. 7. Foreign corporation may appear solely to 

See Williams v. Tones, 74 S. C. 258, 54 S. E. test service upon a party "as resident agent 

558. " thereof" and have service ?et aside. Hester v. 

One who is neither a subsequent purchaser nor Rasin Fert. Co., 33 S. C. 609, 12 S. E. 563. It 

incumbrancer is not protected by failure to file may waive service and submit itself to jurisdic- 

2 S C C— 5 



66 CODB OF CIVIL PROCBDURB [ § 185 

Such service can be made in respect to a foreign corporation only when it has 
property within the State, or the cause of action arose therein, or where such 
service shall be made in this State personally upon the President, Cashier, Treas- 
urer, Attorney or Secretary, or any agent thereof. 

1883, XVIII, 437; 1887, XIX, 835; 1899, XXIII, 42. 

2. If against a minor under the age of fourteen years, to such minor per- 
sonally, and also to his father, mother, or guardian; or, if there be none within 
the State, then to any person having the care and control of such minor, or with 
whom he shall reside, or in whose service he shall be employed.'^ 

1870, XIV, § 157. 

3. If against a person judicially declared to be of unsound mind, or incapable 
of conducting his own affairs in consequence of habitual drunkenness, and for 
whom a committee or guardian has been appointed, to such committee or guard- 
ian, and to the defendant personally. 

1870, XIV, § 157. 

4. In all other cases to the defendant personally, or to any person of dis- 
cretion residing at the residence or employed at the place of business of said 
defendant.^ 

1873, XV, 497; 1882, XVIII, 256; 1892, XXI, 104. 

§ 185. Publication of Summons. — Where the person on whom the service 
of the summons is to be made cannot, after due diligence, be found within the 
State, and that fact appears by affidavit to the satisfaction of the Court, or a 
Judge thereof, the Clerk of the Court of Common Pleas, Master, or the Probate 
Judge of the County where the trial is to be had, and it in like manner appears 
that a cause of action exists against the defendant in respect to whom the service 

tion of Court by appearing generally and answer- Proof of service. Middleton v. Stokes, 71 S. 

ing on the merits. Chafee v. Postal Tel. Co., 35 C. 17, SO S. E. 539. 

S. C. 372, 14 S. E. 764. Service may be made Objection that statutes are inconsistent with 

on traveling salesman of foreign corporation tem- Federal Constitution not raised until after appeal 

porarily in the State as its agent. Abbeville, etc., taken comes too late. Western Elect. Supply Co. 

Co. V. Western Electrical Supply Co., 61 S. C. v. Abbeville, etc., Power Co., 197 U. S. 299, 303, 

361, 39 S. E- 559. Prior to amendment ser\'ice 49 L. Ed. 765. 

could only be made on a resident agent, and S. These requirements are positive, and the ju- 

might be made on such agent without attachment. risdiction of an infant can only be _ obtained by 

Pollock V. B. & L. Ass'n, ^8 S. C. 65, 25 S. E. pursuing this mode of service prescribed. Finley 

977. In order that jurisdiction be acquired the v. Robertson, 17 S. C. 435; Genobles v. West, 23 
corporation must have either property or agent in S. C. 154; Riker v. Vaughan, 23 S. C. 187; 
the State. Tillinghast v. Lumber Co., 38 S. C. Whitesides v. Barber, 24 S. C. 373; Tederall v. 
319, 17 S. E. 31, 39 S. C. 484, 18 S. E- 120. Bouknight, 25 S. C. 275; Faust v. Faust, 31 _S.^ 
But service cannot be made on an officer who is C. 576, 10 S. E. 262. Service, without appoint- 
the plaintiff, or attorney in fact for the plaintiff, ment of guardian ad litem, held sufficient to give 
in the action. George v. American Ginning Co., ^ jurisdiction of infant. Robertson v. Blair, 56 S. 
46 S. C. 1, 24 S. E. 41, 32 L. R. A. 764. The C. 96, 34 S. E.. H. Sufficiency of recitals in 
appointment of a foreign receiver for the cor- record as to service on infant. Allen v. Allen, 48 
poration cannot affect the service or the agent of S. C. 566, 26 S. E. 786. Where parent is a party, 
the corporation here. Pollock v. B. & L. Ass'n, and thus has knowledge of the action, service 
supra. need not be made on him as well as his child un- 

Service on domestic corporation having no der fourteen, in order to give jurisdiction over 

agent in the State. Bernhardt v. Brown, 118 N. the latter. Kennedy v. Williams, 59 S. C. 378, 

C. 700, 119 N. C. 506, 36 L. R. A. 402. _ 38 S. E. 8; Kaylqr v. Hiller, 77 S. C. 393, 58 S. 

Provision for service on foreign corporation E. 2. As to service on infants, .see, also, Barrett 

does not make statute of limitations run in its v. Moise, 61 S. C. 569, 39 S. E. 755._ Guardian 

favor. Green v. Insurance Co., 139 N. C. 309, 1 as plaintiff in action having adverse interests tO' 

Iv. R. A., N. S., 623. those of his ward cannot :iccept service for the 

Service on nonresident officer of domestic cor- latter as a defendant. Morgan v. Morgan, 45 S- 

poration. Breon v. Miller Lumber Co.. 83 S. C. C. 323, 23 S. E. 64. 

227, 61 S. E. 214, 137 Am. St. Rep. 803, 24- L. Where jurisdictional defect does not appear on 

R. A., N. S., 276n. face of the record service cannot be brought in 

Service on foreign corporation. Emanuel v. question collaterally. Kaylor v. Hiller, 77 S. C. 

Ferris, 63 S. C. 104, 41 S. E. 20; Best v. Sea- 398. 58 S. E. 2. 

board Air Line Ry., 72 S. C. 480, 52 S. E. 223. Minor under fourteen must be served pergon- 

No second motion can be made to set aside sum- ally. Hutto v. Black, 88 S. C. 1. 

mons where first has been overruled. Abbeville Presumption of proper service after lapse of 

Electric Licrht and Power Co. v. Western Elec- twenty vears where record of Probate Court 

trical Supply Co.. 66 S. C. 343, ^4 S. E. 952. silent." Clark v. Neves, 76 S. C. 484, 57 S. E- 

Service of motion on attorney acting for for- 614, 12 L. R. A., N. S., 298n. 

eign corporation is valid. Sellers v. Home Fer- O. This Subdivision 4 applies only to service 

tihzer Chemical Works, 76 S. C. 343, 56 S. E. within this State. Armstrong v. Brant, 44 S. C. 

978. . 177, 21 S. E. 634. 

Servi<fe on timekeeper of foreign corporation Service of summons and complaint on minor 

good. Jenkins v. Penn Bridge Co., 73 S. C. 526, over fourteen or adult is good if copies be left 
53 S. "E. 991- with some one of discretion at his home or place 

of business. Hutto v. Black, 88 S. C. 1. 



§ 185] OF SOUTH CAROLINA. 67 

is to be made, or that he is a proper party to an action relating to real property 
in this State, such Court, Judge, Clerk, Master, or Judge of Probate, may grant 
an order that the service be made by publication of the summons in either of the 
following cases: 1. Where the defendant is a foreign corporation, has property 
within the State, or the cause of action arose therein. 2. Where the defendant, 
being a resident of this State, has departed therefrom, with intent to defraud 
his creditors, or to avoid the service of a summons, or keep himself concealed 
therein with like intent. 3. Where he is not resident of this State, but has prop- 
erty therein, and the Court has jurisdiction of the subject of the action. 4. Where 
the subject of the action is real or personal property in this State, and the de- 
fendant has or claims a lien or interest actual or contingent therein, or the relief 
demanded consists wholly or partly in excluding the defendant from any interest 
or lien therein. The order shall direct the publication to be made in one news- 
paper, to be designated by the officer before whom the application is made, as 
most likely to give notice to the person to be served, and for such length of time 
as may be deemed reasonable, not less than once a week for six weeks. In case 
of publication, the Court, Judge, Clerk, Master or Judge of Probate, shall also 
direct a copy of the summons to be forthwith deposited in the postoffice, directed 
to the person to be served at his place of residence, unless it appears that such 
residence is neither known to the party making the application, nor can, with 
reasonable diligence, be ascertained by him. When publication is ordered, per- 
sonal service of the summons out of the State is equivalent to publication and 
deposit in the postoffice. And such personal service so made and likewise in 
Magistrates' Courts shall be complete and final on the day of the date of the 
personal service of the summons as fully as if such personal service had been 
made under the provisions of Section 184 of the Code of Civil Procedure. In 
case of minors, in like cases, a similar order shall be made and like proceedings 
be had as in case of adults. 

In case of persons imprisoned in the Penitentiary, or in the jail of any County 
in this State, and in case of lunatics confined in the State Hospital for the Insane, 
or in any other place of confinement, personal service of the summons and com- 
plaint, or other process affecting the rights of such persons, shall be made by the 
Sheriff' of the County in which such persons shall be imprisoned or confined, with 
like proof of service as required in case of minors ; and thereupon the Judge of 
the Court, or Magistrate before whom the action is to be tried, shall appoint some 
attorney or other competent person to act as guardian ad litem for any person so 
imprisoned or confined, who shall receive out of the property of such persons a 
reasonable compensation for services rendered in their behalf ; and the case shall 
proceed as in other cases of persons, not under disabilities : Provided, That in 
cases of persons imprisoned or confined, as herein stated, outside of this State, 
service by publication shall be deemed sufficient. The defendant against whom 
publication is ordered, or his representatives, on application and sufficient cause 
shown at any time before judgment must be allowed to defend the action; and 
the defendant against whom publication is ordered, or his representatives, may, 
in like manner, upon good cause shown, be allowed to defend after judgment, or 
at any time within one year after notice thereof, and within seven years after 
its rendition, on such terms as may be just; and if the defense be successful, 
and the judgment, or any part thereof, has been collected or otherwise enforced, 
such restitution may thereupon be compelled as the Court directs ; but the title 
to property sold under such judgment to a purchaser in good faith shall not be 
thereby affected. And in all cases where publication is made, the complaint must 
be first filed, and the summons, as published, must state the time and place of 
such filing. 

In actions affecting the title to real property, or for the partitions of real es- 
tate, or for the foreclosure of mortgage on real estate, if any party or parties 
having any interest or lien upon such mortgaged premises are unknown to the 
plaintiff, and the residence of such party or parties cannot, with reasonable dili- 



68 



CODE OP CIVIL PROCEDURE 



[§186 



gence, be ascertained by him, and such fact shall be made to appear by affidavit 
to the Court or Judge, Clerk of the Court, Master or Judge of Probate, when the 
trial is to be had, such Court, Judge, Clerk, Master or Judge of Probate, shall 
grant an order that the summons be served on such unknown party or parties 
by publishing the same for six weeks once a week in a newspaper printed in the 
county where the premises are situated, which publication shall be equivalent to 
a personal service on such unknown party or parties. 
1870, xiv, § 158; 1876, xvi, 190; 1901, xxiii, 635. 

Magistrates May Grant Order oE Publication of Summons against Ab- 
sent Parties.— The Magistrates of this State are hereby invested, in actions 
brought in their Courts, within their jurisdiction, to grant orders of publication 
against absent defendants, in the same manner and to the same extent as author- 
ized in this section to be done by the Circuit Court or a Judge thereof, or the 
Clerk of Common Pleas, the Master or the Probate Judge ; and the service of any 
summons so made upon any absent defendant or defendants shall have the same 
binding force and effect as such service would have in the Court of Co^mmon 
Pleas : Provided, That the time of the publication of summons in Magistrates' 
Courts shall be once a week for not less than four weeks. ^^ 

1898, XXII, 698; 1904, XXIV, 379. 

§ 186. Proceedings When Part Only of Defendants Served — Partners. 

— Where the action is against two or more defendants, and the summons is 
served on one or more of them, but not on all of them, the plaintiff may proceed 
as follows : 

1. If the action be against defendants jointly indebted upon contract, he may 
proceed against the defendant served, unless the Court otherwise direct ; and. 



10. Prior to amendment insei-ting the last sub- 
division Magistrates had no authority to grant or- 
der of publication. Ferguson v. Gilbert, 17 S. C. 
26; Note, p. 29. 

In the absence of fraud or collusion, if the affi- 
davit satisfies the officer granting order _ of pub- 
lication, his order is final. Yates v. Gridley, 16 
S. C. 496; Bank v. Stelling, 31 S. C. 360, 9 S. 
E. 1028. 

The question of good faith cannot be made on 
mere motion to vacate judgment; can only be 
made under formal proceeding. Yates v. Gridley, 
16 S. C. 496. 

Where an agreement between member and for- 
eign life insurance association provided that death 
claims should be made and paid at home office, 
the claims of beneficiaries thereunder was not a 
cause of action that arose in this State, and the 
foreign corporation having no property here it 
could not be made a party to action here on such 
claim. Rodgers v. Mutual Association, 17 S. C. 
406. Cause of action arises at place of perform- 
ance, presumably the place of making. Tilling- 
hast V. Boston Lumber Co., 39 S. C. 484, 18 S. 
E. 120. But when the subject matter was within 
the jurisdiction of the Court, and the contract 
made as to it while the defendants were resi- 
dents of this State, they can be made parties, as 
nonresidents, by publication. Shumate v. Harbin, 
35 S. C. 521, 15 S. E. 270. So, where all parties 
in interest are nonresidents, they can be so made 
parties in action to set aside assignment as to real 
property situate here. Bank v. Stelling, 31 S. C. 
360. 10 S. E. 1028. 

An order for service by publication is abso- 
lutely required, even where there is personal 
service or its equivalent out of the State. Riker 
V. Vaughan, 23 S. C. 187. But when publication 
has been ordered, personal service out of the State 
is equivalent to publication and denosit in nost- 
office. Darby v. Shannon, 19 S. C. 526. _ Only 
defendant can take advantage of allesred insuffi- 
ciency in service of summons. Ih. But service 
by leaving copies at the place of residence is not 
equivalent to personal service. Armstrong 7'. 
Brant, 44 S. C. 177, 21 S. E. 634. The affidavit 
may refer to the complaint, ?nd the statement of 
the venue is u"neoPssarv. Clemson College v. 
Pickens. 42 S. C. 511, 20 S. E. 401. The order 
of publication may be neither sealed or dated. Ih. 



Where the defendant is furnished with a copy of 
the complaint, it is unnecessary in publishing the 
summons to state where the complaint is filed. lb. 
Jurisdiction to render a personal judgment, as to 
declare a marriage void, cannot . be acquired by 
publication of summons. Pepper v. Shearer, 48 
S. C. 492, 26 S. E. 797. A successful defense 
after judgment, held not to affect the title of 
purchaser. Hunter v. Ruff, 47 S. C. _ 525, 25 _ S. 
E. 65. Appearance cures defect in service. 
Townes v. City Council, 46 S. C. 15, 23 S. E- 
984; Rx parte Keeler, 45 S. C. 537, 23 S. E. 865; 
Martin v. Bowie, 37 S. C. 102, 15 S. E. 740. 

Proceedings as to publication of summons to 
nonresident before attachment r\\\\\ and void. 
Little V. Christie, 69 S. C. 61, 48 S. E. 89. _ 

Irregularities in issuing order of publication 
waived by general appearance. Savannah Gro- 
cery Company v. Rizer, 70 S. C. 508, 50 S. E. 
199. 

Service of summons out of State without order 
of publication and attachment is void. Wren v. 
■ Johnson, 62 S. C. 533, 40 S. E. 937; Emanuel v. 
Ferris. 63 S. C. 104, 41 S. E. 20. 

Affidavit Tind undertakiner in attachment. V/at- 
son V. Paschall, 73 8. C. 421, 53 S. E. 646. 

Attachment of property of nonresident essential 
to jurisdiction. Grocery Co. v. Elevator Co., 72 
S. C. 450, 52 S. E. 191, 110 Am. St. Rep. 627, 
5 Am. S: Eng. Ann. Cas. 261, 2 L. R. A., N. S., 
79n. 

Only party can move to set aside service. 
Howell i: A. C. L. R. R. Co., 79 S. C. 493, 60 
S. E. 1114. 

Personal service out of State, after order for 
publication. Geo. Norris Co. v. Levins Sons, 81 
S. C. 46, 61 S. C. 1103. 

Marking "filed" not essential to filing paper. 
Watson V. Paschall, supra. 

S^e, also. Best v. Seaboard Air Line Railway, 
72 S. C. 481, 52 S. E. 223; Greenwood Loan and 
("Guarantee Association v. Williams, 71 S. C. 424, 
51 S. E. 272. 

Service is not complete until exniration of full 
six weeks. Tenney v. American Pipe Mfg. Co., 
96 Fed. 919. 920. 

Is a summons necessarv in Magistrate Court? 
Hasten Furniture Co. v. Southern Railway, 82 S- 
C. 238, 64 S. E. 223. 



§§ 187-188] OF SOUTH CAROLINA. 69 

if he recover judgment, it may be entered against all the defendants thus jointly 
indebted, so far only as that it may be enforced against the joint property of all 
and the separate property of the defendants served; and, if they are subject to 
arrest, against the persons of the defendants served ;^^ or, 

2. If the action be against the defendants severally liable, he may proceed 
against the defendants served, in the same manner as if they were the only de- 
fendants. 

3. If all the defendants have been served, judgment may be taken against any 
or either of them severally, where the plaintiff would be entitled to judgment 
against such defendant or defendants, if the action had been against them, or 
any of them, alone. ^- 

4. If the name of one or more partners shall, for any cause, have been omitted 
in any action in which judgment shall have passed against the defendants named 
in the summons, and such omission shall not have been pleaded in such action, 
the plaintiff, in case of judgment therein shall remain unsatisfied, may, by action, 
recover of such partner separately, upon proving his joint liability, notwithstand- 
ing he may not have been named in the original action; but the plaintiff shall 
have satisfaction of only one judgment rendered for the same cause of action. 

1870. XIV, § 159. 

§ 187. When Service by Publication Complete. — In the cases mentioned 
in Section 185, the service of the summons shall be deemed complete at the ex- 
piration of the time prescribed by the order for publication, except in the case 
of personal service, in which case such service shall be complete and final on the 
day on which it is made, as provided in said Section 185. ^-^ 

1870, XIV, § 160; 1901, XXIII, 635. 

§ 188. Proof of Service. — Proof of the service of the summons, and of 
the complaint or notice, if any, accompanying the same must be as follows : 

1. If served by the Sheriff, his certificate thereof; or, 

2. If by any other person, his affidavit thereof ; or, 

3. In case of publication, the affidavit of the printer, or his foreman, or prin- 
cipal clerk, showing the same, and an affidavit of a deposit of a copy of the sum- 
mons in the postoffice, as required by law, if the same shall have been deposited. 

When the service is made out of the State after the order for publication, the 
proof of such service may be made, if within the United States, by affidavit be- 
fore any person in this State authorized to take an affidavit, or before a Com- 
missioner of deeds for this State, or a Notary Public, who shall use his official 
seal, or before a Clerk of a Court of record, who shall certify the same b}^ his 
official seal ; or, if made without the limits of the United States, before a Con- 
sul or Vice Consul or Consular Agent of the United States, who shall use in his 
certificate his official seal. 

4. The written admission of the defendant. 

In case of service otherwise than by publication, the certificate, affidavit, or 
admission must state the time and place of the service. ^^ 
1870, XIV, § 161; 1884, XVIII, 745; 1891, XX, 1041. 

11. Card V. Hine, 39 Fed. 818. Discontinuance as to certain stockholders. Sad- 
This does not apply where all the parties were ler ■:■. Nicholson, 49 S. C. 7, 26 S. E. 893. 

served. Dulany v. Elford, 22 S. C. 30^1. Applies Applies in ^lagistrate's Court. Pierce v. Vara, 

to partnership contracts, where only one of the Byrd & Co., 76 S. C. 361, 57 S. E. 184. 

partners has been served with the summons. 13. Tenney v. American Pipe Mfg. Co., 96 

Whitfield V. Hovey, 30 S. C. 117, 8 S. E. 840; Fed. 919; Little v. Christie, 69 S. C. 57, 59, 48 

Pope Mfg. Co. V. Welch, 55 S. C. 528, 33 S. E. S. E. 89. 

789. This does not authorize a general judgment 14. Sufficiency of certificate: Sheriff's deputy 

against the one not served. Roberts v. Pawley, may act in serving papers. Prince v. Dickson, 

50 S. C. 491, 27 S. E. 913. _ 39 S. _C._ 477, 18 S. E. 33. 

It is within discretion of Court to require serv- Sheriff's return of service may be rebutted by 

ice of all of defendants where they reside entry in his book and testimony of his deputy 

within the jurisdiction. Allnut v. Lancaster, 76 and party to be served. Genobles v. West, 23 S. 

Fed. 131. C. 154. But under his return of service on de- 

12. Dominion Bank v. Olympia Cotton Mills, fendant "at her residence," it will be presumed 
128 Fed. 181. 



70 



CODE OF CIVIL PROCBDURB 



[§ 189 



§ 189. When Jurisdiction of Action Acquired. — From the time of the 
service of the summons in a civil action, or the allowance of a provisional rem- 
edy, the Court is deemed to have acquired jurisdiction, and to have control of 
all the subsequent proceedings. A voluntary appearance of a defendant is equiv- 
alent to personal service of the summons upon him.^^ 

1870, XIV, § 162. 



TITLE VI. 

OF THE PLEADINGS IN CIVIL ACTIONS. 



Chapte;r I. The Complaint, 71. 

Chapte^r II. The Demurrer, 72. 

Chapte^r III. The Answer, 75. 

Chapti^r IV. The Reply, 77. 

Chapter V. General Rules of Pleading, 78. 

Chapter VI. Mistakes in Pleadings and Amendments, 85. 



that such service was in the county of the venue. 
Lyles V. Haskell, 35 S. C. 391, 14 S. E- 829. 

Service upon proper party by misnomer is 
binding. Waldrop v. Leonard, 22 S. C. 118; 
Genobles v. West, 23 S. C. 154. 

Proof of service by one other than Sheriflf 
must be by affidavit. State v. Cohen, 13 S. C. 198. 
It is not required that such certificate of Clerk 
of Court as to authority of Notary Public should 
be appended to the affidavit at the time it is taken, 
but it may be furnished to the Court afterwards. 
Bank v. Stelling, 31 S. C. 360, 9 S. E. 1028. 

Written admission of the defendant is service. 
Benson v. Carrier, 28 S. C. 119, 5 S. E. 272. 

Acceptance of service by an attorney having ^ 
no authority so to do does not constitute a le- 
gal service. Reed 7'. Reed, 19 S. C. 548. 

Nor can infant bind himself by acceptance of 
service. Finley v. Robertson, 17 S. C. 435; Ri- 
ker V. Vaughan, 23 S. C. 187; Genobles v. West, 
23 S. C. 154; Whitesides v. Barber, 24 S. C. 373. 
Yet such acceptance, even of an irregular summons, 
by an adult without objection to proceedings there- 
under estop him from denying jurisdiction. Fin- 
ley V. Robertson, 17 S. C. 435. Affidavit suffi- 
cient made before vice consul prior to the amend- 
ments of 1884. Marine Co. v. Parsons, 49 S. C. 
136, 26 S. E. 956. 

Proof of service on foreign corporation. Tilling- 
hast V. Boston Lumber Co., 39 S. C. 484, 18 S. 
E. 120. 

Jurisdiction of a living person once acquired 
by service of the summons attaches always, al- 
though he may be bevond the Court's jurisdiction. 
People's B. & L. Ass'n v. Mayfield, 42 S. C. 424, 
20 S. E. 290. 

Service on infant sustained though proof does 
not show place of service. Middleton v. Stokes, 
71 S. C. 20, 50 S. E. 539. 

15. Even where no summons has been served, 
but attachment has been issued, the Court has 
jurisdiction for certain purposes. Darby v. Shan- 
non, 19 S. C. 526. Action must be regularly 
commenced by attachment to have effect. Till- 
inghast V. Boston Lumber Co., 39 S. C. 484, 18 
S. E. 120. Voluntary appearance is eauivalent 
to personal service. State v. Cohen, 13 S. C. 
19S; State v. Mitchell, 21 S. C. 598; State v. 
Marshall, 24 S. C. 507; Benson v. Carrier, 28 S. 
C. 119; Shumate v. Harbin, 35 S. C. 521, 15 S. 
E. 270; Cone v. Cone, 61 S. C. 512, 39 S. E- 
748; Martin v. Bowie, 37 S. C. 102, IS S. E. 741; 
Townes v. City Council, 46 S. C. 15, 23 S. E. 
984; Ex parte Kecler, _ 45 S. C. 537, 23 S. E. 
865; Greenwood Association v. Williams, 71 S. 



C. 421, 51 S. E- 272; Savannah Grocery Co. v. 
Rizer, 70 S. C. 501, SO S. E- 199; Garrett v. 
Herring Furniture Co., 69 S. C. 278, 48 S. E. 
254; Sentell v. Railway, 67 S. C. 231, SS S. E. 
155; Mayes v. Evans, 80 S. C. 364, 61 S. E. 216. 

The voluntary appearance of an infant is bind- 
ing upon judgment where the face of the pro- 
ceedings fails to show his infancy. State v. 
Lewis, 21 S. C. 598. But if defendant appear 
only to object to jurisdiction because he has not 
been served, the Court is without jurisdiction. 
State V. Marshall, 24 S. C. 507. 

To be equivalent to personal service it must be 
made before judgment. State v. Cohen, 13 S. C. 
198. It may be shown by the pleadings or entry 
in Magistrate's book; it must be shown by the 
proceedings, and cannot, in absence of such 
showing, be proved by parol testimony. Barron 
V. Dent, 17 S. C. 75. 

An _ appearance for purpose of motion to va- 
cate judgment obtained by void service of sum- 
mons in foreign State gives no jurisdiction of 
the person. Wren v. Johnson, 62 S. C. 533, 40 
S. E. 937. 

Allowance of provisional remedy deemed com- 
mencement of action. Jordan v. Wilson, 69 S. 
C. 259, 48 S. E. 224. 

In order to raise objection of plaintiff's want 
of capacity to sue there must be a general ap- 
pearance. Riley v. Southern Railway, 81 S. C. 
392, 62 S. E. 508. 

Party bound by appearance for purpose of de- 
murring to jurisdiction. Cotton v. Johnson, 71 
S. C. 413, 51 S. E. 245. 

Appearance to intervene gives jurisdiction of 
person. Whilden v. Chapman, 80 S. C. 84, 61 
S. E. 249. 

Appearance for purpose of setting aside serv- 
ice of summons is not equivalent to personal serv- 
ice. Ladd Metals Co. v. American Mining Co., 
125 Fed. 1008. 

Appearing waives objection to jurisdiction of 
person, but not of subject matter. McGrath. 
V. Insurance Co., 74 S. C. 70, 54 S. E. 218; 
Nixon & Danforth v. Insurance Co., 74 S. C. 
438, 54 S. E. 657; Jenkins v. Ry. Co., 73 S. C. 
294, S3 S. E. 480. 

Appearance for the sole purpose of removing 
cause to the Federal Circuit Court is not a gen- 
eral appearance and does not waive objections to 
manner of service of process. Clark v. Wells, 
203 U. S. 164, 51 L. Ed. 138. 

Appearance by foreign corporation is submission 
to iurisdiction. . Elms v. Southern Power Co., 
78 S. C. 326, 58 S. E. 809. 



^§ 190-192 



OF SOUTH CAROLINA. 



71 



CHAPTER I. 

The Complaint. 



Sec. 
190. Forms of pleadiriE 



Sec. 

191. Complaint. 

192. Complaint — What to contain. 



§ 190. Forms of Pleading. — There shall be no other forms of pleading 
in civil actions in Courts of record in this State, and no other rules by which 
the sufficiency of the pleadings is to be determined, than those prescribed by this 
Code of Procedure. 1 

1870, XIV, § 163. 

§ 191. Complaint. — The first pleading on the part of the plaintiff is the 
complaint. 

1870, XIV, § 164. 

§ 192. Complaint — What to Contain. — The complaint shall contain: 

1. The title of the cause, specifying the name of the Court in which the action 
is brought, the name of the County in which the plaintiff desires the trial to be 
had, and the names of the parties to the action — plaintiff and defendant. 

2. A plain and concise statement of the facts constituting a cause of action, 
without unnecessary repetition. 

3. A demand of the relief to which the plaintiff supposes himself entitled.^ 
1870, XIV, § 165. 



1. Fishburne v. Minott, 72 S. C. 567, 52 S. 
V,. 648. 

It was intended by this Section to change ma- 
terially the nature and effect of pleading; but 
not to abolish the substantial characteristics of 
the several pleadings that are retained either in 
name or by their equivalents under other names. 
Mobley f. Cureton, 6 S. C. 49; cited in Warren 
i:'. _ Lagrone, 12 S. C. 45. See, also, note as to 
object of Code before § 1. 

2. The names of the individuals constituting 
the copartnership suing must appear in the title. 
Smith f. Walker, 6 S. C. 169. 

Subdivision 2 : A cause of action exists where 
the legal rights of one party have been invaded 
bv another. Chalmers v. Glenn, 18 S. C. 469; 
Nance v. Railroad, 35 S. C. 307, 14 S. E. 629. 
If the facts alleged do not show the existence 
and invasion of such rights, the complaint is de- 
fective, and will be held bad on demurrer. 
Southern Porcelain Co. v. Thew, 5 S. C. 5; Chal- 
mers '.■. Glenn, 18 S. C. 469; Nance v. R. R. Co., 
35 S. C- 307, 14 S. E. 629. 

But it is enough if the allegations show dis- 
tinctly the cause of action. Hammond v. R. R. 
Co._, 6 S. C. 130. The Court refers the facts to 
their appropriate form of action. Mason v. Car- 
ter, 8 S. C. 103; Dowie & Moise v. Toyner, 25 
S. C. 123; Warren y. Lagrone, 12 "S. C. 45. 
Co"iplaint sufficient if it states any cause of 
action, either legal or equitable. Mordecai z'. 
Seisnious. 53 S. C. 95, 30 S. E. 721; Latham v. 
Ha?by. 50 S. C. 428, 27 S. E. 862; Independent 
Fire Eneine Co. v. Richland Lodge, 70 S. C. 
572. 50 S. E. 499; Ferst's Sons & Co. v. Powers, 
64 S. C. 221, 41 S. E. 974. Plaintiff may obtain 
any relief apDropriate to the pleadings without 
regp'-d to the form of prayer for relief. Shepnard 
V. Green, 48 _ S. C. 165, 26 S. E. 224. Failure 
to file complaint not fatal on motion to set aside 
iudgment. Clemson College z'. Pickens, 42 S. C. 
511. 20 S. E. 401. 

The complaint is so defective if it merely al- 
lege conclusions of law and not facts. Tutt v. 
Rr R. Co., 28 S. C. 388, 5 S. E. 831 : Wallace v. 
R. R. Co., 34 S. C. 62. 12 S. E. 815: Nance v. 
R. R. Co., 35 S. C. 307, 14 S. E. 629. 

In action for specific performance of contract 
for sale of land, it is not necessarv to allege 
that contract was in writing. Hubbell v. Court- 
nev. 5 S. C. 87. 

In action against a commission merchant for 
account, it is unnecessary to allege a demand for 



account, after stating a Refusal to do so. Mason 
i'. Carter, 8 S. C. 103. Where paper sued on as 
a promissory note is not such, but the allegations 
show a cause of action, the complaint is sufficient. 
Dowie V. Joyner, 25 S. C. 123. 

Want of probable cause should be alleged in a 
complaint in action for malicious arrest or it 
will be demurrable. Hogg v. Pinckney, 16 S. 
C. 387. 

Subdivision 3: Complaint is not demurrable 
as defective in not stating facts sufficient to con- 
stitute a cause of action because it contains no 
prayer for relief. Balle v. Mosely, 13 S. C. 439. 

Defective statement cured by attached exhibit. 
Cave V. Gill, 59 S. C. 256. 37 S. E. 817. Exhib- 
its not curing insufficiency in complaint. Cauthen 
'■. Hines, 80 S. C. 432, 61 S. E. 957. _ Particular 
complaints Considered. On written linstrumesnt 
for payment of money. Watson v. Barr, 37 S. 
C. 463, 16 S. E. 189. On bond. State v. Sea- 
brook, 42 S. C. 74, 20 S. E. 58. On note. Bolt 
V. Gray, 54 S. C. 95, 32 S. E. 148. Damages 
from tort. Pickens v. R. R. Co., 54 S. C. 498, 
32 S. E. 567.' Nuisance. Baltzegar v. R. R., 54 
S. C. 242, 32 S. E. 358. Conversion. Michalson 
7.: All, 43 S. C. 459. 21 S. E. 323. Recovery of 
real property. Huggins v. Watson, 38 S. C. 504,. 
17 S. E. 363. On note of officer against the State. 
Carolina Nat'l Bank v. State, 60 S. C. 465, 38 
S. E. 629. 

It is unnecessary to allege in what State de- 
fendant corporation is chartered. Machen v. W. 
U. Tel. Co., 63 S. C. 363, 41 S. E. 448. 

If complaint states either an equitable 8r legal 
cause of action it is sufficient. Ferst's Sons & 
Co. V. Powers, 64 S. C. 221, 41_ S. E. 974. 

It is unnecessary to allege in what State de- 
fer dant corooration is incorporated. Machen v. 
Telegraph Co., 63 S. C. 363, 41 S. E. 448. 

Specific performance of contract. National 
Light and Thorium Co. v. Alexander, 80 S. C. 
10, 61 S. E. 214. 

Action for construction of will and partition. 
Hunt V. Gower, 80 S. C. 80, 61 S. E. 218, 128 
Am. St. Rep. 862. 

Proof confined to particular act of neglieence 
alleged. Fitzgerald v. Manufacturing Co., 74 S. 
C. 234, 54 S. C. 373. 

Proper statements of facts. DuPre v. South- 
ern Railway,' 66 S. C. 124, 44 S. E. 580. 

Malicious prosecution. McCall z*. Alexander, 
81 S. C. 131. 61 S. E. 1106. 

Neither wilfulness nor negligence is necessary 



72 



CODE OF CIVIL PROCBDURB 



193-194 



CHAPTER II. 

The Demurrer. 

Sec. 



197. Objection not appearing on com- 

plaint. 

198. Objection waived. 



Sec. 

193. Defendant to demur or answer. 

194. When the defendant may demur. 

195. Demurrer — What to specify. 

196. How to proceed, if complaint be 

amended. 

§ 193. Defendant to Demur or Answer.— The only pleading on the part 
of the defendant is either a demurrer or an answer. It must be served withm 
twenty days after the service of the copy of the complaint.^ 

1870, XIV, § 166. 

§ 194. When the Defendant May Demur.— The defendant may demur to 
the complaint when it shall appear upon the face thereof, either : 

1870, XIV, §ia67. 

1. That the''Court has no jurisdiction of the person of the defendant or the 
subject of the action; or, 

2. That the plaintiff has not legal capacity to sue ;- or, 

3. That there is another action pending between the same parties, for the same 
cause f or, 



to make a trespass on real estate a tort. Baldwin 
v. Telegraph Co., 78 S. C. 422, 59 S. i;. 67. 

Allegation of actionable fraud must include 
scienter. Bromonia Co. v. Drug Co., 78 S. C. 
482, 59 S. E. 363. 

Not necessary to allege damages which are the 
direct result of a wrong. Southern Railway v. 
€ossett, 79 S. C. 381, 60 S. E. 956. 

Action for cancellation if deed as a cloud on 
title. Shute V. Shute, 79 S. C. 420,, 60 S. E. 691; 
Pollitzer v. Beinkempen, 76 S. C. 517, 57 S. E. 
475; Guerard v. Jenkins, 80 S. C. 225, 61 S. E. 
258. 

Where plaintiff states two causes of action, 
one in contract and one in tort, a state of facts 
from which only one liability in unliquidated 
damages arises, the amount sought to be recov- 
ered is limited to the amount asked' in the prayer. 
Ray V. Southern Ry., 77 S. C. 103, 57 S. E.. 636. 

Facts required to be stated are basic, ultimate 
facts as distinguished from facts which are 
merely evidentiary. Alexander v. DuBose, 73 S. 
C. 21, 29, 52 S. E. 786. 

Complaint not sufficient as against resident de- 
fendant so as to prevent removal to Federal 
Court by non-resident defendant. Bryce v. South- 
ern R. Co., 122 Fed. 709. 

Striking out allegations. Pickett v. Southern 
Railway, 74 S. C. 236, 242, 54 S. E. 375. 

Complaint held sufficient. Hagood v. Blythe, 
38 Fed. 76. 

It is not necessary to set out in haec verba 
written instruments sued on. T'hey may be set 
out according to their legal effect. Bank v. Fi- 
delity, etc., Co., 120 Fed. 315, 316. 

1. Dominion Nat. Bank v. Olympia Cotton 
Mills, MS Fed. 181; Lawrence v. Lawrence, 81 S. 
C. 126, 62 S. E. 9. 

Extension of time. Wilcox, etc., Co. v. Phce- 
nix Ins. Co., 60 Fed. 929. 

2. This ground of objection is waived unless 
taken by demurrer. Daniels v. Moses, 12 S. C. 
130. Under this subdivision. Smith v. Smith, SO 
S. C. 54, 27 S. E. 549; Dawkins v. Mathis, 47 S. 
r 64. 54 S E. 991; Mickle 7'. Construction Co., 
41 S. C. 394, 19 S. E. 725; Willis v. Tozer, 44 
S. C. 1, 21 S. E. 617. 

Where complaint alleges corporate existence m 
nlaintiff and nothing appears on its face to show 
his want of corporate authority, it is not demui'- 
rable on this ground. Cheraw R. R. v. White, 14 
S. C. 51. A demurrer under this subdivision can 
only be interposed where the incapacity to sue ap- 
pears in the complaint. Cone Export, etc., Co. v. 
Poole, 41 S. C. 70, )9 S. E. 203. Where sealed 
note payable to an administrator has been trans- 
ferred to another, it may be sued on in name of 



administrator for use of the other. Carroll v. 
Still, 13 S. C. 430. 

This question of capacity to sue cannot be put 
in issue by general denial; it must be made by 
demurrer. Commercial « Co. v. Turner, 8 S. C. 
110; Palmetto, etc^Co. v. Risley, 25 S. C. 309; 
Steamship Co. v. Rodgers, 21 S. C. 27. 

Objection that cause of action does not sur- 
vive cannot be taken by oral demurrer. Duke v. 
Postal Telegraph Co-., 71 S. C. 95, 50 S. E. 675. 

Waiver of defect. Battle v. C. N. & L. R. Co., 
70 S. C. 329, 49 S. E. 849. 

" Demurrer remedy for frivolous complaint. Fisli- 
burne v. Minott, 72 S. C. 568, 52 S. E. 648.^ ■ 

Pleading to amended complaint may be either 
by demurrer or answer. Lawrence v. Lawrence, 
81 S. C. 129, 62 S. .E. 9. 

Ground of incapacity to sue must be distinctly 
stated. Trimmier v. A. C. L. R. R. Co., 81 S. 
C. 203, 62 S. E. 209; Blackwell v. Mortgage Co., 
65 S. C. 116, 43 S. E. 395. 

Where it is not alleged that plaintiff is a cor- 
poration or a partnership composed of individ- 
uals. Lookout Mountain Med. Co. v. Hare. 56 S. 
C. 456, 35 S. F. 130; Riley & Co. v. Southern Ry. 
Co., 81 S. C. 391, 62 S. E. 509. 

Objection that the action is brought by the 
Clerk of the Court as administrator in his in- 
dividual capacity when administration is granted 
to him officially must be taken by demurrer, and 
if not is waived. Trimmier v. A. & C. Air Line 
Ry., 81 S. C. 203, 62 S. E. 209. 

3. Subdivision 3 does not apply to actions pend- 
ing in another State. Hill v. Hill, 51 S. C. 134, 
28 S. E. 309. Nor does it apply where one suit is 
by only one plaintiff for the recovery of personal 
property, and the other, with additional plaintiffs, 
includes claim for punitive damages. Walters v. 
Laurens Cotton Mills, 53 S., C. 155, 31 S. E. 1. 

Pendency of another action by others of same 
class suing in a common right. State e.v rel. 
Brown v. A. C. L. R. R. Co., 13 S. C. 308. 

Objection that another action is pending must 
be by answer unless it appears on the face of the 
complaint. Kiddell v. Bristow, 67 S. C. 175, 45 
S. E. 174. 

Action for injunction not in bar to action in 
nature of quo ivarranto. State ex rel. Ternigan 
V. Stickley, 80 S. C. 64, 61 S. E. 211, 128 Am. 
St. Rep. 855, 15 Am. & Eng. Ann. Cas. 136. 

Does not apply to pendencv of action in Fed- 
eral Court. Logan V. A. C. "L. R. R. Co., 82 S. 
C. 518. 64 S. E. 515; Mavfield v. A. C. L. R. R. 
Co., 79 S. C. 558, 61 S. E. 106. Evidence of dis- 
missal of former action. State ex rel. Jernigan 
V. Stickley, 80 S. C. 70, 61 S. E. 211, 128 Am. 
St. Rep. 885, 15 Am. & Eng. Ann. Cas. 136. 



§ 195] 



OF SOUTH CAROLINA. 



73 



4. That there is a defect of parties, plaintiff or defendant ;■* or, 

5. That several causes of action have been improperly united ;■' or, 

6. That the complaint does not state facts sufficient to constitute a cause of 
action.'^ 

§ 195. Demurrer — What to Specify. — The demurrer shall distinctly 
specify the grounds of objection to the complaint. Unless it do so, it may be 
disregarded. It may be taken to the whole complaint, or to any" of the alleged 
causes of action stated therein." 

1870, XIV, § 168. 



4. This ground cannot apply in case misjoinder 
of parties. L,owry v. Jackson, 17 S. C. 318, 3 S. 
E. 473. 

rins objection must be made by demurrer, and 
is waived upon failure to demur. Featlierston v. 
Norns, 7 S. C 472; tvans v. McLucas, 12 b. C 
56; Daniels v. Moses, 12 S. C. 13; Koss v. len- 
der, 12 b. C. 592; bhull v. Caughman, 54 S. C. 
2U3, a b. £,. 301; Allen v. Coolev, 53 S. C. 77, 
30 S. £. 721. 

Defect of parties. Delleney v. Winnsboro 
Granite Co., 71 S. C. 39, 51 b. E. 531. \ 

Whether right of action for trespass on, realty 
survives to personal or real representative' should 
be raised by demurrer or answer. Voyles v. 
Telegraph Co., 78 S. C. 432, 59 S. ^. 68. 

Defect of parties distinguished from misjoinder. 
Wright V. Willoughby,' 79 b. C. 438, 60 b. K. 
9/1. 

Right to demur for defect of parties not 
waived by motion to have complaint made i^i^re 
definite and certain. L,awrence v. Lawrence, 81 
b. C. 126, 62 S. E. 9. 

5. Joint demurrer bad as to all, must fail 
though good as to one who joins. Lowry v. Jack- 
t-on, 17 b. C. 318, 3 S. E. 4/3* Guy v. McDaniel, 
51 S. C. 436, 29 S. E. 196. 

Complaint not demurrable for multifariousness 
where it alleges breach oFlfust, because it makes 
a party in possession of the lassets under the 
breach, with notice, a defendant. Ragsdale v. 
Holmes, 1 b. C. 91; Melton v. Withers, 2 b. C. 
561. 

Objection to complaint on this ground can only 
be taken by demurrer. Field v. Hurst, 9 S. C. 
277; Seibels v. Railway Co., 80 S. C. 139, 61 b. 
E. 435, 16 L,. R. A., N. S., 1026n. It may be 
taken by any defendant. Suber v. Allen, 13 b. 
C. 317. 

Where there is improper joinder of causes of 
action, and a demurrer to the complaint .therefor, 
the plaintiff may cure the defect by voluntary 
amendment of the complaint. Sullivan v. Sulli- 
van, 24 S. C. 474. 

Demurrer on this ground will not lie where 
several plaintiffs, severally owning adjoining tracts 
of land, join in action tor damages in solido tor 
injuries thereto by defendant's dam. Hellams v. 
Switzer, 24 S. C. 39. But demurrer will lie in 
such case, where the injuries are separate and dis- 
tinct, lb. 

There is not misjoinder of causes of actions 
where adult ward and three minor wards sue their 
guardian for accounting. Stallings v. Barrett, 26 
S. C. 474, 2 vS. E. 483. This objection does not 
apply where creditor sues heir in possession of 
intestate's land and alleges sufficient to show 
cause of action against administrator, and does 
not seek judgment against him. L,owry v. Jack- 
son, 27 S; Q. 318, 3 S. E. 473. 

Proper joinder of several causes of acfion. Long 
V. Hunter, 58 S. C. 152, 36 S. E. 581. Where 
the defendant fails to raise the question of mis- 
joinder by demurrer, he cannot afterwards do so 
by motion to require plaintiff to elect on which 
he will rely. Where the several causes of action 
are blended in one statement suc h m otion may be 
made. Ross v. Jones, 47 S. C. TTT, 25 S. E. 59. 

Demurrer, not motioii to strike out, remedy for 
failure to state cause of action where there are 
several causes. Berry v. Moore Co., 69 S. C. 
321, 48 S. E. 249. 

Demurrer not reinedy for jumbling causes of 
action. Marion v. Charleston, 68 S. C. 257, 47 
S. E. 140; Duncan v. Jones Co., 82 S. C. 562, 64 
S. E. 749. 

Where only one primary right ^nd wrong are 



stated there is only one cause of action. Wright 
V. willoughby, 79 S. C. 438, 60 S. E- 971. 

6. Until It does appear that some lact is 
omittea wiiicn is necebsary to constitute the cause 
ot action, no demurrer can be sustained. Baue i'. 
ivioseiy, i3 b. C 439. 

lire delect must he substantial, and such as 
cannot be cured except by allegations of ai.bwer. 
Lhilders v. Verner, 12 b. C. 1. 

vv here administrator ol a distributee of an in- 
testate brings action against the administrator ot 
the intestate and joins with hini as plaintiff a dis- 
tributee ot such cUstributee, tne complaint is de- 
murrable as to stjch plaintiff" distributee on this 
ground. Robert v. Johns, lu b. C. lOi. 

Complaint alleged subscription by defendant to 
stock of plaintitt ot htty acres of land, and a re- 
fusal to convey, and demanded payment m money 
tor the land, without alleging promise to pay 
money or previous demand, and was held not 
demurrable on this ground. Cheraw and Chester 
K. Co. V. Garland, l4 b. C. 63. in action to re- 
cover money won at game of faro, if the complaint 
does not allege that the money was won at one 
time and sitting, it is demurrable on this ground. 
Trumbo v. Finley, 18 b. C. 305. 

Omission of allegation relating to capacity to 
sue is no ground tor demurrer under this subdi- 
vision. Cone Export, etc., Co. v. Poole, 41 b. C. 
70, 19 S. E. 203; and other cases cited under 
Subdivision 2. 

Allegation as to possession within ten years not 
necessary in action for partition. Griffith v. Crom- 
ley, 58 S. C. 448, 36 b. E. 741. 

Demurrer proper remedy for defective state- 
ment of cause of action in counter claim. Ken- 
tucky Rehning Co. v. Saluda Oil Mill Co., 70 S. 
C. 94, 48 S. E. 987. 

Motion to compel plaintiff to elect, not de- 
murrer, proper remedy where allegations of com- 
plaint are appropriate to either ot two causes of 
action. Welborn v. Dixon, 70 S. C. 118, 49 b. 
i.. 12,1, 3 Am. & Eng. Ann. Cas. 407. 

Complaint not demurrable when plaintiff' en- 
titled to any relief whatever. Independent Steam 
Fire Engine Co. v. Richland Lodge, 70 S. C. 572, 
50 S. E. 499. 

That action does not survive cannot be inter- 
posed on oral demurrer. Duke v. Postal Tel. 
Cable Co., 71 S. C. 98, 50 S. E..675. 

Demurrer to answer to enjoin condemnation 
proceedings overruled. Columbia v. Melton, 81 
S. C. 356, 62 S. E. 245, 399. Contributory negli- 
gence considered. Cooper v. A. C. L. R. Co., 69 
S. C. 479, 48 b. E. 458; Smith v. Southern Rail- 
way, 80 S. C. 4, 61 S. E. 205; McLean v. A. C. 
L. R. Co., 81 S. C. 100, 61 S. E. 900, 1071, 128 
Am. St. Rep. 892, 18 L. R. A., N. S., 763. 

The judge cannot draw inferences outside of 
the complaint to sustain it. Talbert v. C. & W. 
C. R. Co., 72 S. C. 137, 51 S. E- 564. Demurrer 
not the remedy for indefiniteness. Pierson v. 
Green, 69 S. C. 561, 48 S. E. 624. 

Complaint is sufficient if it states any cause of 
action. Independent Co. v. Richland Lodge, 70 
S. C. 572, 50 S. E. 499. 

Proceeding with trial after presentation of de- 
murrer amounts to overruling it. Mauldni v. S. 
A. L. Ry. Co., 73 S. C. 9, 52 S. E. 677. 

7. The demurrer must be to the entire cause of 
action, and not to a part of a cause of action or 
defense. Buist v. Salvo, 44 S. C. 143, 21 S. E. 
615; Lawson v. Gee, 57 S. C. 506, 35 S. E- 759. 
A joint demurrer to a complaint stating a cause 
of action against any of the defendants is bad. 
Stahn V. Catawba Mills, 53 S. C. 519, 31 S. E- 
498. A demurrer must distinctly specify the 



74 



CODE OF CIVIL PROCBDURB 



§§ 196-198 



§ 196. How to Proceed, if Complaint Be Amended. — If the complaint 
be amended, a copy thereof must be served on the defendant, who must answer 
it within twenty days, or the plaintiff, upon fiHng with the Clerk due proof of 
the service, and of the defendant's omission, may proceed to obtain judgment, as 
provided by Section 305.^ 

1870, XIV, § 169. 

§ 197. Objection Not Appearing on Complaint. — When any of the mat- 
ters enumerated in Section 194 do not appear upon the face of the complaint, the 
objection may be taken by answer.^ 

1870, XIV, § 170. 

§ 198. Objection Waived. — If no such objection be taken^ either by de- 
murrer or answer, the plaintiff or defendant shall be deemed to have waived the 
same, excepting only the objection to the jurisdiction of the Court, and the ob- 
jection that the complaint does not state facts sufficient to constitute a cause of 
action, or that the answer does not state facts sufficient to constitute a defense: 
Provided, That in cases where the objection is made that the complaint does 
not state facts sufficient to constitute a cause of action, or that the answer does 
not state facts sufficient to constitute a defense, the party making such objection 
shall give at least five days' notice, in writing, to the opposite party of the grounds 
of such objection. 1° 

1870, XIV, § 171; 1903, XXIV, 130. 



grounds of objection. Carroll v. Still, 13 S. C. 
430; Buist v. Salvo, followed in Sloan v. Sea- 
board Ry. Co., 64 S. C. 389, 42 S. E. 199; Berry 
V. Moore Co., 69 S. C. 321, 48 S. E. 249. 

Objection for misjoinder of parties. Cousar v. 
Heath, etc., Co., 80 S. C. 472, 61 S. E. 973. 

8. Henning v. Western Union Tel. Co., 40 
Fed. 658. _ . , 

It is within the discretion of a Circuit Judge 
to require an answer to an amended complaint in 
less than twenty days. This section applies only 
where no time is fixed in the order. Lockwood 
V. Charleston Bridge Co., 60 S. C. 492, 38 S. E. 
112. . _ _ 

If defendant does not request permission to 
answer amended complaint he cannot object to 
failure to so provide in order allowing amend- 
ment. McDaniel v. A. C. L. R. Co., 76 S. C. 15, 
56 S. E. 543. Order permitting amendment to 
complaint by striking out certain words in com- 
plaint may be served alone, without service of 
complaint as amended. lb. Guess v. Southern 
Railway, 73 S. C. 267, 53 S. E- 421." Amend- 
ment allowed after sustaining demurrer. Eeesville 
Mfg. Co. V. Works, 75 S. C. 342, 55 S. E. 768. 

Construed with § 193 permits plea by either 
demurrer or answer to amended complaint. The 
right to demur to a complaint is not lost by a 
motion to make more definite and specific. Law- 
rence 7'. Eawrence, 81 S. C. 126, 62 S. E. 9. 

9. If the defects do not appear on the face of 
the complaint, the objection should be made by 
answer. Patterson v. Pagan, 18 S. C. 584; Kid- 
dell V. Bristow, 67 S. C. 175, 45 S. E. 174. 

10. Kiddell V. Bristow, 67 S. C. 175, 45 S. E. 
174; People's, etc.. Fertilizer Co. v. Charleston, 
etc.. Railway, 83 S. C. 530, 65 S. E. 733. 

Objection that answer does not allege that 
fraud for which deed is sought to be set aside 
had been discovered within six years should be 
by demurrer. Marthinson v. McCutchen, 84 S. 
C. 256, 66 S. E. 120. 

The clear intention of this and foregoing 
Sections of this Chapter is that defendant shall 
give, by his demurrer or answer, specific notice 
that he intends to rely on one or more of these 
specific defenses, if he wishes to make them avail- 
able. A general denial of all the facts alleged in 
the complaint is not a compliance with these re- 
quirements. The object of them is to relieve the 
plaintiff^ from the necessity of preparing to meet 
such objections, on trial, unless so notified of 



them. Steamship Co. v. Rodgers, 21 S. C. 27; 
Palmetto Co. v. Risley, 25 S. C. 309. 

Objection for defect of parties comes too late 
after failure to make it by demurrer or answer. 
Featherston v. Norris, 7 S. C. 472; Evans v.Mc- 
Lucas, 12 S. C. 56; Daniels v. Moses, 12 S. C. 
137; Ross v. Einder, 12 S: C. 592. 

All other defects, except want of jurisdiction 
and of sufficient statements of facts, are cured by 
failure to object by demurrer and answer. . Bow- 
den V. Winsmith, 11 S. C. 409; Daniels z;. Moses, 
12 S. C. 130; Tackins v. Dickinson, 39 S. C. 439, 
17 S. E. 996; Ross v. Jones, 47 S. C. 211, 25 S. 
E. 59; Dawkins v. Mathis, 47 S. C. 64, 24 S. E- 
990; Smith v. Smith, 50 _S. C. 54, 27 S. E. 545. 

Objection that complaint does not state facts 
sufficient to constitute a cause of action may be 
made orally at any stage of the proceedings. 
Southern Porcelain Co. v. Thew, 5 S. C. 10; Bow- 
den V. Winsmith, 11 S. C. 409; Childers v. 
Verner, 12 S. C. 1; Balle v. Mosely, 13 S. C. 
439: Kennerty v. Etiwan Co., 17 S. C. 411; Davis 
V. McDuffie, 18 S. C. 495; Hellams v. Switzer, 24 
S. C. 39; Hall v. Young, 29 S. C. 64, 6 S. E- 
938. Even after trial of the issues on circuit. 
Garrett v. Weinberg, 50 S. C. 310, 27 S. E. 770. 
But not for the first time on appeal in the Su- 
preme Court. Green v. Green, 50 S. C. 514, 27 
S. E. 952. Where a demurrer for want of facts 
sufficient to constitute a cause of action is once 
overruled, such ruling is binding when motion is 
rendered on a subsequent trial. Eong v. Hunter, 
58 S. C. 152, 36 S. E. 579. 

So oral demurrer to answer setting uo counter- 
claims may be made on the ground of want of 
cause of action, though not objected to by formal 
demurrer or answer. State v. Corbin, 16 S. C. 
533. 

Objection for defect of parties must be made by 
demurrer or answer. Anderson v. Baughman, 69 
S. C. 40, 48 S. E. 38; Delleney v. Winnsboro 
Granite Co.. 72 S. C. 39, 51 S. E. 531; Voyle§ v. 
Telegraph Co., 78 S. C. 430, 433. 59 S. _E. 68. 

Defendant is required to specify distinctly the 
grounds of objection to capacity to sue. Black- 
well V. Mortgage Co., 65 S. C. 116, 43 S. E. 395. 

A defect appearing on the face of the com- 
plaint, the objection is not waived by answer 
without statine the obiection, but may be urged 
on the trial, if the defendant give five davs' no- 
tice in writing. Peterman v. Pope, 74 S. C. 298, 
54 S. E. 569. 



199 1 



OF SOUTH CAROLINA. 



75 



CHAPTER III. 

The Answer. 



Sec. 
202. Sham and irrelevant defenses to be 
stricken out. 



Sec. 

199. Answer — What to contain. 

200. Counterclaim — Several defenses. 

201. Demuirer and answer — When al- 

lowed. 

§ 199. Answer — What to Contain. — The answer of the defendant must 
contain : 

1870, XIV, § 172. 

1. A general or specific denial of each material allegation of the complaint 
controverted by the defendant, or of any knowledge or information thereof 
sufficient to form a belief. 

2. A statement of any new matter constituting a defense or counterclaim, 
in ordinary and concise language, without repetition. ^ 



1. A denial in an answer following the exact 
words of the allegations is bad as a negative 
pregnant. Curnow v. Ins. Co., 46 S. C. 79, 24 
S. E. 74; Bliss Code Pleading, § 332. A denjal 
that plaintiff has "knowledge or information suffi- 
cient to form a belief, etc.," is stifficient. Gilreath 
V. Furman, 57 S. C. 289, 35 S. E. 516. The ad- 
mission of the allegations of a paragraph in com- 
plaint by the answer, is an admission only of the 
facts alleged, and not of the conclusion of law. 
Greer v. Latimer, 47 S. C. 176, 25 S. E. 136. A 
denial of title in claim and delivery does not dis- 
pense with the necessity to prove a demand and 
refusal. I^udden v. Southern Music House, 47 
S. C. 335, 25 S. E. 150. Denial of delivery of 
deed. Johnson v. Johnson, 44 S. C. 364, 22 S. 
E. 419. 

Allegations of the complaint not denied are ad- 
mitted. Addison v. Duncan, 35 S. C. 165, 14 S. 
E. 305. Answer admitting the simple delivery _ of 
note, as alleged in complaint, and then asserting 
that the delivery was conditional, the delivery is 
not admitted. Lipscomb v. Lipscomb, 32 S. C. 
243, 10 S. E. 929. 

Where complaint alleges and answer admits 
note sued on to be a promissory note, it was er- 
ror to grant nonsuit iipon proof that note was 
under seal. Moore v. Christian, 31 S. C. 337, 9 
S. E. 981. 

The Code has enlarged the defendant's oppor- 
tunity for making various defenses to the action 
by his answer. Cohrs "'. Eraser, 5 S. C. 351. In- 
consistent defenses may be set up in the answer. 
Millan v. Southern Railway Co., 54 S. C. 485, 
32 S. E. 539. 

The answer is not to be taken as true, as under 
former equity practice, until the plaintiff has had 
an opportunity to controvert it. Hubbell v. Court- 
ney, 5 S. C. 87. 

The defendant must plead in answer all his 
defenses, legal or equitable; he cannot bring a 
separate action on any matter that could have 
been so pleaded. McAlily v. Barker, 4 S. C. 48; 
Rice V. Mahaffy, 9 S. C. 582._ 

And his answer must contain a _ general or 
specific denial, or new matter, constituting a de- 
fense or counterclaim. Clement v. Riley, 29 S. 
C. 286, 6 S. E. 932. But under general denial he 
may insist on absence of demand. Burckhalter v. 
Mitchell, 27 S. C. 240, 3 S._ E. 225. Yet general 
denial raises no issue of failure oi consideration, 
which is an affirmative defense. Derry v. Hol- 
man, 27 S. C. 621, 2 S. E. 841. 

A general denial will not put at issue the legal 
capacity of corporation to sue. Commercial Co. 
V. Turner, 8 S. C. Ill; Steamship Co. v. Rodgers, 
21 S. C. 33; Palmetto Co. v. Risley, 25 S. C. 309; 
American Co. v. Hill, 27 S. C. 164, 3 S. E. 82; 
Land Co. V. Williams, 35 S. C. 367, 14 S. E. 821; 
Pittsburg Plate Glass Co. v. Monroe, 79 S. C. 
564. 61 S. E. 92; Charleston Live Stock Co. v. 
Collins, 79 S. C. 383, 60 S. E. . 944. But \vhere 
the complaint against a corporation alleges it to 
be incorporated, and its answer makes only gen- 
eral denial, and it regularly appears by attorney 



and defends on the merits, that is admission of 
its corporate charter. Rembert v. Railroad, 31 S. 
C. 309, 9 S. E. 968. And where there is a 
specific denial of the allegation of partnership, the 
answer raises an issue triable by jury. Kerr v. 
Cochran, 29 S. C. 61, 6 S. E. 905. But it will 
put at issue every fact necessary to prove plain- 
tiff's claim and allow defendant to controvert his 
proof thereon. Lyles v. BoUes, 8 S. C. 258. And 
upon plaintiff's failure to prove his case, the de- 
fendant may have a nonsuit. lb. The simple an- 
sv/er of "no knowledge" is a denial. Tharin v. 
Seabrook, 6 S. C. 118. 

Payment must be specially pleaded. McElwee 
V. Hutchinson, 10 S. C. 438. So a plea of justi- 
fication, which cannot be shown under a general 
denial. Henderson v. Bennett, 58 S. C. 30, 36 
S. E. 2. 

But where certain credits are allowed by com- 
plaint, and judgment claimed for special balance, 
the defendant, under general denial, can prove 
other payments to show true balance. lb. 

Where answer in action for assault and bat- 
tery admitted the complaint, but pleaded that the 
defendant committed the assault in self-defense, 
it was sufficient. Hughey v. Kellar, 34 S. C. 268, 
13 S. E. 475. Plea of confession and avoidance 
does not establish issues raised by general denial. 
Stanley v. Shoolbred, 25 S. C. 181. 

Where matter of counterclaim is not so pleaded, 
and judgment thereon demanded, it can only 
serve as a defense, and not as a counterclaim. 
Trimmier v. Thompson, 10 S. C. 185; Humbert u. 
Brisbane, 25 S. C. 506; McGee v. Wells, 37 S. 
C. 367, 16 S. E. 29. And as a counterclaim, can- 
not be proved at trial. Sullivan v. Byrne, 10 S. 
C. 130; Williams v. Irby, 15 S. C. 458. There is 
no particular form prescribed for a counterclaim. 
Co-operative Co. v. Walker, 61 S. C. 315, 39 S. 
E. 525. 

No objection to answer that it is not responsive 
to complaint; its only effect is that any allegation 
not denied stands admitted. Zimmerman v. 
Amaker, 10 S. C. 100. 

Demurrer proper remedy for defective state- 
ment of cause of action in counterclaim. Ken- 
tucky Refining Co. v. Saluda Oil Mill Co., 70 S. 
C. 94, 48 S. E. 987. 

No new matter is properly pleaded in an an- 
swer unless it constitutes a defense, or a counter- 
claim. Montgomery v. Delaware Ins. Co., 67 S. 
C. 405, 45 S. E. 934. 

In order to avail, contributory negligence must 
be pleaded. Strickland v. Capital City Mills, 70 
S. C. 211, 49 S. E. 478. 

Fraud an equitable defense in action to recover 
land. Willcox v. Preister, 68 S. C. 106, 46 S. 
E. 553. 

Plea of contributory negligence. Sharpton v. 
Augusta and Aiken Ry., 72 S. C. 162, 51 S. E. 
553; Charping v. Toxaway Mills, 70 S. C. 470, 
50 S. E. 186: Ogilvie v. Conway Lumber Co., 80 
S. C. 7, 61 S. E. 200. 

Matter in answer containing general denial in- 
consistent with allegations of complaint, and ad- 
missible in evidence under the general denial, is 



76 



CODE OP CIVIL PROCBDURB 



[§ 200 



§ 200. Counterclaim — Several Defenses. — The counterclaim mentioned 
in the last Section must be one existing in favor of a defendant, and against_ a 
plaintiff, between whom a several judgment might be had in the action, and aris- 
ing out of one of the following causes of action : 

1870, XIV, § 173. 

1. A cause of action arising out of the contract or transaction set forth in the 
complaint as the foundation of the plaintiff's claim, or connected with the sub- 
ject of the action. 

2. In an action arising on contract, any other cause of action arising also on 
contract, and existing at the commencement of the action. 

The defendant may set forth by answer as many defenses and counterclaims 
as he may have, whether they be such as have been heretofore denominated legal 
or equitable, or both. They must each be separately stated, and refer to the 
causes of action which they are intended to answer, in such manner that they 
may be intelligibly distinguished. - 



merely redundancy, and may be stricken out. 
Montgomery v. Insurance Co., 67 S. C. 404, 45 
S. E. 934. 

Matter in mitigation of damages to be pleaded. 
Latimer v. York Cotton Mills, 66 S. C. 135, 44 S. 
E. 559. 

Suicide as cause of forfeiture in insurance must 
be specially pleaded. lyatimer v. Woodmen of the 
World, 62 S. C. 145, 40 S. E. 155. 

Breach of condition subsequent is an affirmative 
defense, which must be pleaded and proved. 
Thompson v. Insiirance Co., 77 S. C. 294, 57 
S. E. 848. 

Under general denial title can be shown in 
third party. Pooler v. Smith, 73 S. C. 103, 52 
S. E. 967. 

Assumption of risk of employment. Cheek v. 
S. A. L. Ry., 81 S. C. 348, 62 S. E. 402; Shirley 
f. Abbeville Furniture Co., 76 S. C. 452, 57 S. 
E. 178, 121 Am. St. Rep. 952; Alexander t;. Caro- 
lina Mills, 83 S. C. 17, 64 S. E- 914; Long v. 
Ry. Co., 50 S. C. 53, 27 S. E. 531; Hall v. N. W. 
R. Co., 81 S. C. 522, 62 S. E. 848; Hatchings v. 
Manufacturing Co., 68 S. C. 514, 47 S. E. 710; 
Owens '.'. Mills, 83 S. C. 19, 64 S. E. 915; Betch- 
man v. Railroad Co., 75 S. C. 68, 55 S. E. 140; 
Kitchens v. Southern Rv. Co., 80 S. C. 531, 61 
S. E. 1016; Davis v. N.'W. R. Co., 75 S. C. 303, 
55 S. E. 526; Wofford '.■. Cotton Mills, 72 S. C. 
348, 51 S. E. 918; Green v. Catawba Power Co., 
77 S. C. 426, 58 S. E. 147. 

Estoppel need not be pleaded as a defense, but 
may be shown under a general denial. Scar- 
borough V. Woodley, 81 S. C. 329, 62 S. E. 405. 
Judgment in Federal Court on note for fertili- 
zers is not res judicata of action in State Court 
for damages to crops of plaintiff caused by use 
of that fertilizer, where question had been raised 
in Federal Court by answer, but withdrawn by 
permission of Court. Kirven v. Virginia-Carolina 
Chemical Co., 77 S. C. 493, 58 _S. E.. 424; Vir- 
ginia-Carolina Chemical Co. v. Kirven, 215 U. S. 
252, 54 E. Ed. 179. 

Where, in case on which such judgment is 
based, testimony of such defense was excluded on 
objection of defendant, he is estopped to i-aise 
question of res adjitdicata in subsequent action. 
N'irginia-Carolina Chemical Co. v. Kirven, 215 U. 
S. 252, 54 L. Ed. 179. 

Montgomery v. Seaboard Air Line Railway, 73 
S. C. 503, 508, 53 S. E. 987. 

'2. In action by executor to recover from de- 
fendant several notes due testator, he cannot set 
up as counterclaim legacies given him, but un- 
a=sented to bv executor. Latimer v. Sullivan, 30 
S. C. Ill, 8 S. E. 639. 

A defendant cannot set up as a counterclaim a 
debt purchased by him after commencement of 
the action. Enter v. Ouesse, 30 S. C. 126, 8 S. 
E. 796. 

A counterclaim for damages from tort cannot 
be set up against an action for damages from tort. 
Simkins t'. R. R., 20 S. C. 258. 

A tort arising out of contract may be waived, 
and the same cause of action treated as a con- 
tract and set up as such, by way of counterclaim 
to action on another contract. Boyce v. Parker, 



11 S. C. 337. Unascertained damages arising e.r 
contractu are admissible as a counterclaim. lb. 

In action for damages by trespass, the defend- 
ant cannot set up a debt due by plaintiff, as 
counterclaim. Sharp v. Kinsman, 18 S. C. 108. 
A cause of action for conversion of property can- 
not plead as counterclaim in an action on a note. 
Lenhardt v. French, 57 S. C. 493, 35 S. E. 761. 

A claim that does not fall vmder either of the 
abovje subdivisions cannot be set up as a counter- 
claim. E.v parte Bank, 18 S. C. 289; Copeland v. 
Young, 21 S. C. 276; Humbert v. Brisbane, 25 
S. C. 506. 

A cotinterclaim cannot be interposed in an ac- 
tion for recovery of personal property, unless, 
perhaps, under some exceptional circumstances, 
equitable relief may be demanded. Williams v, 
Irby, 15 S. C. 561; Talbott v. Padgett, 30 S. C. 
167, 8 S. E. 845; Badham v. Brabham, 54 S. C. 
404, 32 S. E. 444; Ludden v. Hornsby, 45 S. C. 
Ill, 22 S. _E. 781. 

Partnership account in favor of defendant may 
be set up as counterclaim to his individual debt, 
if partnership be unsettled and upon settlement 
a balance would be due him. Mills v. Carrier, 30' 
S. C. 617, 9 S. E. 350, 741. 

A separate judgment in favor of one of several 
defendants may be given on counterclaim, show- 
ing a separate cause of action in his favor. Plyler 
V. Parker, 10 S. C. 465. 

Defendant cannot set up against pl_aintiff, as 
counterclaim, a debt due the defendant by firm 
of which plaintiff is a member. Byrd v. Charles, 
3 S. C. 352. 

The answer may set forth many and incon- 
sistent defenses, either legal or equitable. Cohrs 
V. Eraser, 5 S. C. 354; Mobley v. Cureton, 6 S. 
C. 68; Cooper v. Smith, 16 S. C. 331; Millan v. 
So.- Ry. Co., 54 S. C. 485, 32 S. E- 539. If he 
fail upon one, he may fall back on the others. 
Ransom v. Anderson, 9 S. C. 440. 

A plea of Statute of Limitations to the "money 
items" set up in a complaint, stating two causes 
of action, one of which was for a sum of money 
made up of several items and the other for a 
penalty, was not sufficient as a defense to the 
second cause of action. County z'. Miller, 16 S. 
C. 244. 

Where accounts containing usurious interest 
have been settled by note, and action is brought 
on the latter, defendant cannot interpose counter- 
claim for the excessive interest charged. Witte v. 
Weinberg, 37 S. C. 579, 17 S. E. 684. 

An individual claim of partner against plaintiff 
cannot be set up as counterclaim by partnership. 
Pope Mfg. Co. •<'. Welch, 55 S. C. 528, 33 S. E. 
787; 59 S. C. 29, 37 S. E. 20. 

Parol contract as foundation for counterclaim 
in action on written contract. V.-C. Chemical Co. 
V. Moore. 61 S. C. 166, 39 S. E. 346. 

An action for tortious conversion of trust funds 
by trustee is an action on contract. Randolph v.- 
Walker, 78 S. C. 157, 59 S. E. 856. 

Counterclaim arising out of tort cannot be set 
up in action for tort. Roberts v. Jones, 71 S. C. 
404, 51 S. E. 240. 

Demurrer to counterclaim not setting out con- 



§§ 201-203 ] 



OF SOUTH CAROLINA. 



// 



§ 201. Demurrer and Answer — When Allowed. — The defendant may 
demur to one or more of several causes of action stated in the complaint, and 
answer the residue. 

1870, XIV, § 174. 

§ 202. Sham and Irrelevant Defenses to Be Stricken Out. — Sham and 
irrelevant answers and defenses may be stricken out on motion, and upon such 
terms as the Court may, in its discretion, impose." 

1870, XIV, § 175. 



CHAPTER IV. 

The Reply. 



Sec. 
205. Demurrer to reply. 



Sec. 

203. Reply — Demurrer to answer. 

204. Motion for judgment upon answer. 

§ 203. Reply — Demurrer to Answer. — When the answer contains new 
matter constituting a counterclaim, the plaintiff may, within twenty days, reply 
to such new matter, denying generally or specifically each allegation contro- 
verted by him, or any knowledge or information thereof sufficient to form a 
belief; and he may allege, in ordinary and concise language, without repetition, 
any new matter not inconsistent with the complaint, constituting a defense to 
such new matter in the answer ; and the plaintiff may, in all cases, demur to an 
answer containing new matter, where, upon its face, it does not constitute a 
counterclaim or defense; and the plaintiff may demur to one or more of such 
defenses of counterclaims, and reply to the residue of the counterclaims. 

And in other cases, where an answer contains new matter constituting a de- 
fense by way of avoidance, the Court may, in its discretion, on the defendant's 
motion, require a reply to such new matter; and in that case the reply shall be 
subject to the same rules as a reply to a counterclaim. ^ 

1870, XIV, § 176. 



tract. Kentucky Refining Co. v. Saluda Oil Mill 
Co., 70 S. C. 89, 48 S. E. 987. 

Equitable claim set up in answer in claim anij 
delivery. Sparks v. Green, 69 S. C. 227, 48 S. 
E. 61. 

Set off allowed in proceedings to enforce build- 
er's lien. Tenney v. Power Co., 69 S. C. 431, 
48 S. E. 457. 

When costs cannot be set off against salary. 
Baptist Church v. Dart, 67 S. C. 338, 45 S. E. 
753, 100 Am. St. Rep. 727. 

Prior debt is not counterclaim in action for con- 
version of trust fund. Randolph v. Walker, 78 
S. C. 157, 59 S. E. 856. 

Damages for defect in quality of goods sold, 
when obvious, cannot be offset in action to re- 
cover price. Brooke v. Laurens Milling Co., 78 
S. C. 205, 58 S. E. 806, 125 Am. St._ Rep. 780. 

See. also, Kirvin i>. Virginia-Carolina Chemical 
Co.. 77 S. C. 505, 58 S. E. 424; Gwynn v. Citi- 
zens Telephone Co., 69 S. C. 442, 48 S. E. 460, 
104 Am. St. Rep. 819, 67 _L. R. A. Ill; Green- 
wood Drug Co. V. Bromonia Co., 81 S. C. 515, 
62 S. E. 840, 128 Am. St. Rep. 929; Virginia- 
Carolina Chemical Co. v. Kirven, 215 U. S. 252, 
54 L. Ed. 179. 

Damages from breach of contract may be set 
up as counterclaim in action for failure of com- 
mon carrier to furnish plaintiff telephonic con- 
nection. Gwynn v. Citizens' Tel. Co., 69 S. C. 
434, 48 S. E. 460, 104 Am. St. Rep. 819, 67 L. 
R. A. 111. 

In action by county for money judgment, 
counterclaim cannot be set up_ by defendant in 
form of account not duly itemized, verified, filed 
and audited. Greenville County •:■. Greenville, 84 
S. C. 410, 66 S. E. 417. 

3. An answer making general denial cannot be 
stricken out as sham, whether verified or not. 
Ransom v. Anderson, 9 S. C. 439. 



Motion to so strike out such pleadings should 
not in terms demand judgment; but if nothing 
remains of the answer for trial, after motion is 
granted, judgment may be pronounced at once. 
Tharin v. Seabrook, 6 S. C. 113. 

Such motions ordinarily present questions of 
fact to be determined upon affidavits or as the 
Court may direct. lb. 

If the defense is manifestly false and intended 
to delay, it may be struck out; but this should 
be done only in cases free from doubt. lb. 

An answer is not untrue which has been sus- 
tained on Circuit. Hall v. Woodward, 30 S. C. 
564, 9 S. E. 684. 

An order refusing to strike out answer as 
sham and irrelevant is not appealable. Citizens 
and Marine Bank v. Witcover, 77 S. C. 441, 58 
S. E. 146. 

An answer requiring argument and careful ex- 
amination to answer it, cannot be said to be 
frivolous. Boylston v. Crews, 2 S. C. 422 ; Do- 
minion Nat. Bank v. Olympia Cotton Mills, 128 
Fed. 181, 182. 

1. The plaintiff's reply must deny the counter- 
claim or allege some new matter as defense 
thereto, or judgment will go against him for the 
counterclaim. Hubbell v. Courtney, 5 S. C. 89; 
Latimer v. Sullivan, 30 S. C. Ill, 8 S. E. 639. 

A general denial of a counterclaim puts in issue 
all the allegations itnon which it rested. Atlantic 
Co. V. Sullivan, 34 S. C. 301, 13 S. E. 539. 

When answer upon its face does not show^-Htal- 
ter constituting a counterclaim or defense it is de- 
murrable. Clement v. Riley, 29 S. C. 286, 6 S. 
E. 932: Lipscomb v. Lipscomb, 32 S. C. 243, 10 
S. E. 929. But it may be replied to and de- 
termined at same time. Latimer v. Sullivan, 30 
S. C. Ill, 8 S. E. 639; Talbott v. Padgett, 30 S. 
C. 167, 8 S. E. 845. 

A reply without an order of Court where the 



78 



CODE OF CIVIL PROCEDURE 



§§ 204-207 



§ 204. Motion for Judgment upon Answer. — If the answer contain a 
statement of new matter constituting a counterclaim, and the plaintiff fail to 
reply or demur thereto within the time prescribed by law, the defendant may 
move, on a notice of not less than ten days, for such judgment as he is entitled to 
upon such statement ; and, if the case require it, a writ of inquiry of damages 
may be issued. 

1870, XIV, § 177. 

§ 2 05. Demurrer to Reply. ^If a reply of the plaintiff to any defense 
set up by the answer of the defendant be insufficient, the defendant may demur 
thereto, and shall state the grounds thereof. ^ 

1870, XIV, § 178. 



CHAPTER V. 



General Rules of Pleading. 



Stc. 

206. Pleadings to be subscribed and 

verified. 

207. Pleadings — How verified. 

208. How to state an account in plead- 

ing. 

209. Pleadings to be liberally construed. 

210. Striking out irrelevant or redun- 

dant matter and making indefi- 
nite matter more definite. 

211. Judgment — How to be pleaded. 

212. Conditions precedent — How to be 

pleaded. 



Sec. 
313. Private statutes — How to be 
pleaded. 

214. Libel and slander — How stated in 

complaint. 

215. Answer in such cases. 

216. Pleadings in actions ex delicto for 

damages regulated. 

217. Answer in actions to recover prop- 

erty distrained for damage. 

218. What causes of action may be 

joined. 

219. Allegation not denied— When to be 

deemed true. 



§ 206. Pleadings to Be Subscribed and Verified. — Every pleading in 
a Court of record must be subscribed by the party or his attorney ; and when 
any pleading is verified, every subsequent pleading, except a demurrer, must 
be verified also.^ 

1870, XIV, § 179. 

§ 207. Pleadings — How Verified. — The verification must be to the effect 
that the same is true to the knowledge of the person making it, except as to 
those matters stated on information and belief, and, as to those matters, he 
believes it to be true ; and must be by the afifidavit of the party, or, if there be 
several parties united in interest, and pleading together, by one at least of such 
parties acquainted with the facts, if such party be within the County where the 
attorney resides, and capable of making the affidavit. The affidavit may also be 
made by the agent or attorney, if the action or defense be founded upon a 



answer contains no counterclaim is improper, but 
should not be formally stricken out. Davis v. 
Schmidt, 22 S. C. 128; Egan v. Bissell, 54 S. C 
80, 32 S. K. 1; Price v. Ry. Co., 38 S. C. 199, 
17 S. E. 732; Bank v. Gadsden, 56 S. C. 313, 33 
S. E. 575. 

Counterclaim set up in answer, served withjiio- 
tion for leave to file, is admitted, if not rejjhed 
to within the time. Sanders v. Sanders, 31 S. C. 
604, 9 S. E. 813. 

Where answer sets up payment and laches as 
defenses, it is demurrable when the facts set forth 
as proof thereof are insufficient to determine the 
defenses. Mobley v. Cureton, 6 S. C. 49. An ob- 
jection that the answer is not responsive to the 
complaint cannot be taken under the Code. Zim- 
merman V. Amaker, 10 S. C. 98. 

An oral demurrer will lie to a counterclaim, 
which shows on its face that it is based on a con- 
tract void under the Statute of Frauds. Civil 
Code, § 2964; Mendelsohn '■. Banov, 57 S. C. 148, 
35 S. E. 499. 

Answer must contain tl) general or specific 



denial, or (2) new matter constituting defense or 
counterclaim. Latimer v. York Cotton Mills, 66 
S. C. 135, 44 S. E. 559. 

Reply to a defense by way of avoidance v/as 
intended for the benefit of defendant. Kennedy 
V. Hill, 79 S. C. 271, 60 S. E- 689. 

It is not necessary to reply to answer not set- 
ting up counterclaim. Craig Milling Co. v. 
Cromer, 85 S. C. 350, 67 S. E. 289. 

2. Kennedy v. Hill, 79 S. C. 271, 60 S. E. 689. 

I. Cited in Reeder v. Workman, 37 S. C. 413, 
16 S._ E. 187. 

Verified return to order to show cause, ac- 
cepted as true unless contradicted bv evidence. 
State V. Farnum, 73 S. C. 193, 53 S. E. 85. 

Verification to complaint held sufficient .so as 
to require verified answer. Robinson v. Gregg, 
57 Fed. 186. 

Where the complaint is not verified, petition for 
removal of part of controversy to Federal Court 
need not be verified. Harley v. Home Ins. Co., 
125 Fed. 792. 



§§ 208-209] OF SOUTH CAROLINA. 79 

written instrument for the payment of money only, and such instrument be in 
the possession of the agent or attorney, or if all the material allegations of the 
pleading be within the personal knowledge of the agent or attorney. When the 
pleading is verified by any other person than the party, he shall set forth in the 
affidavit his knowledge, or the grounds of his belief on the subject, and the 
reasons why it is not made by the party. When a corporation is a party, the 
verification may be made by any officer thereof ; and when the State, or any 
officer thereof in its behalf, is a party, the verification may be made by any per- 
son accjuainted with the facts. The verification may be omitted when an ad- 
mission of the truth of the allegation might subject the party to prosecution for 
felony. And no pleading can be used in a criminal prosecution against the 
party as a proof of a fact admitted or alleged in such pleading : Provided, 
That the verification of any pleading in any Court of record in this State may 
be omitted in all cases where the party called upon to verify would be privileged 
from testifying as a witness to the truth of any matter denied by such plead- 
ing.2 

1870, XIV, § 180. 

§ 208. How to State an Account in Pleading. — It shall not be necessary 
for a party to set forth in a pleading the items of an account therein alleged ; 
but he shall deliver to the adverse party, within ten days after a demand there- 
for in writing, a copy of the account, which, if the pleading is verified, must be 
verified b}^ his own oath, or that of his agent or attorney, if within the personal 
knowledge of such agent or attorney, to the effect that he believes it to be true, 
or be precluded from giving evidence thereof. The Court, or a Judge thereof, 
may order a further account, when the one delivered is defective, and the Count 
may, in all cases, order a bill' of particulars of the claim of either party to be 
furnished.-^' 

1870, XIV, § 181. 

§ 209. Pleadings to Be Liberally Construed. — In the construction of a 
pleading for the purpose of determining its effect, its allegations shall be lib- 
erally construed, with a view of substantial justice between the parties.'* 

1870, XIV, § 183. 

2. When matters are pleaded upon knowledge, Grocery Co. v. Moore, 63 S. C. 184, 41 S. E. 88. 
it is unnecessary to add the words "on informa- \''ander Veen v. Wheeler, 76 S. C. 180, 56 S. 

(ion and belief." Smalls v. Wilder, 6 S.. C. 402. E. 679. 

So, where it is upon information and belief, it is 3. Defendant having failed to demand an 

unnecessary to state that it is upon knowledge. lb. itemized account, he cannot complain of the judg- 

Where the answer is negative merely of the ment upon the ground that tlie account was not 

complaint, the same form of verification is neces- itemized. Sloan v. Westfield, 17 S. C. 589. 
Rar\. lb. _ _ _ Account furnished under this Section no part 

Where the complaint does not state which of its of complaint or cause of action. Creighton i'. 

allegations are made on knowledge and which on Creighton, 68 S. C. 326, 47 S. E. 439. 
information and belief, the verification is insuffi- Exhibits attached to complaint are not to bcj 

cient in form if it say that "the complaint is true considered in passing on demurrer thereto. Cave 

of his own knowledge, except as to matters therein ?'. CtIII, 59 S. C. 256; Nichols v. Montgomery, 68 

stated on information and belief, and as to those S. C. 332, 335, 47 S. E- 373. 

matters he believes it to be true." Hecht v. In suit on a number of distinct claims, this 

Freisleben, 28 S. C. 181, 5 S. E. 475; Bnrmester section does not apply. Hagood v. Blythe, 38 

V. Moselev, 33 S. C. 251, 11 S. E. 786; Addison v. Fed. 76. 
Sugette, 50 S. C. 201, 28 S. E. 948. Defendant having failed to demand an itemized 

Where the verification is made by another than account, he has no right to object to propf of 
the party, it must set forth his knowledge or the several sums constituting the full amount de- 
grounds of his belief with sufficient clearness. lb. marded. Albion Phosphate Min. Co. v. Wyllie, 

An attorney may verify a complaint only in 77 Fed. 541. 
two cases: 1. Where the action is founded upon 4. Pleading must not be construed strongly 

a written instrument and for payment of money agaiT^st pleader. Childers v. Verner, 12 S. C. 1; 

only, and that instrument is in his possession; W^ailace i'. Lark. 12 S. C. 576; Dowie v. Toyner. 

and, 2. Where all the material allegations are 25 S. C. 123: Park v. Books, 38 S. C. 300, 17 

within his personal knowledge. Hecht v. Freisle- S. E. 23: Jerkowski v. Marco, 56 S. C. 241. 34 

ben. 28 S. C. 181, 5 S. E. 475. S. F. 388; Mason v. Carter, 8 S. C. 104: Harle 

Hence, attorney cannot verifv complaint on an 7'. Morgan, 29 S. C. 258, 7 S. E. 4S7. But this 

open account, verified by afifidavit of plaintiff. Section does not pennit allesations of fact in the 

Bray Clothing Co. v. Shealy, 53 S. C. 12, 30 S. alternative. Iseman v. McMillan, 36 S. C. 28, 15 

E. 620. Verification of statement in controversy S. E. 336. 

'without action must be made bv the narties. Bussey v. C. & W. C. Ry. Co.. 75 S. C. 125, 

Reeder v. Workman, 37 S. C. 413, 16 S. E. 187. 55 S. E. 163; Hagood 7'. Blythe, 38 Fed. 76; Do- 

A party may alwavs verify his own pleadini^. "linion Nat. Bank v. Olympia Cotton Mills, 128 

Holmes ■:■. Moore._ 63 _ S. C. 182, 41 S. E. 90. Fed. 181. 
Sufficiency of verification by agent. Carolina 



80 



CODE OF CIVIL PROCEDURE 



§ 210 



§ 210. Striking out Irrelevant or Redundant Matter and Making In- 
definite Matter More Definite.- — If irrelevant or redundant matter be in- 
serted in a pleading, it may be stricken out, on motion of any person aggrieved 
thereby. And when the allegations of a pleading are so indefinite or uncertain 
that the precise nature of the charge or defense is not apparent, the Court may 
require the pleading to be made definite and certain by amendment.^ 

1870, XIV, § 183. 



5. "An allegation is irrelevant when the issue 
formed by its denial can have no connection with, 
or effect upon, the cause of action." Pom. Code 
Rem., § 551; Smith v. Smith, 50 S. C. 54, 27 S. 
E. 545; Ragsdale v. Ry. Co., 60 S. C. 381, 38 
S. E. 612; Nichols -.'. Briggs, 18 S. C. 473. The 
remedy is by motion to strike out. lb. The mo- 
tion may be waived by answering the complaint. 
Allen V. Cooley, 60 S. C. 353, 38 S. E. 627. But 
the right to make the motion may be reserved in 
the answer. Whaley v. Lawton, 53 S. C. 580, 31 
S. E. 660. Under Rule XX of the Circuit Court 
the motion must be noticed before demurring' or 
answering, and within twenty days after service 
of the pleading. lb. If irrelevant allegations are 
permitted to remain in the pleading, they may be 
supported by proof. Dent v. R. Co., 61 S. C. 
-329, 39 S. E. 529. 

If complaint is defective in mode of statement, 
the remedy is by motion to make allegations cer- 
tain and not by demurrer. Flenniken v. Buch- 
anan, 21 S. C. 434; Sandall v. Insurance Co., 53 
S. C. 241, 31 S. E. 230; Elliott v. Jeter, 59 S. C. 
483, 38 S. E. 124; Buist v. Melchers, 44 S. C. 46, 
21 S. E. 449; Garrett v. Weinberg, 50 S. C. 310, 
27 S. E. 770; Savage v. Sanders, 51 S. C. 495, 29 
S. E. 248; Eong v. Hunter, 48 S. C. 179, 26 S. 
E. 228; Marion -v. City Council, 68 S. C. 257, 47 
S. E. 140; Morgan v. Sammons, 66 S. C. 389, 44 
S. E. 966; Moore v. Powder Co., 68 S. C. 201, 46 
S. E. 1004; Capers v. W. U. Tel. Co., 71 S. C. 
31, 50 S. E. 537; Rentz v. Southern Railway, 82 
S. C. 170, 63 S. E. 743; Hagood v. Blythe, 38 
Fed. 76. Demurrer cannot be interposed to one 
portion of complaint stating only one cause of 
action. Sloan v. Seaboard, etc., R. Co., 64 S. C. 
.389, 42 S. E. 197. And such motion should be 
m.ade before trial. Zimmerman v. McMakin, 22 
S. C. 375. 

If averments of answer are somewhat indefiriite 
and uncertain, the remedy is under this Section 
by motion, and not by demurrer. Mobley v. Cure- 
ton, 6 S. C. 49; Dowie v. Joyner, 25 S. C. 123. 

If description of premises is not sufficiently 
particular, the objection must be made by motion 
to have it made so. Childers v. Verner, 12 S. C. 
1 . Motions to have pleadings made definite and 
certain should be made before answer. Bowden 
V. Winsmith, 11 S. C. 409. If not made in due 
time it is waived. lb. 

When the complaint fails to state each of sev- 
eral causes of action, separately, it is a vice in 
pleading; but must be remedied by motion to 
make more definite and certain. Hellams v. 
-Switzer, 24 S. C. 39; Westlake v. Farrow, 34 S. 
C. 270, 13 S. E. 469. 

If defense and counterclaim are improperly 
united, motion to make more distinct, and not de- 
murrer, is the remedy. McCown v. McSween, 29 
S. C. 130, 7 S. E. 45. 

If several notes are sued on as one cause of 
action, and if the allegation is imperfect or in- 
formal, such motion, and not demurrer, is the 
remedy. Holland v. Kemp, 27 S. C. 623, 3 S. 
E. 83. 

If plaintiffs are not sufficiently referred to in 
complaint, motion to make more definite is the 
remedy. Chapman v. City Council, 28 S. C. 373, 
6 S. E. 158. 

Where plaintiff desires to demur to certain de- 
fenses, not separately stated, in the answer, he 
may make motion to have pleading made more 
definite and certain, and then move to strike out 
the irrelevant portions. Buist v. Salvo, 44 S. C. 
143, 21 S. E. 615. 

The practice to be followed on motion to make 
more definite and certain indicated in Long v. 
Hunter, 48 S. C. 179, 26 S. E. 228; Savage v. 
Sanders, 51 S. C. 495, 29 S. E. 248. 

In action for accounting need not allege with 



particularity acts complained of. Sigwald v. City 
Bank, 74 S. C. 473, 477, 55 S. E. 109. • 

A pleading cannot be stricken out for indefinite- 
ness. Motion to make more definite and certain 
must be made. Scales Co. v. Long, 66 S. C. 381, 
44 S. E. 963, 65 L. R. A. 294; Morgan v. Sam- 
mons, 66 S. C. 389, 44 S. E. 966. 

Order making complaint more definite and cer- 
tain overruled. Moore v. Power Co., 68 S. C. 
201, 204, 46 S. E. 1004. Where allegations of 
new matter in answer are stated in too uncertain, 
ambiguous, inferential manner to determine 
whether they can avail defendant, remedy is mo- 
tion to make more definite and certain. Fierson 
V. Green, 69 S. C. 561, 48 S. E. 624. Allegations 
of complaint sufficiently definite and certain. Hix 
V. Belton Mills, 69 S. C. 273, 275, 48 S. E. 96. 
Where motion made to strike out parts of several 
causes of action, reference cannot be had to 
causes jointly. Berry v. Moore Co., 69 S. C. 
321, 48 S. E. 249. 

Irrelevant and redundant allegations defined. In 
equity cases, especially those charging fraud, not 
reversible error to refuse to strike out matters 
directly or remotely relevant. Alexander v. Du- 
Bose, 73 _S. C. 21, 52 S. E. 786. 

Allegation irrelevant because merely evidentiary. 
Facts in aggravation of damages, though evi- 
dentiary, are relevant. Notice of motion need not 
state that movant was aggrieved by allegations. 
Gadsden v. Catawba Power Co., 71 S. C. 340, 51 
S. E. 121. 

Motion to make defipite and certain should have 
been granted. Capers v. Western Union Tel. Co., 
71 S. C. 31, 50 S. E. 537. 

Objections to sufficiency of notice of motion, 
and that motion to make more definite and certain 
and to strike out as irrelevant and redundant 
could not be heard under one notice, waived un- 
less heard -and decided by Circuit Judge. Not 
error to order amended complaint to be served. 
Allegation of specific, damages not relevant unless 
coupled with allegation of notice to carrier of 
special facts causing damages. Guess i'. South- 
ern Railway, 73 S. C. 264, 53 S. E. 421. 

Irrelevant and redundant matter cannot be 
stricken from a complaint by demurrer, but by 
motion to strike out. Guignard v. Baptist Church, 
80 S. C. 498, 61 S. E. 1003. 

There is no reversible error in_ refusing to 
strike out parts of an answer which are irrele- 
vant. McCandless v. Mobley, 81 S. C. 303, 62 
S. E. 260. Rules governing motions to make 
pleadings more definite stated. Hughes i'. Orange- 
burg Mfg. Co., 81 S. C. 354, 62 S. V,. 404. 

Remedy for indefiniteness is by motion. Smith 
V. Bradstreet Co., 63 S. C. 525, 41 S. E. 763. 
Allegations held not irrelevant. Simmons v. W. 
U. Tel. Co., 63 S. C. 425, 41 S. E. 521. 

Objection to irrelevant paragraph should be by 
motion. Sloan v. Seaboard & R. Ry., 64 S. C. 
389, 42 S. E. 199. Amendment allowed to make 
allegation more definite. Bell v. Floyd, 64 S. C. 
246, 42 S. E. 104; Pierson v. Green, 69 S. C. 561, 
48 S. E. 624. Irrelevant matter stricken out. 
Watford v. Windam, 64 S. C. 509, 42 S. E. 597. 
Allegation of punitive damages stricken out ^ in 
claim and delivery proceedings. Tittle v. Ken- 
nedy, 71 S. C. 7, 50 S. E. 544, 4 Am. & Eng. 
Ann. Cas. 68. An exhibit attached to complaint 
can be used as a bill of particulars to make the 
allegations of the complaint more certain. Dixon 
v. Roessler, 70 S. C. 499, 50 S. E. 184. Motion 
to elect. Welborn v. Dixon, 70 S. C. 108, 49 S. 
E. 232, 3 Am. & Eng. Ann. Cas. 407. 

Not error to admit testimony in support _ of 
irrelevant allegations, where there was no motion 
to strike out. Blassingame v. Laurens, 80 S. C. 
38, 61 S. E. 96; Mauldin v. Railroad, 73 S. C. 
12. 52 S. E. 677; Milhouse v. Railway. 72 S. C. 
442, 52 S. E. 41, 110 Am. St. Rep. 620. But it 



§§211-215] OF SOUTH CAROLINA. 81 _ 

§ 211. Judgment — How to Be Pleaded. — In pleading a judgment, or 
other determination of a Court or officer of special jurisdiction, it shall not be 
necessary to state the facts conferring jurisdiction, but such judgment or de- 
termination may be stated to have been duly given or made. If such allegation 
be controverted, the party pleading shall be bound to establish on the trial the 
facts conferring jurisdiction. 

1870, XIV, § 184. 

§ 212. Conditions Precedent — How to Be Pleaded. — In pleading the 
performance of conditions precedent in a contract, it shall not be necessary to 
state the facts showing such performance ; but it may be stated generally that 
the party duly performed all the conditions on his part; and if such allegation 
be controverted, the party pleading shall be bound to establish, on the trial, the 
facts showing such performance. In an action or defense founded upon an 
instrument for the payment of money, it shall be sufficient for a party to give 
a copy of the instrument, and to state that there is due to him thereon from the 
adverse party a specified sum, which he claims.^ 

1870, XIV, § 185. 

§ 213. Private Statutes — How to Be Pleaded. — In pleading a private 
statute, or a right derived therefrom, it shall be sufficient to refer to such statute 
by its title and the day of its passage, and the Court shall thereupon take judicial 
notice thereof." 

1870. XIV, § 186. 

§ 214. Libel and Slander — How Stated in Complaint. — In an action 
for libel or slander, it shall not be necessary to state, in the complaint, any ex- 
trinsic facts, for the purpose of showing the application to the plaintiff of the 
defamatory matter out of which the cause of action arose ; but it shall be suf- 
ficient to state generally that the same was published or spoken concerning the 
plaintiff; and if such allegation be controverted the plaintiff' shall be bound to 
establish, on trial, that it was so published or spoken.^ 

1870, XIV, § 187. 

§ 215. Answer in Such Cases. — In the actions mentioned in the last Sec- 
tion, the defendant may, in his answer, allege both the truth of the matter 
charged as defamatory, and any mitigating circumstances, to reduce the amount 
of damages ; and, whether he prove the justification or not, he may give, in evi- 

need not be admitted. Bromonia Co. v. Drug Co., sufficient under this section. Watson v. Barr, 37 

78 S. C. 482, 59 S. E. 363. Complaint on con- S. C. 466, 16 S. E. 188. Waiver of performance 

tract required to be made more definite and cer- of condition precedent. Griffith v. Newell, 69 S. 

tain. Williams v. Salmond, 79 S. C. 459, 61 S. C. 303, 48 S. E. 259. Performance of conditions 

E. 79. Order refusing motion is not appealable. precedent must be alleged. Peterman v. Pope, 74 

Plarbert v. A. C. L. Ry., 74 S. C. 13, 53 S. E. S. C. 298, 54 S. E. 569. Alleging performance. 

1001; Dawkins v. Street Ry., 82 S. C. 166, 63 S. Hollins v. Bankers Union, 63 S. C. 196, 41 S. E. 

E. 746; Miles v. Charleston Light, etc., Co., 87 90; Merchants and Planters Bank z\ Blacksburg 

S. C. 254, 69 S. E. 292; Woodward v. Wood- Knitting Mills, 71 S. C. 527, 51 S. E. 274. 

ward, 87 S. C. 247, 69 S. E. 232. See, also, Complaint in suit on fidelity insurance bond. 

Epstein V. Berman, 78 S. C. 327, 58 S. E. 1013; Bank v. Fidelity, etc., Co., 120 Fed. 315. 

McCandless v. Mobley, 81 S. C. 303, 62 S. E. Waiver of condition precedent in mutual de- 

260. Wood V. Pacolet Mfg. Co., 80 S. C. 51, 61 oendent contract must be pled if relied on. Grif- 

S. E. 95. fith f. Newell, 69 S. C. 300, 48 S. E. 259, dis- 

Motion refused. Shaver v. Grendel Mills, 74 tinguishing Copeland v. Assurance Co., 43 S. C. 26. 

S. C. 430, 54 S. E. 610; Lvles v. Kinard, 82 S. 7. Referred to in White v. R. R. Co., 14 S. 

C. 415, 64 S. E. 409. C. 51. 

Rule to show cause why_ complaint should not S. An allegation that defendant at a certain 

1)6 made definite and certain is just as effective time and place, slandered plaintiff, by saying that 

as motion. Bank v. Fidelity, etc., Co., 120 Fed. he had sworn lies at a certain time and place, 

■315. and in a named cause, states facts sufficient. 

Defendant cannot object to proof of an offer Zimmerman v. McMakin, 22 S. C. 376. And 

of subrogation as immaterial, where complaint al- where the words of slander proved at trial are 

leged such fact and defendant did not move to not the same as, but similar to those alleged, it is 

strike out allegation. Pelzer Mfg. Co. v. St. for the jurv to say whether they meant the 

Paul, etc., Ins. Co., 41 Fed. 271. same. lb. 

Right to _ demur not waived by motion to make This Section does not obviate the necessity of 

more definite and certain. Lawrence v. Law- setting out facts which make language, not in it- 

Tence, 81 S. C. 126, 62 8. E. 9. self defamatory, have that import. Hubbard v. 

6. Complaint against makers of a note held Furman L^niversity, 76 S. C. 511, 57 S. E. 478. 

2 S C C— 6 



82 



CODE OF CIVIL PROCBDURB 



[§ 216 



dence, the mitigating circumstances.^ 
1870, XIV, § 188. 

§ 216. Pleading in Actions Ex Delicto for Damages Regul^ed. — In all 

actions ex delicto in which vindictive, punitive or exemplary damages are claimed 
in the complaint, it shall be proper for the party to recover also his actual damages 
sustained, and no party shall be required to make any separate statement in the 
complaint in such action, nor shall any party be required to elecit whether he 
will go to trial for actual or other damages, but shall be entitled to submit his 
whole case to the jury under the instruction of the Court. 
1898, XXII, 693. 

How Two OR More; Causes of Action for Damages May Be Pleaded. — 
In all cases where two or more acts of negligence or other wrongs are set forth 
in the complaint, as causing or contributing to the injury, for which such suit is 
brought, the party plaintiff in such suit shall not be required to state such sev- 
eral acts separately, nor shall such party be required to elect upon which he will 
go to trial, but shall be entitled to submit his whole case to the jury under the 
instruction of the Court and to recover such damages as he has sustained, 
whether such damages arose from one or another or all of such acts or wrongs 
alleged in the complaint. ^^ 

1898, XXII, 693. 



9. It may be that defendant can introduce evi- 
dence to show his belief in the truth of the charge 
made, in mitigation of damages. Fincli v. Finch, 
21 S. C. 342. 

Matter in mitigation of damages should be 
pleaded. Latimer v. York Cotton Mills, 66 S. C. 
138, 44 S. E. 559. Whether^ defendant sustain 
his plea of justification, the jury may consider 
the evidence of mitigating circumstances. Burck- 
halter v. Coward, 16 S. C. 439. 

Construed. Machen v. Western Union Tel. Co., 
72 S. C. 257, 51 S. E. 697. 

10. Glover v. Railway Co., 57 S. C. 224, 35 S. 
E. 510; Mew v. Ry. Co., 55 S. C. 90, 32 S. E. 
828; Bowen v. Ry. Co., 58 S. C. 222, 36 S. E. 
590; Proctor v. Southern Ry. Co., 61 S. C. 170, 
39 S. E. 351; Appleby v. Southern Ry. Co., 60 
S. C. 48, 38 S. E. 240; Sloan v. Seaboard, etc., 
R. Co., 64 S. C. 389, 42 S. E. 197; Young v. 
Western Union Tel. Co.. 65 S. C. 93, 43 S. E. 448. 
Two or more acts of negligence may be alleged 
as contributing to injury in one cause of action. 
Sloan V. Seaboard & R. Ry. Co., 64 S. C. 389, 
42 S. E. 197; Griffin v. Southern Railwav, 65 
S. C. 122, 43 S. E. 445._ Actions for negligence 
and wilful torts may be joined where proper alle- 
gations are made. Proctor v. Southern Railway, 
64 S. C. 491, 42 S. E. 427; Boggero v. Southern 
Railway, 64 S. C. 104, 41 S. E. 819; Bodin v. 
Southern R. Co., 65 S. C. 226, 43 S. E. 665; 
Stembridge v. Southern Railway, 65 S. C. 440, 
442, 43 S. E. 968. 

It is unnecessary to separate allegations as to 
actual and exemplary damages. Machen v. W. 
U. Tel. Co., 63 S. C. 363, 41 S. E. 448; Butler v. 
Same, 62 S. C. 222, 40 S. E. 162. 

Under this Section acts of negligence and acts 
of wilful tort may be commingled in_ one state- 
ment in the complaint, as causing the injury, and 
the adverse party cannot require a separate state- 
ment of such acts of negligence, nor an election 
upon which plaintiff will go to trial. Schumpert 
V. Southern Railway. 65 S. C. 335, 43 S. E. 813, 
95 Am. St. Rep. 802. 

A plaintiff may allege an act as negligence and 
as wilful, and he may allege all facts going to 
make up the historv of his alleged wrongs. Du- 
Pre V. Southern Railway, 66 S. C. 124, 44 S. E- 
580. 

Punitive damages not recoverable in claim and 
delivery. Tittle v. Kennedy, 71 S. C. 1, 50 S. 
E. 544. 

Notice of appeal from refusal to strike allega- 
tions of one cause of action not supersedeas. 
Bonner v. Western Union Tel. Co., 71 S. C. 306, 
51 S. E. 117. 

Election of remedies does not apply in action 
based on complaint stating two separate and dis- 



tinct causes of action. Barfield v. Coker & Co., 
7i S. C. 181, S3 S. E. 170. 

Plaintiff not compellable to elect on which cause 
of action to go to trial. Rountree v. Atlantic 
Coast Line R. R., 73 S. C. 272, 53 S. E. 424. 

See Gwynn v. Citizens Tel. Co., 69 S. C. 443, 

48 S. E. 460, 104 Am. St. Rep. 819, 67 L. R. 
A. Ill; Smith v. Gilreath, 69 S. C. 355, 48 S. E. 
262; Morrow v. Gaffney Mfg. Co., 70 S. C. 245, 

49 S. E. 573. 

"Jumbling" action permitted. Bonner v. West- 
ern Union Tel. Co., 71 S. C. 303, 51 S. E. 117; 
Taber v. S. A. L. Railway, 81 S. C. 317, 62 S. 
E. 311; Lynch v. Spartan Mills, 66 S. C. 16, 44 
S. E. 93; Steedman v. S. C. & G. Ry., 66 S. C. 
542, 45 S. E. 84. Of several grounds of negli- 
gence alleged, proof of one is sufficient. Cain v. 
A. C. L. R. Co., 74 S. C. 89, 54 S. E. 244. 
Jumbling actual and punitive damages. Machen 
V. Telegraph Co., 72 S. C. 261, 51 S. E. 697. 
Two or more acts of wrong causing injury stated 
as separate causes of action in same complaint. 
Barfield v. Coker, 73 S. C. 188, S3 S. E. 170. 
Verdict sustained where supported by proof as to 
either cause of action. Compensatory damages re- 
coverable for unintentional trespass. Wood v. 
Pacolet Mfg. Co., 80 S. C. 49, 61 S. E.. 95. For 
review of cases and construction of this section, 
see Machen v. Telegraph Co., 72 S. C. 261, 51 S. 
E. 697. 

Cause of action for trespass for illegally dis- 
training for rent and one for excessive distress 
may be jumbled in one cause of action and so 
tried. Jones v. McCreery Land, etc., Co., 82 S. 
C. 456, 64 S. E. 225. 

In action ex delicto by passenger against car- 
rier, pleader may jumble together in one cause 
of action several acts of negligence, whether they 
all occurred in this State or not. Taber v. Sea- 
board Air Line Railway, 81 S. C. 317, 62 S. E- 
311. 

This act gives plaintiff right to allege in her 
complaint acts of negligence at common law as 
well as those arising under statute. Cooper v.. 
Charleston, etc., R. Co., 65 8. C. 214, 218, 43 
S. E. 682. 

Plaintiff is not required to allege amount of 
punitive damages claimed. Stembridge v. South- 
ern Railway, 65 S. C. 440, 43 S. E. 968. 

Nonsuit cannot be granted unless there is 
failure of testimony to sustain all acts of wrong 
set out in cause of action. Griffin v. Southern 
Railway, 65 S. C. 122, 126, 43 S. E. 445. 

Order requiring plaintiff to separate all acts of 
negligence and other wrongs stated in one cause 
of action so as to allege what acts are charged 
as negligent and what as wanton, etc., is appeal- 
able. Bolin V. Southern R. Co., 65 S. C. 222, 
43 S. E. 665. 



§§ 217-218] OP SOUTH CAROLINA. 83 

§ 217. Answer in Actions to Recover Property Distrained for Dam- 
age.- — In action to recover the possession of property distrained doing damage, 
an answer that the defendant, or person by whose command he acted, was law- 
fully possessed of the real property upon which the distress was made, and that 
the property distrained was at the time doing damage thereon, shall be good, 
without setting forth the title to such real property. 

1870, XIV, § 189. 

§ 218. What Causes of Action May Be Joined. — The plaintiff may 
unite, in the same complaint, several causes of action, whether they be such as 
have been heretofore denominated legal or equitable, or both, where they all 
arise out of : 

1. The same transaction, or transactions connected with the same subject of 
action ; or, 

2. Contract, express or implied ; or, 

3. Injuries with or without force, to person and property, or either; or, 

4. Injuries to character; or, 

5. Claims to recover real property, with or without damages for the with- 
holding thereof, and the rents and profits of the same;^^ or, 

6. Claims to recover personal property, with or without damages for the 
withholding thereof ; or, 

7. Claims against a trustee, by virtue of a contract, or by operation of law. 
But the causes of action, so united, must all belong to one of these classes, 

and, except in actions for the foreclosure of mortgages, must affect all the 
parties to the action, and not require different places of trial, and must be sep- 
arately stated. In actions to foreclose mortgages, the Court shall have power 
to adjudge and direct the payment by the mortgagor of any residue of the mort- 
gage debt that may remain unsatisfied after a sale of the mortgaged premises, 
in cases in which the mortgagor shall be personally liable for the debt secured 
by such mortgage ; and if the mortgage debt be secured by the covenant or 
obligation of any person other than the mortgagor, the plaintiff may make such 
person a party to the action, and the Court may adjudge payment of the residue 
of such debt remaining unsatisfied after a sale of the mortgaged premises against 
such other person, and may enforce such judgment as in other cases. 
1870, XIV, § 190. 

Rendering Judgment and Order SaeE at Same Time — Judgment to Be 
Credited. — The Court shall also have the power to render judgment against the 
parties liable for the payment of the debt secured by the mortgage and to direct 
at the same time the sale of the mortgaged premises. The said judgment so 
rendered may be entered and docketed in the Clerk's office in the same manner 
as other judgments. Upon sale of the mortgaged premises, the officer making 
the sale under the order of the Court shall credit upon the judgment so rendered 
for the debt the amount or amounts pa^ to the plaintiff from the proceeds of 
the sale. 

1870, XIV, § 190; 1894, XXI, 816, § 2. 

Parties in Action egr Strict Foreceosure and SaeE. — But it shall not be 
necessary to make the personal representative of a deceased mortgagor a party 
to any foreclosure proceeding; nor in any foreclosure proceeding (if the mort- 
gagor be dead) shall it be necessary to first establish the debt by the judgment 
of some Court of competent jurisdiction in order to obtain a decree of fore- 
closure and sale; nor shall it be necessary to make the mortgagor who may have 

11. Chamberlain v. Mcnsing, 51 Fed. 511. 



84 



CODE OF CIVIL PROCEDURE 



219 



conveyed the mortgaged premises a party to any action for foreclosure where 
no judgment for any deficiency is demanded.^^ 

1900, XXIII, 349. 

§ 219. Allegation Not Denied — When to Be Deemed True. — Every 
material allegation of the complaint, not controverted by the answer, as pre- 
scribed in Section 199, and every material allegation of new matter in the an- 
swer, constituting a counterclaim, not controverted by the reply, as prescribed 
in Section 203, shall, for the purposes of the action, be taken as true. But the 
allegation of new matter in the answer, not relating to a counterclaim, or of new 
matter in a reply, is to be deemed controverted by the adverse party as upon a 
direct denial or avoidance, as the case may require. ^^ 

1870, XIV, § 191. 



12. Ei-skine v. Markham, 84 S. C. 267, 269, 66 
S. E. 286; Jenkins v. Atlantic Coast Line R. Co., 
84 S. C. 343, 356, 66 S. E. 409. 

There is a limit to this union of causes of ac- 
tion. Hellaras v. Switzer, 24 S. C. 39. To be a 
cause of action the matter must be stated in a 
separate and distinct division of the complaint, in 
such manner that each division alone might be 
the subject of an independent action. lb.; Ham- 
mond v.^ R. R., IS S. C. 10. Such failure to so 
state each cause of action separately is a vice in 
pleading, but only to be remedied by motion to 
make more definite and certain. Hellams v^ 
Switzer, 24 S. C. 39. 

Action against administrators, their sureties and 
personal representatives, for account _ and settle- 
ment of the estate of intestate, which made a 
party defendant, who was alleged to claim _ the 
land of the intestate, was held to be multifarious 
as to that party. Suber v. Allen, 13 S. C. 317. 

A bill seeking settlement of all matters growing 
out of an estate is not multifarious. Tucker v. 
Tucker, 13 S. C. 318. There is no misjoinder 
-where, under a bill to marshal assets, two of the 
■defendants claim different tracts of land. Barret 
IK Watts, 13 S. C. 441. Nor where a single ac- 
tion is brought upon a note and account against 
a corporation and its directors, who are jointly 
and severallv liable therefor. Sullivan v. Sulli- 
van, 14 S. C. 494. 

Survivor and representative of surviving part- 
ner can be joined as defendants. Wiesenfield v. 
Byrd, 17 S. C. 106. Causes of action on single 
bill, promissory note and money account may be 
joined. Cureton v. Stokes, 20 S. C. 582. 

Two or more demands for relief is not a mis- 
joinder. Emory v. Hazard Co., 22 _S. C. 476. 

Action for partition among remaindermen and 
for account of estate of life tenant is a mis- 
joinder. Shanks V. Mills, 25 S. C. 358. 

A joint trespass by two and continued by one 
cannot be sued together. Himes v. Jarrett. 7,6 
S. C. 480, 2 S. E. 393. 

Joint action by four wards against their guard- 
ian is not multifarious. Stallings v. Barrett, 26 
S. C. 474, 2 S. E. 483. 

Claim of heirs to land descended, and as dis- 
tributees, to an accounting, cannot be joined. 
Rush V. Warren, 26 S. C. 72, 1 S. E. 363, But 
complaint being dismissed as to land, it was prop- 
erly retained as to accounting. lb. 

Demtirrer for misjoinder is bad if one cause is 
imperfectly pleaded. Machine Co. z>. Wray, 28 
S. C, 86. 5 S. E. 603. _ 

Plaintiff may join suit on note, with claim to 
set aside fraudulent transactions of his debtor, 
and failing in last may have judgment for his 
■debt. Magruder v. Clayton, 29 S. C. 407, 7 S. 
E. 844. 

As to judgment for balance due after sale of 
-mortgaged premises. Wagener v. Swygert, 30 S. 
■C. 296. 9 S. E. 107. 

Dovibted whether two causes of action, one for 
partition_ and the other for recovery of real estate, 
■can be ioined. Westlake v. Farrow. 34 S. C. 270, 
13 S._ E. 469. 

Action for specific performance of contract to 
devise or for value of services rendered under 
such contract is not an improper joinder of ac- 
tions. Scoggins V. Smith, 31 S. C. 605, 9 S. 
E. 971. 

Action of partner against devisee of copartner 



in possession of the land alleging that it was part- 
nership property and demanding reconve3'ance or 
sale and division of proceeds did not improperly 
join several causes of action. Jones v. Smith, 31 
S. C. 527, 10 S. E. 340. 

Plaintiff may join in same complaint an action 
against an association for illegally receiving his 
money, with an action against a bank for illegally 
paying it out. Both causes of action arising out 
of the same transaction. Pollock v. Building & 
Ivoan Ass'n, 48 S. C. 65, 25 S. E. 977. 

Where several causes of action are separately 
stated in the same complaint, plaintiff cannot be 
required to elect which shall be first tried, or 
that they be separately tried. Ross v. Jones, 47 
S. C. 211, 25 S. E. 60. 

An action for damages from a tort and for an 
injunction against the continuance of the tort, 
peeking two different modes of relief, states but 
one cause of action. Threatt v. Mining Co., 49 
vS. C. 95, 26 S. E. 983. So also a complaint for 
dower against more than one defendant in pos- 
session of different tracts of land aliened by the 
husband in one tract, states but one cause of 
action. Bostick v. Barnes, 59 S. C. 22, 37 S. E. 
24. After Act of 1900, an order requiring per- 
sonal representative of mortgagor inade a party 
defendant was properly vacated. Peeples v. 
Mims, 64 S. C. 226, 42 S. E. 155; Glenn v. 
Gerald, 64 S. C. 236, 42 S. E. 156. VVhere no 
judgment for deficiency is sought against per- 
sonal representative suit for foreclosure may be 
brought within year. Green v. McCarter, 64 S. 
C. 290, 42 S. E. 159. Mortgagor having con- 
veyed, not necessary party. Greenwood L,oan 
and Guarantee Assn. i'. Williams, 71 S. C. 424, 
51 S. E. 272. 

13. Material allegations in a special proceeding 
not controverted by answer are taken to be true. 
Columbia Co. v. Columbia, 4 S. C. 388. 

Allegations of complaint not controverted are 
to be taken as true. L,upo v. True, 16 S. C. 579. 
The only effect of an answer that is not respon- 
sive to the complaint is that the complaint so far 
stands admitted. Zimmerman v. Amaker, 10 S. 
C. 98. 

New matters stated in reply are deemed to be 
controverted. Gravely z'. Gravely, 20 S. C. 93. 
So are new matters stated in answer. Hubbell v. 
Courtney, 5 S. C. 85; Geiger v. Kaigler, 15 S. 
C. 262; Simpson v. Ins. Co., 59 S. C. 195, 37 S. 
E. 18; Bank v. Gadsden, 56 S. C. 313, 33 S. E. 
575. But that of counterclaim is not deemed con- 
troverted without reply. Hubbell v. Courtney, 
5 S. C. 87. 

An answer setting up defenses, other than 
counterclaim, not set aside on demurrer is left 
still as controverting the complaint by direct de- 
nial or avoidance. Mobley v. Cureton, 6 S. C. 
49. Answer admitting complaint, but stating suffi- 
cient new matter in avoidance, is deemed to be 
controverted, and is good. Hughey v. Kellar, 34 
S. C. 268, 13 S. E. 475. 

An allegation of his corporate existence is no 
part of plaintiff's cause of action, and is not 
put in issue by general denial. Insurance Co. v. 
Turner, 8 S. C. Ill; Steamship Co. v. Rodgers, 
21 S. C. 33; Palmetto Co. v. Risley, 25 S. C. 309; 
American Co. z: Hill, 27 S. C. 164, 3 S. E. 82; 
Rembert :■. Railroad, 31 S. C. 309, 9 S. E. 968: 
Land Co. z: Williams, 35 S. C. 367, 14 S. E. 821. 

Failure to deny is such admission of plaintiff's 



§§ 220-223] OF SOUTH CAROLINA. 85 

CHAPTER VI. 
Mistakes in Pleadings and Amendments.^ 

Sec. Sec. 

320. Material variances. 225. Court may give relief in case of 

221. Immaterial variances. mistake. 

222. What not to be deemed a variance. 226. Suing party by fictitious name. 

223. Amendments of course, and after 227. No error or defect to be regarded 

demurrer. unless it affect substantial rights. 

224. Amendments by the Court. 228. Supplemental complaint, answer, 

and reply. 

§ 220. Material Variances. — No variance between the allegation in a 
pleading and the proof shall be deemed material unless it have actually misled 
the adverse party, to his prejudice, in maintaining his action or defense, upon 
the merits. Whenever it shall be alleged that a party has been so misled, that 
fact shall be proved to the satisfaction of the Court, and in what respect We has 
been misled ; and thereupon the Court may order the pleading to be amended, 
upon such terms as shall be just.^ 

1870, XIV, § 192. 

§ 221. Immaterial Variances. — Where the variance is not material, as 
provided in the last Section, the Court may direct the fact to be found accord- 
ing to the evidence, or may order an immediate amendment without costs.-" 

1870, XIV, § 193. 

§ 222. What Not to Be Deemed a Variance. — Where, however, the al- 
legation of the causes of action or defense to which the proof is directed is not 
proved, not in some particular or particulars only, but in its entire scope and 
meaning, it shall not be deemed a case of variance within the last two Sections, 
but a failure of proof.^ 

1870, XIV, § 194. 

§ 223. Amendments of Course, and after Demurrer. — Any pleading 
may be once amended by the party of course, without costs, and without preju- 
dice to the proceedings already had, at any time within twenty days after it is 
served, or at any time before the period for answering it expires ; or it can be 
so amended at any time within twenty days after the service of the answer or 
demurrer to such pleading, unless it be made to appear to the Court that it was 
done for the purpose of delay, and the plaintiff or defendant will thereby lose 
the benefit of a circuit or term for which the cause is or may be docketed; and 
if it appear to the Court that such amendment was made for such purpose, the 
same may be stricken out, and such terms imposed as to the Court may seem 

case as to allow defendant to open and reply. account stated, although no allegation of account 

Addison v. Duncan, 35 S. C. .165, 14 S. E. 305. stated was made. Sloan v. Westfield, 17 S. C. 

New matter in answer deemed denied. Frasier 589. 

z'. Charleston & Western Carolina Railroad, 73 Amendment during trial to conform to proof 

S. C. 143, 52 S. E. 964. _ allowed. Adams v. Railroad Co., 68 S. C. 410, 

That a witness testified to an allegation in an 47 S. E- 693. 

answer did not have effect of admitting it, and Amendment hereunder is proper if variation be- 

was properly sent to the jury. Brooke v. Hill, tween proof and allegations are material. Devlin 

65 S. C. 147, 43 S. E. 390. v. Railway, 79 S. C. 472, 60 S. E. 1123. 

1. The provisions of this Chapter do not seem Construed. Roundtree v. Charleston and West- 

to give a Circuit Judge greater power than that ern Carolina R. Co., 72 S. C. 474, 52 S. E. 231; 

■ which was formerly exercised by the Chancellors Tackson v. Southern Cotton Oil Co., 81 S. C. 

in this State. Coleman v. Heller, 13 S. C. 491. 566, 62 S. E. 854. _ 

3. Sevier v. Southern Railway, 82 S. C. 311, _ 3. In all immaterial variances the Court may 

64 S. E. 390. disregard them and direct a verdict according to 

This Section applies to trials in actions pend- the evidence or order immediate amendment, 

ing when the Code was adopted. Ahrens v. Bank, Ahrens v. Bank, 3 S. C. 401. 

3 S. C. 401. Nonsuit cannot be granted for vari- Such amendment is to conform the pleadings 

ance between the allegations and the proof; the to the facts proven, and may be made informally, 

only remedy is by amendment upon such terms sometimes orally, or by the Court of its own mo- 

as shall be just, and for this the party must satisfv tion. Chichester v. Hastie, 9 S. C. 330. 

the Court, by affidavit, that he has been misled. Construed. Roundtree v. Charleston and West- 

and in what respect. lb.; State v. Scheper, 33 ern Carolina R. Co., 72 S. C. 474, 52 S. E. 231. 

S. C. 562, 11 S. E- 623. Unless the party preju- 4. This failure of proof warrants a nonsuit, 

diced has actually been misled, he has ro rights Ahrens v. Bank, 3 S. C. 401. 

under this Section. Hammond v. R. R. Co., 6 S. Construed. Roundtree v. Charleston and West- 

C. 130; Mew v. C. &- S. Ry. Co., ^ 55 S. C. 90, ern Carolina' R. Co., 72 S. C. 474, 52 S. E. 231. 
32 S. E. 829. Judgment may be rendered on 



86 



CODE OF CIVIL PROCBDURB 



[§ 224 



just. In such case a copy of the amended pleading must be served on the ad- 
verse party. After the decision of a demurrer, the Court shall, unless it appear 
that the demurrer was interposed in bad faith, or for purposes of delay, allow 
the party to plead over upon such terms as may be just. If the demurrer be 
allowed for the cause mentioned in the fifth subdivision of Section 194, the Court 
may, in its discretion, and upon such terms as may be just, order the action to 
be divided into as many actions as may be necessary to the proper determination 
of the causes of action therein mentioned.^ 
1870, XIV, § 195. 

§ 224. Amendments by the Court. — The Court may, before or after 
judgment, in furtherance of justice, and on such terms as may be proper, amend 
any pleading, process, or proceeding, by adding or striking out the name of any 
party ; or by correcting a mistake in the name of a party, or a mistake in any 
other respect ; or by inserting other allegations material to the case ; or, when 
the amendment does not change substantially the claim or defense, by conform- 
ing the pleading or proceeding to the facts proved.*^ 

1870, XIV, § 196. 



.5. The allowance of voluntary amendment, it 
seems, does not allow a wholly different cause of 
action to be substituted in place of original one. 
SuUivan V. Sullivan, 24 S. C. 474. 

Facts occurring since commencement of action 
cannot be alleged as amendments in the original 
complaint; they can only be brought before the 
Court by supplemental complaint. McCaslan v. 
Latimer, 17 S. C. 123. 

Permission to answer over cannot be claimed 
as a right; it rests in the discretion of the 
Judge, and he may grant such relief upon pay- 
ment of costs. R. R. Co. V. White, 14 S. C. 51; 
Lowry V. Jackson, 27 S. C. 318, 3 S. E. 473. 
Or without payment of costs. Stallings v. Bar- 
rett, 26 S. C. 474, 2 S. E. 483. 

When Judge properly overruled demurrer 
m.ade for several causes, and required defendant 
to answer over by a given time, he acted within 
authority herein conferred. Cureton v. Stokes, 
20 S. C. 582. When demurrer is taken in good 
faith, the court in overruling it should allow de- 
fendant to answer. The New Co. v. Wray, 28 
S. C. 86, 5 S. E. 603. The plaintiff's right to 
amend as of course may be waived by motioii for 
leave to amend; the granting of which is discre- 
tionary. Hamilton v. Carrington, 41 S. C. 385, 
19 S. E. 616. 

See, also, Simms v. Ry. Co., 56 S. C. 30, 33 
S. E. 746. 

Applied in Williams v. Newton, 82 S. C. 227, 
64 S. E. 219. 

Leave to amend properly granted. Kentucky 
Refining Co. v. Saluda Oil Mill Co., 70 S. C. 94, 
48 S. E. 987. 

The limitation of right to amend applies only 
during or after trial; not to amendments of course, 
before trial. McDaniel v. Monroe Bros., 63 S. C. 
307, 41 S. E. 456. 

Amendment as of course. Knight, Yancey & 
Co. V. ^tna Cotton Mills, 80 S. C. 215, 61 S. 
E. 396. 

O. The power of amendment herein is limited 
to the amendm.ents of the character specified; it 
is intended only to perfect a proceeding in which 
the party has been successful, and not when he 
has lost his cause; and not to be used as a 
means to obtain a new trial on a new cause after 
the case has been lost on the original cause of 
action. Kennerty v. Etiwan Co., 21 S. C. 226; 
Whaley v. Stevens. 21 S. C. 221; Hall v. Wood- 
ward, 30 S. C. 564, 9 S. E. 684; Clayton v. Mit- 
chell, 31 S. C. 199, 9 S. E. 814. This limitation, 
however, applies only during or after trial. Ma- 
son V. Johnson, 13 S. C. 21; Cleveland v. Cohrs, 
13 S. C. 397; Trumbo v. Finley, 18 S. C. 316; 
Dunsford v. Brown, 19 S. C. 567; Nesbitt v. 
Cavender, 27 S. C. 1, 2 S. E. 702: Hall v. Wood- 
ward, 30 S. C. 564, 9 S. E. 684; Edwards v. 
Railroad Co., 32 S. C. 117, 10 S. E. 822; Lilly 
V. Railroad Co., 32 S. C. 142, 10 S. E. 932; 
Kennedy v. Hill, 79 S. C. 272, 60 S. E. 689; 
Taylor v. A. C. L. R. Co., 81 S. C. 574, 62 S. 
E. 1113; German- American Ins. Co. v. Southern 



Railway, 82 S. C. 1, 62 S. E. 1115; Chamberlain 
V. Mensing, 51 Fed. 511. 

But judgment will not be arrested because of 
defects in complaint which might have been cured 
by amendments before or after judgment. Brick- 
man V. R. R. Co., 8 S. C. 173. 

A petition to enforce mechanic's lien is sub- 
ject to the liberal rules of amendment under this 
Code. McGee v. Piedmont Co., 7 S. C. 263. A 
proceeding in mandamus in name of party, to 
which no objection is made, may be amended by 
substituting name of State. Runion v. Latimer, 
6 S. C. 126. 

Such a motion to amend is within the discre- 
tion of the Court. Chichester v. Hastie, 9 S. C. 
334. So motion for_ leave to amend answer to 
plead Statute of Limitations. Seegers v. Mc- 
Creery, 41 _ S. C. 548, 19 S. E. 696. And such 
discretion is not to be disturbed unless it de- 
prives a party of substantial right. Trumbo v. 
Finley, 18 S. C. 305; Stallings v. Barrett, 26 S. 
C. 474, 2 S. E. 483; Green v. Iredell, 31 S. C. 
588, 10 S. E. 545; Garlington v. Copeland, 32 S. 
C. 57, 10 S. E. 616. And Circuit Judge has power 
at chambers to grant an order permitting an 
amendment of the complaint. Ellen v. Ellen, 26 
S. C. 99, 1 S. E. 413. 

In actions against two, as copartners, the proof 
showing neither copartnership nor joint liability, 
and motion for nonsuit being made, the plaintiff 
was properly allowed to amend, striking out 
name of one defendant and proceeding against 
the other. Bull v. Lambson, 5 S. C. 288. 

Application to amend before trial, made in 
good faith, should be allowed, where the amend- 
ment is such as the Code permits. Zimmerman 
V. Amaker, 10 S. C. 98. 

It is proper, upon the admitted fact of the 
lunacy of the defendant, to allow amendment mak- 
ing guardian ad litem party. Boyce v. Lake, 
17 S. C. 481. 

It is error, at the trial, to permit the name of 
sole plaintiff to be stricken out and another sub- 
stituted without giving defendant time to an- 
swer. Cleveland v. Cohrs, 13 S. C. 397; Cole- 
man V. Heller, 13 S. C. 491. But if time to 
answer is not asked, the Court may, in its dis- 
cretion, proceed to trial upon the amended com- 
plaint. Tarrant v. Gittelson, 16 S. C. 231. 

Refusal to allow substitution of a new party, 
for a plaintiff, who shows no cause of action, 
is not error. Strickland v. Bridges, 21 S. C. 21. 

The Court may correct by amendment mani- 
fest errors and mere clerical mistakes. Carroll 
V. Tompkins, 14 S. C. 223: Heyward v. Williams, 
48 S. C. 564, 26 S. E. 797. 

Where complaint alleged quantum meruit for 
work done, it was permissible to allow amend- 
ment, showing special contract, in order to al- 
low proof of it. Tarrant v. Gittelson, 16 S. C. 
231. 

Or where the complaint is for assault, it may 
be amended =o as to be for assault and battery. 
Sullivan v. Sullivan, 24 S. C. 474. 

Plaintiff may be permitted to amend the com- 



225 



OF SOUTH CAROLINA. 



87 



§ 225. Court May Give Relief in Case of Mistake.— The Court may 
likewise, in its discretion, and upon such terms as may be just, allow an answer 
or reply to be made, or other act to be done, after the time limited by this Code 
of Procedure, or, by an order, enlarge such time; and may also, in its discretion, 
and upon such terms as may be just, at any time within one year after notice 



plaint so as to conform it to the facts proved. 
R. R. Co. V. Barrett, 12 S. C. 173. 

But he cannot be permitted to amend by stat- 
ing a wholly different and new cause of action, 
when his complaint is held to state no cause of 
action. Trumbo v. Finley, 18 S. C. 30S; Sulli- 
van V. Sullivan, 24 S. C. 474; Coker v. Mona- 
ghan Mills, 119 Fed. 706. 

Nor to change substantially the claim. Whaley 
V. Stevens, 21 S. C. 221. As to substitute a 
claim of right of way appurtenant for a right 
of way in gross. lb. Or a claim of cancella- 
tion of an instrument instead of .reformation 
thereof. Kennerty v. Ftiwan Co., 21 S. C 226'. 
Or to change an action for accounting into a 
direct attack upon the settlement and receipt, set 
up in defense thereto. Dunsford v. Brown, 19 
S. C. 560. Or to make a case at law to recover 
mortgaged land a case in equity to redeem it. 
Skinner v. Hodge, 24 S. C. 165. Or to change 
action to enjoin judgment as paid into one for 
specific performance of contract. Miller v. Klugh, 
29 S. C. 124, 7 S. E. 67. But in action on sealed 
notes against a firm, calling them promissory notes, 
an amendment alleging indebtedness on the ac- 
count for which the notes were given does not 
substantially change the claim and shotild be 
allowed. Sibley v. Young, 26 S. C. 415, 2 S. E. 
314. Where the amendment is refused on_ legal 
grounds, the action of the Court will be reviewed. 
lb.; Madden v. Watts, 59 S. C. 81, 37 S. E. 209. 

So amendment is allowed to allege sealed note 
instead of promissory note. Moore v. Christian, 
31 S. C. 338, 9 S. E. 981. 

Wide as is the latitude allowed by this Section, 
an order to amend cannot be granted where its 
effect would be to incorporate into one action two 
distinct actions against different parties. Howard 
V. Wofford, 16 S. C. 148. 

An amendment to ariswer setting up a separate 
defense, when case is called for trial, allowed 
where the facts alleged in amendment are nearly 
identical with the facts set out in the original 
answer, and plaintiff asked no delay on account 
of such amendment. Richardson v. Wallace, 39 
S. C. 223, 17 S. E. 725. 

In action for partition where defendant plead 
a general denial, and claimed title in himself, an 
amendment allowing him also to plead that plain- 
tiff was estopped to claim title did not materially 
change the defense. Woodward v. Williamson, 
39 S. C. 336, 17 S. E. 778. 

Can a petition for prohibition be changed by 
amendment so as to ask for an injunction. Hun- 
ter V. Moore, 39 S. C. 396, 17 S. E. 797. 

Where an action was brought under the statute 
against a railroad for damages from fire, the plain- 
tiff will not, after an action for common law neg- 
ligence has been barred, be allowed to amend 
the complaint so as to strike out the allegations 
referring to the statute and allege an action at 
common law. Mayo v. Spartanburg, etc., R. Co., 
43 S. C. 225, 21 S. E. 10. 

It is within the discretion of the Court to al- 
low an amendment to a complaint converting it 
from an action _ against a copartnership to one 
aeainst the individual members thereof. Baker v. 
Hornik, 51 S. C. 313, 28 S. E. 941. 

An amendment to conform to the facts proved 
is within the discretion of the Judge. Interstate 

B. & L. Ass'n V. Waters. 50 S. C. 459. 27 S. E. 
948: Booth v. Eangley Mfg. Co., 51 S. C. 412, 
29 S. E. 204. 

Error to allow amendment during trial after 
plaintiff had rested, and the defendant has moved 
for a nonsuit so as to convert . admissions into 
denials in the answer. Cuthbert v. Brown, 49 S. 

C. 513, 27 S. E. 485. But amendments may be 
allowed to complete a defectively stated cause of 
action. Brown v. C. M. Ry. Co., 58 S. C. 
466, 36 S. E. 852; Ruberg v. Brown. 50 
S. C. 397, 27 S. E. 873. Or to change 
the alleged date of the transaction in ques- 
tion where the other partv is not misled 
thereby. Dent v. S. B. R., 61 S. C. 329, 39 S. 



E. 527. A complaint in foreclosure may be 
amended after the testimony is in so as to allege 
a cause of action for the purchase money of the 
land only. Whitmire v. Boyd, 53 S. C. 315, 31 
S. E. 307. So an amendment inay be allowed 
after the close of argument. Mew v. C. & S. 
Ry. Co., 55 S. C. 90, 32 S. E. 831. Or after 
demurrer is overruled. Bomar v. Means, 47 S. 
C. 190, 25 S. E. 60. And also after case is 
remanded from Supreme Court. lb.; Jennings v. 
Parr, 54 S. C. 109, 32 S. E. 73; Lawton v. S. 

B. R. Co., 61 S. C. 548, 39 S. E. 752. But when 
a litigant waits until after he has been success- 
ful in his appeal his motion to amend comes too 
late. Cothran v. Knight, 47 S. C. 243, 25 S. E. 
142. After judgment answer cannot be amended 
to change admissions into denials. Martin v. 
Fowler, 51 S. C. 164, 28 S. E. 314. Amendment 
changing defense not allowed. Pickett v. Fidelity 
and Casualty Co., 60 S. C. 477, 38 S. E. 160. 
Apiendment not to set up usury after testimony 
had been taken and reported. 

Section permits striking out of names of two 
parties for whose benefit the action was instituted, 
as it did not involve the merits. McDaniel v. 
A. C. E. Railroad, 76 S. C. 18, 56 S. E. 543. 

What amendments to pleadings allowed here- 
under. Knight V. Cotton Mills, 80 S. C. 213, 61 
S. E. 396. 

Amendments permitted by this Section stated. 
Smith V. Railway Co., 80 S. C. 1, 61 S. E. 205. 

Amendment of complaint after new trial granted 
on appeal. Taylor v. A. C. L,. R. Co., 81 S. C. 
574, 62 S. E. 1113. 

Cited. Peterman v. Pope, 74 S. C. 297, 54 
S. E. 569. 

Plaintiff may amend by striking out and insert- 
ing. Pickett V. Southern Railway, Carolina Di- 
vision,_ 74 S. C. 243, 54 S. E. 375. 

Motion to amend should have been granted. 
Adams y. Railroad Co., 68 S. C. 409, 47 S. E. 693. 
Limitation of right to amend applies to amend- 
ments asked for during or after trial which might 
prejudice by surprise. Standard Machine Co. v. 
Ale.xander, 68 S. C. 508, 47 S. E. 711. Com- 
plaint whenever stating cause of action may be 
amended. Kitchen v. Ry. Co., 68 S. C. 567, 48 
S. E. 4, 1 Am. & Eng. Ann. Cas. 747. Amend- 
ment properly allowed. Morrow v. Gaffney Mfg. 
Co., 70 S. C. 245, 49 S. E. 573. 

Amendment sustained. Sutton v. Catawba 
Power Co., 70 S. C. 270, 49 S. E. 863. 

Amendment proper. Batson v. Paris Mountain 
Water Co., 73 S. C. 368, 379, 53 S. E. 500. 

Amendments as to parties. Peeples v. Mims, 64 
S. C. 226, 42 S. E. 155; Glenn v. Gerald, 64 S. 

C. 236. 42 S. E. 155; ?Iellams v. Prior, 64 S. C. 
543. 43 S. E. 25. 

What amendments should be made. Kennedy 
V. Hill, 79 S. C. 272, 60 S. E. 689. 

Master to whom case has been referred to take 
testimony, cannot allow amendment as to parties. 
Dixon V. Roessler, 76 S. C. 415, 57 S. E. 203. 
Leave to amend. Smith v. Southern Railway, 80 
S. C. 4. 61 S. E. 205. 

Amendment making additional party allowed. 
Cousar v. Heath, Witherspoon & Co., 80 S. C. 
470, 61 S. E. 973. _ 

Amendment permitted after sustaining demur- 
rer. Kentucky Refining Co. v. Saluda Oil Co., 
70 S. C. 89, 48 S. E. 987. 

Amendment _ permitted after other amendment 
to make pleadings consistent. Webb v. A. C. L. 
R. Co.. 76 S. C. 193, 56 S. E- 954. 11 Am. & 
Eng. Ann. Cas. 834, 9 L. R. A., N. S., 1218n. 

Amendment to conform to proof refused after 
nonsuit. Clio Gin Co. v. Western Union Tel. 
Co., 82 S. C. 405, 64 S. E. 426. 

Refusal of amendment oleading statute of limi- 
tfltions sustained. De Hihns v. Free, 70 S. C. 
344. 49 S. E. 841. 

Motion to amend is addressed to discretion of 
Court. Clerks' Union v. Knights of Columbus, 
70 S. C. 550, 50 S. E. 206. 

Amendment to conform to proof allowed. Fairy 



CODE OP CIVIL PROCEDURE 



§ 225 



thereof, relieve a party from a judgment, order, or other proceeding, taken 
against him through his mistake, inadvertence, surprise, or excusable neglect, 
and may supply an omission in any proceeding; and whenever any proceeding 
taken by a party fails to conform in any respect to the provisions of this Code 
of Procedure, the Court may, in like manner, and upon like terms, permit an 
amendment of such proceeding, so as to make it conformable thereto^ 
1870, XIV, § 197. 



T. Kennedy, 68 S. C. 250, 47 S. E. 138; Adams 
V. Railroad Co., 68 S. C. 410, 47 S. E. 693. 

Restriction against changing cause of action 
applies only to amendments asked during or after 
trial. Standard Sewing Mach. Co. v. Alex- 
ander, 68 S. C. 506, 47 S. E. 711. See, also, 
Kennedy v. Hill, 79 S. C. 270, 60 S. E. 689. 

Refusal to allow amendment at trial does not 
prejudice right to ask it before next trial. Hutch- 
mgs V. Mills Mfg. Co., 68 S. C. 512, 47 S. E- 
710. 

Leave to answer over refused, the case being 
well under reference. Kiddell v. Bristow, 67 S. 
C. 175, 45 S. E. 174. 

Amended to cure misnomer of defendant. Sen- 
tell V. Railway Co., 67 S. C. 231, 45 S. E. 155. 

Defendant relieved from default judgment. 
Morrow v. Gaffney Mfg. Co., 70 S. C. 245, 49 
S. E. 573. 

Amendment allowed striking out two of the 
names of parties for whose benefit the action is 
brought does not involve the merits. McDaniel 
V. A. C. L. R. Co., 76 S. C. 15, 56 S. E. 543. 

Amendment allowed adding additional act of 
negligence and increasing claim for damages. 
Pickett V. Railway Co., 74 S. C. 236, 54 S. E. 
375. 

Answer amended to plead nonpayment of costs. 
Peterman v. Pope, 74 S. C. 296, 54 S. E. 569. 

Discretion in allowing amendment not ordina- 
rily disturbed. Smith v. Ry. Co., 80 S. C. 1, 
61 S. E. 205. 

Limitations governing amendments. Knight, 
Yancey & Co. v. .Etna Cotton Mills, 80 S. C. 215, 
61 S. E. 396. 

Amendment as to a material matter of detail 
properly allowed. Jackson v. Southern Cotton Oil 
Co., 81 S. C. 566, 62 S. E. 854. 

When a new cause of action may be intro- 
duced bv amendment. Taylor v. A. C. L. R. Co., 
81 S. C. 574, 62 S. E. 1113. 

Amendment changing allegations as to _ inter- 
ests of parties and making additional parties in 
action for partition, allowed. Buist v. Williams, 
83 S. C. 321, 65 S. E. 343. 

Amendment allowed as to how train was being 
moved. Sevier v. Southern Railway, 82 S. ' C. 
312, 64 S. E. 390. 

Complaint may be amended on motion by al- 
leging additional act of negligence and increas- 
ing amount of damages. Pickett v. Southern 
Railway, 74 S. C. 236, 54 S. E. 375. 

Here it was not permissible to amend complaint 
stating cause of action under common law for 
damages from communicated fires so as to make 
it cause of action under statute. Brown v. Sea- 
board Air Line Railway, 83 S. C. 557, 65 S. E- 
1102. 

In action for loss of baggage, answer of gen- 
eral denial cannot be amended after evidence is 
in, by setting up defense of warehouseman. Hei- 
den 7'. Atlantic Coast Line Railroad, 84 S. C. 
117, 65 S. E. 987. 

After case remanded for new trial, amendment 
of answer by changing defense of denial of bona 
fides of a deed to denial of execution permitted 
where hardship or surprise not shown. Cole v. 
Ward, 85 S. C. 259, 67 S. E. 295. 

Amendment as to excessive speed of train per- 
mitted during argument, where case developed on 
theory that speed of train was act of negligence. 
Shelton V. Southern Railwav, 86 S. C. 98, 67 S. 
E. 899. 

In suit against "county commissioners" on 
county bonds, complaint may be amended at trial 
so as to be a suit against county by its corporate 
name. Commissioners v. Bank, 97 U. S. 374, 24 
L. Ed. 1060. 

In suit on bonds, where verdict included in- 
stallments maturing up to time of verdict, com- 
plaint may be amended to conform to verdict. 



although judgment was not asked for installments 
payable after commencement of suit. Post v. 
Wise Township, 101 Fed. 204. 

Complaint may be amended during trial so 
as to strike out allegations relating to minority 
of plaintiff and appointment of guardian, if minor 
has arrived at majority. Seigler v. Southern Ry., 
85 S. C. 345. 

"Plaintiff cannot introduce by amendment facts 
occurring subsequent to commencement of action." 
Northrop v. Trust & Deposit Co., 119 Fed. 969, 
971. 

7. A belief as to the effect of a consent decree 
is not such a mistake as will relieve one under 
this Section. Alma Lumber Co. v. Beecham, 47 S. 
C. 393, 25 S. E. 285. A refusal to allow time to 
answer not an abuse of discretion. McDaniel v. 
Addison, 53 S. C. 222, 31 S. E. 226. Where the 
rule of Court fixes the time within which an 
Act is to be done, a party cannot plead as sur- 
prise that he did not know what time was limited. 
Brown v. Easterling, 59 S. C. 472, 38 S. E. 119. 

After time to answer has expired, the Judge 
may impose as a condition of leave to answer the 
payment of all costs accrued. Hecht v. Freisleben,. 
28 S. C. 181, 5 S. E. 475. 

A decree will not be reversed for defects purely 
technical, which might have, upon objection, been 
cured by amendment. Lanier v. Griffin, 11 S. 
C. 565. 

Such relief is only to be given in cases where 
the judgment has been taken through party's own 
mistake, inadvertence, surprise or excusable neg- 
lect, and does not apply to cases where relief 
may be had upon application to same tribunal 
which rendered judgment under General Statutes. 
Garvin v. Garvin, 13 S. C. 160. 

It is intended for parties who may, through 
such cause, have lost the opportunity to be pres- 
ent at the trial or to be represented there; and 
not for parties who, represented at the trial, are 
only entitled to relief b}"- application for new trial 
under the provisions of the law therefor. Wil- 
liams V. Charleston, 7 S. C. 71 ; Gibbes v. Elliott, 
8 S. C. 60; Steele v. Railroad, 14 S. C. 324; 
Hand v. R. R. Co., 17 S. C. 219; Clark v. Wim- 
berly, 24 S. C. 138; Kaminsky v. Railroad Co., 
25 S. C. 53; Hubbard v. Camperdown Mills, 26 
S. C. 581, 2 S. E. 576; Woodward v. Elliott, 27 
S. C. 368, 3 S. E. 477. 

And extends to cases of such mistake or ex- 
cusable neglect on the part of the party's attor- 
ney. Vaughn v. Hewitt, 17 S. C. 442. 

One Circuit Judge may allow absent party to 
file security for costs after the time to do so, 
fixed by another has expired. McMillan v. Mc- 
Call, 2 S. C. 393; Williams i'. Connor, 14 'S. C. 
621. 

Upon application for such relief by defendant, 
upon grounds of failure to answer because of ill- 
ness, refused by the Judge, it must be assumed 
that the Judge's order was the result of his con- 
clusion as to the weight of evidence and not to 
be disturbed by the Supreme Court. Buttz v. 
Campbell, 15 S. C. 614. 

This Section authorizes Judge to vacate judg- 
ment by default. Buttz v. Campbell, 15 S. C. 
614; Truett v. Rains, 17 S. C. 453; Leconte v. 
Irwin, 19 S. C. 554. 

This limitation of one year is the only limita- 
tion in the State to time for motion to set aside 
judgment. Tliew z>. Porcelain Co., 5 S. C. 415; 
Ex parte Carroll, 17 S. C. 446. There is no 
other limitation as to the time within which a 
motion to vacate or set aside a judgment may be 
made, than that provided in this Section. Allen 
V. Allen, 48 S. C. 566, ,26 S. E. 786. 

Such relief against a judgment must be sought 
within the one year after notice thereof. Vaughn 
V. Hewitt, 17 S. C. 442. 

Where plaintiff's attorney failed to attend the 



§§ 226-227 ] 



OF SOUTH CAROLIXA. 



89 



§ 226. Suing Party by Fictitious Name. — When the plamtiff shall be 
ignorant of the name of the defendant, such defendant may be designated in 
any pleading or proceeding by any name ; and when his true name shall be dis- 
covered, the pleading or proceeding may be amended accordingly. 

1870, XIV, § 198. 

§ 227. No Error or Defect to Be Regarded unless It Affect Substan- 
tial Rights. — The Court shall, in every stage of action, disregard any error or 
defect in the pleadings or proceedings, which shall not affect the substantial 
rights of the adverse party; and no judgment shall be reversed or affected by 
reason of such error or defect.^ 

1870, XIV, § 199. 



trial because he was detained in Court in his 
own county, and judgment was obtained against 
him, he was not entitled to relief against this 
judgment under this Section. Claussen v. John- 
son, 32 S. C. 86, 11 S. E. 209. 

Nor can party find such relief from a judg- 
ment by default when he entrusted a friend to 
hand the copy summons to an attorney, with di- 
rections to plead payment, but the friend failed 
to do so. Sullivan v. Susong, 36 S. C. 287, IS 
•S. E. ZT7. 

The Court can correct any mistake or clerical 
error in its own process to make it conform to 
the record. Carroll v. Tompkins, 14 S. C. 223. 
But it has no authority to make such alteration 
as would contradict the record and change the 
whole scope of the judgment. Trimmier v. Thom- 
son, 19 S. C. 247. Nor to amend decree ren- 
dered in term time after adjournment of Court. 
Garlington v. Copeland, 32 S. C. 57, 10 S. E- 616. 

This Section does not relate to Courts of Mag- 
istrates. Doty V. Duvall, 19 S. C. 143. 

Does it apply to Supreme Court? Clark v. 
Wimberly, 24 S. C. 138. 

It does not apply to extension of time for filing 
security for costs. Bomar v. Railroad Co., 30 
S. C. 450, 9 S. E. 512; Cummings v. Wingo, 31 
S. C. 427, 10 S. E. 107. 

What is surprise? Martin v. Fowler, 51 S. C. 
164, 28 S. E. 312. The sufficiency of the evi- 
dence as to surprise is for the Judge. Ex parte 
Rountree; Michalson v. Rountree, 51 S. C. 405, 
29 S. E. 66. This is an exclusive remedy, tak- 
ing the place of a bill for rehearing or review. 
Carolina Nat. Bank v. Homestead B. & L. Ass'n, 
56 S. C. 12, 33 S. E. 781; Odom v. Burch, 52 
S. C. 305, 29 S. E. 726. The discretion of the 
Judge will not be reviewed on appeal, except 
in case of abuse. lb.; Washington v. Hesse, 56 
S. C. 28, 33 S. E. 787; 

Defendant properly relieved from default judg- 
ment. When complaint not verified proposed 
answer need not be. Farmers, etc., Mfg. Co. v. 
Smith, 70 S. C. 166, 49 S. E. 226. 

Court m.ay excuse default in attempted service 
by mail. Cannady w.- Martin, 72 S. C. 132, 51 S. 
E. 549. 

No notice rStiuired' of motion to extend time 
to answer a demur. Fishburne v. Minott, 72 S. 
C. 570, 52 S. E. 648. 

Order extending time to answer not appeal- 
able, no abuse of discretion being shown. Bell 
V. Western Union Tel. Co., 73 S. C. 211, S3 S. E- 
177. 

Motions hereunder considered. Vander Veen v. 
Wheeler, 76 S. C. 179, 56 S. E. 679. 

Motions for leave to answer are addressed to 
Court's discretion unless there is an abuse of 
discretion or error of law. McSween v. Wind- 
ham, 77 S. C. 226, 57 S. E. 847. 

A Circuit Judge has no powers at chambers 
to set aside a judgment on the ground of sur- 
prise or excusable neglect hereunder. Sarrat v. 
Mfg. Co., 77 S. C. 90, 57 S. E. 616. _ 

Circuit Coiirt has power to permit filing of 
exceptions to referee's report after ten days from 
notice of filing. Odom v. Newton, 81 S. C. 75, 
61 S. E. 1071. 

Relief on ground of mistake, inadvertence, etc., 
may be granted by any Judge in his discretion, 
as to any judgment. Dunton v. Harper, 64 S. C 
343, 42 S. K. 154. The remedy where default 
judgment goes beyond the relief demanded is by 



appeal. McMahon v. Pugh, 62 S. C. 509, 40 S. 
E. 961. 

Court may permit exceptions to Master's report 
filed after expiration of ten days from filing re- 
port. Brown v. Rogers, 71 S. C. 512, 51 S. E. 
257; Odom v. Newton, 81 S. C. 76, 61 S. E- 1071. 

Application by executor for leave to answer 
refused. Parks v. McDaniel, 75 S. C. 7, 54 S. E. 
801, 117 Am. St. Rep. 878. 

Does not apply when attorney had knowledge 
of order; exceptions. Dixon v. Floyd, 73 S. C. 
202, 53 S. E. 167. 

Further leave to answer given after default 
to answer on conditions named by other Judge. 
Kylor ■;■. Hiller, 72 S. C. 434, 52 S. E. 120. 

Time to ansXver may be enlarged on ex parte 
application. Fishburne v. Minott, 72 S. C. 570, 
52 S. E. , 648. 

Error in construction of stipulation allowing 
time to answer. McSween v. Windham, 77 S. 
C. 223, 57 S.^ E. 847. 

Limitation in Sec. 195 does not apply where 
party has no notice of the action. Jones v. Haile 
Gold Min. Co., 79 S. C. SO, 60 S. E. 35. 

Construed. In re Permelia Bugg, 71 S. C. 439, 
444, 51_ S. E. 263. 

Opening judgment in partition to allow rights 
of grantee of cotenant to be determined. Ex 
parte Union Mfg. and Power Co., 81 S. C. 265, 
62 S. E. 259, 128 Am. St. Rep. 908. 

Has no application to a judgment of forfeiture 
on recognizance where defendant was represented 
by attorney and only ground for relief is that 
attorney failed to make defense. United States 
V. Wallace, 46 Fed. 569. 

Neglect in failure to answer accused. Turner 
V. Bolton. 82 S. C. 502_. 

Error to set aside judgment where moving 
party was represented and defended action, on 
ground that judgment relied on in case and re- 
ceived without objection was afterwards set aside 
by Court as fraudulent. Peeples v. Ulmer, 64 S. 
C. 496, 42 S. E. 429. 

Where answer is not filed within the required 
time because motion to make complaint more def- 
inite and certain remains undisposed, default 
judgment may be set aside on terms. Bryce v. 
Southern Ry. Co., 129 Fed. 966. 

Circuit Judge during trial may grant motion 
to have order appointing guardian ad litem signed 
by clerk nunc pro tunc. Seigler v. Southern Ry., 
85 S. C. 345, 67 S. E. 296. 

That notice of motion did not state grounds 
on which Court would be asked to vacate judg- 
ment will not be entertained here, unless record 
shows point was made on Circuit. Mortgage 
Co. f._ Strait, 84 S. C. 141, 65 S. E. 1038. 

Equitable relief after expiration of time herein 
given. Pelzer Mfg. Co. v. Hamburg Ins. Co., 
71 Fed. 826. 

8. If party wishes to take advantage of any 
irregularity in the pleadings he must move in due 
time before trial for such order as he deserves. 
Blakely v. Fraser. 11 S. C. 122. 

Judgment may be rendered on account stated, al- 
though no allegation of account stated was made. 
Sloan z: Westfield, 17 S. C. 589. 

This Section precludes the allowance of a non- 
suit on the ground of informality alone. Bowden 
V. Winsmith, 11 S. C. 409. 

A failure of plaintiff to allege his readiness to 
perform his part of the contract did not affect the 
substantial rights of the defendant and was prop- 



90 



CODE OF CIVIL PROCBDURB 



[§ 228 



§ 228. Supplemental Complaint, Answer, and Reply. — The plaintiff 
and defendant, respectively, may be allowed, on motion, to make a supplemental 
complaint, answer, or reply, alleging facts material to the case occurring after 
the former complaint, answer, or reply, or of which the party was ignorant when 
his former pleading was made, and either party may, by leave of the Court, in 
any pending or future action, set up by a supplemental pleading the judgment or 
decree of any Court of competent jurisdiction rendered since the commence- 
ment of such action, determining the matters in controversy in said action, or 
any part thereof; and if said judgment be set up by the plaintiff, the same shall 
be without "prejudice to any provisional remedy theretofore issued, or other 
proceedings had in said action on his behalf. ^ 

1870, XIV, § 200. 



TITLE VII. 

OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. 



Chapter I. Arrest and Bail, 90. 

Chapter II. Claim and Delivery of Personal Property, 96. 

Chapter III. Injunction, 98. 

Chapter IV. Attachment, 102. 

Chapter V. Provisional Remedies, 111. 



CHAPTER I. 

Arrest and Bail. 



Sec. 
239. No person to be arrested in civil 
action, except as prescribed. 

230. Arrest in civil actions in what cases. 

231. Order for arrest — By whom to be 

made. 



Sec 

232. Affidavit to obtain order for arrest. 

233. Security by plaintiff before obtain- 

ing order for arrest. 

234. Order for arrest — When it may be 

made, and its form. 



erly disregarded by the Circuit Judge. Railroad 
Co. V. Garland, 14 S. C 63. 

Failure to insert in endorsement on complaint 
for judgment the words "have judgment" was 
mere clerical error not affecting the substance, 
and should be disregarded in the supplementary 
proceedings thereon, which is but a stage of the 
original action. Henlien v. Graham, 32 S. C. 303, 
10 S. E. 1012. 

A party cannot under this Section be relieved 
of consequences of failure to comply with order 
for security for costs within the time. Bomar v. 
Railroad Co., 30 S. C. 450, 9 S. E. 512; Cum- 
mings V. Wingo, 31 S. C. 427, 10 S. E. 107. 

Immaterial defects in allegation to the qualifica- 
tion of executors. Jerkowski v. Marco, 56 S. C. 
241, 34 S. E. 389. Effect given material facts, not 
in the pleadings, but brought out in the evidence, 
without objection. Matthews v. Cantey, 48 S. C. 
588, 26 S. K. 894; Commissioners v. Bank of Com- 
merce, 97 U. S. 374. 

9. The Court may examine into the merits of 
the proposed supplemental defense, or _ other mat- 
ter, and exercise its discretion in passing on mo- 
tion. Copeland v. Copeland, 60 S. C. 135, 38 S. 
E. 269. 

Facts occurring after commencement of action 
can only be brought before the Court by supple- 
mental pleadings and not by amendment of origi- 
nal pleadings. McCaslan zk Eatimer, 17 S. C. 123. 

But plaintiff cannot in action to recover real es- 
tate set up a legal title acquired after action 
brought. Moore v. Johnson, 14 S. C. 434. 



Such ihotion to make supplemental pleadings 
may be made at chambers. Edwards v. Edwards, 
14 S. C. 11. 

But the opposite party should have notice of 
such motion. lb.; Parnell v. Maner, 16 S. C. 
348. Four days' notice required. Avery v. Wilson, 
47 S. C. 78,' 25 S. E. 286. 

Where submission was agreed ""to and plaintiff 
opposed the award, the defendant had the right 
to plead it by supplemental answer. McCrady v. 
Jones, 36 S. C 136, IS S. E. 430. 

A bill in equity prior to 1870 must be revived 
and amended bv such supplemental complaint and 
summons. Arthur v. Allen, 22 S. C. 432. 

The extinguishment of plaintiff's interest during 
the pendency of the action should be brought to 
the Court's attention by supplemental pleading. 
Matthews v. Cantey, 48 S. C. 588, 26 S. E. 894. 

Delay in setting up supplemental answer. 
Sparks V. Green, 69 S. C. 225, 48 S. E- .61. 

Pleading accord and satisfaction. Wieters v. 
Gideon, 7S S. C. 458, 57 S. E. 193. 

The Court must exercise its discretion in _ al- 
lowing or refusing a supplemental pleading. 
Bernard v. Bernard, 79 S. C. 364, 60 S. E. 700, 
128 Am. St. Rep. 852. 

Motion for leave to file supplemental complaint 
held premature. Knight v. Union Mfg. Co., 81 
S. C. 539, 62 S. E. 789; Northrop v. Mercantile 
Trust, etc., Co., 119 Fed. 969. 

Recitals in supplemental complaint and notice. 
Lumber Co. v. Eumber Co., 84 S. C. 511. 



§§ 229-230 



OF SOUTH CAROLINA. 



91 



Sec. 

246. Justification of bail. 

247. Allowance of bail. 

248. Deposit in lieu of bail. 

249. Payment of deposit into Court. 

250. Substituting bail for deposit. 

251. Deposit — How disposed of after 

judgment in the action. 

252. Sheriff— When liable as bail. 

253. Proceedings on judgment against 

Sheriff. 
354. Bail liable to Sheriff. 

255. Vacating order of arrest or reduc- 

ing bail. 

256. Affidavits on motion to vacate or- 

der of arrest or reduce bail. 



Sec. 

335. Original affidavit and order deliv- 
ered to Sheriff, and copy to de- 
fendant. 

236. Arrest — How made. 

337. Defendant to be discharged on giv- 

ing bail or making a deposit. 

338. Bail — How given. 

339. Surrender of defendant. 

240. Same. 

241. Bail — How proceeded against. 

342. Bail — How exonerated. 

343. Delivery of undertaking of bail to 

plaintiff, and its acceptance or 
rejection by him. 

344. Notice of justification — New bail. 

345. Qualification of bail. 

§ 229. No Person to Be Arrested in Civil Action, Except as Pre- 
scribed. — No person shall be arrested in a civil action, except as prescribed by 
this Code of Procedure; but the same shall not apply to proceedings for con- 
tempt.i 

1870, XIV, § 201. 

§ 230. Arrest in Civil Actions in What Cases. — The defendant may be 
arrested, as hereinafter prescribed, in the following cases : 

1. In an action for money received, or property embezzled or fraudulently 
misapplied, by a public officer, or by an attorney, solicitor, or counsellor, or by 
an officer or agent of a corporation or banking association, in the course of his 
employment as such, or by any factor, agent, broker, or other person in a fidu- 
ciary capacity, or for any misconduct or neglect in office, or in a professional 
employment. 2 

2. In an action to recover the possession of personal property fraudulently 
detained, or where the property, or any part thereof, has been fraudulently con- 
cealed, removed, or disposed of, so that it cannot be found or taken by the Sher- 
iff or Constable, and with intent that it should not be so found or taken, or with 
intent to deprive the plaintiff of the benefit thereof.-'^ 

3. When the defendant has been guilty of a fraud in contracting the debt, or 
incurring the obligation for which the action is brought, or in concealing or dis- 
posing of the property for the taking, detention, or conversion of which the 
action is brought, or when the action is brought to recover damages for fraud 
or deceit.'* 

4. When the defendant has removed or disposed of his property, or is about 
to do so, with intent to defraud his creditors. 

But no female shall be arrested in any action. 

5. Whenever a person domiciled in this State, indebted by bond, note, or 
otherwise, is aHDOut to remove or abscond from the limits of this State, and the 
said debt is not yet due, but payable at some future date, it shall and may be 
lawful for the obligee, payee, or holder of said demand, or his assignee, or 
endorsee, as the case may be, upon swearing that such person is indebted to 
him, and that the demand is just and owing, but not yet due, and that the debtor 



1. Writ of ne exeat rapublica abolished. E.v 
parte Messervy, 80 S. C. 287, 61 S. E. 445.^ 

Actions for false imprisonment and malicious 
prosecution distinguished. Barfield v. Coker, 73 
S. C. 182, S3 S. E. 170. 

2. Sutficiency of complaint and affidavits in 
action against agent for moneys collected in a 
fiduciary capacity. National Bank v. Jennings, 
38 S. C. 372, 17 S. E. 16. 

Arrest in action for fraudulent misappropriation 
of property. Martin v. Hutto, 82 S. C. 439, 64 



S. E. 421; Ex parte Hutto, 78 S. C. 560, 60 S. 
E. 34. 

Warrant for arrest should not issue in ad- 
miralty cases in absence of fraud. The Bremena 
V. Card, 38 Fed. 144. 

Conditions precedent must be complied with. 
Martin v. Hodge, 87 S. C. 214; Ex parte Mes- 
servy, 80 S. C. 286. 

3. Bail pending appeal from order of arrest. 
Ex parte Hutto, 78 S. C. 560, 60 S. E. 34. 

4. What are insufficient grounds for arrest un- 
der this subdivision. Davis v. Cardue, 38 S. C. 
471, 17 S. E. 247. 



92 CODE OF CIVIL PROCBDURB [ §§ 231-235 

is about to abscond or remove without the hmits of this State, and that such 
creditor was not aware that the debtor had any intention to remove from the 
State at the time when the original contract was made, or at the time of such 
assignment, or endorsement, as the case may be, to commence an action by is- 
suing a summons and complaint and shall have power to arrest and hold to 
bail in such manner as is now prescribed in this Chapter in cases of debts ac- 
tually due.^ 

6. In an action for the recovery of damages in a cause of action not arising 
out of contract, when the defendant is a nonresident of the State or is about 
to remove therefrom, or when the action is for an injury to person or character, 
or for injury or for wrongfully taking, detaining or converting property.^ 

1870, XIV, § 202. 

§ 231. Order for Arrest — By Whom to Be Made.— An order for the 
arrest of the defendant must be obtained from a Judge, Magistrate, or Clerk of 
the Court, in which or before whom the action is brought. 

1870, XIV, § 303. 

§ 232. Affidavit to Obtain Order for Arrest. — The order may be made 
where it shall appear to the proper officer by the affidavit of the plaintiff, or of 
any other person, that a sufficient cause of action exists, and that the case, from 
the facts stated, is one of those mentioned in Section 230.''' 

1870, XIV, § 204. 

§ 233. Security by Plaintiff before Obtaining Order for Arrest. — Be- 
fore making the order, the Judge or other officer, shall require a written under- 
taking on the part of the plaintiff, with or without sureties, to the effect that, 
if the defendant recover judgment, the plaintiff will pay all costs that may be 
awarded to the defendant, and all damages which he may sustain by reason of 
the arrest, not exceeding the sum, specified in the undertaking, which shall be at 
least one hundred dollars. If the undertaking be executed by the plaintiff, 
without sureties, he shall annex thereto an affidavit that he is a resident and 
householder or freeholder within the State, and worth double the sum specified 
in the undertaking, over all his debts and liabilities.^ 

1870, XIV, § 205. 

§ 234. Order for Arrest— When It May Be Made, and Its Form.— 

The order may be made to accompany the summons, or at any time afterwards 
before judgment. It shall require the Sheriff or Constable of the County where 
the defendant may be found forthwith to arrest him, and hold him to bail in a 
specified sum, and to return the order, at a place and time therein mentioned, 
to the plaintiff or attorney by whom it shall be subscribed or endorsed. 

But said order of arrest shall be of no avail, and shall be vacated or set aside, 
on motion, unless the same is served upon the defendant, as provided by law, 
before the docketing of any judgment in the action; and the defendant shall 
have twenty days, after the service of the order of arrest, in which to answer 
the complaint. 

1870, XIV, § 206. 

§ 235. Original Affidavit and Order Delivered to Sheriff, and Copy 
to Defendant. — The affidavit and order of arrest shall be delivered to the 

5. Arrest in action for damages on account of money, giving receipt therefor, to citizen of this 
frand in selling land without notice of prior sale. State, for timber both felled and dead but standing, 
Davis V. Reynolds, 77 S. C. 225, 57 S. E. 850. and after purchaser has gone upon lands and pre- 

6. Arrest by execution under § 347 is author- pared part of timber for market, he conveys by 
ized by this Section and § 232. Hurst v. Samuels, formal deed same timber to another, without no- 
29 S. C. 476, 7 S. E. 822. tice of first sale, he is subject to arrest in action 

Art. 1, § 24, Const., does not apply to judg- for damages by first purchaser. Davis v. Rey- 

ment for damages for injury from battery and nolds, 77 S. C. 255, 57 S. E. 850. 
mav be enforced against defendant by execution 7. Affidavit held sufficient in National Bank v. 

against his person. Ex parte Berry, 85 S. C. Jennings, 38 S. C. 372. 17 S. E. 16. 
243, 67 S. E. 225, 20 Am. & Eng. Ann. Cas. 1344. Martin v. Hutto, 82 S. C. 439, 64 S. E. 421. 

Where non-resident sells and collects purchase 8. Martin v. Hodge, 87 S. C. 214. 



§§ 236-242] OF SOUTH CAROLINA. 93 

Sheriff or Constable, who, upon arresting the defendant, shall deliver to him a 
copy thereof. 
1870, XIV. § 207. 

§ 236. Arrest— How Made.— The Sheriff or Constable shall execute the 
order by arresting the defendant and keeping him in custody until discharged 
by law, and may call the power of the County to his aid in the execution of the. 
arrest, as in case of process. 

1870, XIV, § 208. 

§ 237. Defendant to Be Discharged on Giving Bail or Making a De- 
posit. — The defendant, at any time before execution, shall be discharged from 
the arrest, either upon giving bail or upon depositing the amount mentioned in the 
order of arrest, as provided in this Chapter, or he may be discharged under the 
provisions of Sections 2702-2718 inclusive, of the first volume of the Code of 
1912.9 

1870, XIV, § 209. 

§ 238. Bail— How Given. ^The defendant may give bail by causing a writ- 
ten undertaking to be executed by two or more sufficient bail, stating their 
places of residence and occupations, to the effect that the defendant shall, at all 
times, render himself amenable to the process of the Court, during the pend- 
ency of the action, and to such as may be issued to enforce the judgment therein ; 
or if he be arrested for the cause mentioned in the second subdivision of Section 
230, by an undertaking to the same effect as that provided by Section 262. ^"^ 

1870, XIV, § 210. 

§ 239. Surrender of Defendant. — At any time before a failaie to comply 
with the undertaking, the bail may surrender the defendant in their exoneration, 
■or he may surrender himself to the Sheriff of the County where he was arrested, 
in the following manner : 

1870, XIV, § 211. 

1. A certified copy of the undertaking of the bail shall be delivered to the 
Sheriff or Constable, who shall, by a certificate in writing, acknowledge the sur- 
render. 

2. Upon the production of a copy of the undertaking and Sheriff's or Con- 
stable's certificate, a Judge or Clerk of the Court may, upon notice to the plain- 
tiff of eight days, with a copy of the certificate, order that the bail be exonerated; 
and on filing the order and papers used on said application, they shall be ex- 
onerated accordingly. But this Section shall not apply to an arrest for cause 
mentioned in subdivision two of Section 230, so as to discharge the bail from 
an undertaking given to the effect provided by Section 262. ^^ 

§ 240. Same. — For the purpose of surrendering the defendant, the bail, at 
any time or place, before they are finally charged, may themselves arrest him, 
or, by a written authority, endorsed on a certified copy of the undertaking, may 
empower any person of suitable age and discretion to do so.^- 

1870, XIV, § 212. 

§ 241. Bail — How Proceeded against. — In case of failure to comply with 
the undertaking, the bail may be proceeded against by action only. 
1870, XIV, § 213. 

§ 242. Bail — How Exonerated. — The bail may be exonerated, either by 
the death of the defendant, or his imprisonment in a State prison, or by his legal 

i>. This Section does not affect Chapter C, of 11. The Bremena v. Card, 38 Fed. 144. 

the General Statutes, and under that Chapter the Supplants Act of 1792, that a scire facias to 

defendant may be discharged under final process. revive a judgment must be served upon a nonresi- 

Hurst V. Samuels, 29 S. C. 476, 7 S. E. 822. dent by posting the writ upon the courthouse door 

10. E.v parte Berry, 85 S. C. 243. of the county where the defendant last resided. 

State V. Johnson, 77 S. C. 253, 57 S. E. 846. 
12. The Bremena r. Card, 38 Fed. 144. 



94 CODE OF CIVIL PROCBDURB [ §§ 243-249 

discharge from the obhgation to render himself amenable to the process, or by 
his surrender to the Sheriff or Constable of the County where he was arrested, 
in execution thereof, within twenty days after the commencement of the action 
against the bail, or within such further time as may be granted by the Court. 
1870, XIV, § 214. 

§ 243. Delivery of Undertaking of Bail to Plaintiff, and Its Accept- 
ance or Rejection by Him. — Within the time limited for that purpose, the 
Sheriff or Constable shall deliver the order of arrest to the plaintiff, or attorney 
by whom it is subscribed, with his return endorsed, and a certified copy of the 
undertaking of the bail. The plaintiff, within ten days thereafter, may serve 
upon the Sheriff or Constable a notice that he does not accept the bail, or he 
shall be deemed to have accepted it, and the Sheriff or Constable shall be ex- 
onerated from liability. 

1870, XIV, § 215. 

§ 244. Notice of Justification — New Bail. — On the receipt of such no- 
tice, the Sheriff or Constable, or defendant, may, within ten days thereafter, 
give to the plaintiff or attorney by whom the order of arrest is subscribed, no- 
tice of the justification of the same or other bail (specifying the places of resi- 
dence and occupation of the latter) before a Judge or Clerk of the Court, at a 
specified time and place ; the time to be not less than five nor more than ten 
days thereafter. In case other bail be given, there shall be a new undertaking, 
in the form prescribed in Section 238. 

1870, XIV, § 216. 

§ 245. Qualification of Bail. — The qualification of bail must be as fol- 
lows : 

1. Each of them must be a resident and householder, or freeholder, within 
the State. 

2. They must each be worth the amount specified in the order of arrest, ex- 
clusive of property exempt from execution; but the Judge or Clerk of the Court, 
on justification, may allow more than two bail to justify severally in amounts 
less than that expressed in the order, if the whole justification be equivalent to 
that of two sufficient bail. 

1870, XIV, § 217. 

§ 246. Justification of Bail. — For the purpose of justification, each of the 
bail shall .attend before the Judge or Clerk of the Court at the time and place 
mentioned in the notice, and may be examined, on oath, on the part of the 
plaintiff, touching his sufficiency, in such manner as the Judge or Clerk of the 
Court, in his discretion, may think proper. The examination shall be reduced 
to writing, and subscribed by the bail, if required by the plaintiff. 

1870, XIV, § 218. 

§ 247. Allowance of Bail. — If the Judge or Clerk of the Court find the 
bail sufficient, he shall annex the examination to the undertaking, endorse his 
allowance thereon, and cause them to be filed in the office of the Clerk; and 
the Sheriff shall, thereupon, be exonerated from liability. 

1870, XIV, § 219. 

§ 248. Deposit in Lieu of Bail. — The defendant may, at the time of his 
arrest, instead of giving bail, deposit with the Sheriff or Constable the amount 
mentioned in the order. The Sheriff shall thereupon give the defendant a cer- 
tificate of the deposit, and the defendant shall be discharged out of custody. 

1870, XIV, § 220. 

§ 249. Payment of Deposit into Court. — The Sheriff or Constable shall, 
within four days after the deposit, pay the same into Court, and shall take from 
the officer receiving the same two certificates of such payment, the one of which 



§§ 250-256 ] OF SOUTH CAROLINA. 95 

he shall deliver to the plaintiff, and the other to the defendant. For any default 
in making such payment, the same proceedings may be had on the official bond 
of the Sheriff or Constable, to collect the sum deposited, as in other cases of 
delinquency. 

1870, XIV, § 321. 

§ 250. Substituting Bail for Deposit. — If money be deposited, as pro- 
vided in the last two Sections, bail may be given and justified upon notice, as 
prescribed in Section 244, any time before judgment; and thereupon the Judge, 
before whom the justification is had, shall direct, in the order of allowance, 
that the money deposited be refunded by the Sheriff or Constable to the defend- 
ant, and it shall be refunded accordingly. 
1870, XIV, § 222. 

§ 251. Deposit — How Disposed of after Judgment in the Action. — 

Where money shall have been so deposited, if it remain on deposit at the time of 
an order or judgment for the payment of money to the plaintiff, the Clerk shall, 
under the direction of the Court, apply the same to the satisfaction thereof, and, 
after satisfying the judgment, shall refund the surplus, if any, to the defend- 
ant. If the judgment be in favor of the defendant, the Clerk shall refund to 
him the whole sum deposited and remaining unapplied. 
1870, XIV, § 223. 

§ 252. Sheriff — When Liable as Bail. — If, after being arrested, the de- 
fendant escape or be rescued, or bail be not given or justified, or a deposit be not 
made instead thereof, the Sheriff or Constable shall himself be liable as bail. 
But he may discharge himself from such liability by the giving and justification 
of bail, as provided in Sections 244, 245, 246 and 247, at any time before process 
against the person of the defendant to enforce an order or judgment in the 
action. 

1870, XIV, § 224. 

§ 253. Proceedings on Judgment against Sheriff. — If a judgment be 
recovered against the Sheriff or Constable, upon his liability as bail, and an ex- 
ecution thereon be returned unsatisfied, in whole or in part, the same proceed- 
ings may be had on the official bond of the Sheriff or Constable, to collect the 
deficiency, as in other cases of delinquency. 

1870, XIV, § 225. 

§ 2 54. Bail Liable to Sheriff. — The bail taken upon the arrest shall, unless 
they justify, or other bail be given or justified, be liable to the Sheriff or Con- 
stable by action for damages which he may sustain by reason of such omission. 

1870, XIV, § 226. 

§ 255. Vacating Order of Arrest or Reducing Bail. — A defendant ar- 
rested may, at any time before judgment, apply, on motion, to vacate the order 
of arrest, or to reduce the amount of bail. 

1870, XIV, § 227. 

§ 256. Affidavits on Motion to Vacate Order of Arrest or Reduce 
Bail. — If the motion be made upon affidavits on the part of the defendant, but 
not otherwise, the plaintiff may oppose the same by affidavits, or other proofs, 
in addition to those on which the order of arrest was made. 

1870, XIV, § 228. 



96 CODE OF CIVIL PROCEDURE [ §§ 257-260 

CHAPTER II. 

Claim and Delivery of Personal Property. 

Sec. ' Sec. 

357. Claim and delivery of personal 263. Justification of defendant's sureties, 

property. 264. Qualification and justification of 

258. Affidavit and its requisites. sureties. 

259. Requisition to Sheriff to take and 265. Property — How taken when con- 

deliver property. cealed in building or enclosure. 

260. Security by plaintiff. 266. Property — How kept. 

261. Exception to sureties. 267. Claim of property by third person. 

262. Defendant — When entitled to re-de- 268. Notice and affidavit — When and 

livery. where to be filed. 

§ 257. Claim and Delivery of Personal Property.— The plaintiff, in an 
action to recover the possession of personal property, may, at the time of is- 
suing the summons, or at any time before answer, claim the immediate delivery 
of such property, as provided in this Chapter. ^ 

1870, XIV, § 229. 

§ 258. Affidavit and Its Requisites. — Where a delivery is claimed, an 
affidavit must be made by the plaintiff, or by some one in his behalf, showing: 

1. That the plaintiff is the owner of the property claimed (particularly de- 
scribing it), or is lawfully entitled to the possession thereof, by virtue of a 
special property therein, the facts in respect to which shall be set forth. 

2. That the property is wrongfully detained by the defendant. 

3. The alleged cause of the detention thereof, according to his best knowledge, 
information and belief. 

4. That the same has not been taken for a tax, assessment, or fine, pursuant 
to a Statute ; or seized under an execution or attachment against the property 
of the plaintiff; or, if so seized, that it is, by Statute, exempt from such seizure. 
And, 

5. The actual value of the property. 
1870, XIV, § 230. 

§ 259. Requisition to Sheriff to Take and Deliver Property. — The 

plaintiff may, thereupon, by an indorsement, in writing, upon the affidavit, re- 
quire the Sheriff' of the County where the property claimed may be, to take the 
same from the defendant and deliver it to the plaintiff. ^ 
1870, XIV, § 231. 

§ 260. Security by Plaintiff. — Upon the receipt of the affidavit and no- 
tice, with a written undertaking executed by one or more sufficient sureties, 
approved by the Sheriff, to the effect that they are bound in double the value of 
the property, as stated in the affidavit for the prosecution of the action, for the 
return of the property to the defendant, if return thereof be adjudged, and for 
the payment to him of such sum as may, for any cause, be recovered against 
the plaintiff, the Sheriff shall forthwith take the property described in the affi- 

1. Vance 7'. Vandercook Co., 170 U. S. 473. 547, SO S. E. 206; Cannon v. Dean, 80 S. C. 557, 

Claim and delivery is a civil action, subject to 61 S. E. 1012. 

the same rules as other civil actions. Jones v. When equitable defense may be set up to claim 

Brown, 57 S. C. 14, 35 S. E. 397. and delivery. Sparks v. Green, 69 S. C. 226, 48 

The fact that defendant has not possession does S. E. 61; Cannon v. Dean, 80 S. C. 557, 61 S. 

not prevent recovery of damages for the illegal E. 1012. 

taking of the property. Segars v. Segars, 82 S. In claim and delivery to recover property seized 

C. 196, 63 S. E. 891. under dispensary law. State is not a necessary 

Claim and delivery combines the two actions of • jjarty. Jaro v. Holstein, 73 S. C. Ill, 52 S. E. 

replevin and trover. Reynolds ■;■. Philips, 72 S. 870. 

C. 34, 51 S. E. 523. Action by pledgor against pledgee. Gregg v. 

Punitive damages not allowable. Tittle r. Ken- Bank of Columbia, 72 S. C. 458, 52 S. E. 195, 

nedy, 71 S. C. 1, 50 S. E. 544, 4 Am. & Eng. 110 Am. St. Rep. 633. 

Ann. Cas. 68. Description of the property. Phcenix Furniture 

Claim and delivery is a purely legal action. Co. t'. Taudon, 75 S. C. 229, 55 S. E. 308; Bos- 
Clerks' Union V. Knights of Columbus, 70 S. C. sard ?■. "Vaughn, 68 S. C. 96, 46 S. E. 523. See 

S 321, as amended, in regard to punitive damages. 
2. Bardin i: Drafts, 10 S. C. 493. 



§§261-264] OF SOUTH CAROLINA. _ 97 

davit, if it be in the possession of the defendant or his agent, and retain it in 
his custody. He shall also, without delay, serve on the defendant a copy of 
the affidavit, notice, and undertaking, by delivering the same to him personally, 
if he can be found, or to his agent, from whose possession the property is taken, 
or, if neither can be found, by leaving them at the usual place of abode of 
either, with some person of suitable age and discretion. In case the plaintiff 
does not execute the required undertaking, the party having possession of the 
property shall return the same until the determination of the suit.^ 
1870, XIV, § 332; 1873, XV, 498. 

§ 261. Exception to Sureties. — The defendant may, within three days 
after the service of a copy of the affidavit and undertaking, give notice to the 
Sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he 
shall be deemed to have waived all objections to them. When the defendant 
excepts, the sureties shall justify, on notice, in like manner as upon bail on 
arrest. And ^he Sheriff shall be responsible for the sufficiency of the sureties, 
until the objection to them is either waived, as above provided, or until they shall 
justify, or new sureties shall be substituted and justify. If the defendant ex- 
cept to the sureties, he cannot reclaim the property, as provided in the next Sec- 
tion. 

1870, XIV, § 233. 

§ 262. Defendant — When Entitled to Re-Delivery. — At any time be- 
fore the delivery of the property to the plaintiff, the defendant may, if he do not 
except to the sureties of the plaintiff, require the return thereof, upon giving 
to the Sheriff a written undertaking, executed by two or more sufficient sureties, 
to the effect that they are bound in double the value of the property, as stated 
in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such 
delivery be adjudged, and for the payment to him of such sum as may, for any 
•cause, be recovered against the defendant. If a return of the property be not 
so required within three days after the taking and service of notice to the de- 
fendant, it shall be delivered to the plaintiff, except as provided in Section 267."* 

1870, XIV, § 234. 

§ 263. Justification of Defendant's Sureties. — The defendant's sure- 
ties, upon a notice to the plaintiff of not less than two or more than six days, 
shall justify before a Judge, Clerk of Court, or Magistrate, in the same manner 
as upon bail on arrest. Upon such justification, the Sheriff shall deliver the 
property to the defendant. The Sheriff shall be responsible for the defend- 
ant's svireties until they justify, or until justification is completed or expressly 
waived, and may retain the property until that time; but if they, or others in 
their place, fail to justify at the time and place appointed, he shall deliver the 
property to the plaintiff. 

1870, XIV, § 235. 

§ 264. Qualification and Justification of Sureties. — The qualifications 
of sureties and their justification shall be as are prescribed by Sections 245 and 
246 in respect to bail upon an order of arrest. 

1870, XIV, § 236. 

3. The undertaking on part of plaintiff must Railroad Co., 47 S. C. 324, 25 S. E- 153; Loeb 
be executed by him. Polite v. Bero, 63 S. C. 209, r. Mann, 39 S. C. 465, 18 S. E. 1; Lipscomb z: 
41 S. E. 305. Tanner, 31 S. C. 49, 9 S. E. 733; Brock z: Bolton, 

4. Judgment having been rendered in the ac- 37 S. C. 40, 16 S. E. 370. . 

tion in favor of plaintiff for damages, and not The undertaking on part of the defendant^ here 

for delivery of the property, it was sufficient proo'f required need not be executed by him. Polite v. 

of breach of the bond given by the defendant un- Bero, 63 S. C. 209, 41 S. E. 305. 

der this Section in suit thereon. Thompson -■. Sureties are bound for whatever money judg- 

Joplin, 12 S. C. 580. ment is rendered against principal. Parish z'. 

The words "jf such delivery be adjudged" Smith, 66 S. C. 431, 45 S. E. 16. _ But such lia- 

mean adjudged by any competent authoritv. Elder bility is reduced by what property is delivered to 

■:■. Greene, 34 S. C. 154, 13 S. E. 323. plaintiff under judgment. Parish ■:■. Smith, 66 S. 

As to damages recoverable in claim and de- C. 424, 45 S. E. 16. 

livery. Vance v. Vandercook Co., No. 2, 170 U. Damages. Spears z: Field, 72 S. C. 395, 52 

S., 468, 42 L. Ed. 1111; Miami Power Co. r. S. E. 44. 

2 S C C— 7 



98 CODE OF CIVIL PROCEDURE [ §§ 265-269 

§ 265. Property — How Taken When Concealed in Building or Enclo- 
sure. — If the property, or any part thereof, be concealed in a building or enclo- 
sure, the Sheriff shall publicly demand its delivery. If it be not delivered, he 
shall cause the building or enclosure to be broken open, and take the property 
into his possession; and if necessary, he may call to his aid the power of his 
County. 

1870, XIV, § 237. 

§ 266. Property — How Kept. — When the Sheriff shall have taken prop- 
erty, as in this Chapter provided, he shall keep it in a secure place, and deliver 
it to the party entitled thereto, upon receiving his lawful fees for taking, and 
his necessary expenses for keeping, the same. 

1870, XIV, § 238. 

§ 267. Claim of Property by Third Person. — If the property taken be 
claimed by any other person than the defendant or his agent, and such person 
shall make affidavit of his title thereto, and right to the possession thereof, stat- 
ing the grounds of such right and title, and serve the same upon the Sheriff, 
the Sheriff shall not be bound to keep the property, or deliver it to the plain- 
tiff, unless the plaintiff, on demand of him or his agent, shall indemnify the 
Sheriff against such claim, by an undertaking, executed by two sufficient sure- 
ties, accompanied by their affidavit that they are each worth double the value 
of the property, as specified in the affidavit of the plaintiff, and are freeholders 
and householders within this State. And no claim to such property, by any 
other person than the defendant or his agent, shall be valid against the Sheriff, 
unless made as aforesaid; and, notwithstanding such claim, when so made, he 
may retain the property a reasonable time to demand such indemnity. 

1870, XIV, § 239. 

§ 268. Notice and Affidavit— When and Where to Be Filed.— The 

Sheriff shall file the notice and affidavit, with his proceedings thereon, with the 
Clerk of the Court in which the action is pending, within twenty days after tak- 
ing the property mentioned therein.^ 

1870, XIV, § 240. 



CHAPTER HI. 

Injunction. 



Sec. Sec. 

269. Writ of injunction abolished, and 274. Security upon injunction — Damages. 

order substituted. — How ascertained. 

270. Temporary injunction — In what 275. Order to show cause why injunc- 

cases granted. tion should not be granted. 

271. At what time injunction may be 276. Security upon injunction to suspend' 

granted — Copy of affidavit to be business of corporation. 

served. 277. Motion to vacate or modify injunc- 

272. Injunction after answer. tion. 

273. Regulations for granting injunc- 278. Affidavits on motion. 

tions to stay certain sales. 

§ 269. Writ of Injunction Abolished, and Order Substituted. — An or- 
der of injunction may be made by the Court of Common Pleas in which the 
action is brought, or by a Judge thereof, and in the absence from the circuit, or 
inability from any cause, of a Judge thereof, by a Judge of any other circuit, 

.5. No penalty for failure to comply with this Section. Alexander i'. Jamison, 56 S. C. 409, 34- 
S. K. 695. 



;§ 270-271 ] 



OF SOUTH CAROLINA. 



99 



or a Justice of the Supreme Court. And by any Probate Judges in the cases pro- 
vided in Section 47 of this Code of Procedure. ^ 
1870, XIV, § 341. 

§ 270. Temporary Injunction — In What Cases Granted. — 1. Where 

it shall appear by the complaint that the plaintiff is entitled to the relief de- 
manded, and such relief, or any part thereof, consists in restraining the com- 
mission or continuance of some act, the commission or continuance of which, dur- 
ing the litigation, would produce injury to the plaintiff: or, 2. When, during the 
litigation, it shall appear that the defendant is doing, or threatens, or is about 
to do, or procuring or suft'ering some act to be done, in violation of the plain- 
tiff's rights respecting the subject of the action, and tending to render the judg- 
ment ineft'ectual, a temporary injunction may be granted to restrain such act. 
3. And where, during the pendency of an action, it shall appear by affidavit 
that the defendant threatens or is about to remove or dispose of his property, 
with intent to defraud his creditors, a temporary injunction may be granted to 
restrain such removal or disposition. 2 

1870, XIV, § 242. 

§ 271. At What Time Injunction May Be Granted— Copy of Affida- 
vit to Be Served. — The injunction may be granted at the time of commenc- 
ing the action, or at any time afterwards, before judgment, upon its appear- 
ing satisfactorily to the Court or Judge, by the affidavit of the plaintiff", or to 



1. Injunction against assessment of damages 
bv arbitration. Greenville v. Earle, 80 S. C. 321, 
60 S. E. 1117. 

Against enforcing unconstitutional ordinance. 
Sperry and Hutchison v. Columbia, 82 S. C. 577, 
64 S. E. 752. 

Against trespass should establish accurately the 
line beyond which defendant must not go. Wood 
V. Pacolet Mfg. Co., 80 S. C. 52, 61 S. E. 95. 

Against trespass or nuisance. Bratton v. Ca- 
tawba Power Co., 80 S. C. 260, 60 S. E. 673. 

Injunction against continuous trespass; de- 
fense of estoppel and purchaser for value; equi- 
table issues. Atlantic and Charlotte Air Line Ry. 
V. Victor Mfg. Co., 79 S. C. 266, 60 S. E. 675. _ 

Against commission of crime — statutory nui- 
sance. State V. Riddock, 78 S. C. 286, 58 S. E. 
803. 

Against new county election. Lamar v. Croft, 
73 S. C. 411, 53 S. E. 540. 

Does not apply to action to determine right to 
public office. Sanders v. Belue, 78 S. C. 178, 
58 S. E. 762. 

Against State Board at suit of private citizen. 
Duncan v. State Board of Education, 74 S. C. 
560, 54 S. C. 760. 

Injunction against illegal tax where there is 
no remedy at law. Ware Shoals Mfg. Co. v._ 
Jones. 78 S. C. 211, 58 S. E. 811. 

Against taking of land by city. Kendall v. 
City Counsel, 74 S. C. 539, 54 S. E. 777. 

Taking land or interfering with fence under 
claim of highway. Note 7 L. R. A._ CN. S.), 58. 

Cannot enjoin act alreadv committed. Spencer 
V. Mahon, 75 S. C. 233, 55 S. E. 321; Riley v. 
Greenwood, 72 S. C. 91, 51 S. E. 532, 110 Am. 
St. Rep. 592. 

Injunction against distress for rent refused. 
Evans V. Mayes, 81 S. C. 192, 62 S. E. 207. 
.A.gainst proceedinars for condemnation. C. & W. 
C. R. R. v. Garlington. 74 S. C. 161, 54 S.. E. 
208; Columbia Water Power Co. v. Nunamaker, 
73 S. C. 558, 53 S. E. 996. 

May be granted against criminal prosecutions 
under a statute clearly void, where irreparable 
injury would result to property rights from' its 
enforcement. Cain v. Daly, 74 S. C. 480, 55 S. 
E. 110; Grant r. City Council, 82 S. C. 268, 64 
S. E. 388. 

In aid of suit for alimony. Thomason v. 
Thomason, 73 S. C. 129, 52 S. E. 870. 

Against contintious trespass and waste. Craw- 
ford V. A. C. L. Railroad, 77 S. C. 81, 57 S. E. 
670. See, also, Alderman r. Wilson, 69 S. C. 
156, 48 S. E. 85: Marion County Lumber Co. v. 
Tilghman, 75 S. C. 224, 55 S. E. 337. _ . 

Temporary injunction proper where prima facie 



case is shown. Wilder v. Alderman, 74 S. C. 178, 
53 S. E. 950. 

Where defendant has possession as a tenant he 
cannot be enjoined from cultivating the land, un- 
der allegation that he is a trespasser. Montague 
V. Hood, ^ 78 S. C. 222, 58 S. E. 767. 

Injunction against illegal act of public officers. 
Amerker v. Taylor, 81 S. C. 163, 62 S. E. 7. 

Circuit Judge at chambers has power to grant 
temporary injunction order on e.r parte applica- 
tion. Andrews v. Real Estate Co., 87 S. C. 301. 

2. A perpetual injunction should not be granted 
at chambers. Hornesby v. Burdell, 9 S. C. 303. 
When temporary injunction should not be dis- 
solved on affidavits. Cudd v. Calvert, 54 S. C. 
457, 32 S. E. 503. As to granting injunction 
against continuous trespasses. McClellan v. Tay- 
lor, 54 S. C. 430, 32 S. E. 527; Ragsdale v. R. 
Co., 60 S. C. 381, 38 S. E. 612. 

The sole object of this Section is to preserve the 
subject of controversy in the condition in which 
it is when the order is made until an opportunity 
is afforded for a full and deliberate investigation. 
It cannot be used to take property out of the 
possession of one and put it into that of another. 
Pelzer v. Hughes, 27 S. C. 408, 3 S. E. 781. 
Unless the party acquired the possession in breach 
of the order of injunction. Columbia Water 
Power Co. V. Columbia, 4 S. C. 388. Order for 
temporary injunction may be granted without no- 
tice to the defendant. Watson v. Bank, 5 S. C. 
159. And is not void because an undertaking was 
not required of the plaintiff. lb. 

Restraining orders should not be issued against 
de facto officers in actions to try title to office. 
Bruce v. Rice. 66 S. C. 1, 44 S. E. 80; State v. 
Rice, 67 S. C. 239. 

Where action is solely for injunction, and tem- 
porary injunction is essential to protection of 
legal right, error of law to refuse temporary in- 
junction. Alderman Sons Co. •:■. Wilson, 69 S. C. 
159, 48 S. E. 85. 

A going concern should not be stopped before 
it is determined to be a nuisance. Williams v. 
Jones, 62 S. C. 472, 40 S. E. 881. The issue as 
to existence of nuisance, sought to be enjoined 
should be tried by a jury. Lipscomb r. Littlejohn, 
63 S. C. 38, 40 S. E. 1023. 

Injunction will not lie against an election where 
no property rights are involved and there is an 
adeouate remedv at law. Little v. Barksdale, 81 
S. C. 392, 63 S. E. 308. 

Where damages for the future have been _ re- 
covered injured party cannot claim an injunction. 
Mpson V. Apalache Mills, 81 S. C. 554, 62 S. E. 
399. 



100 . CODE OF CIVIL PROCEDURE [ §§ 272-274 

any other person, that sufficient grounds exist therefor. A copy of the affidavit 
must be served with the injunction.^ 

1870, XIV, § 243. 

§ 272, Injunction after Answer. — An injunction shall not be allowed 
after the defendant shall have answered, unless upon notice or upon an order to 
show cause; but in such case the defendant may be restrained until the decision 
of the Court or Judge granting or refusing the injunction.^ 

1870, XIV, § 244. 

§ 273. Regulations for Granting Injunctions to Stay Certain Sales. 

— An injunction to stay an execution or judicial sale shall not be allowed un- 
less upon notice of at least four days to the adverse party or to his attorney, 
unless the Court or Judge, before whom the application is made, shall prescribe 
a shorter time, nor shall a motion for such an injunction be heard less than 
five days before the time fixed for such sale, unless the Court or Judge, upon 
cause being shown, shall order otherwise. And in all cases the decision of the 
Court or Judge upon such a motion shall be filed with the Clerk of the Court 
for the County before the time fixed for such sale, otherwise the sale shall not 
be stayed: Provided, however, That when an execution or judicial sale is 
stayed by injunction, the time of the existence of such stay shall not be deemed 
or taken to be a part of the tiip,e of the existence of the active energy of such 
execution, or a part of the time of the existence of the lien of any judgment 
or decree, whether such stay be obtained before or after the passage of this 
Section.^ 

1899, XXIII, 43. 

§ 274. Security upon Injunction — Damages — How Ascertained. — 

When no provision is made by Statute as to security upon an injunction, the 
Court or Judge shall require a written undertaking on the part of the plaintiff, 
with or without sureties, to the effect that the plaintiff will pay to the party 
enjoined such damages, not exceeding an amount to be specifiecl, as he may sus- 
tain by reason of the injunction, if the Court shall finally decide that the plain- 
tiff was not entitled thereto. The damages may be ascertained by a reference 
or otherwise, as the Court shall direct.^ 
1870, XIV, 423, § 245. 

3. Upon such application for injunction the dertaking are plain and mandatory, and the Court 
Judge- may consider the merits of the case in or- should require one. Smith v. Smith, 51 S. C. 379, 
der to determine whether it should be granted, 29 S. _E. 227. But the failure to require the \\n- 
and his refusal is not a decision upon the merits. dertaking is not a jurisdictional defect. Watson 
Sease v. Dobson, 34 S. C. 345, 13 S. E. 530. v. Bank, 5 S. C. 177. 

The temporary injunction, except as provided Such damages may be ascertained by a ref- 

in § 273, may be granted on an ex parte appli- erence. Hill v. Thomas, 19 S. C. 230. Counsel 

cation to preserve the status quo. Meinhard v. fee for single act of dissolving injunction is al- 

Youngblood, 37 S. C. 223, IS S. E. 947. Where lowable as part of damages; but a fee for general 

the affidavits are sufficient the complaint need not services in defending case is not. Livingston z\ 

be verified. lb. _ _ Exum, 19 S. C. 223; Hill v. Thomas, 19 S. C. 

Jurisdiction to isue temporary injunction rests 230. Not determined whether costs are a part of 

on status of case at its date and not at time of the damages. Hill v. Thomas, 19 S. C. 230. But 

issuance of rule to show cause and restraining creditor is allowed interest on debt enjoined, as 

order. Circuit Judge has jurisdiction to grant tem- part of his damages. lb. 

porary injunction without notice and before sum- In an action by the owner of land for rests and 

mons is served or lodged, same to be served in profits received by the defendant, the plaintiff 

reasonable time with summons. Jordan v. Wil- is not precluded from recovering by her failure 

son, 59 S. C. 260, 48 S. E. 224. to assert her claim in a previous action to restrain 

Injunction against nuisance. State v. Chicco, 82 her from taking possession of the land. Rabb i\ 
S. C. 122, 63 S. E. 306; State v. Social Club, 82 Patterson, 42 S. C. 528, 20 S. E. 540. 
S. C. 142, 63 S. E. 545; State i'. Columbia Water This Section requires an undertaking that plain- 
Power Co., 82 S. C. 181, 63 S. E. 884, 129 Am. tiff would pay damages, if the Court finally de- 
St. Rep. 876, 17 Am. & Eng. Ann. Gas. 34 3, 22 cides plaintiff not entitled to injunction. Lewis 
L. R. A., N. S., 435n. z: Jones, 65 S. C. 159, 43 S. E. 525. 

4. Andrews ■;■. Real Estate Co., 87 S. C. 306; Undertaking required. Creech v. Long, 72 S. 
Jordan v. Wilson, 6 S. C. 258, 48 S. E. 224. C. 31, 51 S. E. 614; Grant v. Citv Council, 82 

.">. As to effect of injunction on leave to is- S. C. 268, 64 S. E. 388; E.r parte Zeigler, 83 S. 

sue execution. E.v parte Graham, 54 S. C. 163, C. 78, 64 S. E. 513, 916, 21 L. R. A., N. S.. 

32 S. E. 67. lOOSn. In condemnation proceedings. Columbia 

6. The Judge may, in his discretion, dispense Water Power Co. v. Nunamaker, 73 S. C. 550, 

with sureties on the undertaking. Meinhard 7'. 53 S. E. 996. Consequential damages must be 

Strickland, 29 S. C. 491, 7 S. E. 838. The un- shown. Batson v. Water Co., 73 S. C. 378, 53 S. 

dertaking may be filed after the granting of the E. 500. 

injunction. Meinhard v. Youngblood, 37 S. C. Jordan z'. Wilson, 69 S. C. 55. 

231, 16 S. E. 771. The words requiring an un- 



§§ 275-278] OP SOUTH CAROLINA. 101 

§ 275. Order to Show Cause Why Injunction Should Not Be Granted. 

— If the Court or Judge deemed it proper that the defendant, or any of several 
defendants, should be heard before granting the injunction, an order may be 
made, requiring cause to be shown, at a specified time and place, why the in- 
junction should not be granted; and the defendant may, in the meantime, be re- 
strained.' 

1870, XIV, § 246. 

§ 276. Security upon Injunction to Suspend Business of Corpora- 
tion. — An injunction to suspend the general and ordinary business of a corpora- 
tion shall not be granted except by the Court or a Judge thereof. Nor shall it 
be granted without due notice of the application therefor, to the proper officers 
of the corporation, except where the State is a party to the proceeding, and 
except in proceedings to enforce the liability of stockholders in corporations 
and associations for banking purposes, as such proceedings are or shall be pro- 
vided by law% unless the plaintiff shall give a written undertaking, executed by 
two sufficient sureties, to be approved by the Court or Judge, to the effect that 
the plaintiff will pay all damages, not exceeding the sum to be mentioned in the 
undertaking, which such corporation may sustain by reason of the injunction, 
if the Court shall finally decide that the plaintiff was not entitled thereto. The 
damages may be ascertained by a reference or otherwise, as the Court shall 
direct.'^ 

1870, XIV, § 247. 

§ 277. Motion to Vacate or Modify Injunction. — If the injunction be 
granted by the Court, or a Judge thereof, without notice, the defendant at any 
time before the trial, may apply, upon notice to the Court, or a Judge thereof, 
in which the action is brought, to vacate or modify the same. The application 
may be made upon the complaints and the affidavits on which injunction was 
granted, or upon affidavits on the part of the defendant, with or without the 
answer. 9 

1870, XIV, § 248. 

§ 278. Affidavits on Motion. — If the application be made upon affidavits 
on the part of the defendant, but not otherwise, the plaintiff' may oppose the 
same by affidavits or other proofs, in addition to those on which the injunction 
was granted. 1*^ 

1870, XIV, § 249. 

7. Circuit Judge may grant restraining order solved on notice. Northrop v. Simpson, 69 S. C. 

pending return to show cause without requiring 553, "IS S. K. 613. 

undertaking. Creech v. Long, 72 S. C. 31, 51 S. Notice of motion. Bank v. Sprunt, 86 S. C. 10. 

E. 614. _ Where action is brought solely to obtain in- 

.Tordan v. Wilson, 69 S. C. 258, 48 S. E. 224. junction, Court should entertain motion to dis- 

Power to grant temporary injunction at cham- solve a temporary injunction and should consider 

bers on ex parte application. Andrews t'. Real answer and proposed affidavits of defendant in 

Estate Co., 87 S. C. 306. determining whether injunction was reasonably 

S. There is no statute requiring plaintiff to give essential. Kelly t'. Tiner, 86 S. C. 160, 68 S. E- 

bond equal in amount to assets of corporation. 465. 

Andrews v. Real Estate^ Co., 87 S. C. 301. Andrews t. Real Estate Co.. 87 S. C. 306. 

9. Judge cannot review his own order, made 10. A Circuit Judge can dissolve a temporary 

on hearing after notice, granting restraining or- injunction granted by his predecessor until the 

der. Jordan v. Wilson. 69 S. C. 258, 48 S. E. further order of the Court. Bouknight ■:■. Davis, 

224. _ _ 33 S. C. 410, 12 S. E. 96. When it should not 

Temporary injunction granted ex parte, dis- be dissolved. Cudd v. Calvert, 54 S. C. 457, 

32 S. E. 503. 



102 



CODE OF CIVIL PROCEDURE 



§ 279 



CHAPTER IV. 



Attachment. 



Sec. 

279. Property of foreign corporation-s, 
and of non-resident, absconding 
or concealed defendants, may be 
attached. 
380. Attachment — By whom granted. 

281. In what cases attachments may be 

issued — Affidavit to be filed. 

282. Security on obtaining attachment. 

283. Attachment — To whom directed 

and what to require. 

284. Property to be attached. 

285. Sheriff's duties in case of seizure. 

286. As to perishable property seized. 

287. Claim of third persons — Proceed- 

ings on. 

288. As to attachment when debt is not 

due. 

289. As to shares in incorporations, ves- 

sels, etc. 

290. Attachment — How executed on 

property incapable of manual 
delivery. 



Sec. 

291. 

292. 
293. 



294. 



295. 



296. 
297. 



298. 



299. 
300. 
301. 
302. 



Certificate of defendant's interest to 
be furnished. 

Judgment — How satisfied. 

Prosecution of action to recover 
notes, etc., in action in which 
attachment issued. 

Bond to Sheriff on attachment — 
How disposed of on judgment 
for defendant. 

Discharge of property and return 
of property or proceeds on de- 
fendant's appearance. 

Undertaking on part of defendant. 

When Sheriff to return attachment, 
with his proceedings thereon. 

How purchase money past due may 
be attached — Warrant — Issu- 
ance. 

Undertaking — Direction. 

How attachment made. 

Appraisement. 

Trial by jury. 



§ 279. Property of Foreign Corporations, and of Non-Resident, Ab- 
sconding or Concealed Defendants, May Be Attached. — In any action 
arising for the recovery of money, or for the recovery of property, whether real 
or personal, and damages for the wrongful conversion and detention of personal 
property, or an action for the recovery of damages for injury done to either 
person or property, or against a corporation created by or under the laws of any 
other State, government or country, or against a defendant who is not a resi- 
dent of this State, or against the master, captain or agent of any saiHng vessel 
entering any of the ports of this State for pilotage services rendered such ves- 
sel, or against a defendant who has absconded or concealed himself, or when- 
ever any person or corporation is about to remove any of his or its property, from 
this State, or has assigned, disposed of, or secreted, or is about to assign, dis- 
pose of, or secrete, any of his or its property, with intent to defraud creditors, 
as hereinafter mentioned, the plaintiff, at the time of issuing the summons, or 
any time afterwards, may have the property of such defendant or corporation 
attached, in the manner hereinafter prescribed, as a security for the satisfaction 
of such judgment as the plaintiff may recover; and for the purposes of this 
Section an action shall be deemed commenced when the summons is issued : 
Provided, however. That personal service of such summons shall be made or 
publication thereof commenced within thirty days.^ 

1870, XIV, § 250; 1879, XVII, 23; 1897, XXII, 450. 



1. An action commenced by attachment of 
property against a nonresident in which the de- 
fendant is not personally served, and does not ap- 
pear, is a proceeding in rem. Stanley v. Stan- 
ley, 35 S. C. 94, 14 S. E. 675; Gibson v. Everett, 
41 S. C._ 22, 19 S. E. 286. 

The right to attachment in an action on con- 
tract is governed by the lex fori, and not by the 
lex loci contractus. Pegram v. Williams, 4 
Rich. L., 219. A nonresident creditor may pro- 
ceed by attachment on a cause of action arising 
out of this State. Sheldon v. Blanvelt, 29 S. C. 
453, 7 S. E. 593, 1 L. R. A., N. 8., 685., So in 
causes of action between nonresidents arising out 
of the State. Ex parte Perry Stove Co., 43 S. C. 
176, 20 S. E. 980; Gibson v. Everett, 41 S. C. 
23, 19 S. E. 286. Attachment will not be granted 
in an action for slander. Addison v. Suiette, SO 
S. C. 192. 28 S. E. 948; Sarjeant v. Helmbold, 
Harp., 219. It will be granted in an action to 
enforce collection of debt and set aside a fraud- 



ulent conveyance of the debtor's property. Bank 
V. Stelling, 31 S. C. 360, 9 S. E. 1028; Ferst v. 
Powers, 58 S. C. 411, 36 S. E. 749. As to 
grounds of attachment; nonresidence, what is. 
Munroe v. Williams, 37 S. C. 81, 16 S. E. 533, 
19 L. R. A., 665. Removal of property. Sloan 
V. Bangs, 10 Rich., 15. Fraudulent transfer and 
disposition of property. Claussen v. Fultz, 13 S. 
C. 16; Tabb & Jenkins Hardware Co. v. Gelzer, 
43 S. C, 342, 21 S. E. 261 ; Myers v. Whiteheart, 
24 S. C. 196; Wando Phosphate Co. v. Rosenberg, 
31 S. C. 301, 9 S. E. 969; Guckenheimer v. Lib- 
bey, 42 S. C. 162, 19 S. E. 999; Kerchner v. Mc- 
Cormac, 25 S. C. 461; Meinhard v. Youngblood, 
41 S. C. 312, 19 S. E. 675; Grollman v. Lipsitz, 
43 S. C. 329, 21 S. E. 272; Ferst v. Powers, 58 
S. C. 398, 36 S. E. 744; Bray Clothing Co. v. 
Shealev, S3 S. C. 12, 30 S. E. 620; Ex parte 
Chase," 62 S. C. 353, 38 S. E. 718. Effect of 
Bankruptcy Law. Ih. 

Where action fails for want of jurisdiction, at- 



§§ 280-281 ] . OP SOUTH CAROLINA. 103 

§ 280. Attachment — By Whom Granted. — A warrant of attachment must 
be obtained from a Judge, or Clerk of the Court, or Magistrate, in which or 
before whom the action is brought, or from a Circuit Judge. 

1870, XIV, 423, § 251. 

§ 281. In What Cases Attachments May Be Issued — Affidavit to Be 
Filed. — The warrant may be issued whenever it shall appear by affidavit that a 
cause of action exists against such defendant, specifying the amount of the 
claim and the grounds thereof, and that the defendant is either a foreign cor- 
poration or not a resident of this State, or that the defendant is the master, cap- 
tain, or agent of any sailing vessel entering any of the ports of this State, and 
is about to take such vessel out of any port of this State, without paying the 
pilotage fees provided by law, or that the defendant has departed from the 
State with intent to defraud his or its creditors, or to avoid service of a sum- 
mons, or keeps himself concealed therein with the like intent, or that such cor- 
poration or person has removed, or is about to remove, any of his or its prop- 
erty from this State, with intent to defraud his or its creditors, or has assigned, 
disposed of or secreted, or is about to assign, dispose of or secrete, any of his 
or its property with the like intent, whether such defendant be a resident of this 
State or not. It shall be the duty of the plaintiff procuring such warrant, at 
the time of the issuing thereof, to cause the affidavits on which the same was 
granted to be filed in the office of the Clerk of the Court of Common Pleas, 
or with the Magistrate, in which or before whom the action is to be tried, within 
forty-eight hours after the issuance of the attachment. He shall also cause 
copies thereof to be served on the defendant with the summons, if he can be 
found within the County : Provided, hozvever, That in cases where the de- 
fendant is the master, captain or agent of any vessel entering any of the ports 
of this State, it shall only be necessary that the affidavit show that a cause of 
action exists against such defendant for pilotage services, specifying the amount 
of the claim and the grounds thereof, and that the defendant is about to take 
such vessel out of any port of this State, and refuse to pay or has not paid the 
fees provided by law for such pilotage services. ^ 

1870, XIV, 252; 1897, XXII, 451; 1899, XXIII, 31. 

tachment therein falls with it, being a provisional ministrator or executor. Weynian v. Murdock, 

remedy in aid of an action. Central Railroad Co. Harp. 126. 

V. Georgia Constr. Co., 32 S. C. 319, 11 S. E. The adjudication of a member of a firm as a 

192. bankrupt does not affect right of partnership cred- 

The attachment is not void because it bears itor to attach partnership assets. Pelzer Mfg. Co. 

date before the date of the summons; the exist- r. Pitts & Hartzog, 76 S. C. 349, 57 S. E. 29, 11 

ence of the siimmons at date of attachment maybe Am. & Eng. Ann. Cas. 665. 

shown aliunde. Smith v. Walker, 6 S. C. 169. Motion to vacate must specify irregularity. 
Nor void when the summons bears same date as Coker v. Barfield, 73 S. C. 179, 53 S. E. 174. 
attachment but Sheriff's endorsement shows serv- On motion to dissolve attachment on ground 
ice next day. Cureton v. Dargan, 12 S. C. 122. that cause of action in affidavit is not cause of 
The summons is considered issued as soon as it action alleged in complaint, complaint may be con- 
is made out and application for attachment sidered with affidavit, although not verified, nor 
founded on it. lb. made part of affidavit. Fleming v. Byrd, 78 S. 

Attachm.ent against foreign corporation. Wil- C. 20, 58 S. E. 965. 

liamson v. Association, 54 S. C. 582, 32 S. E- 765. Car being used in interstate commerce is not 

The property of a foreign corporation may be subject of attachment. Seibels v. Railway Co., 

attached in an action for unliquidated damages, 80 8. C. 133, 61 S. E. 435, 16 L. R. A., N. S., 

sounding in tort. Chitty v. Pennsylvania R. Co., I026n. Modified in Davis v. C. C. & St. L. R. 

62 S. C. 526, 40 S. E. 944. Co., 217 U. S. 157, 54 L. Ed. 708. 

Our Statute provides not only legal remedies of Warrant of attachment may be issued in action 
attachment and garnishment, but method of actual in equity for accounting against propaity of non- 
seizure, service of writ, etc., quasi ownership, and resident. Agency Co. v. Garlins,:''.'':!!, S£ 3. C. ;]4, 
appropriate suits to subject any kind of property 67 S. E. 225. 

interest equitable as well as legal to the attach- 2. The affidavit need not be made by plaintifif, 

ment. Pelzer Mfg. Co. v. Pitts & Hartzog, 76 S. but may be made by agent or attorney on informa- 

C. 358, 57 S. E. 29, 11 Am. & Eng. Ann. Cas. tion and belief; and the same affidavit may be 

665. used in several cases. Grollman i'. Lipsitz, 43 S. 

Garnishment proceedings in foreign state. Ry- C. 329, 21 S. E. 272; Guckenheimer v. Libbey, 

kard r. S. A. L. Ry., 80 S. C. 52, 61 S. E. 252; 42 S. C. 162, 19 S. E. 999. A verified complaint 

Erwin T. Southern Railway, 71 S. C. 225, 50 S. mav be used as an affidavit. Ferst z'. Powers, 58 

E. 778; Harris v. Balk, 198 U. S. 215, 49 L- Ed. S. C. 398, 36 S. E. 744. But an unverified com- 

1023. plaint cannot help affidavit. Addison v. Sujette, 

Proceedings as to publication of summons be- SO S. C. 192, 28 S. E. 948. 

fore attachment are void. Little v. Christie, 69 Attachment of nonresident against a foreign 

S. C. 57, 48 S. E. 89. corporation is valid to the extent that the cause 

Attachment will not lie against an absent ad- of action arose in this State. Central Railroad Co. 

V. Georgia Co., 32 S. C. 319, 11 S. E. 192. But at- 



104 



CODE OF CIVIL PROCBDURB 



§§ 282-283 



§ 282. Security on Obtaining Attachment. — Before issuing the war- 
rant, the Judge, Clerk, or Magistrate shall require a written undertaking, on 
the part of the plaintiff, with sufficient surety, to the effect that if the defend- 
ant recovered judgment, or the attachment be set aside by order of the Court, 
the plaintiff will pay all costs that may be awarded to the defendant, and all 
damages which he may sustain by reason of the attachment, not exceeding the 
sum specified in the undertaking, which shall be at least two hundred and fifty 
dollars, except in case of a warrant issued by a Magistrate, when it shall be at 
least twenty-five dollars.^ 

1870, XIV, § 253. 

§ 283. Attachment — To Whom Directed and What to Require. — The 

warrant shall be directed to any Sheriff or Constable of any County in which 
property of such defendant may be, and shall require him to attach and safely 
keep all the property of such defendant within his County, or so much thereof 
as may be sufficient to satisfy the plaintiff's demand, together with costs and 
expenses, the amount of which must be stated in conformity with the complaint, 
together with costs and expenses. Several warrants may be issued at the same 
time to the Sheriffs or Constables of different Counties.'^ 
1870, XIV, § 254. 



tachment will not lie in action of resident ad- 
ministrator against nonresident guardian of in- 
fants residing in another State because such action 
cannot be maintained. Stevenson v. Dunlap, 33 S. 
C. 350, 11 S. E. 1017. 

The affidavit is sufficient as to cause of action, 
if it state a cause of action, or if it state facts 
from which, as a legal conclusion, it must be in- 
ferred that it does exist. Monday v. Elmore, 27 
S. C. 126, 3 S. E. 65; Central Railroad Co. t'. 
Georgia Co., 32 S. C. 319, 11 S. E. 192; Roddey 
i: Erwin, 31 S. C. 36, 9 S. E. 729; Bank v. Stel- 
ling, 31 S. C. 360; Ketchin v. L,andecker, 32 S. 
C. 155, 10 S. E. 936. 

Where ground of attachment is such nonresi- 
dence of the defendant, the affidavit is sufficient if 
it state that fact without other facts and circum- 
stances. Smith '■. Walker, 6 S. C. 156; Roddey 
V. Erwin, 31 S. C. 36, 9 S. E. 729. 

But as to all the other grounds, the affidavit 
must positively state the facts; and if upon informa- 
tion, it must also state the sources of information 
and circumstances relied on to show them. Smith 
'•. Walker, 6 S. C. 169; Brown v. Norris, 10 S. 
C. 467; Claussen v. Fultz, 13 S. C. 478; Burch v. 
Brantley, 20 S. C. 506; Ivy v. Caston, 21 S. C. 
588: Myers v. Whiteheart, 24 S. C. 196; Mixson 
V. Holley, 26 S. C. 256, 2 S. E. 385; Monday v. 
Elmore, 27 S. C. 126, 3 S. E. 65; Wando v. 
Rosenberg, 31 S. C. 301, 9 S. E. 969; Roddey v. 
Erwin, 31 S. C. 36, 9 S. E. 729; Sharp v. Palmer, 
31 S. C. 444, 10 S. E. 98. 

Whether copies of the affidavits filed will suf- 
fice. Wagener z-. Booker, 31 S. C. 375, 9 S. E. 
1055. 

Where the affidavits were not, prior to the 
amendment of 1899, XXIII, 30, filed in ten days 
the attachment will be discharged on mo- 
tion. Ketchin v. Landecker, 32 S. C. 155, 
10 S. E. 936. Service of copies on the 
defendant within that time will not suffice. lb. 
And this requirement as to the time within which 
the affidavits must be filed still governs in pro- 
ceedings to enforce agricultural liens. Dotv ''. 
Boyd, 46 S. C. 39, 24 S. E. 59; Townsend ■;•. 
Sparks, 50 S. C. 380. 27 S. E. 801; Blair v. Mor- 
gan, 59 S. C. 52, 37 S. E. 45. But the time within 
which the aff.davits in attachment must now be 
filed has been reduced by that amendment to two 
days. Ferst -■. Powers, 58 S. C. 398, 36 S. E. 744. 

While the affidavit must be signed by the affiant, 
the iurat thereto need ''■ot be signed by the officer 
administering the oath. Doty v. Boyd, supra. 
The affidavit is filed wb"n delivered to the Clerk, 
and by him received to be kept on record. Town- 
send T'. Sparks, supra. The affidavit need not 
state that the property disposed of was not a part 
of the homestead. Grollman 7'. Lipsitz, supra. 

General appearance by defendant covers alleged 



defects in issuing attachment. Savannah Grocery 
Co. V. Rizer, 70 S. C. 508, 50 S. E. 199. 

In motion to vacate an attachment it is com- 
petent for the Court to decide whether the affi- 
davits show that a cause of action exists against 
the defendant. Seibels v. Railway Co., 80 S. C. 
138, 61 S. E. 435, 16' L. R. A., N. S., 1026n. 

Service on foreign corporation. Norris v. Levin. 
81 S. C. 44, 61, S. E. 1103. 

Finding of Circuit Court that defendant is a 
foreign corporation is final. Geo. Norris Co. v. 
Levin's Sons, 81 S. C. 44, 61 S. E. 1103. 

3. This written undertaking required must be 
signed by the plaintiff before the ivarrant is issiced, 
or the attachment based on it will be set aside. 
Bank V. Stelling, 31 S. C. 360, 9 S. E. 1028: 
Wagener t'. ^Booker, 31 S. C. 375, 9 S. _E. 1055.^ 

It must be signed by the plaintiff, or is a nullity. 
Booker v. Smith, 38 S. C. 228, 16 _S. E. 774. And 
by all the plaintiffs. Guckenheimer v. Dryfus. 
43 S. C. 443, 21 S. E. 331. But plaintiffs may 
sign by their agent, a telegram being sufficient au- 
thority. Ferst V. Powers, 58 S. C. 398, 36 S. E. 
748. And one member of a firm can bind the 
firm by signing for the firm without special au- 
thority so to do. Grollman v. Lipsitz, 43 S. C. 
329, 21 S. E. 272. The signature may be either 
in the firm name or the individual names of the 
partners. lb.; Hampton z>. Bogan, 55 S. C. 547. 
33 S. E. 581. The undertaking need not be un- 
der seal. lb.; Ferst v. Powers, 58 S. C. 398, 36 
S. E. 748. 

Undertaking in attachment may be signed b\- 
attorney of record on authority of telegram from 
associate attorney that plaintiff authorized it. 
Furness v. Calhoun, 70 S. C. 537, 50 S. E. 194. 

Filing; endorsement of approval on undertak- 
ing. Watson %'. Paschall, 73 S. C. 422, 53 S. E. 
646. 

Bond intended as additional security to liabilitj- 
of plaintiff, at common law. 2 Brev. 495. 

Action for wrongful attachment. Forrest i'. 
McBee, 72 S. C. 193, 51 S. E. 675. 

4. Debt due defendant bv another is subject 
of attachments. McElvev v. ' S. C. R. R. Co., 6 
S. C. 446; Campbell v. 'ins. Co.. 1 S. C. 158. _ 

The interest of a nonresident partner in 
partnership property cannot be attached for 
partnership debt where one of the partners re- 
sides here and is dulv served. Whitfield v. Hovey. 
30 S. C. 117, 8 S. E. 840. 

Property in hands of receiver cannot _be at- 
tached. Regenstein v. Pearlstein, 30 S. C. 192, 
8 S. E. 850. 

L"»ebts evidenced by bonds and notes can be 
attached. Williamson ?'. Fastern B. & L. Assn., 
54 S. C. 582. 32 S. F. 765. .\s well as books of 
accounts. Rielv ■;•. Middleton. Dud. 21; Waddle 
7'. Cureton. 2 Speer 53; Burrill ?■. Letson, lb. 378. 
While a claim for damages under former attach- 



§§2<S4-285]. OF SOUTH CAROLINA. 105 

§ 284. Property to Be Attached. — The Sheriff or Constable to whom 
such warrant is directed and deHvered shall immediately attach all the real es* 
tate of such debtor, and all his personal estate, including money and bank notes, 
except such real and personal estate as is exempt from attachment, levy, or sale, 
by the Constitution, and shall take into his custody all books of account, vouch- 
ers and papers relating to the property, debts, credits, and effects of such debtor, 
together with all evidences of his title to real estate, Avhich he shall safely keep, 
to be disposed of as hereinafter directed. 

When real estate is attached, a true and attested copy of such attachment, 
together with a description of the real estate attached, shall be, by the officer 
serving the same, delivered to the party whose real estate is attached, or left 
at his last and usual place of abode ; and the officer making such service shall 
also leave a true and attested copy of such attachment, together with a descrip- 
tion of the real estate so attached, in the office where, by law, a deed of such es- 
tate is required to be recorded; and, if the party whose estate is attached does 
not reside in this State, then such copy shall be delivered to his tenant, agent, 
or attorney, if any be known ; and, if no such agent, tenant, or attorney, be 
known, then a copy of such warrant of attachment, with the officer's return 
thereon lodged in the office where, by law a deed of such real estate ought to 
be recorded, shall be deemed sufficient service. It shall be the duty of the Clerk 
or Register of the office wherein said warrant of attachment is required to be 
lodged, to receive the same, and enter in a book kept for that purpose the names 
of the parties, the date of the warrant of attachment, the sum demanded, and 
the officer's return thereon. Said attachment shall be a lien subject to all prior 
liens, and bind the real estate attached from the date of lodgment : Proznded, 
That all attachments lodged upon the same day shall take rank together." 

1870, XIV, § 255. 

§ 285. Sheriff's Duties in Case of Seizure. — He shall, immediately on 
making such seizure, with the assistance of two disinterested freeholders, make 
a just and true inventory of all the property so seized, and of the books, vouch- 
ers, and papers taken into custody, stating therein the estimated value of the 
several articles of personal property, and enumerating such of them as are 
perishable, which inventory, after being signed by the Sheriff and appraisers, 
shall, within ten days after such seizure, be returned to the officer who issued 
the warrant; and the Sheriff or Constable shall, under the direction of such 
officer, collect, receive, and take into his possession, all debts, credits, and effects 
of such debtor, and commence such suits, and take such legal proceedings, either 
in his own name or in the name of such debtor, as may be necessary for that 
purpose, prosecute and discontinue the same at such times, and on such terms, 
as the Court may direct. The property so seized, or the proceeds of such as 
shall have been sold and debts collected, shall be kept to answer any judgment 
which may be obtained in such action.*^ 

1870. XIV, § 256. 

ment act was held not to be the subject of at- legal, may be attached. Mfg. Co. v. Pitts, 76 S. 

tachment. Ih. Alcoholic liquors, kept contrary C. 356, 57 S. E. 29, 11 Am. & Eng. Ann. Cas. 

to law, cannot be attached. Lanahan v. Bailey, 53 665. 

S. C. 489, 31 S. E. 332. Where defendant is a nonresident, the attach- 
Where an attachment is set aside after sale, the ment levied to obtain jurisdiction will be dis- 
proceeds of the sale may be attached for the same solved if the property attached is not his. Grocery 
debt, while in the Sheriff's hands. Roddey v. Er- Co. v. Elevator Co., 72 S. C. 450, 52 S. E. 191, 
win, 31 S. C. 36, 9 S. E. 729. Property levied 110 Am. St. Rep. 627, 5 Am. & Eng. Ann. Cas. 
upon execution may also be attached under proc- 261, 2 L. R. A., N. S., 79n. 

ess against same defendant. Day v. Becher, 1 Mc- 6. An action may be brought by the Sheriff 
Mul. 92. As to moneys received on execution, in on a note seized under this Section, while a mo- 
hands of Sheriff, see Blair v. Cantey, 2 Speer 34. tion to vacate the attachment is pending. The 
5. The affidavits and warrant need not be same defenses may be made as though the action 
served on the defendant in attaching oersonaltv. were brought bv the defendant in attachment. 
Grollman t'. IJpsitz, 43 S. C. 329, 21 S. E. 272. Nichols r. Hill, 42 S. C. 28, 19 S. E. 1017. 

Two attachments levied upon personal property .Attachment of choses in action. Mfg. Co. v. 

ri the debtor at different hours of the same day, Pitts, 76 S. C. 356, 57 S. E. 29, 11 Am. & Eng. 

■tliev rank together as liens. Steffens ■;'. Wan- .Ann. Cas. 665. 
backer, 17 S. C. 475. 

All property interests of debtor, equitable or 



106 CODE OF CIVIL PROCEDURE [ §§ 286-288 

§ 286. As to Perishable Property Seized. — If any of the property so 
seized be perishable, the Sheriff shall sell the same at public auction, under or- 
der of the Court or of a Judge thereof, and shall retain in his hands the proceeds 
of such sale, after deducting his expenses, to be allowed by such Court or Judge, 
which proceeds shall be disposed of in the same manner as the property so sold 
would have been if it had rem,ained unsoldJ 

1870, XIV, § 257; 1883, XVIII, 491. 

§ 287. Claim of Third Persons — Proceedings on. — If the person in 
whose possession such property shall be attached shall appear at the return of 
the writ and file his answer thereto, and deny the possession or control of any 
property belonging to the defendant, or claim the money, lands, goods and 
chattels, debts and books of account as creditor in possession, or in his own right, 
or in the right of some third person, or if any of the said property be claimed 
by any other person than such defendant, then, if the plaintiff be satisfied there- 
with, the party in possession shall be dismissed and the plaintiff pay the cost 
of his action. But if the plaintiflf shall contest the said return or the claim of 
said third person, an issue shall be made up under the direction of the Judge to 
try the question, and the party that shall prevail in said issue shall recover the 
costs of such proceeding of the opposite party, and judgment shall be given 
accordingly. If the party in possession, or the third person claiming the prop- 
erty, as the case may be, resides in a different County from that in which the 
action is brought, and an issue be made up between him and the plaintiff, the ac- 
tion shall be tried in the County where the party in possession resides. In case 
the property is claimed by a third person, the plaintiff shall execute to such 
person the same undertaking that he is now required to give under Section 282 ; 
the said undertaking to be executed within ten (10) days after notice of such 
claim. ^ 

1883, XVIII, 491. 

§ 288. As to Attachment When Debt Is Not Due. — Whenever a debt 
is not yet due, and it appears to the satisfaction of a Circuit Judge, the Clerk 
of the Court of Common Pleas, or Magistrate, by affidavit, that the debtor has 
departed from the State with intent to defraud his creditors, or to avoid the 
service of a summons, or keep himself concealed therein with a like intent, or 
that such person has removed or is about to remove any of his property from 
this State with intent to defraud his creditors, or has assigned, disposed of or 
secreted, or is about to assign, dispose of or secrete, any of his property with 
like intent, it shall be lawful for the plaintiflf forthwith to institute suit upon 
such debt or cause of action, and for the said Circuit Judge, Clerk, or Magistrate 
to issue his warrant of attachment as if said debt were then due and payable : 
Provided, That no judgment shall be had thereon till after the maturity of the 
debt : And provided, further, That the plaintiff pay the costs in case the 
debtor pays the debt on or before its maturity.^ . 

1883, XVIII, 491. 

7. Where a motion to vacate the attachment gain possession of the property attached, _ unless 
was made, refused, appeal taken to the Supreme the attaching creditor gives the undertaking re- 
Court, and a stay of proceedings asked for, held quired by the act within the time prescribed. Ford 
the Court had a right to order the sale of personal v. Calhoun, S3 S. C. 110, 30 S. E. 830. The pro- 
property. Southern Railway Co. v. Sheppard, 42 visions of this Section do not apply to proceedings 
S. C. 543, 20 S. E. 481. to enforce agricultural liens. Southern Railway 

Attachment of car. Shore v. Railroad Co., 76 Co. v. Sarratt, 58 S. C. 98, 36 S. E. 504. 
S. C. 472, 57 S. E. 526, 11 Am. & Eng. Ann. Cas. A railroad car sent loaded from one State into 

909; Seibels v. Railroad Co., 80 S. C. 138, 61 another, and to be returned to the former State 

S. E. 435, 16 E. R. A., N. S., 1026n. in the transaction of interstate commerce, cannot 

8. Under this Section, assignee of defendant's be attached in the latter State. Shore & Bro. v. 
property, under deed of assignment, must establish B. & O. R. Co., 76 S. C. 472, 57 S. E. 526, 11 
his right to the property before he can move to Am. & Eng. Ann. Cas. 909. 

discharge the attachment under Section 296. Bryce 9. Action on debt not yet due; affidavit held 

V. Foot, 25 S. C. 467. insufficient. Correll v. Georgia Co., 37 S. C. 444, 

This Section does not provide that a third per- 16 S. E. 157. Affidavit sufficient. Ex parte, 

son may move to vacate the attachment, but simply Chase, 62 S. C. 353, 38 S. E. 718. 
provides a remedy by which he may retain or re- 



§§ 289-292]. OP SOUTH CAROLINA. 107 

§ 289. As to Shares in Incorporations, Vessels, etc. — The rights or 
shares which such defendant may have in any vessel, or in the stock of any 
association or corporation, together with the interest and profits thereon, and 
all other property in this State of such defendant, except that exempt from at- 
tachment by the Constitution, shall be liable to be attached and levied upon and 
sold to satisfy the judgment and execution. ^*^ 

1870, XIV, § 258; 1883, XVIII, 491. 

§ 290. Attachment — How Executed on Property Incapable of Man- 
ual Delivery. — The execution of the attachment upon any such rights, shares, 
or any debts or other property incapable of manual delivery to the Sheriff or 
Constable, shall be made by leaving a certified copy of the warrant of attach- 
ment with the president or other head of the association or corporation, or 
the secretary, cashier, or managing agent thereof, or with the debtor or indi- 
vidual holding such property, with a notice showing the property levied on.^^ 

1870, XIV, § 259. 

§ 291. Certificate of Defendant's Interest to Be Furnished. — When- 
ever the" Sheriff or Constable shall, with a warrant of attachment or execution 
against the defendant, apply to such officer, debtor, or individual, for the pur- 
pose of attaching or levying upon such property, such officer, debtor, or indi- 
vidual shall furnish him with a certificate, under his hand, designating the num- 
ber of rights or shares of the defendant in the stock of such association or 
corporation, with any dividend or encumbrance thereon, or the amount and de- 
scription of the property held by such association, corporation, or individual, 
for the benefit of or debt owing to the defendant. If such officer, debtor, or 
individual refuses to do so, he may be required by the Court or Judge to attend 
before him, and be examined on oath concerning the same, and obedience to 
such order may be enforced by attachment.^- 

1870, XIV, § 260. 

§ 292. Judgment — How Satisfied. — In case judgment be entered for the 
plaintiff in such action, the Sheriff or Constable shall satisfy the same out of the 
property attached by him, if it shall be sufficient for that purpose : 

1. By paying over to such plaintiff the proceeds of all sales of perishable 
property, and of any vessel, or share or interest in any vessel, sold by him, or 
of any debts or credits collected by him, or so much as shall be necessary to 
satisfy such judgment. 

2. If any balance remain due, and an execution shall have been issued on 
such judgment, he shall proceed to sell, under such execution, so much of the 
attached property, real or personal, except as provided in subdivision 4 of 
this Section, as may be necessary to satisfy the balance, if enough for that pur- 
pose shall remain in his hands ; and in case of the sale of any rights or shares 
in the stock of a corporation or association, the Sheriff or Constable shall exe- 
cute to the purchaser a certificate of sale thereof, and the purchaser shall there- 
upon have all the rights and privileges in respect thereto which were had by such 
defendant. ^^ 

3. If any of the attached property belonging to the defendant shall have 
passed out of the hands of the Sheriff or Constable without having been sold 
or converted into money, such Sheriff or Constable shall repossess himself of 
the same, and for that purpose shall have all the authority which he had to 

10. Risht of Sheriff to sell stock in corpora- ber and name of car and notifying yardmaster of 
tion. Richardson v. Wallace, 39 S. C. 216, 17 lew, is sufficient seizure under attachment. Sei- 
S. E. 725. bels v. Railway Co., 80 S. C. 133, 61 S. E. 43S, 

11. Not necessary to serve copy on defendant 16 L. R. A., N. S., 1026n. 

in seizing personal property capable of manual 12. Mfg. Co. v. Pitts, 76 S. C. 358, 57 S. E. 

delivery. Grollman v. Lipsitz, 43 S. C. 329, 21 29, 11 Am. & Eng. Ann. Cas. 665. 

S. E. 272. _ _ _ 13. Question as to efficacy of Sheriff's sale of 

Service on agent of railroad in this State having corporate stock. Richardson v. Wallace, 39 S. C. 

in possession car of foreign railroad of notice and 216, 17 S. E. 725. 
warrant of attachment, taking memoranda of num- 



\ 

\ 



108 CODE OF CIVIL PROCEDURE [ §§ 293-295 

seize the same under the attachment; and any person who shall wilfully con- 
ceal or withhold such property from the Sheriff or Constable, shall be liable to 
double damages, at the suit of the party injured. 

4. Until the judgment against the defendant shall be paid, the Sheriff or 
Constable may proceed to collect the notes and other evidences of debt, and the 
debts that may have been seized or attached under the warrant of attachment, 
and to prosecute any bond he may have taken in the course of such proceedings, 
and apply the proceeds thereof to the payment of the judgment. ^^ 

At the expiration of six months from the docketing of the judgment, the 
Court shall have power, upon the petition of the plaintiff accompanied by an affi- 
davit, setting forth fully all the proceedings which have been had by the Sher- 
iff or Constable since the service of the attachment, the property attached, and 
the disposition thereof, and also the affidavit of the Sheriff or Constable that 
he has used diligence and endeavored to collect the evidences of debt in his hands 
so attached, and that there remains uncollected of the same any part or por- 
tion thereof, to order the Sheriff or Constable to sell the same, upon such terms 
and in such manner as shall be deemed proper. Notice of such application shall 
be given to the defendant, or his attorney, if the defendant shall have appeared 
in the action. In case the summons has not been personally served on the de- 
fendant, the Court shall make such rule or order, as to the service of notice and 
the time of service, as shall be deemed just. 

When the judgment and all costs of the proceedings shall have been paid, the 
Sheriff or Constable, upon reasonable demand, shall deliver over to the defend- 
ant the residue of the attached property, or the proceeds thereof. 

1870, XIV, § 261. 

§ 293. Prosecution of Action to Recover Notes, etc., in Action in 
Which Attachment Issued. — The actions herein authorized to be brought by 
the Sheriff or Constable may be prosecuted by the plaintiff, or under his di- 
rection, upon the delivery by him to the Sheriff or Constable of an undertaking 
executed by two sufficient sureties, to the effect that the plaintiff will indemnify 
the Sheriff or Constable from all damages, costs, and expenses on account 
thereof, not exceeding two hundred and fifty dollars in any one action. Such 
sureties shall, in all cases, when required by the Sheriff or Constable, justify by 
making an affidavit that each is a householder, and worth double the amount 
of the penalty of the bond, over and above all demands and liabilities.^" 

1870, XIV, § 262. 

§ 294. Bond to Sheriff on Attachment — How Disposed of on Judg- 
ment for Defendant. — If the foreign corporation, or absent or absconding or 
concealed defendant, recover judgment against the plaintiff in such action, any 
bond taken by the Sheriff or Constable, except such as are mentioned in the last 
Section, all the proceeds of sales and moneys collected by him, and all the prop- 
erty attached remaining in his hands, shall be delivered by him to the defend- 
ant, or his agent, on request, and the warrant shall be discharged and the prop- 
erty released therefrom. 

1870, XIV, § 263. 

§ 295. Discharge of Property and Return of Property or Proceeds 
on Defendant's Appearance. — Whenever the defendant shall have appeared 
in such action, he may apply to the officer who issued the attachment, or to the 
Court, for an order to discharge the same; and, if the same be granted, all the 
proceeds of sales and moneys collected by him, and all property attached re- 
maining in his hands, shall be delivered or paid by him to the defendant or his 

14. If the attachment is a foreign attachment, subjected to a lien. Stanley v. Stanley, 35 S- 

it is only a proceeding in rem., unless the de- C. 94, 14 S. K. 675. 

fendant appear: and if he fail to appear, the 1.5. Mfg. Co. v. Pitts, 76 S. C. 358, 57 S. E. 

Court cannot render a judgment that would have 29, 11 Am. & Kng. Ann. Cas. 665. 
any effect beyond the property attached and so 



§§ 296-297]. OF SOUTH CAROLINA. 109 

agent, and released from the attachment. And where there is more than one 
defendant, and the several property of either of the defendants has been seized 
by virtue of the order of attachment, the defendant whose several property has 
been seized may apply to the officer who issued the attachment for relief under 
this Section. ^^ 
1870, XIV, § 264. 

§ 296. Undertaking on Part of Defendant. — Upon such application, the 
defendant shall deliver to the Court or officer an undertaking executed by at 
least two sureties, who are resident and freeholders or householders in the State, 
approved by such Court or officer, to the effect that such sureties will, on de- 
mand, pay to the plaintiff the amount of judgment that may be recovered 
against the defendant in the action, not exceeding the sum specified in the un- 
dertaking which shall be at least double the amount claimed by the plaintiff in 
his complaint. If it shall appear by affidavit that the property attached be less 
than the amount claimed by the plaintiff, the Court, or officer issuing the at- 
tachment, may order the same to be appraised, and the amount of the under- 
taking shall then be double the amount so appraised. And in all cases the de- 
fendant, or any person who establishes a right to the property attached, may 
move to discharge the attachment, as in the case of other provisional remedies. 

And where there is more than one defendant, and the several property of 
either of the defendants has been seized by virtue of the order of attachment, the 
defendant whose several property has been seized may deliver to the Court or 
officer an undertaking, in accordance with the provisions of this Section, to the 
effect that he will, on demand, pay to the plaintiff the amount of judgment that 
may be recovered against such defendant. And all the provisions of this Section 
applicable to such undertaking shall be applied thereto. i''' 

1870, XIV, § 265. 

§ 297. When Sheriff to Return Attachment, with His Proceedings 
thereon. — When the warrant shall be fully executed or discharged, the Sher- 
iff or Constable shall return the same, with his proceedings thereon, to the 
Court in which the action was brought. 

1870, XIV, § 266. 

16. Where defendants moved on affidavits to granted upon the disclosure of the fact by the 

vacate the attachment, and plaintiffs offered affi- papers and affidavits that the nonresident had ntf 

davits in reply, the Judge should indicate what other property here. Whitfield v. Hovey, 30 S. 

affidavits were considered by him. Grollman v. C. 117, 8 S. E. 840. 

Lipsitz, 43 S. C. 329, 21 S. E. 272. The weight Assignee under deed of assignment of defend- 
to be given the affidavits must be determined by ant cannot move to discharge attachment until 
the Circuit Court. lb. he has established his right to the property under 

Pendency of another action for same cause is issue on his return to the attachment. Copeland 

sufficient to vacate. Ferst v. Powers, 58 S. C. v. Ins. Co., 17 S. -C. 116; Metts v. Ins. Co., 17 S. 

411, 36 S. E. 749. C. 120; Bryce v. Foot, 25 S. C. 467; Sheldon v. 

Defendant having given bond under next Sec- Blanvelt, 29 S. C. 453, 7 S. E. 593. 

tion does not thereby waive his right to have at- When third party intervenes and claims right 

tachment discharged under this. Bates v. Killian, to the property, such claimant should be actor on 

17 S. C. 553. ti-ial of issue of ownership. Central R. R. Co. v. 

Circuit Judge, on motion upon notice, may dis- Georgia Co., 32 S. C. 319, 11 S. E. 192. 
charge an attachment at chambers. Cureton v. Another attaching creditor cannot question the 
Dargan, 12 S. C. 122; Clothing Co. v. Shea'y, regularity of the attachment proceedings, and his 
53 S. C. 14, 30 S. E. 620. And in so doing he voluntary appearance in the action for that pur- 
may decide whether or not the plaintiff has a cause pose gives the jurisdiction over him. Ex parte 
of action. Williamson v. Ass'n, 54 S. C. 582, 32 Perrv Stove Co., 43 S. C. 176, 20 S. E. 980; 
S. E. 765. But he cannot decide questions of fact Ford ?'. Calhoun, 53 S. C. 106, 30 S. E. 830. 
determining the merits of the case. Ih.; Moore Property attached may be released by the agree- 
z\ Roundtree, 57 S. C. 77, 35 S. E. 386. ment of parties without an order of Couit. Sulli- 

Refusal to so discharge the attachment in res van v. Williams, 43 S. C. 489, 21 S. E. 642. 

cdjndicata as to moving party, and he cannot raise Greenwood Grocery Co. v. Canadian County 

the question again in formal suit. Darby v. Shan- Mill and Elevator Co., 72 S. C. 457, 52 S. E- 

non, 19 S. C. 526. 191, 110 Am. St. Rep. 627, 5 Am. & Eng. Ann. 

Such discharge may be had either for invalidity Cas. 261, 2 L. R. A., N. S., 79n. 

or irregularity of the attachment. Smith v. 17. Bond not good as a statutory bond, held 

Walker, 6 S. C. 169; Brown v. Morris, 10 S. C. valid as a common law bond. Sullivan v. Wil- 

467; Claussen v. Fultz, 13 S. C. 476; Cureton v. Hams, 43 S. C. 489, 21 S. E. 642. 

Dargan, 12 S. C. 122; Darby v. Shannon, 19 S. Motion to vacate attachment and to release bond 

C* 526; Bates v. Killian, 17 S. C. 553; Kerchner because affidavit was not sufficient and not_ filed 

z\ McCormac, 25 S. C. 461. in time comes too late after trial begun without 

Such motion to discharge the attachment on previous notice. Bank v. Sprunt, 86 S. C. 8, 67 

partnership property against nonresident partner S. E. 955. 



no CODE OF CIVIL PROCEDURE [ §§ 298-300 

§ 298. How Purchase Money Past Due May Be Attached — Warrant 
— Issuance. — In an action arising for the recovery of the purchase money, 
which is past due, for any real or personal property, it shall be lawful for the 
plaintiff, at the time of the issuing of the summons, or any time afterwards, 
to cause the property of such defendant for which the purchase money is pay- 
able to be attached in the manner hereinafter prescribed as a security for the 
satisfaction of such judgment as the plaintiff may recover, and for the pur- 
poses of this Section an action shall be deemed commenced when the summons 
is issued. This warrant of attachment must be obtained from a Judge or Clerk 
of the Court, or Magistrate in which or before whom the action is brought, or 
frorn a Circuit Judge. The warrant of attachment may be issued whenever it 
shall appear by affidavit that a cause of action exists against such defendant, 
specifying the amount of the claims and the grounds thereof, that the same is 
due, and that the action is brought for the purchase money of real estate or 
personal property which has been sold to the defendant, and which he has re- 
fused or failed to pay. It shall be the duty of the plaintiff at the time of pro- 
curing such warrant of attachment to file the affidavit upon which the same is 
granted, in the office of the Clerk of Court of Common Pleas, or with the Mag- 
istrate in which or before whom the action is to be tried. 
1904. XXIV, 452. 

§ 299. Undertaking — Direction. — Before issuing the warrant of attach- 
ment, the Judge, Clerk or Magistrate shall require a written undertaking on 
the part of the plaintiff, with sufficient surety to the effect that if the plain- 
tiff shall fail to prove that the action is brought to recover the purchase money 
for the property which is about to be attached, or if the defendant recovers 
judgment, or the attachment be set aside by the order of the Court, the plaintiff 
will pay all cost that may be awarded to the defendant, and all damages which 
he may sustain by reason of the attachment, not exceeding the sum specified 
in the undertaking, which shall be at least two hundred and fifty dollars 
($250.00), except in case of a warrant issued by a Magistrate, when it shall 
be at least twenty-five dollars ($25.00). The warrants shall be directed to any 
Sheriff or Constable of any County in which the said property of such defend- 
ant may be, and shall plainly describe the same, and shall require such officer 
to attach and safely keep such property of the defendant, or so much thereof as 
may be sufficient to satisfy plaintiff's demand, together with cost and expenses. 

1904, XXIV, 452. 

§ 300. How Attachment Made. — The Sheriff or Constable to whom such 
warrant is directed and delivered, shall immediately attach the real estate or 
personal property of the defendant which is described in the warrant, and hold 
the same until further order of the Court. When real estate is attached, a true 
and attested copy of such warrant shall be, by the officer serving the same, de- 
livered to the defendant, or left at his last or usual place of residence, and the 
officer making such service shall also leave a true and attested copy of such 
warrant of attachment in the office where, by law, a deed of such estate is re- 
quired to be recorded, and if the party whose estate is attached does not re- 
side in this State, then such copy shall be delivered to his tenant, agent -or at- 
torney, if any be known, and if no such agent, tenant or attorney be known, 
then a copy of such warrant of attachment, with the officer's return thereon, 
lodged in the office where, by law, a deed of such real estate ought to be re- 
corded, shall be deemed sufficient service. It shall be the duty of the Clerk or 
Register of the office wherein said warrant of attachment is required to be 
lodged, to receive the same and enter in a book kept for that purpose the names 
of the parties, the date of the warrant of attachment, the sum demanded, and 
the officer's return thereon. Said attachment shall be a lien subject to all prior 



§§301-303] OF SOUTH CAROLINA. ' 111 

liens, and bind the real estate attached from the date of lodgment, and shall be 
a lien upon the personal property attached from the date of the levy thereon. 
1904, XXIV, 452. 

§ 301. Appraisement. — Such further proceedings on the part of the Sher- 
iff or Constable in reference to the appraisement of the personal property at- 
tached, or the sale of such personal property as may be perishable, shall be the 
same as now required by Sections 285 and 286, and such further proceedings in 
reference to the disposition of the bond given by the plaintiff in case of judg- 
ment for defendant, and the discharge of the attachment and return of property 
or its proceeds to defendant. And the undertaking on the defendant's part 
shall be the same as now required by Sections 294, 295 and 296. 

1904, XXIV, 452. 

§ 302. Trial by Jury. — In all actions tried by a jury, where the plaintiff 
claims that the action is brought for the recovery of the purchase money for the 
property attached, if the jury find for the plaintiff they shall also state in their 
verdict whether or not the amount found is for the purchase money of the 
property attached ; and in all cases tried by the Judge, if he decides in favor of 
the plaintiff he shall certify whether or not the debt so found by him is for the 
purchase money of the property seized under the warrant of attachment ; and in 
such cases he shall direct that the attached property shall be sold by the Sheriff 
or Constable, and the proceeds arising from such sale be applied in payment 
of the plaintiff's debt and cost, and if there should be a surplus left the same to 
be paid over to the defendant. 

1904, XXIV, 452. 



CHAPTER V. 

Provisional Remedies. 

Sec. 
303. Powers of Courts as to receivers. 

§ 303. Powers of Courts as to Receivers. — A receiver may be appointed 
by a Judge of the Circuit Court, either in or out of Court : 
1870, XIV, § 267. 

1. Before judgment, on the application of either party, when he establishes 
an apparent right to property which is the subject of the action, and which is 
in the possession of an adverse party, and the property, or its rents and profits, 
are in danger of being lost, or materially injured or impaired; except in cases 
where judgment upon failure to answer may be had without application to the 
Court.i 

2. After judgment, to carry the judgment into effect. 

3. After judgment, to dispose of the property according to the judgment, 
or to preserve it during the pendency of an appeal, or when an execution has 
been returned unsatisfied, and the judgment debtor refuses to apply his property 
in satisfaction of the judgment. 

4. When a corporation has been dissolved, or is insolvent, or in imminent 
danger of insolvency, or has forfeited its corporate rights ; and, in like cases, of 
the property within this State of foreign corporations. Receivers of the prop- 
erty within this State of foreign or other corporations shall be allowed such 

1. Receiver should not be appointed on motion Sale by receiver. E.v parte O'Bannon. 65 S. C. 

of Judge without notice to parties. White v. 489, 43 S. E. 958. 
Britton, 72 S. C. 178, 51 S. E. 547. _ Greenwood, etc., Ass'n v. Childs, 67 S. C. 251, 

Receiver on dissolution of corporation. Brook- 45 S. E. 167. 
shire v. Farmers Alliance, 73 S. C. 131, 52 S. E. Whilden v. Chapman, 80 S. C. 84, 61 S. E. 

867. 249. 



112 * CODE OF CIVIL PROCEDURE [ § 303 

commissions as may be fixed by the Court appointing them, not exceeding five 
per cent, on the amount received and disbursed by them.- 

5. In such other cases as are now provided by law, or may be in accordance 
with the existing practice, except as otherwise provided in this Code of Pro- 
cedure.-^ 

6. RiiCEivER Not to Be Appointed without Notice. — No receiver of the 
property of any person or corporation shall be hereafter appointed by any Court 
or Judge, either in term time or at chambers, without notice of the application 
for such appointment to the party or parties to the action whose property is 
sought to be put in the hands of a receiver, and to the party or parties to the 
action in possession of such property claiming an interest therein under any 
contract, lease or conveyance thereof from the alleged owner. At least four 
days' notice of the application must be given, unless the Court shall, upon it 
being made to appear that delay would work injustice, prescribe a shorter time. 

1897, XVII, 510. 

Notice to Non-ResidEnt — On Whom Served. — Where the party whose 
property is sought to be placed in the hands of a receiver cannot be found within 
the State, then notice of the application to the party in possession of such 
property shall be sufficient; and where the property is abandoned and not in 
possession of any one, and the party claiming the same cannot be found within 
the State, then the appointment may be made without the notice of the appli- 
cation : Provided, That wherever a receiver is appointed and the party claim- 
ing the property cannot be found within the State, notice of such appointment 
shall be forthwith given by publication or personal service without the State, 
as prescribed by law in the case of a summons in a civil action. 

1897, XVII, 510. 

7. Temporary Injunction May Be Granted without Notice. — The 
Court or Judge may by temporary injunction, without notice, pending the hear- 
ing of such application, restrain the delivery of the property, or any part thereof, 
sought to be put in the hands of a receiver to any other person whomsoever, and 
the Court shall be deemed to have taken jurisdiction over such property from 
the time of the issuance of such temporary injunction : Provided, That no 
such temporary injunction shall issue so as to interfere with the use and dis- 
position of such property by any person or corporation in the usual and cus- 
tomary mode and course of business and use of the same without the Court or 
Judge first requiring from the party applying for such injunction a bond, with 
security, in a sufficient sum, not less than two hundred and fifty dollars, to 
])ay all damages arising from said temporary injunction should no receiver be 
appointed on the hearing of the application.'* 

1897, XVII, 510. 

8. No Receiver to Be Appointed before Judgment without Bond. — No 
receiver of the property of any person or corporation shall be hereafter appointed 
before final judgment in the cause if the party claiming the property so sought 
to be placed in the hands of a receiver or the party in possession thereof shall 
offer a bond, in the penalty of double the value of the property, with sufficient 
security, approved by the Clerk of the Court of Common Pleas of the Courts in 
which the action is brought, to fully account for and deliver over whenever 
thereafter required by any final adjudication in the cause the property sought 

2. Commissions under control of Court. Ex 3. Showing that farmer has disposed of large 

parte Reynolds, 68 S. C. 436, 440, 47 S. E. 728. resources, professing to have nothing left, leaving 

Where corporation ceases to be a going con- his debts unpaid, refusing to give any account of 

cern and there is ground for inference that it is his property or to take any interest in satisfaction 

in eminent danger of insolvency, its assets scant of their claims, warrants appointment of receiver 

and probable expense of litigation and existence without nulla bona returns on execution. Chem- 

of some creditors and possibility of others, re- ical Co. v. Hunter, 84 S. C. 214, 66 S. E- 177. 

ceiver may be appointed. Chisolm v. Agency Co., 4. The undertaking required cannot be dis- 

88 S. C. 438. pensed with. Roberts v. Pipkin, 63 S. C. 252, 41 

S. E. 300. 



§303 1 OF SOUTH CAROLINA. 113 

to be placed in the hands of a receiver, and to meet and satisfy any decree or 
judgment or order that may be made in the cause. 
1897, XVII, 510. 

9. .Court to Fix Valuu of Prope;rty to Be Affected. — Whenever the 
Court or Judge before whom such apphcation is made shall appoint a receiver 
before final judgment in the cause, there shall be inserted in the order of ap- 
pointment a clause fixing the value of the property for which the bond may be 
given, as prescribed in subdivision 8 of this Section; and upon the due execution 
and filing of such bond thereafter before final judgment in the cause, the Court 
or Judge shall vacate the appointment of such receiver and direct the redelivery 
of the property to the party from whose possession it was taken : Provided, 
That w^here, under the orders of the Court or Judge, the receiver has incurred 
any lawful charges and expenses in the care and custody of the property put 
into his hands, the Court or Judge, before directing the redelivery, may require 
sufficient security to be given in addition for the payment of such lawful charges 
and expenses should they be thereafter finally adjudged to be chargeable against 
the property. 

1897, XVII, 510. 

10. How Damage^s Ascertained if Receiver Is Improperly Appointed. — 
Whenever a receiver shall have been appointed of any property against the op- 
position of any party to the cause, and shall have taken possession of the same,, 
and thereafter by any final adjudication such receiver shall be held to have been 
improperly appointed, the costs, charges and expenses of such receivership shall 
not be charges upon the property as a whole, but only upon the interests therein 
of the party or parties procuring the appointment; and any party to the cause 
having opposed such receivership may apply to the Court after final adjudication, 
as aforesaid, and have it referred to a Master, Referee or jury, as the practice 
in the case presented may be proper, to have his actual damages by reason of 
such receivership ascertained and assessed and for judgment therefor against the 
party or parties having procured such receiver. 

1897, XVII, 510. 

11. Bonds to Be Made Payable to Clerk of Court, etc. — The several 
bonds required by this Chapter shall be made payable to the Clerks of the respec- 
tive Courts in which the action is pending in which the bonds shall be made, 
and shall be conditioned as required by this Chapter, and shall, upon execu- 
tion and approval as to form and sufficiency by the Court or Judge, or such other 
officer as the order shall prescribe, be filed in the office of the Clerk of Court, 
who shall, upon demand of any party to the cause and payment of the legal 
fees therefor, give certified copies of such bonds, on wdiich any party entitled 
to the benefit thereof may sue the parties liable thereon in any Court of com- 
petent jurisdiction ; and the production of such certified copy shall be priiim facie 
evidence of the bond. Should the security become insufiicient upon any of such 
bonds after the same have been given and approved, the Court of Judge may, 
upon application, after notice, require the security to be made sufficient, and on 
default therein may proceed as if no bond had been given, but without prejudice 
to the right of any party entitled to the benefit of such bond, to enforce it ac- 
cording to the terms and conditions thereof.^ 

1897, XVII, 510. 

5. In application for receiver under Subdivision withstanding creditor's action in another Court 

1 he may be appointed under Subdivision 2. Green and a previous assignment by debtor. lb. 

V. Bookhart, 19 S. C. 417. But there can be only one receiver so appointed. 

Receiver may be appointed in supplementary Sparks v. Davis, 25 S. C. 381. 

proceedings without notice. Dilling v. Foster, 21 Receiver may be appointed at chambers. Kilgore 

S. C. 338. ■ v. Hair, 19 S. C. 486; Regenstein z-. Pearlstein, 

Although another Judge upon application of 30 S. C. 192, 8 S. E. 850; Harman v. Wagner, 33 

other creditors had previously refused to do so. S. C. 487, 12 S. E. 98. 

Dauntless Co. t'. Davis, 22 S. C. 584. And not- But the power is a delicate one and must be 

2 S C C— 8 



114 



CODE OF CIVIL PROCEDURE 



[§ 303 



Deposit os* Mone^y, e;tc., in Court. — When it is admitted, by the pleading 
or examination of a party, that he has in his possession, or under his control, 
any money or other thing capable of delivery, which, being the subject of liti- 
gation, is held by him as trustee, for another party, or which belongs or is due 
to another party, the Court may order the same to be deposited in Court, or de- 
livered to such party, with or without security, subject to the further direction 
of the Court. 

1870, XIV, 423, § 267. 

Other Provisionai, RemeIdiES. — Whenever, in the exercise of its authority, 
a Court shall have ordered the deposit, delivery, or conveyance of money or 
other property, and the order is disobeyed, the Court, besides punishing the dis- 
obedience as for contempt, may make an order requiring the Sheriff or Constable 
to take the money or property, and deposit, deliver, or convey it, in conformity 
with the direction of the Court. 

1870, XIV, 423, § 267. 

Judgment for Sum Admitted Due. — When the answer of the defendant ex- 
pressly, or by not denying, admits part of the plaintiff's claim. tO' be just, the 
Court, on motion, may order such defendant to satisfy that part of the claim 
and may enforce the order as it enforces a judgment or provisional remedy.*^ 

1870, XIV, 423, § 267. 



exercised with great care. Pelzer v. Hughes, 27 
S. C. 408, 3 S. E. 781. 

The master, of the Court cannot be appointed 
receiver. Kilgore v. Hair, 19 S. C. 486. Nor 

Clerk of Court. White v. Britten, 72 S. C. 178, 
51 S. E. 547. 

Admissions in answer are sufficient evidence on 
motion for appointment cif receiver. Meinhard v. 
Strickland, 29 S. C. 491, 7 S. E. 838. 

Where President and Directors of an insolvent 
railroad are directed by the Court to continue 
in possession of the property under order of and 
subject to the Court, they are thus made receivers. 
In re Morteage Bonds, 15 S. C. 314; E.r parte 
Brown, 15 S. C. 531. 

Where complaint claims title to land and seeks 
to recover it and alleges insolvency of defendant 
and danger of loss of rents, and all these are de- 
nied in answer, there is no case for appointment 
of receiver. DeWalt v. Kinard, 19 S., C. 293. 

Even under Assignment act creditors cannot 
have receiver appointed to take charge of the as- 
signed estate, where they have not exhausted their 
legal remedies, nor show danger of loss of prop- 
erty or injury thereto. Pelzer z'. Hughes, 27 S. 
C. 408, 3 S. E. 781. 

But upon showing of insolvency, negligence and 
incompetency on the part of the assignee, satis- 
factory to the Judge, he was justified in appoint- 
ing a receiver. Regenstein v. Pearlstein, 30 S. 
C. 192, 8 S. E. 850. 

So in action by executor to marshal assets, 
where he is shown to be guilty of misconduct, and 
that he and estate were insolvent, creditors would, 
without exhausting their legal remedies, have re- 
ceiver appointed. Harman v. Wagner, 33 S. C. 
487, 12 S. E. 98. 

Unless mortgagee establishes an apparent right 
or claim to the assets and profits, he is not en- 
titled to have a receiver thereof appointed in his 
action for foreclosure. Hardin i'. Hardin, 34 S. 
C. 77, 12 S. E. 936. 

Even though the mortgagor be insolvent and 
the property insufficient to pay the mortgage. 
Seignious v. Pate, 32 S. C. 134, 10 S. E. 880. 

Receivers may be appointed by the Court to 
make sales under its orders. Clyburn z'. Rey- 
nolds, 31 S. C. 91, 9 S. E. 973. But a receiver 
was properly appointed in an action for partition 
where the party in possession was insolvent. Mc- 
Crady v. Jones, 36 S. C. 136, 15 S. E. 430. 



Receiver need not give bond to collect rents in 
pending action. DeWalt v. Kinard, 19 S. C. 293. 
Nor is bond essential for receiver appointed in 
supplementary proceedings. Dilling v. Foster, 21 
S. C. 338. 

Receiver should not be appointed where corpora- 
tion is solvent. Miller v. So. Eand and Eumber 
Co., 53 S. C. 364, 31 S. E. 281. 

Notice of application for appointment of a re- 
ceiver left with defendant's wife, at his residence, 
is good service. Allen v. Cooley, S3 S. C. 414, 
31 S. E. 634. 

The appearance of defendant held to be waiver 
of service of notice; practice under the Act of 
1897, XXII, 510, su"bdivisions 6 to 11 abQve. Tb. 

Receiver's accounts. Sarratt v. Gaffney Mfg. 
Co., 77 S. C. 85, 57 S. E. 616. _ 

Receiver to collect rents in action for partition. 
Christ Church v. Fishburne, 83 S. C. 304, 64 S. 
E. 238. ^ _ -; 

Judge should not appoint receiver on his own 
motion without notice to either party, nor appoint 
Clerk of Court. White v. Britton, 72 S. C. 178, 
51 S. E. 547. 

When property is in hands of receiver under 
this Section, an order authorizing such receiver 
to sell does not contravene Section 345 of this 
Code. E.V parte' O'Bannon, 65 S. C. 489, 43 S. 
E. 958. 

Party entitled to notice of application for or- 
der requiring deposit of money. American Ma- 
chine Co. V. Commander, 77 S. C. 312, 57 S. E. 
1108. 

G. Where President and Directors of an insol- 
vent railroad are directed by the Court to con- 
tinue in possession of the property under order 
of and subject to the Court, they are thus made 
receivers. In re Mortgage Bonds, IS S. C. 314; 
Ex parte Brown, IS S. C. 531. 

Where complaint claims title to land and seeks 
to recover it and alleges insolvency of defenH- 
ant and danger of loss of rents, and all these are 
denied in answer, there is no case for appoint- 
ment of receiver. DeWalt v. Kinard, 19 S. C. 
293. 

If offer to pay be made pendi.ig_ suit, it cannot 
avail him, unless he follow it up v/ith offer to pay 
money into court, or, at least, submit to judgment 
for sum admitted. Coghlan v. R. Co., 32 Fed. 
316. 



j§ 304-305] OP SOUTH CAROLINA. 115 

TITLE VIII. 

OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. 



Chapter I. Judgment upon Failure to Answer, etc., 115. 

Chapter II. Issues and the Mode of Trial, 117. 

Chapter III. Trial by Jury, 122. 

Chapter IV. Trial by the Court, 125. 

Chapter V. Trial by Referees, 126. 

Chapter VI. Manner of Entering Judgment, 129. 



CHAPTER I. 

Judgment upon Failure to Answer, etc. 

Sec. Sec. 

304. Judgment defined. 306. Judgment on frivolous demurrer, 

305. Judgment on failure to answer, or answer, or reply. 

for excess over counterclaim — 
Other cases. 

§ 304. Judgment Defined. — A judgment is the final determination of the 
rights of the parties in the action. ^ 

1870, XIV, § 268. 

§ 305. Judgment on Failure to Answer, or for Excess over Counter- 
claim — Other Cases. — ^Judgment may be had, if the defendant fail to answer 
the complaint, as follows : 

1. In any action on contract the plaintiiT may file proof of lawful service of 
summons and complaint on one or more of the defendants, or of the summons, 
according to provision of Section 180, and that no appearance, answer or demur- 
rer has been served on him. It shall be the duty of the Clerk to place all such 
cases on the default calendar, and said calendar shall be called the first day of 
the term. When the action is on a complaint for the recovery of money only, 
judgment may be given for the plaintiff by default if the demand be liquidated; 
and if unliquidated, and the plaintiff itemize his account, and append thereto an 
affidavit that it is true and correct, and no part of the sum sued for has been 

1. A judgment mt.;st ascertain and fix these Breeden, 79 S. C. 302, 60 S. E. 706. _ In equity- 
rights to an extent amounting to a substantial case plaintiff must establish case to satisfaction of 
termination of all the issues. Donaldson v. Bank, Court before he can get judgment by default. 
4 S. C. 106; Agnew v. Adams, 24 S. C. 86. It Cannady v. Martin, 72 S. C. 131, 51 S. E- 549; 
is erroneous if based on grounds not raised by Marion v. Charleston, 72 S. C. 576, 52 S. E. 418. 
the pleadings. Magovern v. Richard, 27 S. C. 272, Remedy against judgment by default where com: 

3 S. IJ. 340. plaint is insufficient is by motion in the cause. 
When granted upon contract, it determines what Gillian v. Gillian, 65 S. C. 129, 43 S. E. 386. 

the contract is and closes it, giving the means of The order for judgment may be on paper sepa- 

enforcing it or redress for its breach. Moore v. rate from complaint. Melchers v. Moore, 62 S. 

Holland, 16 S. C. 15. . C. 386, 40 S. E. 77Z. 

Judgment is not invalid because Circuit Judge Giving two orders for judgment not prejudicial 

made a mistake in the heading of it. Woodard v. error. Carolina Gro. Co. v. Moore, 63 S. C. 184, 

Woodard, 36 S. C. 118, 15 S. E. 355. 41 S. E. 88. 

A decree cannot be regarded as final that leaves Rendition of judgment on counterclaim. Melch- 

in doubt the question whether in the end the plain- ers v. Moore, 62 S. C. 386, 40 S. E. 773. 

tiff will be entitled to recover. Donaldson v. Bank, A judgment in criminal proceedings cannot be 

4 S. C. 106. considered res ad judicata in civil proceeding. 
To entitle a decree to rank as a final judgment Frierson ?;. Jenkins, 72 S. C. 341, 51 S. E- 862, 5 

for money it must ascertain a definite sum to be Am. & Eng. Ann, _Cas. 77, 110 Am. St. Rep. 608. 

paid and order its payment, and authorize execu- Court may require trustee to answer for cestui 

tion therefor. Ex parte Farrars, 13 S. C. 254. que trust after default. Kaylor v. Hiller, 72 S. 

But where the decision disposes of all the issues C. 433, 52 S. E- 120. 

and directs judgment for balance due on a former The order for judgment is the rendition of judg- 

judgment particularly stated in' the record and ment. Blohme v. Schmancke, 81 S. C. 81, 61 S. 

orders execution for the amount to be ascertained E- 1060. 

by the calculation of Clerk, it is a final judgment. Supreme Court cannot order judgment by de- 

Adickes v. Allison, 21 S. C. 245. fault. Marion v. Charleston, 72 S. C. 576, 52 S- 

Judgment of domestic court of general jurisdic- E. 418. 

tion presumed to be valid. Ex parte Pearson v. Ball v. Trenholm, 45 Fed. 588. 



116 CODE OF CIVIL PROCEDURE [ § 306 

paid, by discount or otherwise, and a copy be served with the summons and 
complaint on the defendant; or if the plaintiff prove his claim in open Court, 
whether itemized or not, and the defendant shall neither answer, demur nor 
serve notice of appearance, the plaintiff shall have judgment for the sum sued 
for as in the case of liquidated demands. But in case notice of appearance in 
an action has been given, by or on behalf of, a defendant, but no answer or 
demurrer has been, or thereafter shall be, served within the time required by 
law, the plaintiff, upon filing proof of such facts, shall have his judgment by 
default against such defendant in the same manner, and with like effect, as in 
cases where no notice of appearance has been given. In all other cases the 
relief to be afforded the plaintiff shall be ascertained either by the verdict of 
a jury or in cases in chancery by the Judge, with or without a reference, as he 
may deem proper. The order for judgment in such cases shall be endorsed upon 
or attached to the complaint. Where the defendant, by his answer in any such 
action, shall not deny the plaintiff's claims, but shall set up a counterclaim 
amounting to less than the plaintiff's claim, judgment may be had by the plain- 
tiff' for the excess of said claim over the said counterclaim in like manner in 
any such action, upon the plaintiff's filing with the Clerk of the Court a state- 
ment admitting such counterclaim, which statement shall be annexed to and be 
a part of the judgment roll.^ 

2. AVhE^n. SiSrvice of' Summons by PubIvICAtion. — In actions where the serv- 
ice of the summons was by publication, the plaintiff may, in like manner, 
apply for judgment, and the Court must thereupon require proof to be made 
of the demand mentioned in the complaint, and, if the defendant be not a resi- 
dent of the State, must require the plaintiff or his agent to be examined, on oath, 
respecting any payments that have been made to the plaintiff, or to any one for 
his use, on account of such demand, and may render judgment for the amount 
which he is entitled to recover. Before rendering judgment, the Court may, in 
its discretion, require the plaintiff to cause to be filed satisfactory security, to abide 
the order of the Court, touching the restitution of any estate or effects which 
may be directed by such judgment to be transferred or delivered, or the resti- 
tution of any money that may be collected under or by virtue of such judg- 
ment, m case the defendant or his representatives shall apply and be admitted to 
defend the action, and shall succeed in such defense.^ 

1870, XIV, § 269; 1873, XV, 502; 1882, XVIII, 112; 1884, 709; 1899, XXIII, 41 

§ 306. Judgment on Frivolous Demurrer, Answer, or Reply. — If a de- 
murrer, answer, or reply be frivolous, the party prejudice thereby, upon a pre- 

2. Where time to answer expires after day one; an oral demurrer was sustained to the answer, 

fixed for opening of Court, but before Court is and judgment rendered on that calendar; held that 

actually opened, and no appearance, answer or it was unnecessary for the plaintiff to prove his 

demurrer has been served, the case may be docketed case before the jury, the defendant could not ob- 

and judgment by default taken. McComb v. ject to his doing so. Jones v. Garlington, 44 S. 

Woodbury, 13 S. C. 479. ^ _ C. S33, 22 S. E. 741. 

The omission of the words "have judgment" in Affidavit of default. Vander Veen i'. Wheeler, 

the Judge's order for judgment, endorsed on the 76 S. C._ 177, 56 S. E- 679. 

complaint, is merely clerical, and does not vitiate In equity cases plaintiff is not entitled to judg- 

the judgm'ent. Henlien v. Graham, 32 S. C. 303, ment by default, but must establish his right 

10 S. E. 1012. to relief sought. Cannady v. Martin, 72 S. C. 

When defendant does not deny plaintiff's claim, 131, 51 S. E- 549. 

but sets up a counterclaim, the plaintiff upon filing In action to recover real estate "relief to be 

with the Clerk an admission of such counterclaim afforded plaintiff shall be ascertained" by verdict 

is entitled, on call of default docket, to judgment of a jury. Kaylor z'. Hiller, 72 S. C. 436, 52 9. 

for excess claimed above the counterclaim. Bur- E. 120. 

gess 7: Politzer, 19 S. C. 451. Order permitting party to file answer after de- 

In order to obtain a judgment by default, with- fault of leave to answer is administrative order 

out taking a verdict of the jury^on an open account, and within discretion of a succeeding Judge to 

an itemized copy of the account, duly verified, modify by permitting answer to be filed after 

must be served on the defendant with the summons second default. Kaylor z'. Hiller, 72 S. C. 433, 

and complaint. Roberts v. Pawley, 50 S. C. 491, 52 S. 'E. 120, distinguishing Brown v. Easterling, 

27 S. E. 913. 59 S. C. 479. 

Where a defendant neither answers nor demurs Remedy against default judgment. Gillian w. 

to a complaint in foreclosure, he cannot demand Gillian, 65 S. C. 129, 131, 43 S. E. 386. 

time to the report of the referee, as to the amount 3. It is not necessary that the judgm.ent rec- 

due. Johnson v. Masters, 49 S. C. 525, 27 S. E. ord show the reference here required to have been 

474. had. Clemson College r. Pickens, 42 S. C. 511, 

In an action on a liquidated demand an answer 20 S. E. 401. 
was served, and the case docketed on calendar 



§§ 307-310] OF SOUTH CAROLINA. 117 

vious notice of five days, may apply to a Judge of the Court, either in or out of 
the Court, for judgment thereon, and judgment may be given accordingly.^ 
1870, XIV, § 270. 



CHAPTER II. 

Issues and the Mode of Trial. 

Sec. Sec. 

307. The different kinds of issues. 314. Summons and complaint to be filed 

308. Issue of law. in Clerk's office — Docketing 

309. Issue of fact. cases. 

310. On issues of both law and fact, the 31.5. Court Stenographers — How ap- 

issues to be tried together. pointed. 

311. Trial defined. 316. Circuit Judges to appoint special 

312. Issues — How tried. stenographers when stenogra- 

313. Issues triable by Court. pher is disabled. 

317. Order of disposing of issues on the 
calendar. 

§ 307. The Different Kinds of Issues. — Issues arise upon the pleadings 
when a fact or conclusion of law is maintained by the one party and contro- 
verted by the other. They are of two kinds : 

1. Of law ; and 

2. Of fact. 

1870, XIV, § 271. 

§ 308. Issue of Law. — An issue of law arises: 

1. Upon a demurrer to the complaint, answer, or reply, or to some part 
thereof.^ 

1870, XIV, § 272. 

§ 309. Issue of Fact. — An issue of fact arises: 

1. Upon a material allegation in the complaint controverted by the answer; or, 

2. Upon new matter in the answer controverted by the reply ; or, 

3. Upon new matter in the reply except an issue of law is joined thereon. 
1870, XIV, § 273. 

§ 310. On Issues of Both Law and Fact, the Issues to Be Tried To- 
gether. — Issues, both of law and of fact, may arise upon different parts of the 
pleadings in the same action. 

In such case the cause shall be placed on the calendar of issues of fact, and 
the issues shall be tried together, unless the Court otherwise direct. 

1870, XIV, § 274; 1873, XV, 498. 

4. An answer, to be adjudged frivolous, must ing eighty dollars" held frivolous. ^ ^.rrayson t: 

be clearly so in its whole scope and bearing, and Harris, 37 S. C. 606, 16 S. E. 154. So also is an 

not merely through a formal defect that might be answer presenting no issues which can be deter- 

cured by amendment. If argument is necessary mined in the action; as attempting to ijitcrpose 

to show its character as frivolous, the Court will a counterclaim in an action for claim and delivery, 

not dispose of it as such. Boylston v. Crews, 2 Badham v. Brabham, 54 S. C. 402, 32 S. E. 444. 

S. C. 422. This motion may be made at the time of serving 

An answer is frivolous when it fails to deny written demurrer. lb. Where the motion is 

any allegation of the complaint or to state any heard at chambers, and the answer adjudged friv- 

new matter by way of defense. American Co. r. olous, judgment cannot be then and there given 

Hill, 27 S. C. 164, 3 S. E. 82. as by default for the plaintiff. lb. 

But to make the answer frivolous the objection Code of Civil Procedure makes no provision for 
must extend to and embrace the whole answer, summarily disposing of frivolous complaint. Fish- 
so that nothing is left of it that can entitle the burne v. Mmott, 72 S. C. 569, 52 S. E. 648. 
party to trial. Tharin v. Seabrook, 6 S. C. 113. Answer denying material jurisdictional aver- 
So that answer that presents two iss-.ies material ments not frivolous. Peacock v. Williams, 110 
to plaintiff's case is not frivolous. Hall r.'. Wood- Fed. 915. 

ward, 30 S. C. 564, 9 S. E. 684; Machins Co. z'. To be adjudged frivolous, whole answer must 

Henry, 43 S. C. 17, 20 S. E. 790. be clearly so. Peacock v. Williams, 110 Fed. 915, 

An answer denying that defendant "ever was in- 916. _ o r^ -? 

debted to the plaintiff in any sum whatever, exceed- 1. Railroad Co. v. Gibbes, 23 S. C. 370. 



118 



CODE OF CIVIL PROCEDURE 



[ §§ 311-312 



§ 311. Trial Defined. — A trial is the judicial examination of the issues 
between the parties, whether they be issues of law or fact.^ 

1870, XIV, § 275. 

§ 312. Issues — How Tried. — An issue of law must be tried by the Court, 
as also cases in chancery, unless they be referred as provided in Chapter V of 
this Title. An issue of fact, in an action for the recovery of money only, or of 
specific real or personal property, must be tried by a jury, unless a jury trial be 
waived, as provided in Section 326, or a reference be ordered.^ 

1870, XIV, § 276. 



3. Meetz v. Railroad Co., 23 S. C. 13. 

3. This Section not affected by the Master's 
Act — 16 Stat. 608. Chapman v. Ivipscomb, IS S. 
C. 470. 

This Section specifies the case in which a trial 
by jury majr be demanded as a legal right. Rollin 
V. Whipper, 17 S. C. 32. 

An action to set aside a deed of Sheriff on the 
ground that the judgment debtor held the land 
as trustee for plaintiff, is not an action to re- 
cover real property. Price v. Bowen, 4 S. C. 151. 

Title to land must be so tried; it cannot be 
tried on motion by assignee of land to discharge 
attachment thereon. Copeland v. Piedmont Ins. 
Co., 17 S. C. 116. And defendant does not waive 
the ri^ht by failure to demand it. DeWalt v. 
Kinard, 19 S. C. 286. 

An action for the recovery of money only does 
not require a jury trial, unless the pleadings raise 
an issue of fact. Railroad Co. i'. Gibbes, 23 S. 
C. 370. If the only issue raised is one of law, it 
must be tried bj' the Court. lb. 

An action for partition, where the question of 
title arises, it is not an issue out of chancery, but 
for trial by a jury at law. Adickes z'. Lowry, 12 
S. C. 97; Brock v. Nelson, 29 S. C. 49, 6 S. E. 
899; Reams v. Spann, 28 S. C. 530, 6 S. E. 325; 
Carrigan 7: Evans, 31 S. C. 262, 9 S. E. 852; 
Capell y. Moses, 36 S. C. 559, 15 S. E. 711. Or 
where in equity cause defendant sets up title to 
land in controversy which, if sustained, would 
defeat the action, he is entitled to a jury trial of 
that issue. Adickes v. Lowry, 12 S. C. 108; 
Cooner T-. Smith, 16 S. C. 333; Smith v. Bryce, 17 
S. C. 544; Chapman v. Lipscomb, 18 S. C. 232; 
DeWalt 7'. Kinard, 19 S. C. 289; McGee v. Hall, 
23 S. C. 388- Sale v. MesRet, 25 S. C. 72; Reagin 
V. Bishop, 25 S. C. 58S;~Pelzer v. Hughes, 27 S. 
C. 408, 3 S. E. 781; Dupont v. DuBos. 33 S. C. 
389, 11 S. E. 1073. But where the action is in 
equity for cancellation of deed for fraud, a trial 
by iurv is not demandable of right. Dupont v. 
DuBos, 33 S. C. 389, 11 S. E. f073. 

Where a defendant is entitled to specific per- 
sonal property in hands of executor, answers the 
complaint and agrees to a reference to the Master 
of all the issues, he thereby waives right to a 
trial by iury of his title to such property. Tren- 
holm r. Morgan, 28 S. C. 268. 5 S. E. 721. 

On apneal from Probate Court there is only 
a right of jury trial of those issues required to be 
po tried by thip Section. Stewart 7'. Blease, 4 S. 
C. 37: Lncken ?■. Wichman. 5 S. C. 411: Prater 
7'. Whinnle, 16 S. C. 40; Rnllin r. Whioper. 17 
S. C. 32; Ex Parte White. 33 S. C. 442, 12 S. 
E. 5; In re Shier. 35 S. C. 417, 14 S. E. 931; 
Husrhes t. KirkpatHck, 37 S. C. 161, 15 S. E. 912. 

Consent to a ref'^rpnce i= waiver of a trial bv 
iurv. Meetz" 7'. Railroad Co., 23 S. C. 25; Grif- 
fith 7'. Cromley, 58 S. C. 458, 36 S. E. 738, and 
other cases cit=d in note to § 326. 

Where title is involved in an action for parti- 
tion, it must be determined by a iury, unless a 
iur\'- trial is waived. Osborne v. Osborne, 41 S. 
C. 195, 19 S. E. 494. So in an action for trespass 
and to enjoin continuance of same. Alston 7'. 
Limehouse, 60 S. C. 559, 39 S. E. 188; Threatt 
7'. Brewer Mining Co., 42 S. C. 92, 19 S. E. 
1009; Heyv,rard 7^ Farmers Min. Co., 42 S. C. 
138, 19 S. E. 963. Where the issues are equitable 
the cause must be heard by the Court. Greenville 
V. Ormond, 44 S. C. 119. 21 S. E. 64. So in an 
action for foreclosure where usury is internosed 
as a defense and counterclaim. McLaurin z'. 
Hodges, 43 S. C. 187, 20 S. E. 991. _So_in action 
for foreclosure where counterclaim is internosed 
for damages from breach of warranty. Sullivan 



Hardware Co. 7-. Washington, 47 S. C. 187, 25 S. 
E. 45. 

In actions where the issues are partly legal and 
partly equitable. Greenville v. Ormond, 44 S. 
C. 119, 21 S. E. 642. 

Motion to recommit to Master discretionary. 
Halk V. Stoddard, 62 S. C. 564, 40 S. E. 957. 
Issue as to existence of nuisance must be tried 
by jury. Lipscomb v. Littlejohn, 63 S. C. 38, 
40 S. E. 1023. 

Issu4» of title in this case must be tried by jury. 
McCreery Land and Investment Co. v. Myers, 70 
S. C.^ 282, 49 S. E. 848. 

Plaintiff' may discontinue suit where issue has 
been framed under this Section. Forrest v. City 
Council, 65 S. C. 501, 43 S. E. 952; Montague v. 
Best, 65 S. C. 457, 43 S. E. 963. 

Limited so as to require submission to the jury 
of strictly legal issues. Keenan v. Leslie, 79 S. 
C. 477, 60 S., E. 1114. 

Finding of jury not conclusive on equitable is- 
sue; charge in reference thereto. Wood v. Pacolet 
Mfg. Co., 80 S. C. 47, 61 S. E. 95. 

Order refusing to submit issues to jury in 
chancery case is not appealable. Lawrence 7'. 
Lawrence, 82 S. C. 150, 63 S. E. 690. 

Where complaint alleges indebtedness by note 
and pledge of bonds, etc., and seeks foreclosure 
of pledge, and the answer admits the indebtedness, 
but sets up defenses to the collateral, only equi- 
table issues are raised. Bank v. Chickasaw Soap 
Co., 70 S. C. 253, 49 S. E. 845. 

The order in which equitable and legal issues 
shall be tried is discretionary with the Court. Mc- 
Creery Co. V. Myers, 70 S. 'C. 282, 49 S. E. 848; 
DuBose 7'. Kell, 76 S. C. 313, 56 S. E. 968; 
Hickson Lumber Co. Stallings, 83 S. C. 49, 64 
S. E. 1015. 

Accounting between parties on breach of con- 
ti-act. Price v. Middleton, 75 S. C. 105, 55 S. E- 
156. 

Innocent purchaser an equitable issue. Armour 
& Co. 7'. Ross, 75 S. C. 206, 55 ^S. E. 315. 

Where notice under the recording act is legal. lb. 

Compulsory reference may be ordered in equi- 
table action. Greenwood Granite and Constr. Co. 
V. Ware Shoals Mfg. Co., 78 S. C. 169, 58 S. E. 
765. 

Confusion of boundaries not sufficient to give 
equitable jurisdiction. McCreery Co. v. Myers, 
70 S. C. 285, 49 S. E. 848. 

Common law actions are; 1. For recovery of 
specific real estate; 2. For recovery of specific 
personal property, and 3. For money only; all oth- 
ers are equitable. E.v parte Landrum, 69 S. C. 141, 
48 S. E. 47; Pratt v. Timmerman, 69 S. C. 196, 48 
S. E. 255; Gregory v. Perry, 66 S. C. 455, 45 S. 
E. 4; Brock v. Kirkpatrick, 69 S. C. 233, 48 S. 
E. 72. 

Trial of issues of title in action for partition. 
Kimbrell v. Page, 70 S. C. 218, 49 S. E. 477._ 

Legal issues in equitable action triable bv jury. 
Poston 7'. Ingraham, 76 S. C. 167, 56 S. E. 780. 

Equitable issues of fraud properly triable first. 
DuBose V. Kell, 76 S. C. 313, 56 S. E. 968. 

Action for reformation of contract and to re- 
cover possession of leased land is legal. Central 
Nat. Bank v. Duncan, 77 S. C. 9, 57 S. .E. 531. 

Issue as to paramount title in partition case 
must be tried by iurv. Windham v. Howell, 78 
S. C. 191_, 59 S. E. 852. 

When judgment on issue ends cause. Poston 
7'. Ingraham. 76 S. C. 167, 56 S. E. 780. 

Waiver of obiection to order. Montague 7'. 
Best. 65 S. C. 458. 43 S. E. 963. 

Prierson v. Jenkins, 75 S. C. 471, 476, 55 S. 
E. 890. 



§313] OF SOUTH CAROLINA. 119 

Framing of Issue;s. — In all equity causes now pending or hereafter instituted 
in the Courts of Common Pleas of this State, the presiding Judge may, in his 
discretion, cause to be framed an issue or issues of fact, to be tried by a jury. 

1890, XX, 696. 

Triai, of Issues RECULATED.-T-Such issues shall be tried at the same term of 
Court at which they are ordered, and, if necessary, a day shall be set for the 
trial of the same : Provided, That a continuance may be ordered by the Court 
in proper cases. 

1890, XX, 696. 

Wh^n to Be Ordered. — Upon the first day of the term, immediately after the 
call of Calendar 3, the presiding Judge shall call for cases in which such issues 
are desired, and if any are presented in which such issues are, in his judgment, 
proper, he shall at once call the same to be framed and placed upon the proper 
calendar for trial. 

1890, XX, 696. 

Force oe Verdict — New Trials — Exceptions and Appeals. — The findings 
of fact upon such issues by the jury shall be conclusive of the same : Provided, 
That the presiding Judge may grant new trials therein, according to the practice 
in other jury trials : And provided, further. That exceptions to the rulings of 
the presiding Judge upon such trials may be taken by either party, and such rul- 
ings may be reviewed by the Supreme Court upon appeal from the final judg- 
ment. 

1890, XX, 696. 

Trial and Decision at Same Term — Appeal. — At some time during the 
term the presiding Judge shall hear the cause out of which such issues are or- 
dered, and shall, some time during said term or thereafter, file his decision 
therein as in other equity causes, from which decision there shall be the same 
right of appeal now existing in like causes.^ 

1890, XX, 696. 

§ 313. Issues Triable by Court. — Every other issue is triable by the 
Court, which, however, may order the whole issue, or any specific question of 
fact involved therein, to be tried by a jury, or may refer it, as provided in Sec- 
tions 330 and 33 1.^ 

1870, XIV, § 277. 

4. Refusal to frame an issue under this Sec- The constitutional declaration that "the right 
tion does not affect right of Judge to order an issue of jury trial shall remain inviolate" does not apply- 
in chancery. Land Mortgage Co. v. Gillam, 49 to cases within the equitable jurisdiction of the 
8. C. 345, 26 S. E. 990; Hammond v. Foreman, Court. lb. And in such cases neither party has 
43 S. C. 264, 21 S. E- 3. An order of reference the right to demand a submission of the issues to 
preparatory to hearing on merits, held not to in- a jury. Pelzer v. Hughes, 27 S. C. 408, 3 S. E. 
terfere with right to an issue under this Section. 781. An action to set aside a Sheriff's convey- 
Bank v. Fennell, 55 S. C. 379, 33 S. E. 485. The ance of land, sold under execution, on the ground 
discretion of the Circuit Judge in refusing to that judgment debtor held the land as trustee of 
frame issues tinder this Section will not be inter- plaintiffs, is an equitable action and triable by 
fered with on appeal. DeLoach v. Sarratt, 55 the Court. Price v. Brown, 4 S. C. 157. 

S. C. 276, 33 S. E. 2; Neal v. Suber, 56 S. C. Summ.ons to renew execution is not case for 

298, 33 S. E. 463. issues out of chancery. Adams v. Richardson, 30 

5. This Section not affected by Master's Act— S. C. 217, 9 S. E. 95. 

16 Stat. 608. Lipscomb v. Chapman, 15 S. C. Where Judge orders such issues of fact to be 

470. tried by a jury, he does so only that he may be 

Construing this and preceding Section together, aided by their verdict; he is not to be controlled 

it is conclusive that there are two general modes thereby. Flinn v. Brown, 6 S. C. 209; Gadsden 

of trial, I. e., trials by Court and trials by jury. v. Whaley. 9 S. C. 147; Ivy v. Claussen, 14 S. 

To the Court belongs all issues of law and all C. 273; Small v. Small, 16 S. C. 76; Grierson v. 

cases' in chancery, and to the jury all questions Harmon, 16 S. C. 619; Peake v. Peake, 17 S. C. 

of fact in cases at law for the recovery of money 425; Pelzer v. Hughes, 27 S. C. 408, 3 S. E. 781. 

or of any specific real or personal property. And such findings of the jury are properly to be 

Meetze v. Railroad Co., 23 Sv C. 1. considered on new trial by the Judge as ordered 

Under this Section a party has no right to de- by the Supreme Court. Rynerson v. Allison, 30 

mand a jury, unless he proceeds according to S. C. 534, 9 S. E. 656. 

the 28th Rule of Circuit Court. Lucken v. Wich- But all equitable issues must be tried by the 

man. 5 S. C. 411; In re Shier, 35 S. C. 417, 14 fudi^e either alone or with such aid of a jury. 

S. E. 931. Gadsden v. Whaley, 9 S. C. 147; Sloan v. West- 

The mode of trial, whether by the Judge, a field, 11 S. C. 447; Adickes v. Lowry, 12 S. C. 

referee or a jury, is discretionary with the Court. 108; Cooper v. Smith, 16 S. C. 331. 

Lucken v. Wichman, 5 S. C. 411. A case involving cancellation of deed for fraud 



120 CODE OF CIVIL PROCEDURE [ §§ 314-315 

§ 314. Summons and Complaint to Be Filed in Clerk's OflEice — Dock- 
eting Cases, — In all issues to be tried by the Court or a jury the plaintiff shall, 
at least fourteen days before Court, file in the Clerk's office the summons and 
complaint in the cause, endorsing thereon the nature of the issue and the num- 
ber of the calendar upon which the same shall be placed, and if the plaintiff fail 
to do so, the defendant, seven days before the Court, may file copies of said 
papers with a like endorsement, and the Clerk shall thereupon place said cause 
upon its appropriate calendar, and it shall stand for trial without any further 
notice of trial or notice of issue. There shall be three calendars for the Court 
of Common Pleas, and the Clerk shall arrange the causes thereon as follows r 
Upon Calendar 1 shall be placed all cases and issues to be passed upon by a jury. 
Upon Calendar 2 shall be placed all cases to be passed upon by the Court, m- 
cluding all motions and rules to show cause. Upon Calendar 3 shall be placed 
all cases where judgments by default are to be taken, and on the opening of the 
Court of Common Pleas this calendar shall be called first in order. 

1870, XIV, § 278; 1873, XV, 498; 1882, XVIII, 41; 1887, XIX, 836; 1903, XXIV, 131. 

Carrying the Dockets Forward — Forfeiture of Fees. — The Clerk shall, 
within twenty days after every adjournment of the Court of Common Pleas, 
carry forward on Calendars Nos. 1 and 2, for trial or hearing at the next term, 
all causes not finally disposed of at the preceding term, and shall enter in reg- 
ular order all subsequent causes duly filed and endorsed as above provided, and 
upon entering the same shall endorse upon the summons the date of filing, the 
number of the calendar in which the cause is entered, and its number on the 
calendar. In case of his failure to comply with any of the requirements of this 
Section, the Clerk shall forfeit all docketing fees for the term of the Court next 
succeeding.^ 

1870, XIV, § 278; 1873, XV, 498; 1882, XVIII, 41; 1887, XIX, 836; 1903, XXIV, 131. 

§ 315. Court Stenographers — How Appointed. — There shall be twelve 
Court stenographers, one for each Judicial Circuit of the State, who shall be 
appointed by the Circuit Judge of the respective circuits for a period not ex- 
ceeding the term for which the Circuit Judge making the appointment was 
elected, and such Court stenographer shall be subject to removal by the Circuit 
Judge making the appointment. It shall be the duty of every stenographer so 

may be referred to the Master. Dupont v. Du- fourteen days before Court is the notice of trial. 

Bos, 33 S. C. 389, 11 S. E. 1073. lb.; Steffens v. Bulwinkle, 48 S. C. 357, 26 S. E. 

On appeal from decree of Probate Court, de- 666. Where case is docketed on the wrong calen- 
daring a paper offered for probate no will, it dar, the remedy is by motion to transfer. Threatt 
was error in Circuit Judge to form issues and v. Brewer Min. Co., 42 S. C. 92, 19 S. E. 1009. 
submit them to jury without notice to appellant, The requirement that a case be docketed before 
and a judgment based on verdict on such issues trial does not apply to motions for orders pre- 
must be set aside. In re Shier, 35 S. C. 417, 14 paratory to the hearing of the case on its merits. 
S. E. 931. _ Bank v. Fennell, 55 S. C. 379, 33 S. E. 485. An- 

On appeal from Probate Court disallowing claim swer being stricken out on oral demurrer, re- 

against an estate, the appellant is not entitled as taining the case on Calendar 1, and there giving 

of right to a jury trial. Hughes v. Kirkpatrick, judgment, held harmless error. Jones v. Garling- 

37 S. C. 161, 15 S. E. 912. ton, 44 S. C. 533, 22 S. E. 741. A legal action 

Plaintiff in action for dower desiring verdict on to which an equitable defense has been interposed, 
question of coverture must request submission of which was docketed on Calendar 1, may be trans- 
issue to jury. Frierson v. Jenkins, 75 S. C. 476, ferred to Calendar 2 in order to have the equitable 
55 S. E. 890. _ defense tried by the Court. Knox v. Campbell, 52 

Nonsuit is improper on trial of issue in chan- S. C. 461, 30 S. E. 485. 
eery. Southern Ry. Co. v. Beaudrot, 63 S. C. Hearing demurrer in case on Calendar 2 is 

266, 41 S. E. 299; Williams v. Halford, 64 S. mere irregularity. Able v. Southern Railway, 73 

C. 403, 42 S. E. 187. Complaint to remove cloud S. C. 178, 52 S. E. 962. 

on title an equitable issue. Shute v. Shute, 79 S. Hearing on wrong calendar mere irregularity. 

C. 427, 60 S. E. 961. _ Able v. Southern Railway, 73 S. C. 178, 52 S. E. 

6. There is nothing in this Section which de- 962. 
Clares that failure to have the case so docketed Placing on wrong calendar is a mere irregularity,, 

within a prescribed time after action begun puts and not a jurisdictional defect. Ward v. West- 

a party out of Court. Hagood v. Riley, 21 S. C. ern U. Tel. Co., 62 S. C 279, 40 S. E. 670; Caro- 

143.^ _ _ _ lina Grocery Co. v. Moore, 63 S. C. 184, 41 S. 

When the time for answering expires, after the E. 88. Case is properly retained on Calendar 2 

day for the Court to open, but before it is actually after withdrawal of demurrer to give judgment 

opened, the case may be put on Calendar 3 and on admission of counterclaim. Melchers & Co. v. 

judgment by default taken. McComb v. Wood- Moore, 62 S. C. 386', 40 S. E. 901. 
bury, 13 S. C. 479. _ Petition for removal presented at the term at 

Sufficiency of endorsement by plaintiff of in- which the cause could be first tried. Carson v. 

structions to docket. Bank v. Thompson, 46 S. Hyatt, 118 U. S. 279, 289, 30 L. Ed. 167. 
C. 499, 24 S. E. 332. The placing on the docket 



§§ 316-317] OF SOUTH CAROLINA. 121 

appointed, under the direction of the presiding Judge of his Circuit, to take full 
stenographic notes of all proceedings, including the rulings and charge of the 
Court in every trial thereat ; and in case the presiding Judge, or the Solicitor, 
for use in criminal cases, shall require a transcript of said stenographic notes, 
the stenographer shall furnish the same written out in full. 
1906, XXV, 8; 1910, XXVI, 713. 

Compensation of Ste^nographers. — Each Court stenographer shall receive 
an annual salary of fifteen hundred dollars, payable monthly upon war- 
rants of the Comptroller General, and a fee of five cents per hundred 
words for all transcripts furnished litigants, except in the Second and 
Fifth and Sixth Circuits, where the fees for transcripts shall be ten cents 
per folio of one hundred words, which fee shall be paid by the parties 
litigant, except in criminal cases where the defendant satisfies the Court that he 
is unable to pay for such transcript, when the same shall be furnished without 
fee by the Court stenographer: Provided, That any failure on the part of a 
Court stenographer to furnish a transcript of any case, or any part thereof, 
within thirty days from the time a demand be made, shall forfeit his right to 
any pay for said transcript. Any sum so paid by any party shall be considered 
a necessary disbursement in the taxation of costs. 

1906, XXV, 8; 1910. XXVI. 713. 

§ 316. Circuit Judges to Appoint Special Stenographers When Ste- 
nographer Is Disabled. — The Circuit Judges of this State are hereby author- 
ized to appoint a special Court stenographer to act in the place and stead of the 
regular Court stenographer in case of sickness, absence or inability to act at any 
term or part of a term of either the Court of Common Pleas or General Ses- 
sions ; and such stenographer, when so appointed, shall receive not more than 
the sum of seven and one-half dollars per day for each day he may be in at- 
tendance upon said Court. It shall be the duty of the presiding Judge to certify 
the number of days any such special stenographer may be engaged in the Courts 
as such; upon this certificate the Comptroller General shall draw his warrant 
upon the State Treasurer for the amount due said stenographer for his services, 
and the said State Treasurer is authorized to pay the same. 

1908, XXV, 1012. 

§ 317. Order of Disposing of Issues on the Calendar. — The issues on 
the calendar shall be disposed of in the following order, unless, for the con- 
venience of parties or the dispatch of business, the Court shall otherwise direct : 

1. Issues of fact to be tried by a jury. 

2. Issues of fact to be tried by the Court. 

3. Issues of law.''' 
1870, XIV, § 381. 

7. The order in which issues should be tried less. Jones v. Garlington, 44 S. C. 533, 22 S. E. 

is discretionary with the Court. Knox i'. Camp- 741. _ ■,■ t j 

bell 52 S. C 461, 30 S. E. 485. Retaining case It is left to the discretion ot the presiding Judge 

on Calendar 1, and there giving judgment, after whether legal or equitable issues shall be first 

sustaining demurrer to answer, if error, is harm- tried. DuBose v. Kell, 76 S. C. 316, 56 b. t,. 968. 



122 CODE OP CIVIL PROCBDURB [ §§ 318-321 

CHAPTER III. 

Trial by Jury. 

Sbc. Sec. 

318. Trial — Separate trials. 323. Jury to assess defendant's damages 

319. Court to be furnished with copy of in certain cases. 

pleadings. 324. Entry of verdict — Motion for new 

320. General and special verdicts defined. trial. 

321. When jury may render special or 325. Motion for new trial, or for judg- 

general verdict — Directing spe- ment on special verdict — Where 

cial findings. ' to be heard. 

322. On special finding with a general 

verdict, former to control. 

§ 318. Trial — Separate Trials. — Either party complying with the re- 
quirements of Section 314 may bring the issue to trial, and, in absence of the 
adverse party, unless the Court for good cause otherwise direct, may proceed 
with his case, and take a dismissal of the complaint, or a verdict or judgment, 
as the case may require. A separate trial between a plaintiff and any of the 
several defendants may be allowed by the Court whenever, in its opinion, jus- 
tice will thereby be promoted. 

1870, XIV, § 282. 

§ 319. Court to Be Furnished with Copy of Pleadings. — When the 
issue shall be brought to trial by the plaintiff, he shall furnish the Court with a 
copy of the summons and pleadings, with the offer of defendant, if any shall 
have been made. When the issue shall be brought to trial by the defendant, and 
the plaintiff shall neglect or refuse to furnish the Court with a copy of the sum- 
mons and pleadings and the offer of the defendant, the same may be furnished 
by the defendant. 

1870, XIV, § 283. 

§ 32 0. General and Special Verdicts Defined.— A general verdict is 
that by which the jury pronounce generally upon all or any of the issues, either 
in favor of the plaintiff or defendant. A special verdict is that by which the 
jury finds the facts only, leaving the judgment to the Court. 

1870, XIV, § 284. 

§ 321. When Jury May Render Special or General Verdict — Direct- 
ing Special Findings. — In an action for the recovery of specific personal prop- 
erty, if the property have not been delivered to the plaintiff, or if it have, and 
the defendant, by his answer, claim a return thereof, the jury shall assess the 
value of the property, if their verdict be in favor of the plaintiff, or if they find 
in favor of the defendant, and that he is entitled to a return thereof, and may 
at the same time assess the damages, both actual and punitive, if any are claimed 
in the complaint or answer, which the prevailing party has sustained by reason 
of the detention or taking and withholding such property. In every action for 
the recovery of money only, or specific real property, the jury in their discretion 
may render a general or special verdict. In all other cases, the Court may direct 
the jury to find a special verdict in writing upon any or all of the issues, and 
in all cases may instruct them, if they render a general verdict, to find upon 
particular questions of fact, to be stated in writing, and may direct a written 
finding thereon. The special verdict or finding shall be filed with the Clerk, 
and entered upon the minutes. 

1870, XIV, § 285; 1909, XVII, 161. 

Actions for Rfcovfry op Pfrsonai, Property — What Jury May Find. — 
In every action for the recovery of personal property which has been pledged 
in any way to secure credit or debt,* the defendant may plead his counterclaim 
arising out of the same transaction, and the jury in such case may find, in ad- 
dition to the verdicts now provided by law, the amount due to the plaintiff, if 



§§322-324] OF SOUTH CAROLINA. 123 

any; and in such case the defendant shall have the right to pay said amount, 
and costs, and the property shall thereafter be free from the encumbrance.^ 
1909, XVII, 161. 

§ 322. On Special Finding' with a General Verdict, Former to Con- 
trol. — Where a special finding of facts shall be inconsistent with the general 
verdict, the former shall control the latter, and the Court shall give judgment 
accordingly. 

1870, XIV, § 286. 

§ 323. Jury to Assess Defendant's Damages in Certain Cases. — When 
a verdict is found for the plaintiff in an action for the recovery of money, of 
for the defendant when a set-off for the recovery of money is established, be- 
yond the amount of the plaintiff's claim as established, the jury must also assess 
the amount of the recovery; they may also, under the direction of the Court, 
assess the amount of the recovery when the Court gives judgment for the plain- 
tiff on the answer. If a set-off, established at the trial, exceed the plaintiff's 
demand so established, judgment for the defendant must be given for the ex- 
cess ; or if it appear that the defendant is entitled to any other affirmative relief, 
judgment must be given accordingly.^ 

1870, XIV, § 287. 

§ 324. Entry of Verdict — Motion for New Trial. — 1. Upon receiving a 
verdict, the Clerk shall make an entry in his minutes, specifying the time and 
place of the trial, the names of the jurors and witnesses, the verdict, and either 
the judgment rendered thereon or an order that the cause be reserved for argu- 
ment or further consideration. If a different direction be not given by the 
Court, the Clerk must enter judgment in conformity with the verdict. 2. If an 
exception be taken, it may be reduced to writing at the time, or entered in the 
Judge's minutes, and aftervv^ards settled as provided by the rules of Court, and 
then stated in writing in a case, or separately, with so much of the evidence as 
may be material to the questions to be raised, but need not be sealed or signed, 
nor need a bill of exceptions be made. 3. If the exceptions, in the first in- 
stance, stated in a case, and it be afterwards necessary to separate them, the 
separation may be made under the direction of the Court, or a Judge thereof. 

1. Where plaintiff takes possession of the prop- 748; Vance v. Vandercook Co., No. 2, 170 U. S. 

erty, a verdict in the words, "We find for the de- 472; Buford v. Fannen, 1 Bay 273; Banks v. 

fendant the return of the property or $507.95," is Hatton, 1 N. & McC. 221; Kid v. Mitchell, lb., 

in compliance with this Section. Bardin v. Drafts, 324. Where the defendant answers that the prop- 

10 S. C. 493. But where the action is to recover erty does not belong to him, but to his assignee, 

"patterns" in foundry proved to be worth $5,000, the plaintiff cannot be adjudged to return the 

and the Judge charged that defendants were en- goods, or pay their value, to the defendant, but 

titled to a part thereof, the verdict in these words, the Court, of its own motion, should compel the 

"We find the plaintiff patterns the value of $100," assignee to intervene. Wilkins v. Lee, 42 S. C. 

does not identify the property, and is void. Eason 31, 19 S. E. 1016. See, also, § 338, and note, 

V. Kelly, 18 S. C. 381. posf. 

In such action a verdict which calls for a deliv- Punitive damages not recoverable in claim and 

ery or return of the propertv is insufficient and delivery. Tittle v. Kennedy, 71 S. C. 1, 50 S. 

illegal, unless it assess the value of the property, E. 544, 4 Am. & Eng. Ann. Cas. 68; Brayton v. 

even though there be no testimony as to value. Beall, 73 S. C. 313, 53 8. E. 641. 

The Section is mandatory. Eason v. Kellv, 18 S. Form of Verdict; description of property. Bas- 

C. 381; Thompson v. Lee, 19 S. C. 489; Lockhart sard v. Vaughn, 68 S. C. 98, 46 S. E. 523; 

V. Little, 30 S. C. 326, 9 S. E. 511; Robbins v. Phcenix Furniture Co. v. Jaudon, 75 S. C. 229, 

Slattery. 30 S. C. 328, 9 S. E. 510. 55 S. E. 308. 

An alternative verdict is only required when Parish 7: Smith, 66 S. C. 424, 430, 45 S. E. 16. 
the defendant is entitled to the return of the Issues may be sent to jury in action for dam- 
property. Finley v. Cudd, 42 S. C. 121, 20 S. ages to land. May they be in action for recovery 
;g. 32. ■ of specific real property? Manson v. Dempsey, 

Where the defendants are not jointly liable, a 88 S. C. 193. 

general verdict for the plaintiff for certain prop- Special verdict as to title to land in suit for 

erty valued at a certain sum, with damages for land conveyed by husband to mistress in violation 

detention, is too indefinite, as it should be against of § 2665 of the Code. Williams v. Halford, 67 

each defendant separately for the specific prop- S. C. 296. 45 S. E. 207. 

erty in bis possession, or its value. Norris v. It is immaterial whether the jury were in- 

Clinkscales, 47 S. C. 488, 25 S. E. 797. structed to find a general verdict first and then 

To entitle plaintiff to damages he must give some make their special findings or the reverse. Sin- 

nroof thereof. lb. As to what damaees are al- gletary v. Seaboard Air Line Railway, 88 S. C. 

iowcd. Miami Powder Co. v. Railroad, 47 S. C. '565. 

324, 25 S. E. 153; Brock v. Bolton, 37 S. C. 40, 2. Relief in case of mistake in verdict after 

16 S. E. 370; Lioscomb v. Tanner, 31 S. C. 49, lapse of time for correcting mistake. Pelzer Mfg. 

9 S. E. 733; Loeb v. Mann, 39 S. C. 465. 18 S. Co. v. Hamburg, etc., Ins. Co., 71 Fed. 826, 832. 
E. 1; Jones V. Hiers, 57 S. C. 427, 35 S. E- 



124 



CODE OF CIVIL PROCEDURE 



[§ 325 



4. The Judge who tries the cause may, in his discretion, entertain a motion, to 
be made on his minutes, to set aside a verdict and grant a new trial upon ex- 
ceptions, or for insufficient evidence, or for excessive damages ; but such mo- 
tions, if heard upon the minutes, can only be heard at the same term at which 
the trial is had. When such motion is heard and decided upon the minutes of 
the Judge, and an appeal is taken from the decision, a case or exceptions must 
be settled or agreed upon in the usual form, upon which the argument of the ap- 
peal must be had.^ 

1870, XIV, § 388. 

§ 325. Motion for New Trial, or for Judgment on Special Verdict — 
Where to Be Heard. — A motion for a new trial on a case or exceptions, or 
otherwise, and an application for judgment on a special verdict or case reserved 
for argument or further consideration, must, in the first instance, be heard and 
decided at the same term, except that when exceptions are taken, the Judge try- 
ing the cause may, at the trial, direct them to be heard at some subsequent term, 
and the judgment in the meantime suspended; and in that case they must be 
there heard in the first instance, and judgment there given. And when, upon 
a trial, the case presents only questions of law, the Judge- may direct a verdict.^ 

1870, XIV, § 289. 



3. Unless otherwise directed by the Court, the 
Clerk must enter judgment in conformity with the 
verdict or it will be void. Eason v. Kelly, IS 
S. C. 200; Ih., 18 S. C. 381; Kamisky v. Railroad, 
25 S. C. S3. But where the judgment is based 
upon a verdict on an equitable issue, _ that should 
have been tried by the Court, it is void. Gadsden 
V. Whaley, 9 S. C. 147; Sloan v. Westfield, 11 S. 
C. 447; Cooper v. Smith, 16 S. C. 331. 

When upon rendition of verdict, the Court or- 
dered the case to be transferred to Calendar No. 
2, and that plaintiffs have leave to apply for judg- 
ment thereon, the Clerk could not enter judgment 
on the vedict. Whitesides v. Barber, 22 S. C. 47. 

This Section, as to the power of the Judges in 
granting new trials, is not to be restricted by any 
construction of Constitution of 1868, Art. IV, § 26. 
Wood V. Railroad Co., 19 S. C. S79. 

This Section dispenses with the use of "bills of 
exceptions," and substitutes a statement of the 
exceptions taken at the trial, containing so much 
of the evidence as may be necessary to show the 
bearing of the exceptions. Caston v. Brock, 14 S. 
C. 104. 

Exceptions to the orders and rulings of the 
Judge may be taken at the trial, and, if so taken, 
they need not be served within ten days after the 
rising of the Court. Coleman v. Heller, 13 S. C. 
491. 

The better practice is to notify the Court at 
the time that the party "excepts," and have it 
so noted on the record; but it has been held that 
when it appears from the record that the Judge 
was apprised that the party intended to rely on 
his propositions advanced by way of _ exceptions, 
that is sufficient to constitute an exception, though 
there is no formal request to note it. Fox v. R. 
R., 4 S. C. 543; S. C. R. R. v. Wilmington R. R., 
7 S. C. 416; Clark v. Harper, 8 S. C. 2S7; Cole- 
man V. Heller, 13 S. C. 491; Godbold v. Vance, 14 
S. C. 458. 

Under motion for new trial on the minutes, 
upon the ground of excessive damages, the Cir- 
cuit Judge has power to order a new trial, unless 
the plaintiff enter a remittitur for a specified 
amount. Warren v. Lagrone, 12 S. C. 45. 



Where the Judge thought the evidence insuffi- 
cient, but refused to grant new trial because he 
underrated his power to do so, under the Con- 
stitution, he committed error in law. Wood v. 
R. R. Co., 19 S. C. 579. 

A Judge cannot grant such a new trial at cham- 
bers. Charles v. Jacobs, 5 S. C. 348; Clawson v. 
Hutchison, 14 S. C. 520. And an order transfer- 
ring the hearing to another Judge is of no effect. 
Donly V. Fort, 42 S. C. 200, 20 S. E. 51. 

Where a case for appeal has not been settled 
or agreed- on, it must be returned to Circuit for 
settlement. Chalk v. Patterson, 4 S. C. 98. 

See, also, note to § 3053 in Civil Code. 

A new trial may be granted for inadequacy of 
damages. Bodie v. C. & W. C. R., 66 S. C. 313, 
44 S. E. 943. 

Entry of judgment on verdict on appeal to 
Circuit Court in condemnation proceedings. 
Mauldin v. Greenville, 64 S. C. 444, 42 S. E. 202. 

Mistake in verdict as to parties corrected un- 
der direction of Judge. King v. Eane, 68 S. C. 
430, 47 S. E. 704. 

Decision on motion for new trial will only be 
reviewed for abuse of discretion. Oil Co. v. Ice 
Co., 68 S. C. 47, 46 S. E. 720. 

4. "Same term" means the term at which the 
trial was had. Hinson 7'. Catoe, 10 S. C. 311. 

The Circuit Judge cannot hear a motion on the 
minutes for a new trial after the term has ended. 
Caston r. Brock, 14 S. C. 104; Molair v. R. Co., 
31 S. C. 510, 10 S. E. 243. Where the motion is 
made and heard during the term, the decisioa rnay 
be filed nunc pro tunc after the term has ended. 
Calhoun v. R. Co., 42 S. C. 132, 20 S. E. 30. 
This and § 324 relate only to motions for new 
trials upon a ground arising out of something that 
occurred at the trial. State v. David, 14 S. C. 
428; Clawson v. Hutchison, 14 S. C. 517; Sams v. 
Hoover, 33 S. C. 401, 12 S. E. 8. 

Referred to in Charles v. Jacobs, S S. C. 349; 
Caston V. Brock, 14 S. C. ill. 

Equitable relief granted for mistake in verdict 
where this remedy inapplicable. Pelzer Mfg. Co. 
V. Hamburg, etc., Ins. Co., 71 Fed. 826, 832. 



§§ 326-328] OF SOUTH CAROLINA. 125 

CHAPTER IV. 
Trial by the Court. 

Sec. Sec. 

326. Trial by jurj- — How waived. 328. Exceptions — How and when taken 

827. On trial by Court — Judgment — — Judgment at general term. 

How given — Motion for new 329. Proceedings upon judgment on is- 

trial. sue of law. 

§ 326. Trial by Jury — How Waived. — Trial by jury in the Court of Com- 
mon Pleas may be waived by the several parties to an issue of fact in actions 
on contract, and with the assent of the Court in other actions, in the manner 
following" : 

1. By failing to appear at the trial. 

2. By written consent, in person, or by attorney, filed with the Clerk. 

3. By oral consent in open Court, entered in the minutes.^ 
1870, XIV, § 290. 

§ 327. On Trial by Court — Judgment — How Given — Motion for New 
Trial. — Upon the trial of a question of fact by the Court, its decision shall be 
given in writing, and shall contain a statement of the facts found, and the con- 
clusions of law, separately ; and upon a trial of an issue of law% the decision shall 
be made in the same manner, stating the conclusions of law. Such decision 
shall be filed with the Clerk within sixty days after the Court at which the trial 
took place. Judgment upon the decision shall be entered accordingly. - 

1870, XIV, § 291. 

§ 328. Exceptions — How and When Taken — Judgment at General 
Term. — 1. For the purpose of an appeal, either party may except to a decision 
on a matter of law arising upon such trial, within ten days after written notice 
of the filing of the decision, order, or decree, as provided in Sections 383 and 
384: Provided, hozvevcr. That where the decision filed under Section 327 does 
not authorize a final judgment, but directs further proceedings before a referee 
or otherwise, either party may move for a new trial at the next term, and for 
that purpose may, within ten days after notice of the decision being filed, ex- 
cept thereto, and make a case or exceptions as above provided in cases of an 
appeal. 

2. And either party desiring a review upon the evidence appearing on the trial, 
either of the questions of fact or of law, may, at any time within ten days after 
notice of the judgment, or within such time as may be prescribed by the rules 

1. This Section in the terms "actions on con- The rule is directory and not maiidatury, and 
tract" includes such actions as before its adoption an omission on the part of the Court to contain 
were recognized as actions at common I'lvv. State in its decision a statement of the facts found and 
''. R. R., 8 S. C. 129. the conclusions of law separately, is not ground for 

Party may waive right to jury trial, by con- reversal tinless it appear that appellant has suf- 

senting to reference of such issues in the cause. fered prejudice thereby, as to the merits of the 

City Council v. Ryan, 22 S. C. 339; Meetze v. case. Joplin v. Carrier, 11 S. C. 329; State v. 

R. R., 23 S. C. 1; Martin v. Martin, 24 S. C. Columbia, 12 S. C. 393; Bouknight i: Brown, 16 

446; Calvert v. Nickles, 26 S. C. 304, 2 S. E. 116; vS. C. 166; Briggs i: Briggs, 24 S. C. 377; May 

Archer v. Ellison, 28 S. C. 238, S S. E. 713; '■. Cavender, 29 S. C. 598, 7 S. E. 489; Stepp i: 

Rhodes v. Russell, 32 S. C. S8S, 10 S. E. 828. Assn., 37 S. C. 417, 16 S. E. 134; Harrell v. 

Or by consenting to trial by the Court. Whaley Kea, 37 S. C. 369, 16 S. E. 42; Aultman v. Utsey, 

'■. Charleston, 5 S. C. 206; Magruder z: Clayton, 41 S. C. 304, 19 S. E. 617. 

29 S. C. 407, 7 S. E. 844; Griffith '■. Cromley, Where decision of the Court found a balance 

58 S. C. 448, 36 S. E. 738. _ due on former judgment and directed execution 

But party cannot so waive such right by his thereof, the Clerk properly entered up judgment 

conduct. Sale f. Meggett, 25 S. C. 72. on the decision for the balance. Garvin v. Garvin, 

Where the Judge in an action on contract with- 21 S. C. 83. 
drew the trial of the issues of fact from the jury The Judge has power upon hearing referee's re- 

without the consent of the several parties, the port in law case to reverse, affirm or modify his 

party requesting the Judge so to do cannot com- finding of fact. Meetze 7'. R. R., 23 S. C. 1; 

plain on appeal that it was error. Stepp v. Asso- Griffith _ r. R. R., 23 S. C. 25. 
ciation. 37 S. C. 417, 16 S. E. 134. Decision valid though filed more than sixty days 

2. The demand as to the form of the decision after Court. Koon i\ Munro, 11 S. C. 139. 
should be complied with. Visanska ■:'. Bradley, 4 Decision overruling demurrer should be given 
S. C. 288. in writing and signed but here requirement held 

But where there is no contest as to the facts, to be waived. Mauldin ■:■. Seaboard Air Line Rail- 
there need be no finding of fact. Briggs i: Win- wav, 73 S. C. 9, 11, 52 S. E. 677. 
smith, 10 S. C. 133. 



126 CODE OF CIVIL PROCBDURB [ §§ 329-331 

of the Court, make a case or exceptions, in like manner as upon a trial by jury, 
except that the Judge, in settling the case, must briefly specify the facts found 
by him, and his conclusions of law.^ 
1870, XIV, § 292. 

§ 329. Proceedings upon Judgment on Issue of Law.— On a judgment 
for the plaintiff upon an issue of law, the plaintiff may proceed in the manner 
prescribed by Section 305, upon the failure of the defendant to answer, where 
the summons was personally served. If judgment be for the defendant, upon 
an issue of law, and if the taking of an account or the proof of any fact be nec- 
essary to enable the Court to complete the judgment, a reference or assessment 
by jury may be ordered, as in that Section provided. 

1870, XIV, § 293. 



CHAPTER V. 

Trial by Referees. ^ 

Sec. Sec. 

330. All issues referable by consent. 333. Referees — How chosen — Report. 

331. When reference may be compulso- 334. Referees in Saluda County — Pro- 

rily ordered. v'so. 

332. Mode of trial — Effect of report — 

Review. 

§ 330. All Issues Referable by Consent. — All or any of the issues in the 
action, whether of fact or of law, or both, may be referred upon the written 
consent of the parties ; and, in such case, the order, if taken in vacation, may 
be made by the clerk. ^ 

R. S. 1872, 180, § 15. 

§ 331. When Reference May Be Compulsorily Ordered. — Where the 
parties do not consent, the Court may, upon the application of either, or of its 
own motion, except where the investigation will require the decision of difficult 
questions of law, direct a reference in the following cases : 

1. Where the trial of an issue of fact shall require the examination of a long 
account on either side; in which case the referee may be directed to hear and 
decide the whole issue, or to report upon any specific question of fact involved 
therein; or, 

2. Where the taking of an account shall be necessary for the information of 
the Court, before judgment, or for carrying a judgment or order into effect; or, 

3. Where a question of fact, other than upon the pleadings, shall arise, upon 
motion or otherwise, in any stage of the action. 

4. The reference shall be made, in all Counties in which the office of Master 

3. If exception has been taken to a decision 1. As to the application of this Chapter in those 

on a matter of law arising on the trial, no further Counties where the office of Master exists, see 

exception need be made thereto as required by Chapman v. Lipscomb, IS S. C. 474. 

this Section. Coleman v. Heller, 13 S. C. 491. 3. All issue in law may be so referred. Meetze 

In appealing from a decree in chancery ren- 7'. R. R., 23 S. C. 1; Griffith 7'. R. R., 23 S. C. 

dared in vacation, it was held not necessary to 25. But not except upon written consent. Sale 

serve the Judge with a copy of the exceptions. 7'. Meggett, 25 S. C. 72. An order of reference, 

Godbold V. "Vance, 14 S. C. 458. Since the amend- by consent, is sufficient. City Council 7'. Ryan, 

ments to S 384, it is not now necessary to serve 22 S. C. 339; Martin v. Martin, 24 S. C. 446; 

the Judge with the exceptions in any case. Calvert v. Nickles, 26 S. C. 304, 2 S. E. 116; 

Matters stated only in the exceptions are not Trenholm v. Morgan, 28 S. C. 268, 5 S. E._ 721. 

facts in the case. Lites v. Addison, 27 S. C. 226, An order of reference which does not adjudge 

3 S. E. 214. the rights of the parties is an administrative or- 

This Section controls on hearing of referee's re- der which may be changed by a succeeding Judge 

port in a law case on exceptions taken, and allows for cause shown. New England Mortg., etc., Co. 

a review of his findinijs of fact as well as of law. v. Simms, 43 S. C. 311, 21 S. E. 113. 

Meetze r. R. R., 23 S. C. 1; Griffith v. R. R., 23 Order of reference made by consent, wh^re com- 

S. C. 25. pulsory order of reference might be made, is not 

Fir.st National Bank v. Lee, 68 S. C. 116, 46 S. vitiated by master's bringing in other parties by 

E. 771. amendment of complaint. Beall Co. v. Weston, 

83 S. C. 491, 65 S. E. 823. 



§ 332 



OF SOUTH CAROLINA. 



127 



has been established, to a Master ; in all other Counties the reference shall be 
made to such person or persons as shall be appointed as provided in Section 333.-^ 
R. S. 1872, 180, § 15. 

§ 332. Mode of Trial— Effect of Report— Review.— The trial by a Mas- 
ter, or by referees, shall be conducted in the same manner and on similar notice 
as a trial by the Court. Every referee appointed pursuant to this Code of Pro- 
cedure shall have power to administer oaths in any proceedings before him, and 
shall have, generally, the powers vested in a reference by law. Masters and refer- 
ees shall have the same power to grant adjournments, and to allow amendments 
to any pleadings and to the summons, as the Court, upon such trial, upon the same 
terms, and with the like effect. They shall have the same power to preserve order 
and punish all violations thereof upon such trial, and to compel the attendance of 
witnesses before them by attachment, and to punish them as for contempt for 
nonattendance or refusal to be sworn or testify, as is possessed by the Court. 
They must state the facts found, and the conclusions of law, separately; and 
their decision must be given, and may be excepted to and reviewed in like man- 
ner, and with like effect, in all respects, as in cases of appeal under Section 328; 
and they may in like manner settle a case or exceptions. When the reference 
is to report the facts, the report shall have the effect of a special verdict. 

Must De;cide; Obje;ctions to Evide:nce; — And Re^port Se:parati:IvY. — Mas- 
ters and referees to whom causes may be referred, whether to hear and decide 
the whole issues or to report upon any specific question of fact, or upon the facts 
generally, shall hear ancl decide any objection which may be made to the com- 
petency, relevancy, or admissibility of any testimony which may be offered ; and 
in case, upon hearing such testimony, the Master or referee shall decide the same 
inadmissible, he shall take the same, subject to such objection, but shall not 



3. This Section does not impair the common 
law power of the Court to submit a case, with 
consent of parties, to arbitration and make the 
award the judgment of the Court. Bollman v. 
Bollman, 6 S. C. 29. 

The provision of this Section is permissive 
merely, and not mandatory, and the matter of 
reference is addressed to the discretion of the 
Judge. Bouland v. Carpin, 27 S. C. 235, 3 S. 
E. 219. While he can only refer in the specified 
cases. It must be assumed that the Judge had be- 
fore him sufficient to show that the case did fall 
under one of the subdivisions. Ferguson v. Har- 
rison, 34 S. C. 169, 13 S. E. 332. And in proper 
case reference may be ordered at same time it is 
required that other persons be made parties. Sul- 
livant'. Latimer, 32 S. C. 281, 10 S. E. 1071. 

This Section, as to subdivision 1, must be con- 
strued to apply to such cases only as were not 
triable by jury prior to 1868, and where an ac- 
tion on open account or account stated presents 
no special feature of equitable cognizance the 
parties are entitled to a jury trial, even though 
the examination of a long account may be in- 
volved. Smith V. Bryce, 17 S. C. S38. 

Where a creditor, defendant, claims priority of 
payment out of a fund in Court, through a lien 
on the property it represented, the case was re- 
ferable under this Section. State z\ R. R., 8 S. 
C. 129. 

So when the defendant to an equitable action 
sets up a claim for damages, the Court may still 
refer the case. Lamar v. R. R., 10 S. C. 476; 
Bath Co. V. Langlev 23 S. C. 145; Bouland v. 
Carpin, 27 S. C. 235, 3 S. E. 219. 

An order of reference urftier this Section is not 
appealable, unless it deprive the aopellant of a 
mode of trial to which he is entitled bv law. 
Devereux v. McCrady, 49 S. C. 423, 27 S. E. 467; 
Ferguson i'. Harrison, supra. Where a party is 
entitled to a iury trial, inconvenience of witnesses, 
and the length of time the case would take, if 
the testimony were taken before the jury, are not 
grounds fnr granting a compulsory order of ref- 
erence. Wilson V. Township, 43 S. C. 299, 21 S. 
E. 82. See, also, § 312, and note. Order of 
reference mav be made at chambers. Bank v. 
Fennell, 55 S. C. 379, 33 S. E. 385; Green v. 



McCarter, 64 S. C. 290, 42 S. E. 157; Wilkes & 
Co. V. Arthur, 85 S. C. 299, 67 S. E. 297. A 
reference may be order under s. d. 2 against pro- 
test of party. Green zi. McCarter, supra. After 
revocation of order of reference, a second order 
may be made. Green v. McCarter, supra. Mo- 
tion to recommit to Master discretionary. Halk v. 
Stoddard, 62 S. C. 564, 40 S. E. 957; Davidson 
V. Copeland, 69 S. C. 47,^48 S. E. 33. Compul- 
sory reference ordered. Greenwood Construction 
Co. V. Ware Shoals Mfg. Co., 78 S. C. 169, 58 S. 
E. 765. 

See E. A. Beall Co. v. Weston, 83 S. C. 494, 
65 S. E. 823; Tones v. Haile Gold Mining Co., 
79 S. C. 53, 60 S. E. 35; Engine Co. v. Richland 
Lodge, 73 S. C. 533, 53 S. E. 993; Fludd v. Equi- 
table Life Assur. Soc, 75 S. C. 315, 318. 55 S. 
E. 762; Williams v. Newton, 84 S. C. 98, 100, 65 
S. E. 959. 

Order of reference to take testimony not ap- 
pealable. Hall V. McBride, 7i S. C. 227, 53 S. 
E. 368. 

Court without consent has power to refer whole 
issue where long account is involved. Montague 
V. Best. 65 S. C. 457, 43 S. E. 963. 

Circuit Judge may refer case on motion to set 
aside judgment. Jones v. Mining Co., 79 S. C. 
54. 60 S. E. 35. 

In case involving issues of partition and of 
transfer of one interest and of accounting for 
rents and profits. Court may refer all issues with- 
out consent. Windham v. Howell, 78 S. C. 187, 
59 S. E. 852. ^ 

Order referring case to take testimony and to 
state account in action to set aside part of will 
void under § 2792, Civil Code, and to have ex- 
cess partitioned among heirs at law, is valid. 
Williams v. Newton, 84 S. C. 98, 65 S. E. 959. 

Whether investigation requires decision of dif- 
ficult questions of law, so as to give party right 
of trial by Court, is for Tudge. Williams v. New- 
ton. 84 S. C. 98, 65 S. E. 959. 

Circuit Judge at chambers out of term time has 
authority to order all issues referred without con- 
sent of all parties in action to enforce liability of 
stockholders for debts of an insolvent bank. 
Wilkes & Co. V. Arthur, 85 S. C. 299, 67 S. E- 
297. 



128 CODE OF CIVIL PROCBDURE [ § 333 

incorporate such testimony so held by him inadmissible with the rest of the 
testimony in the body of his report, but shall append the same separately at the 
end of his report. 

May Employ Stenographer. — The Master or referee, at the request of any 
party to a cause who may tender the necessary expenses incident thereto, may 
employ a competent stenographer to take testimony in such cause : Provided, 
That such expenses shall not be taxed in the costs or included in the disburse- 
ments of the same. 

To Be Read and Signed by Witness — Testimony Taken by Stenographer. 
— Whenever any cause shall be referred to any Master or referee by any Court 
in this State, and testimony be taken, therein, it shall be the duty of such 
Master or Referee to reduce the testimony of the witnesses to writing and re- 
quire the same to be read over and signed by the witness : Provided, however. 
That nothing herein contained shall be construed to prevent the use of the ste- 
nographers for the purpose of taking testimony at such references, or to require 
that the testimony so taken by such stenographers shall be read over to or 
signed by such witnesses. 

Time Prescribed for Report — Penalty — Extension oe Time. — In all cases 
referred to Masters and referees by the Courts of Common Pleas, as now pro- 
vided by law, the Masters or referees shall make and file with the Clerks of the 
Courts of Common Pleas of their respective Counties their reports within sixty 
days from the time the action shall be finally submitted to them, and in default 
thereof they shall not be entitled to any fees : Provided, That nothing herein con- 
tained shall prevent parties to said action, or their attorneys, from extending 
the time by mutual consent in writing. 

When the case shall have been heard and decided upon the report of the 
referee and exceptions, the decision may be reviewed on appeal to the Supreme 
Court.4 

1870, XIV, § 296; 1884, XVII, 733; 1889, XX, 294. 

§ 333. Referees — How Chosen — Report.— In all cases of reference to 
referees, the parties to the issues in the action, except when the defendant is an 
infant or an absentee, may agree in writing upon a person or persons, not ex- 
ceeding three, and a reference shall be ordered to him or them, and to no other 
person or persons. And if such parties do not agree, the Court shall appoint 

4. An order of reference, reserving equities, findings of fact are only to assist the Court and 

does not prevent Master from determining ob- for its information, and may be disregarded by 

jection to testimony. Devereux v. McCrady, 49 the Court. lb. 

S. C. 423, 27 S. E. 467. When there is a consent order of reference, of 

Referee has power to allow amendments. Mason all issues, in a law case, the Judge has power to 

V. Johnson, 13 S. C. 20. review the findings of fact as well as of law, 

This Section does not authorize a Master to made by the referee, when the report, the testi- 

require a party to produce a deed. Cartee 7'. mony and exceptions are all before him. Meetze 

Spence, 24 S. C. 550. v. Railroad, 23 S. C. 1; Griffith v. Railroad, 23 

It is not mandatory, but directory merely, as S. C. 25; Calvert v. Nickles, 26 S. C. 305, 2 S. 

to the statement "of facts found and conclusions E. 116. 

of law," separately. Bollman v. BoUman, 6 S. A party can be heard in opposition to the con- 

C 29. firmation of the report of the referee, without 

The "facts found" are the conclusion of facts having excepted thereto, when he has not been 

drawn from the testimony. There should first be served with a copy or notice thereof ten days be- 

a clear statement of all material facts, and then fore Court. Fort v. Goodwin, 36 S. C. 445, 15 

should follow the conclusions of the referee. S. E. 723. 

Moore t'. Johnson, 7 S. C. 303. The hearing of the exceptions to the Master's 

An exception to the report cannot by its own report' within ten days after notice of filing the 
statement supply such defect of facts. Thompson report is error. McGee i'. Merriman, 43 S. C. 
V. Thompson, 6 S. C. 279. Nor can the Judge 103, 20 S. E. 971. ^ Time to file additional ex- 
hearing the case upon the report call for a paper ceptions cannot be 'extended beyond ten days, 
to be produced which was not before the referee. Verner v. Perry, 45 S. C. 262, 22 S. E. 888. Ex- 
Griffin 7'. Griffin, 20 S. C. 486. ception to referee's report not plead in time. 

It is the duty of the Judge to determine by his Brown ?'. Rogers, 71 S. C. 516, 51 S. E. 257. 

own judgment all the issues in an equity cause; See as to amendments. Beall Co. v. Weston, 

and the report of the referee merely aids the 83 S. C. 495, 65 S. E- 823. 

Judge in reaching his judgment. Thorpe ?'. Thorpe, Conclusions binding, upon parties in absence of 

12 S. C. 154. exceptions. Townes v. Alexander, 69 S. C. 23, 

While the report of the referee upon an is- 24, 48 S. E. 214. 

sue of fact "shall have the effect of a special ver- Under the facts here it was not error in master 

diet," as such a verdict it may be set aside, for to refuse appellants' motion for leave to answer 

any cause for which verdicts may be set aside. over, case being well advanced under reference. 

Fields V. Hurst, 20 S. C. 282. But in equity his Kiddcll v. Bristow. 67 S. C. 175, 45 S. E. 174. 



§§334-335] OF SOUTH CAROLINA. 129 

one or more referees, not more than three, who shall be free from exception. 
And no person shall be appointed referee to whom all parties in the action shall 
object. And no Judge or Justice of any Court shall sit as referee in any action 
pending in the Court of which he is Judge or Justice, and not already referred, 
unless the parties otherwise stipulate. The referee or referees shall make and 
deliver a report within sixty days from the time the action shall be finally sub- 
mitted ; and in default thereof, and before the report is delivered, either party 
may serve notice upon the opposite party that he elects to end the reference ; 
and thereupon the action shall proceed as though no reference had been ordered, 
and the referees shall not, in such case, be entitled to any fees. 

1870, XIV, § 297. 

§ 334. Referees in Saluda County — Proviso. — The same power and au- 
thority now given, or that may hereafter be given, to Masters in Equity, be con- 
ferred upon special referees in Saluda County : Provided, That the court appoint- 
ing said special referees may limit their power and authority by a written order. 

1911, XXVII, 85. 



CHAPTER VI. 

Manner of Entering Judgment. 

Sec Sec. 

335. Judgment may be for or against 339. Clerk to keep "Abstract of Judg- 

any of parties to action. ments." 

336. Relief to be awarded to plaintiff. 340. Judgment to be entered in "Abstract 

337. Rates of damages where damages of Judgments" — Index to judg- 

are recoverable. ments. 

338. Judgment in action for recovery of 341. Judgment roll — Transcript of judg- 

personal property. ment filed in any other County 

—Effect of. 

§ 335. Judgment May Be for or against Any of Parties to Action. — 

1. Judgment may be given fcr or against one or more of several plaintiffs, and 
for or against one or more of several defendants, and it may determine the ul- 
timate rights of the parties on each side, as between themselves. ^ 
1870, XIV, § 298. 

2. Affirmative ReIvIef to Defendant. — And it may grant to the defendant 
any affirmative relief to which he may be entitled.^ 

3. Judgment against One or More of Defendants. — In an action against 
several defendants, the Court may, in its discretion, render judgment against 
one or more of them, leaving the action to proceed against the others, whenever 
a several judgment may be proper. 

4. Compeaint May Be Dismissed for Neglect to Prosecute Action. — The 
Court may also dismiss the complaint, with costs in favor of one or more de- 
fendants, in case of unreasonable neglect on the part of the plaintiff to serve 

1. Beall Co. v. Weston, 83 S. C. 491, 496, 65 ant as against another, if it can be done without 
S. E. 823. injury to the plaintiff. Beattie v. Latimer, 42 S. 

2. Harrison v. Manufacturing Co., 10 S. C. C. 313, 20 S. E- 53. , ^ „ 

278 Voluntary discontinuance by plaintiff. Forest v. 

In action against survivor of joint obligors and Charleston, 65 S. C. 500, 43 S. E. 952; McCabe 

the executor of deceased one, the judgment should v. Southern Ry. Co., 107 Fed. 213; Jordan v. 

be separate. Trimmier v. Thompson, 10 S. C. Wilson, 69 S. C. 56, 48 S. E. 37; Shelton v. 

164. ' Southern Ry. Co., ^80 S. C. 74, 61 S. E. 220; Stal* 

A separate judgment may be rendered in favor ■;■. Southern Ry. Co., 82 S. C. 12, 62 S. E. 1116. 

of one defendant against the plaintiff, upon a Evidence of dismissal; formal order not neces- 

counterclaim. Plyer v. Parker, 10 S. C. 464. sary. Ternigan v. Stickley, 80 S. C. 70, 61 S- E. 

Does not apply to partnership contracts where 211, 128 Am. St. Rep. 855, IS Am. & Eng. Ann. 

the liabilitv is joint. Pope Mfg. Co. v. Welch, Cas. 136. „■, c r^ ,^. .n^ ^- 

55 S. C. 528. 33 S. E- 787. , Beall Co. v. Western, 83 S. C. 491, 496, 6j 

The Court may give judgment for one defend- S. K. 823. 

2 S C C— 9 



130 CODE OF CIVIL PROCEDURE [ §§ 336-339 

the summons on other defendants, or to proceed in the cause against the defend- 
ant or defendants served.^ 

Damage;s and Costs against Marrie;d Women. — In an action brought by or 
against a married woman, judgment may be given against her as well for costs 
as for damages, or both for such costs and for such damages, in the same 
manner as against other persons, to be levied and collected of her separate estate, 
and not otherwise.^ 

§ 336. Relief to Be Awarded to Plaintiff. — The relief granted to the 
plaintiff, if there be no answer, cannot exceed that which he shall have de- 
manded in his complaint, but in any other case, the Court may grant him any 
relief consistent Avith the case made by the complaint, and embraced within the 
issue. ^ 

1870, XIV, § 299. 

§ 337. Rates of Damages Where Damages Are Recoverable. — When- 
ever damages are recoverable, the plaintiff may claim and recover, if he show 
himself entitled thereto, any rate of damages which he might have heretofore 
recovered for the same cause of action.^ 

1870, XIV, § 300. 

§ 338. Judgment in Action for Recovery of Personal Pioperty. — In 

an action to recover the possession of personal property, judgment for the 
plaintiff may be for the possession, or for the recovery of possession, or the 
value thereof, in case a delivery cannot be had, and of damages, both punitive, 
and actual, for the detention. If the property have been delivered to the 
plaintiff, and the defendant, claim a return thereof, judgment for the defendant 
may 'be for a return of the property, or the value thereof, in case a return can- 
not be had, arid damages, both actual and punitive, for taking and withholding 
the same : Provided, That where either party gives bond for said property, as 
provided by law, no punitive damages shall be allowed for anything occurring 
after the giving of the bond.''' 

1907, XXV, 483. 

§ 339. Clerk to Keep "Abstract of Judgments." — The Clerk shall keep 

3. Mere failure by plaintiff to proceed with his See, also, Vance i: Vandercook Co., 170 U. S. 
case after service of summons and docketing does 474, 42 L,. Ed. 1111. 

not have the effect, under this Section, of putting 7. For measure of damages in claim and de- 

the plaintiff out of Court. Hagood v. Riley, 21 livery, and form of verdict, see cases cited in 

S. C. 143. note to § 321. 

4. The provision for the levy and collection out This Section does not apply _ to action for gen- 
of her separate estate is merely directory. Clink- eral damages. Joplin v. Carrier, 11 S. C. 327; 
scales r. Hall, 15 S. C. 602. Only intended to Richey r. DuPre, 20 S. C. 6. 

indicate what property of the woman could be Judgment may be given for value of the prop- 
made liable. Habenicht v. Rawls, 24 S. C. 461. erty, though only its recovery and damages be 

5. The prayer for relief is not essential to the demanded. Joplin v. Carrier, 11 S. C. 327. 
complaint. Malle v. Moseley, 13 S. C. 439. In action for bale of cotton, which defendant 

Relief not limited by prayer of complaint, if had sold, or for the value thereof, a verdict for 

answer is filed and the relief is consistent with stated amount is not invalid, the plaintiff so elect- 

the case made. Christopher v. Christopher, 18 S. ing. Richey f. DuPre, 20 S. C. 6. 
C. 600. In such action, where plaintiff takes posses- 

Where complaint states notes and credits and sion of the property and the verdict gives him a 

demands judgment for a certain sum, and answer portion of it with damages, and the remainder to 

admitted the allegation, it was error in the Judge the defendant with damages, each party is en- 

to reduce the credits and give judgment for a titled to enter judgment. Stoney v. Bailey, 28 S. 

larger sum; this was not consistent with the case C. 156, 5 S. E. 347. 

made. Straub v. Screven, 19 S. C. 445. Punitive damages were formerly not recover- 
Where the relief given exceeds that demanded, able in claim and delivery. Tittle v. Kennedy, 71 
the remedy is by appeal. McMahon v. Pugh, 62 S. C. 1, 50 S. E. 544, 4 Am. & Eng. Ann. Cas. 
S. C. 506, 40 S. E. 961. 68. See Brayton v. Beall, 73 S. C. 313, 53 S. E. 
Godfrey ?■. Burton Lumber Co., 88 S. C. 132, 641. And as to consequential damages, see Vance 
144. 7: Vandercook Co., 170 U. S. 468, 473, 42 1,. Ed. 

Pecree in foreclosure held to be within scope 1111. 
of pleadings. Beall Co. v. Weston, 83 S. C. 491, See § 321, as amended. ... 

65 S. E. 823. Special damages are recoverable m action m 

e. This Section only remands such cases to th~ claim and delivery against carrier only_ where al- 

former practice, and in actions for damages not Ifged and proved that carrier had notice of spe- 

punitive the recovery is limited to the direct pe- cial circumstances. Shieder v. Southern Railway, 

cuniary loss. Sullivan v. Sullivan, 20 S. C. 509. 83 S. C. 455, 65 S. E. 631. 



§§ 340-341 ] .OF SOUTH CAROLINA. 131 

among the records of the Court a book for the entry of judgments, to be called 
the "Abstract of Judgments."^ 

1839, XI, 103, § 8. 

§ 340. Judgment to Be Entered in "Abstract of Judgments"— Index 
to Judgments. — In this book shall be entered each case wherein judgment may- 
be signed, including each case in dower, partition and escheat, after judgment or 
final order, with separate columns, showing number of enrollment, names of 
parties, cause of action, attorney, date of judgment, amount of judgment, time 
of bearing interest, how judgment obtained, costs, (separating attorney, clerk, 
sherifi'. witness and total), kind of execution, date of issuing. Sheriff's return, 
when renewed, and satisfaction, together with an index, by the names of de- 
fendants, and a cross index by the names of plaintiffs, each alphabetically ar- 
ranged and kept in separate volumes, with the number of enrollment of judg- 
ment. And whenever judgment against any party plaintiff or defendant has 
been entered, the names of such party, and each of them,, shall appear in the 
index, and the name of the party plaintiff or defendant in whose favor judg- 
ment has been entered, and each of them, shall appear in cross index. ^ 

1897, XXII, 436. 

§ 341. Judgment Roll — Transcript of Judgment Filed in any Other 
County — Effect of. — Unless the party or his attorney shall furnish a judgment 
roll, the Clerk, immediately after entering the judgment, shall attach together and 
file the following papers, wdiich shall constitute the judgment roll : 

1. In case the complaint be not answered by any defendant, the summons and 
complaint, or copies thereof, proof of service, and that no answer has been 
received, the report, if any, and a copy of the judgment. 

2. In all other cases, the summons, pleadings, or copies thereof, and a copy of 
the judgment, with any verdict or report, the offer of the defendant, exceptions, 
case, and all orders and papers in any way involving the merits and necessarily 
affecting the judgment. 

A transcript of a final judgment, directing, in whole or in part, the payment 
of money, may be docketed with the Clerk of the Court of Common Pleas in 
any other County, and, when so docketed, shall have the same force and effect as 
a judgment of that Court. Such transcript shall set out the names of the par- 
ties plaintiff and defendant, the attorneys of record, the date and amount of the 
judgment, the time from which interest is to be computed, and the amount of 
costs. 1^ 

1870, XIV, § 305. 

S. The judgment must be entered on the ab- 10. "Case" required as part of judgment roll-, 

stract before execution can issue. Mason, etc., is the case prepared on application for new trial, 

Co. V. Killough Music Co., 45 S. C. 11, 22 S. E. and not case for appeal. Tribble v. Poore, 28 S. 

75S_. ^ C. 565, 6 S. E. 577. 

Failure to enter decree on abstract of judgment. Final judgment applies to the Circuit Court. 

Connor v. McCoy, 83 S. C. 165, 65 S. E. 257. Garrison v. Dougherty, 18 S. C. 486. 

British, etc., Mortg. Co. v. Strait, 84 S. C. 141, A transcript of a final judgment is a copy of 

147, 65 S. E. 1038. the entry in the judgment book. Harrison ?'. 

9. Mason, etc.. Co. v. Killough Music Co., 45 Manufacturing Co., 10 S. C. 278. But is good 

S. C. 11, 22 S. E. 755. although certified to be from the docket of judg- ■ 

British, etc., Mortg. Co. v. Strait, 84 S. C. 141, ments instead of the judgment book, and without 

147, 65 S. E. 1038. the Clerk's name, but with his seal. lb. 



132 CODE OF CIVIL PROCEDURE [ §§ 342-34: 

TITLE IX. 

OF THE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. 



Chapter I. The Execution, 132. 

Chapter II. Proceedings Supplementary to the Execution, 137. 



CHAPTER I. 

The Execution. 

Sec. Sec. 

342. Execution within ten years of 347. Forms of execution. 

course. 348. Final judgments — Lien on real es- 

343. Judgments — How enforced. tate for ten years — Transcripts 

344. The different kinds of execution. — Where lien filed. 

345. To what Counties execution issued 349. When executions may issue — Limi- 

— Sales — By whom made — Exe- tations — Personal property — 

cution against married woman. Magistrate's judgment. 

346. Execution against the person — In ' 350. Actions on judgments after lapse of 

what cases. twenty years. 

§ 342. Execution within Ten Years of Course. — Writs of execution 
for the enforcement of judgments shall conform to this Title; and the party 
in whose favor judgment has been heretofore or shall hereafter be given, and, 
in case of his death, his personal representatives duly appointed, may, at any 
tim.e within ten years after the entry of judgment, proceed to enforce the same, 
as prescribed by this Title. ^ 

1870. XIV, § 306; 1873, XV, 498, § 15; 1885, XIX, 229. 

§ 343. Judgments — How Enforced. — Where a judgment requires the 
payment of money, or the delivery of real or personal property, the same may 
be enforced, in those respects, by execution, as provided in this Title. Where it 
requires the performance of any other act, a certified copy of the judgment may 
be served upon the party against whom it is given, or the person or officer who is 
required thereby or by law to obey the same, and his obedience thereto en- 
forced. If he refuse, he may be punished by the Court as for contempt. ^ 
1870, XIV, § 308. 

§ 344. The Different Kinds of Execution. — There shall be three kinds 
of executions : One against the property of the judgment debtor; another against 
his person ; and the third for the delivery of the possession of real or personal 
property, or such delivery with damages for withholding the same. They shall 
be deemed the process of the Court. 

1870, XIV, § 309. 

§ 345. To What Counties Execution Issued — Sales — By Whom Made 
— Execution against Married Woman. — When the execution is against the 
property of the judgment debtor, it may be issued to the Sheriff of any County 
where judgment is docketed. When it requires the delivery of real or personal 

1. This Section is expressly retrospective and execution was lodged in sheriff's office before its 

applies to executions on previous as well as sub- adoption, and mere lodging was compliance with 

sequent judgments. Garvin v. Garvin, 34 S. C. law at that time. Kennedy v. Kennedy, 86 S. C. 

388. 13 S. E. 625. _ , _ 483. 68 S. E. 664. 

Execvition may issue at any time within ten 2. Order for arrest on refusal to pay over 

years without leave; and at any time after ten money fraudulently obtained. F.x parte Hutto, 

years with leave; and if then issued without leave, 78 S. C. 560, 60 S. E. 34. 

the execution is not void, but only voidable for Judgment of foreclosure and sale of inortgaged 

irregularity. Lawrence v. Grambling, 13 S. C. premises is not a judgment for delivery of real 

120. Consent will cure want of leave, and it may property to be enforced by execution alone, but 

be presumed from payment on the execution or may be enforced by ' attachment. Trenholm i'. 

failure to move to set it aside. lb. Wilson, 13 S. C. 174; L,eConte 7'. Irwin, 23 S. C. 

Code of 1870 not applicable to case in which 106; Ex parte Winkler, 31 S. C. 171. 



§346] . ■ OF SOUTH CAROLINA. 133 

property, it must be issued to the Sheriff of the County where the property, or 
some part thereof, is situated. Executions may be issued at the same time to 
different Counties. 

Property adjudged to be sold must be sold in the County where it lies, except 
as hereinafter otherwise provided, and in the following manner : 

All sales of real estate under the orders of the Probate Court shall be made 
by the Judge of Probate ; all sales under the order of the Court where the title 
is to be made by the Clerk of the Circuit Court shall be made by the Clerk. In 
those Counties where the office of Master exists, the Master shall make all sales 
ordered by the Court in granting equitable relief, conformably to the practice of 
the Circuit Court, or to the practice of the Courts of Ecjuity of this State be- 
fore said Courts were abolished. And whenever real estate is adjudged to be 
sold by a Master, such sale may take place by consent of the parties to the 
cause, or their attorneys, or, when infants are parties, by consent of their guard- 
ians ad litem, or their attorneys, in any County which the Court may direct. 

Whenever the Court of Common Pleas in any County shall have acquired 
jurisdiction over real estate lying in another County, it shall be lawful for the 
Master for the County in which the action is brought to sell such real estate in 
the County in which the land is situated. 

All other judicial sales shall be made by the Sheriffs, as now provided by law. 

Upon such sale being made, and the terms complied with, the officer making 
the same must execute a conveyance to the purchaser, which conveyance shall 
be effectual to pass the rights and interests of the parties adjudged to be sold. 

An execution may issue against a married woman, and it shall direct the levy 
and collection of the amount of the judgment against her from her separate 
property, and not otherwise.-^ 
" 1870, XIV, § 310; 1872, XV, 194; 1878, XVI, 336, 558; 1884, XVIII, 708; 1885, XIX, 7. 

§ 346. Execution against the Person — In What Cases. — If the action 
be one in which the defendant might have been arrested, as provided in Section 
230 and Section 232, an execution against the person of the judgment debtor 
may be issued to any County within the jurisdiction of the Court, after the 
return of an execution against his property unsatisfied in whole or in part. But 
no execution shall issue against the person of a judgment debtor, unless an 
order of arrest has been served, as in this Code of Procedure provided, or unless 
the complaint contains a statement of facts showing one or more of the causes 
of arrest required by Section 230.'* 

1870, XIV, § 311. 

3. A sale by referee is invalid, but binds de- sale by Sheriff under renewal of execution more 

fendant until notice of appeal from the decree, than twenty years old where defendant failed to 

and a purchaser at the sale will not be affected object, when summoned to show cause against the 

by appeal afterwards taken. Armstrong v. renewal. Jackson v. Patrick, 10 S. C. 197; Mc- 

Humphreys, 5 S. C. 128. Nair v. Ingraham, 21 S. C. 70. 

Kxecution may issue upon a transcript of the This provision as to execution against a married 

judgment filed in a new County, against lands woman is merely directory, and not necessary to 

embraced in the new County. Garvin v. Garvin, its validity. Clinkscales v. Hall, IS S. C. 602. 

.34 S. C. 388, 13 S. E. 625. Where Sheriff sells Cited to show that the limitation upon the right 

land under execution on a judgment not ren- ot a married woman to contract was not intended 

dered when the land was sold by defendant, the to indicate what property would be liable for the 

purchaser will take good title, against the vendee, breach thereof. Habenicht ''. Rawls, 24 S. C. 461. 

when there is in Sheriff's office an execution on A sale made by receiver for the purpose of 

an older judgment. lb. realizing upon property not in contravention of 

In Counties where there is no Master, the this Section. Ex parte O'Bannon, 65 S. C. 488, 

Court may order a sale of foreclosure to be 43 S. E. 958. 

made by the Sheriff. Childs v. Alexander, 22 S. Effect of order confirming judicial sale; receipt 

C. 169. Or where he orders titles made by the of proceeds as estoppel to attack. Connor v. Mc- 

Clerk he may order the sale to be made by him Coy, 83 S. C. 173, 65 S. E. 257. 

also. Fort v. Assman. 38 S. C. 253, 16 S. E. Inadequacy of bid not ground of attack. lb. 

887. If sale is ordered to be made by one other Martin 7'. Hutto, 82 S. C. 440, 64 S. E. 421. 

than the proper officer, he may intervene to pro- See, also. In re Rugheimer, 36 Fed. 369, 373. 

tect his rights. New England Mortg., etc., Co. 4. A person so arrested is entitled to obtain a 

V. Kinard, 43 S. C. 311, 21 S. E. 113. discharge under the insolvent debtor's Act. Civil 

The sale of Sheriff made in another County Code, §S 4176-4194; Hurst v. Samuels, 29 S. C. 

than where the land lies gives indisputable title 476. 7 S. E- 822. 

to purchaser, as to defendant and his vendee. Ex parte Berry, 85 S. C. 243, 67 S. E. 225, 

where the defendant failed, when served with 20 Am. & Eng. .\nn. Cas. 1344. 

summons, to show cause against renewal of the This section specifies the conditions on which ex- 
execution. Freer ?■. Tupper, 21 S. C. 75. So, 



134 CODE OF CIVIL PROCEDURE [ §§ 347-348 

§ 347. Forms of Execution. — The execution must be directed to the Sher- 
iff, or Coroner when the Sheriff is a party or interested, attested by the Clerk, 
subscribed by the party issuing it, or his attorney, and must intelhgibly refer to 
the judgment, stating the Court, the County where the judgment roll or tran- 
script is filed, the names of the parties, the amount of the judgment if it be for 
money, the amount actually due thereon, and the time of docketing in the County 
to which the execution is issued, and shall require the officer, substantially, as 
follows : 

1. If it be against the property of the judgment debtor, it shall require the 
officer to satisfy the judgment out of the personal property of such debtor; and 
if sufficient personal property cannot be found, out of the real property belong- 
ing to him. 

2. If it be against real or personal property in the hands of personal repre- 
sentatives, heirs, devisees, legatees, tenants of real property, or trustees, it shall 
require the officer to satisfy the judgment out of such property. 

3. If it be against the person of the judgment debtor, it shall require the officer 
to arrest such debtor and commit him to the jail of the County until he shall 
pay the judgment or be discharged according to law. 

4. If it be for the delivery of the possession of real or personal property, it 
shall require the officer to deliver the possession of the same, particularly de- 
scribing it, to the party entitled thereto, and may, at the same time, require the 
officer to satisfy any costs, damages, or rents or profits recovered by the same 
judgment, out of the personal property of the party against whom it was ren- 
dered, and the value of the property for which the judgment was recovered, to 
be specified therein ; if a delivery thereof cannot be had, and if sufficient personal 
property cannot be found, then out of the real property belonging to him, and 
shall, in that respect, be deemed an execution against property.^ 

1870, XIV, § 312. 

§ 348. Final Judgments — Lien on Real Estate for Ten Years — Tran- 
scripts — Where Lien Filed. — 1. Final judgments entered in any Court of record 
in this State, subsequent to the 25th day of November, A. D. 1873, shall con- 
stitute a lien upon the real estate of the judgment debtor in the County where 
the same is entered for a period of ten years from the date thereof ; and a tran- 
script of such judgment may be filed in the office of the Clerk of the Court of 
Common Pleas of any other County, and, when so filed, shall constitute a lien on 
the real property of the judgment debtor in that County from the date of the filing 
thereof, with the same force and effect as the original judgment, for the period 
of ten years from.^ the entry of said original judgment: Provided, That the ver- 
dict of a jury, where rendered for an amount of money, and the order of the 
Court, in a cause tried or determined by the Court, upon a money demand, shall 
be a hen upon all the real estate of the person against whom the same is ren- 
dered, from the rendition of such verdict or order until the expiration of five 
days from the rising of the Court at which the same was rendered : Provided, 
further. That all such verdicts and orders rendered and issued at the same term 
of Court shall have no priority one over another, notwithstanding they may be 
rendered and issued on different days of said Court. 

2. Revival of Judgment — Limitations — Manner — Transcripts. — .A final 
judgment may be revived at any time within the period of ten years from the 

ecution against person may issue. Martin v. 5. The judgment must be entered on the ab- 

Hutto, 82 S. C. 432, 440, 64 S. E. 421. stract before execution can issue. Mason, etc., 

Execution may be issued against person for Co. v. Killough Music Co., 45 S. C. 11, 22 S. E. 

fraudulent misapplication and embezzlement, after 755. 

return of execution against his property unsatis- Ex parte Goldsmith, 68 S. C. 528, 47 S. E. 

ficd without rule to show cause where defendant 984. 

has had notice to show why relief should not be Martin v. Hodge, 87 S. C. 214, 216, 6 S. E- 

granted. Martin v. Hutto, 82 S. C. 432, 64 S. 225. 

E. 421. This section specifies terms on which execution 

against person shall issue. Martin v. Hutto, 82 
S. C. 432, 440, 64 S. E. 421. 



§348] OP SOUTH CAROLINA. 135 

date of the original entry thereof by the service of a summons upon the judg- 
ment debtor, as provided by lavv^, or, if the judgment debtor be dead, upon his 
heirs, executors or administrators, or, if he be removed out of the State, by 
pubhcation of such summons in the manner provided in Section 185 for pubHca- 
tion of summons on complaint to be filed, to show cause, if any he or they 
may have, why such judgment should not be revived; and if no good cause be 
shown to the contrary, it shall be decreed that such judgment is revived. And 
such judgment shall thereupon constitute a lien upon the real estate of the judg- 
ment debtor, then owned or thereafter to be acquired by them, in the County 
where the judgment is entered, for a period of ten years from the entry of such 
decree; but such lien shall not revert back to the date of the original entry of 
such judgment. And a transcript of said summons and decree may be filed in 
the^ office of the Clerk of the Court of any other County, and when so filed the 
judgment shall have like liens in that County from the date of filing of such 
transcript and for a like period as in the County in which the judgment is re- 
vived as aforesaid : Provided, That a judgment shall not in any case constitute 
a lien on any property of the judgment debtor in any County after the lapse of 
twenty years from the date of the original entry of the judgment.^ 

3. RkvivaIv of Code: Judgments Prior to Nove;mber, 1883 — Decree — Tran- 
scripts. — Judgments obtained between the 1st day of March, 1870, and the 25th 
day of November, 1873, may be revived and made a lien at any time within two 
years from the 24th day of December, 1885, by service of summons upon the 
judgment debtor, or his heirs, executors or administrators, or, if he or they be 
removed out of the State, by publication of the summons as hereinbefore pro- 
vided, to show cause, if any he have, why the judgment should not be revived 
and made a lien according to tht provisions of this Chapter ; and if no sufficient 
cause be shown to the contrary, then it shall be decreed that such judgment is 
revived, and it shall thereupon constitute a lien on all the real property of the 
judgment debtor in the County where said decree is entered for a period of ten 
years from the date of the entry of said decree. A transcript of such sum- 
mons and decree may be filed in the office of the Clerk of the Court of Com- 
mon Pleas of any other County, and when so filed such judgment shall have 
like liens in that County from the date of the filing thereof, and for a like period, 
as in the County in which the judgment is revived and made a lien aforesaid. 

4. Judgments Not a Lien on Property Exempt. — This Section shall not 
be construed so as to make final judgments in any case a lien on the real property 
of the judgment debtor exempt from attachment, levy and sale by the Constitu- 
tion. 

5. Not to Appey to Judgments Prior to 1870. — Nothing herein contained 
shall be construed to affect the lien of judgments or executions entered prior to 
the 1st day of March, A. D. 1870. 

Renewals oe Judgments to Be Indexed. — All Registers of Mesne Convey- 
ances of the various Counties of this State, and all the Clerks of Court where, 
by law, they are required to perform the duties of such Register of Mesne Con- 
veyances, are required to reindex all renewals of judgments. Any officer fail- 
ing to comply with the provisions of this Act shall be liable for such failure on 
his official bond.'*' 

1870, XIV, § 313; 1873, XV, 498; 1884, XVIII, 749; 1885, XIX, 229; 1909, XXVI, 39; 
1910, XXVI, 621. 

6. Summons to show cause why judgment should proceedings. Ex parte Anderson, 82 S- C. 136, 

not be revived must be served within ten years 62 S. E. 513, 63 S. E. 354. 

of original entry of judgment. Smith v. Ellison, 7. As to effect on injunction against enforcing 

78 S. C. 120, 58 S. E. 966. Ten years within execution on lien, see § 273; Ex parte Graham, 

which revival proceedings may be commenced, be- 54 S. C. 171, 32 S. E. 67. Mode of renewal. Ih.; 

gins to run from the date of the order for judg- McLaurin v. Kelly, 40 S. C. 488, 19 S. E. 143. 
ment. Blohme v. Schmancke, 81 S. C. 84, 61 The lien allowed to decrees and judgments is 

S. E. 1060. no part of the remedy of enforcement, and an 

Lien of judgment not affected by bankruptcy Act which prevented such lien in absence of levy 



136 CODE OF CIVIL PROCEDURE [ § 349 

§ 349. When Executions May Issue — Limitations — Personal Prop- 
erty — Magistrate's Judgment. — 1. Executions may issue upon final judg- 
ments or decrees at any time within ten years from the date of the original 
entry thereof, or within ten years from the date of any revival of the same, and 
shall have active energy during said periods respectively without any renewal 
or renewals thereof, and thus whether any return or returns may or may not 
have been made during such periods respectively in said executions : Provided, 
The execution shall not issue or be renewed in any case after the lapse of twenty 
years from the date of original entry of the judgment. Executions shall not 
bind the personal property of their debtor, but personal property shall only be 
bound by actual attachment or levy thereon for the period of four months from 
the date of such levy. When judgment shall have been rendered in a Court of 
a Magistrate, or other inferior Court, and docketed in the office of the Clerk 
of the Circuit Court, the application for leave to issue execution must be to 
the Circuit Court of the County where the judgment was rendered.^ 

2. Returns. — The Sheriff, Coroner, or other officer, with whom final proc- 
ess as aforesaid shall be lodged, shall, at each regular term of the Court from 
which the said execution or process was sued out, during the continuance of 
its active energy, until full execution thereof be returned, make a return to the 
office of the Clerk of the Court of Common Pleas of his actings and doings 
thereunder. If he shall have fully executed, he shall return the process, with 
the manner of its execution ; if he shall have partially executed, he shall re- 
turn on oath, to the Clerk, a statement in writing, under his hand, of such par- 
tial execution, with the reason of his failure as to the remainder ; if he shall 
have wholly failed to make execution, he shall return on oath, a statement in 
writing, under his hand, of his failure, with the reasons ; and in" any event, on 
the first day of the term at which the active energy of the process shall cease 
as herein provided, he shall return the process, if the same has not been before 
returned, as fully executed ; and the return of the officer made as aforesaid 

did not impair the obligation of the contract and 378, 10 S. E. 1081; Eeitner v. Metz, 32 S. C. 383, 

was valid. Moore v. Holland, 16 S. C. IS. So 10 S. E. 1082; Railroad Co. v. Marshall, 40 S. 

is an Act that limits the duration of such retro- C. 63, 18 S. E. 247. 

spectively. Henry v. Henry, 31 S. C. 1, 9 S. There is no lien under a decree in equity as a 

E. 726. ... judgment until it is properly entered in the ab- 

The Section providing no time within which the stract of judgment. Reid v. McGowan, 28 S. C. 

summons to revive a judgment may be issued. 74, 5 S. E. 215. 

The Courts cannot fix any. Alsobrook v. Watts, A judgment is not a lien on the homestead of 

19 S. C. 539. Any legal objection in response to debtor, either in his possession or that of vendee, 

the summons may be considered by the Courts as Cantrell t'. Fowler, 24 S. C. 424; Ketchin v. Mc- 

to whether it is sufficient. lb. . The provisions Carley, 26 S. C. 1, 11 S. E. 1099. Or even in 

as to the renewal of judgments after they have lands unpartitioned. Nance i'. Hill, 26 S. C. 227, 

lost their active energy do not apply to judg- 1 S. E- 897. 

ments entered prior to March 1st, 1870. The only The renewal of the lien exists as to the original 

change as to such judgments is the substitution parties, but not as to purchasers for value, be- 

of the summons to revive them or to renew ex- fore the renewal is made effective. Woodward v. 

ecutions in place of the old remedy of scire facias. Woodward, 39 S. C. 261, 17 S. E. 638; Kaminsky 

Lauderdale v. Mahon, 41 S. C. 97, 19, S. E. 294; v. Trantham, ,45 S. C. 393, 23 S. E- 132. The 

Lawton V. Perry, 40 S. C. 255, 18 S. E. 861. order of renewal need not be entered on abstract 

Executions having an tinexpired lien before the to be effective. Rowland v. Shockley, 43 S. C. 

Act of 25th November, 1873, then and thereun- 246. 21 S. E. 21. 

der acquired an extended lien for ten years from As to renewal of Magistrate's judgments, see 

date the lien attached. Arnold v. McKellar, 9 Road v. Patrick, 37 S. C. 520, 16 S. E. 536. Pro- 

S. C. 335; Adickes v. Eowry, 12 S. C. 97. ceedin'gs under this Section res judicata. Babb t'. 

A judgment so revived continues to have a lien Sullivan, 43 S. C. 436, 21 S. E. 277. 

from its original entry and ranks as of that date. If homestead in lands be once set apart, no 

Railroad Co. v. Marshall, 40 S. C. 63, 18 S. E. exceptions filed, and proceedings recorded, it can 

247; Witte -■. Moore, 32 S. C. 226, 10 S. E. 950. never be sold to satisfy that judgment, although 

Subdivision 2 does not apply to judgments pre- there rnay have been errors of law in the assign- 

viously obtained. King v. Belcher, 30 S. C. 381, ment. Sloan v. Hunter, 65 S. C. 239, 43 S. E. 

9 S. E. 359. The judgment may be revived, al- 788. 

though signed by one who styled himself "deputy A judgment cannot be revived by summons to 

clerk," but was never regularly appointed. lb. show cause served after ten years from date of 

The proceedings to revive is not by action, but original entry. Smith v. Ellison, 78 S. C. 120, 58 

by summons to show cause; and when defendant S. E. 966. 

fails to do so at time notified, the Court may, in Remedy to revive judgment. State v. Johnson, 

its discretion, give judgment by default or allow 77 S. C 256, 57 S. E. 846. 

him to answer. Carroll ■;'. Simkins, 14 S. C. 223. S. A judgment which has lost its active energy 

Where such summons to revive judgment be- may be proved against the estate of the judgment 
fore the Code is served within twenty years and debtor and paid as a judgment. Bx parte Gold- 
defendant consents to revival and acknowledges smitli, 68 S. C. 528, 47 S. E- 984. 
debt to be due, the presumption of payment ceases Judgments may be set-off against each other on 
to run, and upon revival the lien is continued for motion and rule to show cause. E.v parte Hiers, 
twenty years longer. Adams v. Richardson. 32 S. 67 S. C. 109, 45 S. E. 146, 100 Am. St. Rep. 
C. 139, 10 S. E. 931; Wood v. Milling, 32 S. C. 713. 



§§ 350-351 J OF SOUTH CAROLINA. 137 

shall, for all purposes, have the same legal effect as if the said process had 
been made returnable to the term succeeding its first lodgment, and renewed 
after each subsequent regular term. For failure or neglect to make any of 
the returns above mentioned, or for any false return, the Sheriff, or other officer 
as aforesaid, shall be subject to rule, attachment, action, penalty, and all other 
consequences provided by law for neglect of duty by executive or judicial offi- 
cers.^ 

1875, XV, 499; 1885. XIX, 229. 

§ 350. Actions on Judgments after Lapse of Twenty Years.— Noth- 
ing in the two preceding Sections contained shall be construed to prevent an 
action upon a judgment after the lapse of twenty years from the date of the 
original entry thereof, and a recovery thereon, in case it shall be established 
by competent and sufficient evidence that said judgment, or some part thereof, 
remains unsatisfied and due; nor shall be construed as prejudicing any action 
pending on the 24th of December, 1885.^" 

1885, XIX. 229. 



CHAPTER II. 

Proceedings Supplementary to the Execution. 

Sec. Sec. 

;}51. Order for discovery of property — .355. What property may be ordered to 

Examination of judgment debtor, be applied to execution, 

etc. 356. Judge may appoint receiver and pro- 

352. Examination of debtors of judg- hibit transfer of property. 

ment debtor, or of persons hav- 357. Proceedings on claims of others to 

ing property belonging to him. property or on denial of indebt- 

3. Witnesses required to testify. edness. 



.-j» 



354. Compelling party or witnesses to 358. Reference 'by Judge, 

attend. 359. Costs of proceeding. 

360. Punishment for contempt. 

§ 351. Order for Discovery of Property — Examination of Judgment 
Debtor, etc.— When an execution against property of the judgment debtor, 
or any one of several debtors in the same judgment, issued to the Sheriff of 
the County where he resides or has a place of business, or, if he do not reside 
in the State, to the Sheriff of the County where a judgment roll, or a tran- 
script of a Justice's judgment for twenty-five dollars or upwards, exclusive of 
costs, is filed, is returned unsatisfied, in whole or in part, the judgment creditor, 
at any time after such return made, is entitled to an order from a Judge of the 
Circuit Court, requiring such judgment debtor to appear and answer concern- 
ing his property before such Judge, at a time and place specified in the order, 
within the County to which the execution was issued. 

9. Judgments never were a lien on personal A term of the Common Pleas held at the con- 
property, and under the Code an execution has elusion of the General Sessions, under § 30, is not 
no lien until levy. Kohn v. Meyer, 19 S. C. 200. a regular term within the meaning of this Section. 

This Section has no retroactive effect; applies McLaurin -'. Kelly, 40 S- C. 486, 19 S. E. 143. 

onlv to executions issued after adoption of Code, An order giving leave to issue execution has the 

and' does not divest lien of execution of judgrnent effect of reviving the judgment. lb. 

obtained before that time. Warren v. Tones, 9 S. 10. The time during which a defendant is ab- 

C '88; Railroad Co. v. Marshall, 40 S. C. 63, 18 sent from the State must be deducted from the 

S E. 247; Lauderdale v. Mahon, 41 S. C. 104, 19 time prescribed by the Statute to bar an action on 

S. E. 294; Lawton v. Perry, 40 S. C. 255, 18 8. a judgment, and the same rule applies to the pre- 

E. 861. Applies to Magistrate's judgments. 59 sumption of payment from lapse of time. Lati- 
S. C. 70, 37 S. E. 39. Such lien continues after . mer v. Trowbridge, 52 S. C. 193, 29 S. E. 634. 

active energy of execution has expired and at- This Section applies to judgments obtained be- 

taches to personal property acquired after adoo- fore as well as to those obtained after ISovern- 

tion of the Code. Carrier v. Thompson, 11 S. C. ber 25, 1873. Lawton v. Perry, 40 S. C. 25:), 

79. Such execution may be renewed by consent. 18 S. E- 861. „ ^ ^, -o r> t^ nrr 

7b. Although the Sheriff fails to make such re- Smith v. Ellison, 78 S. C. 123, 38 S- E. 966. 

turn, it is no reason whv he should not be com- Order of revival is adjudication that judgment 

petent to prove that endorsements on executions has not been paid, and avoids statute of '""'ta- 

were made by him and that he had not sold the tions. Giegory v. Perry, 71 S. C. 246, 50 b. L. 

prooerty levied on. Bank ■:•. Kinard, 28 S. C. 101, 787. 
5 S. E. 464. 



138 CODE OF CIVIL PROCEDURE [ § 352 

After the issuing of an execution against property, and upon proof by affidavit 
of a party, or otherwise, to the satisfaction of the Court, or a Judge thereof, 
that any judgment debtor has property which he unjustly refuses to apply to- 
wards the satisfaction of the judgment, such Court or Judge may, by an order, 
require the judgment debtor to appear at a specified time and place to answer 
concerning the same; and such proceedings may thereupon be had for the 
application of the property of the judgment debtor towards the satisfaction of 
the judgment as are provided upon the return of an execution. 

On an examination under this Section, either party may examine witnesses 
in his behalf, and the judgment debtor may be examined in the same manner 
as a witness. 

Instead of the order requiring the attendance of the judgment debtor, the 
Judge may, upon proof by affidavit, or otherwise, to his satisfaction, that there 
is danger of the debtor's leaving the State or concealing himself, and that there 
is reason to believe he has property which he unjustly refuses to apply to such 
judgment, issue a warrant requiring the Sheriff of any County where such 
debtor may be, to arrest him and bring him before such Judge. Upon being 
brought before the Judge, he may be examined on oath, and, if it then appears 
that there is danger of the debtor's leaving the State, and that he has property 
which he has unjustly refused to apply to such judgment, ordered to enter into 
an undertaking, with one or more sureties, that he will, from time to time, at- 
tend before the Judge, as he shall direct, and that he will not, during the pen- 
dency of the proceedings, dispose of any portion of his property not exempt 
from execution. In default of entering into such undertaking, he may be com- 
mitted to prison by warrant of the Judge, as for a contempt. 

No person shall, on examination, pursuant to this Chapter, be excused from 
answering any question on the ground that his examination will tend to con- 
vict him of the commission of a fraud; but his answer shall not be used as 
evidence against him .in any criminal proceeding or prosecution. Nor shall 
he be excused from answering any question, on the ground that he has, before 
the examination, executed any conveyance, assignment, or transfer of his prop- 
erty for any purpose; but his answer shall not be used as evidence against him 
in any criminal proceeding or prosecution. ^ 

Any De:btor to Exe^cutign Debtor May Pay His Debt to Sheriee. — After 
the issuing of execution against property, any person indebted to the -judgment 
debtor may pay to the Sheriff the amount of his debt, or so much thereof as 
shall be necessary to satisfy the execution; and the Sheriff's receipt shall be a 
sufficient discharge for the amount so paid.^ 

1870, XIV, §§ 318, 319. 

§ 352. Examination of Debtors of Judgment Debtor, or of Persons 
Having Property Belonging to Him. — After the issuing or return of an exe- 
cution against property of the judgment debtor, or of any one of several debt- 

1. Every judgment creditor who can make the be applied to execution against him returned un- 
requisite showing is entitled to institute supple- satisfied. McDaniel v. Stokes, 19 S. C. 60. 
mentary proceedings. Sparks v. Davis, 25 S. C. Although application for appointment of a re- 
381. And to have examination of debtor even ceiver was made under- subdivision 1, the appoint- 
after appointment of receiver. lb. ment might be made under subdivision 2, if the 

The remedy given by this Section cannot be facts justified it, althorigh no execution had is- 

taken by way of defense to an action; it is a sued. Green v. Bookart, 19 S. C. 466. 

summary remedy, based directly on the judgment When defendant debtor, residing in another 

and supplementary to the prior proceedings. Wylie County, appears in the Court of another County, 

V. Lyle, 7 S. C. 202. where the judgment was rendered, and, without 

The judgment debtor has the right to have ex- objection, was examined, and a receiver was ap- 
amination conducted in his own County. Bank v. pointed, he waives his right to examination in his 
Northrop, 19 S. C. 473. But he may waive this own County and to object to appointment of re- 
right by submitting his own written statement. lb. ceiver. Tb. 

It is no ground for dismissing the proceeding 2. Such payment, with instructions to apply to 

that the copy order to appear before referee, a junior execution against creditor which had 

served on the defendant, was without seal of Cotirt lost its active energy, was a valid payment and dis- 

to Clerk's certificate. Billing v. Foster, 21 S. C. charged the debtor therefor. Isbell v. Dunlap, 17 

334. S. C. 581. 

Upon proper proceeding hereunder the Court This applies only to claims which have not been 

may order money of defendant, in its hands, to reduced to judgment. Gray v. Ptitnam, 51 S. C. 

97, 28 S. E. 149. 



§§353-356] OF SOUTH CAROLINA. 139 

ors in the same judgment, and upon an affidavit that any person or corporation 
has property of such judgment debtor, or is indebted to him in an amount ex- 
ceeding ten dollars, the Judge may, by an order, require such person or corpo- 
ration, or any officer or member thereof, to appear at a specified time and place, 
and answer concerning the same. The Judge may also, in his discretion, require 
notice of such proceeding to be given to any party to the action, in such manner 
as may seem to him proper. 

The proceedings mentioned in this Section, and in Section 351, may be taken 
upon the return of an execution unsatisfied issued upon a judgment recovered 
in an action against joint debtors, in which some of the defendants have not 
been served with the summons by which said action was commenced, so far 
as relates to the joint property of such debtors; and all actions by creditors to 
obtain satisfaction of judgments out of the property of joint debtors are main- 
tainable in the like manner and to the like effect. These provisions shall ap- 
ply to all proceedings and actions now pending, and not actually terminated by 
any final judgment or decree. 

1870, XIV, § 320. 

§ 353. Witnesses Required to Testify. — Witnesses may be required to 
appear and testify on any proceedings under this Chapter, in the same manner 
as upon the trial of an issue. 

1870, XIV, § 321. 

§ 354. Compelling Party or Witnesses to Attend. — The party or wit- 
ness may be required to attend before the Judge, or before a referee appointed 
by the Court or Judge. If before a referee, the examination shall be taken by 
the referee, and certified to the Judge. All examinations and answers before 
a Judge or referee, under this Chapter, shall be on oath, except that when a 
corporation answers, the answer shall be on the oath of an officer thereof.'^ 

1870, XIV, § 322. 

§ 355. What Property May Be Ordered to Be Applied to Execution. 

— The Judge may order any property of the judgment debtor, not exempt from 
execution, in the hands either of himself or any other person, or due to the 
judgment debtor, to be applied towards the satisfaction of the judgment; except 
that the earnings of the debtor for his personal services, at any time within 
sixty days next preceding the order, cannot be so applied, when it is made to 
appear, by the debtor's affidavit or otherwise, that such earnings are necessary 
for the use of a family supported wholly or partly by his labor.'^ 
1870, XIV, § 323. 

§ 356. Judge May Appoint Receiver and Prohibit Transfer of Prop- 
erty. — The Judge may also, by order, appoint a receiver of the property of 
the judgment debtor, in the same manner, and with the like authority, as if 
appointment was made by the Court, according to Section 303. But before the 
appointment of such receiver, the Judge shall ascertain, if practicable, by the 
oath of the party or otherwise, whether any other supplementary proceedings 

3. Where the same referee is appointed in property pledged to them as indemnity. Cheat- 
separate cases of supplementary proceedings by ham v. Seawright, 30 S. C. 101, 8 S. E- 526. Nor 
two creditors against the same defendant, the require innocent assignee of a judgment, who 
two cases may be heard together. Kennesaw bought after order, to show cause and enjoining 
Mills Co. V. Walker, 19 S. C. 104. assignment had been passed but not served. Rob- 

A referee, no matter how limited his power, ertson v. Segler, 24 S. C. 387. 

must sometimes necessarily decide questions in The Judge may enforce his order for such ap- 

making the examination. lb. plication of property by attachment for contempt. 

A Circuit Judge may pass the final order in Kennesaw Co. v. Walker, 19 S. C. 104. 

such proceedings at his chambers in a County But such attachments should not issue until 

other than that in which the defendant resides, party has had an opportunity to answer. lb. 

the examination having been held in his County. lb. A fee earned in litigation ended more than 

4. After return of execution unsatisfied, the sixty days before such order was made against 
Court may, upon hearing, order defendant's prop- the defendant, was not an earning of the debtor 
erty in its hands to be so applied. McDanicl v. so exempt. Bank v. Northrop, 19 S. C. 473. 
Stokes, 19 S. C. 60; Bank v. Northrop, 19 S. C. Where there are several judgment plaintiffs the 
473. Or money due the defendant to be so ap- property should go to those alone who move 
plied. Rhodes v. Casey, 20 S. C. 491. hereunder. Rhodes v. Casey, 20 S. C. 491. 

But cannot require debtor's sureties to give up 



140 CODE OF CIVIL PROCEDURE [ §§ 357-358 

are pending against the judgment debtor, and if such proceedings are so pend- 
ing, the plaintiff therein shall have notice to appear before him, and shall like- 
wise have notice of all subsequent proceedings in relation to said receivership. 
No more than one receiver of the property of a judgment debtor shall be ap- 
pointed. The Judge may also, by order, forbid a transfer or other disposition 
of the property of the judgment debtor not exempt from execution, and any in- 
terference therewith. 

^^'henever the Judge shall grant an order for the appointment of a receiver 
of the property of the judgment debtor, the same shall be filed in the office of 
the Clerk of the Court of Common Pleas of the County where the judgment 
roll in the action, or transcript from Magistrate's judgment, upon which the 
proceedings are taken, is filed ; and the said Clerk shall record the order in a 
book, to be kept for that purpose in his office, to be called "Book of Orders 
Appointing Receivers of Judgment Debtors," and shall note the time of the fil- 
ing of said order therein. A certified copy of said order shall be delivered to 
the receiver named therein, and he shall be vested with the property and effects 
of the judgment debtor from the time of the filing and recording of the order, 
as aforesaid. The receiver of the judgment debtor shall be subject to the di- 
rection and control of the Court in which the judgment was obtained, or dock- 
eted, upon which the proceedings are founded. 

A certified copy of said order shall also be filed and recorded in the office of 
the Register of Mesne Conveyances of the County in which any real estate of 
such judgment debtor sought to be affected by such order is situated, and, also, 
in the office of the Register of Mesne Conveyances of the County in which such 
judgment debtor resides.^ 

1870, XIV, § 324. 

§ 3 57. Proceedings on Claims of Others to Property or on Denial of 
Indebtedness. — If it appear that a person or corporation alleged to have property 
of the judgment debtor, or, indebted to him, claims an interest in the property 
adverse to him, or denies the debt, such interest or debt shall be recoverable only 
in an action against such person or corporation by the receiver ; but the Judge 
may, by order, forbid a transfer or other disposition of such property or inter- 
est, till a sufficient opportunity be given to the receiver to commence the action, 
and prosecute the same to judgment and execution; but such order may be modi- 
fied or dissolved by the Judge granting the same, at any time, on such security 
as he shall direct.*^ 

1870, XIV, § 325. 

§ 358. Reference by Judge. — The Judge may, in his discretion, order a 
reference to a referee agreed upon by the parties, or appointed by him, to re- 
port the evidence or the facts, and may, in his discretion, appoint such referee 
in the first order, at any time. 

1870, XIV, § 326. 

.5. Where judgment debtor, residing in another should, after paying the debts, return to the 

County, appeared without objection, and was ex- debtor all property remaining in his hands. lb. 

amined in the County where the judgment was A creditor who obtains his judgment after the 

entered, and a receiver was then appointed, he appointment of a receiver in a former proceeding 

cannot afterwards object to such appointment. is entitled to have an examination of the debtor; 

Green f. Bookhart, 19 S. C. 466. but not to have appointment of another receiver. 

On hearing referee's report. Judge may appoint a Sparks v. Davis, 25 S. C. 381. . j- , 
receiver, without notice having been given therefor. Where the execution is returned unsatisfied and 
Billing r Foster, 21 S. C. 334. And it will be the debtor has property which he refuses to apply 
n<;sumed, in absence of testimony to the contrary. to the debt, the creditor may obtain the appoint- 
that the Judge did his duty and ascertained that ment of a receiver to recover such property, how- 
no other" supplementary proceedings were then ever slight its value may be. Burdett z'. Mc- 
pending against defendant. Ih. And a receiver AlHster, 42 S. C. 352, 20 S. E. 86. Practice and 
mav be appointed although it appears that there is costs in such proceedings. lb. 
■ sufficient property in debtor's hands to satisfy the O. One not a party to_ the proceedings, but in- 
judgment. lb. It is better practice to require debtcd to the defendant m execution, may be en- 
bond of receiver so aopointed. lb. A receiver joined from paying the debt to _ anyone but the 
should not be authorized to sell choses in action, receiver. Globe Phos. Co. %: Pmson, 52 b. C. 
unless they represent desperate debts. lb. He 185, 29 S. K. 549. 



§§ 359-361 ] OP SOUTH CAROLINA. 141 

§ 359. Costs of Proceeding. — The Judge may allow to the judgment 
creditor, or to any party so examined, whether a party to the action or not, wit- 
ness' fees and disbursements, and a fixed sum in addition, not exceeding thirty 
dollars, as costs.'^ 

1870, XIV, § 327. 

§ 360. Punishment for Contempt. — If any person, party or witness, 
disobey an order of the Judge or referee, duly served, such person, party or wit- 
ness, may be punished by the Judge as for a contempt. And, in all cases of 
commitment under this Chapter, the person committed may, in case of inability 
to perform the act required, or to endure the imprisonment, be discharged from 
imprisonment by the Court or Judge committing him, or the Court in which the 
judgment was rendered, on such terms as may be just.''' 

1870, XTV, § 328. 



TITLE X. 

OF THE COSTS IN CIVIL ACTIONS. 

Sec. Sec. 

361. Costs, except in chancery cases, to 367. Cost on a motion. 

follow CA^ent of action — Proviso. 368. Costs against infant plaintiff. 

362. Costs in actions brought in original 369. Costs in action by or against exec- 

jurisdiction of Supreme Court. utors, administrators, trustees or 

363. Officers may take out execution for persons authorized by statute. 

costs. 370. Costs on review of decision of in- 

364. Interest on verdict or report — ferior Court in special proceed- 

When allowed. ing. 

365. Costs — How to be inserted in judg- 371. Costs in action by State. 

ment — Adjustment of interlocu- 372. Same. 

tory costs. 373. Costs against assignee, after action 

366. Costs on postponement of trial. brought, or cause of action. 

§ 361. Costs, Except in Chancery Cases, to Follow Event of Action 
— Proviso, — In every civil action commenced or prosecuted in the Courts of 
record of this State (except cases in chancery), the attorneys of plaintiff or 
defendant shall be entitled to recover costs and disbursements of the adverse 
party as prescribed in Chapter CII of the Civil Code of .1912, such costs to 
be allowed as of course to the attorneys of plaintiff or defendant, and all offi- 
cers of the Court thereto entitled, accordingly as the action may terminate, and 
to be inserted in the judgment against the losing party to such action : Provided, 
That wherever, in any action for assault, battery, false imprisonment, libel, 
slander, malicious prosecution, criminal, conversation, or seduction, the amount 
recovered shall be less than one hundred dollars, the total amount of costs and 
disbursements shall not exceed the amount so recovered in action. 

7. Fee to plaintiff's attorney not allowed. Dill- The costs being statutory, a direction as to their 

ing V. Foster, 21 S. C. 334. And a fixed sum as payment falls with the reversal of the order on 

costs must be fixed by the Judge and not by its merits. Burdett v. McAllister, 42 S. C. 352, 

the Clerk of the Court. lb. 20 S. E. 86. 

A party is allowed not only the sum provided S. This power of the Court to enforce its own 

by this Section, but also other costs due the of- orders by attachment for contempt is not in vio- 

ficers of Court, and the attorneys, for their serv- lation of the declaration of rights in Constitution 

ices. Dauntless Co. v. Davis, 24 S. C. 536. Costs of State. Kennesaw Co. v. Walker, 19 S. C. 104. 

of $10 for motion for appointment of receiver can- But such attachment should not _ issue until the 

not be taxed, without order of Court allowing party has had an opportunity to answer. Earle v. 

same. lb. Stokes, 5 S. C. 336; Kennesaw Co. v. Walker, 19 

No error to allow sureties of debtor their fees S. C. 104. The debtor's only relief, therefore, is 

and disbursements as witnesses and also a fixed appeal, not habeas corpus. In re Knox, 5 S. C. 71. 

sum of ten dollars. Cheatham v. Seawright, 30 The payment of all amounts ordered to be paid 

S. C. lOi, 8 S. E. 526. under the preceding Section must be enforced as 

But their payment cannot be enforced by judg- here prescribed, and not by judgment and execu- 

ment and execution; but must be enforced under tion. Cheatham v. Seawright, 30 S. C. 101, 8 S. 

next Section. lb. E. 526. 



142 



CODE OP CIVIL PROCHDURB 



[§ 362 



Chance;ry Costs. — In cases in chancery the same rule as to costs shall pre- 
vail, unless otherwise ordered by the Court.^ 
1870, XIV, § 335. 

§ 362. Costs in Actions Brought in Original Jurisdiction of Supreme 
Court. — In all actions and proceedings brought in the Supreme Court in its 
original jurisdiction, the Court shall have the power to provide, by rule, order 
or otherwise, for the payment of reasonable costs and disbursements of the case 
by the losing party, or otherwise, as in the judgment of the Court may be just 



1. A codef endant is entitled to costs as _ the 
prevailing party on appeal. Murray v. Aiken 
Mfg. Co., 39 S. C. 457, 18 S. E. .5. The right_ to 
disbursements was not included in the repealing 
Act of 1892. Durham Pert. Co. v. Glenn, 48 S. 
C. 494, 26 S. E. 796. 

Costs cannot be allowed without statutory war- 
rant. State V. Treasurer, 10 S. C. 41; Scott v. 
Alexander, 27 S. C. 15, 2 S. E. 706; Sease v. 
Dobson, 36 S. C. 554, IS S. E. 703. The right 
to costs is purely statutory. Kershaw Co. v. 
Richland County, 61 S. C 75, 39 S. E. 263; 
Whittle V. Saluda Co., 56 S. C. 505, 35 S. E. 
203; Green v. Anderson Co., 56 S. C. 411, 34 S. 
E. 691 ; Hightower v. Bamberg County, 54 S. C. 
536, 32 S. E. 576; Lancaster v. Barnwell Co., 40 
S. C. 446, 19 S. E. 74; Carolina National Bank 
V. Senn, 25 S. C. 572. Costs are in the nature 
of penalties. Kershaw Co. v. Richland Co., 61 
S. C. 75, 39 S. E. 263; State v. Co. Treas., 10 
S. C. 43; Lancaster -v. Barnwell Co., 40 S. C. 
445, 19 S. E. 74; Thompson v. Farr, 1 Rich. E., 

4. Costs are governed by the fee bill in force at 
time of verdict or order for judgment. Kapp v. 
Lyons, 13 S. C. 288; Benbow v. Richardson, 21 S. 
C. 602; Winship v. Tewberry, 13 S. E. 554. And 
can only be taxed against the parties to the 
record. State v. Marshall, 28 S. C. 559, 6 S. 
E. 564. 

Costs are not allowed in special proceedings; 
only in actions. Columbia Co. v. Columbia, 4 S. 
C. 402. Exception appeal. Sease v. Dobson, 36 

5. C. 554, IS S. E. 703. 

Where all issues in a pending cause have been 
submitted to arbitrators, they may award who 
shall pav the costs. Bollman v. Bollman, 6 S. 
C. 48. 

The Court declined to consider whether, since 
the Code, costs under former laws could be 
taxed. Thompson v. Thompson, 6 S. C. 287. 

Where complaint is dismissed, plaintiff is liable 
for all costs of the references in the action. 
Huffman 'V. Stork, 25 S. C. 267. 

Where in action of claim and delivery the ver- 
dict gives to each party a portion of the property 
and damages, each is entitled to costs. Stoney v. 
Bailey, 28 S. C. 156, 5 S. E. 347. 

Costs follow the judgment in action at law. 
Shuford V. Shingler, 30 S. C. 612, 8 S. E. 799. 

The Court that gives final judgment in a 
chancery case is the Court to order as to the 
costs. Cooke v. Poole, 26 S. C. 321, 2 S. E. 609. 
A succeeding Judge cannot disturb such order by 
the trial Judge. lb. 

The payment of costs in cases in chancery is 
within the discretion of the Court. Mars v. Con- 
nor, 4 S. C. 70; Nimmons v. Stewart, 13 S. C. 
445; Cooke v. Pennington, 15 S. C. 185; Winsmith 
V. Winsmith, 15 S. C. 611; Childs v. Frazee, 15 
S. C. 612; Jacobs v. Bush, 17 S. C. 595; Person 
V. Carlton, 18 S. C. 47; Bratton v. Massey, 18 S. 
C. 555: Lake v. Shumate, 20 S. C. 23; Hand v. 
R. R., 21 S. C. 162; Covar v. Sallat, 22 S. C. 
265; Johnson v. Pelot, 24 S. C. 264; Gar v. Barn- 
well, 24 S. C. 595; McAfee v. McAfee, 28 S. C. 
218, 5 S. E. 593; Bean v. Bean, 28 S. C. 607, 5 
S. E. 827; Alexander v. Meroney, 30 S. C. 335, 
9 S. E. 266; Geddes v. Jones, 40 S. C. 402, 19 S. 
E. 9; Younger v. Massey, 41 S. C. 50, 19 S. E- 
125; Brown v. Brown, 44 S. C. 378, 22 S. E- 
412. 

Costs in equity cases, being within discretion 
of the Circuit Judge, would not ordinarily be dis- 
turbed by the Supreme Court. Mars v. Connor, 
9 S. C. 79; Bratton v. Massey, 18 S. C. 555; 
Covar V. Sal'at, 22 S. C. 265; Gravely w. Gravelv, 
25 S. C. 2; Finch v. Finch, 28 S. C. 165, 5 S. E. 
348; McAfee v. McAfee, 28 S. C. 188, 5 S. E. 
480; Bean v. Bean, 28 S. C. 607, 5 S. E. 827; 
Scott V. Scott, 29 S. C. 414, 7 S. E. 811; Hunter 



V. Mills, 29 S. C. 72, 6 S. E. 907; Booker v. 
Wingo, 29 S. C. lie, 7 S. E. 49; Miller v. Stark, 

29 S. C. 325, 7 S. E. 501; Alexander v. Meroney, 

30 S. C. 336, 9 S. E. 266; Anderson v. Butler, 31 
S. C. 184, 9 S. E. 797; Bredenburg v. I,andrum, 
32 S. C. 216, 10 S. E. 956; Young v. Edwards, 33 
S. C. 404, 11 S. E. 1066; Dendy v. Waite, 36 
S. C. 569, 15 S. F). 712. The Judge may in such 
cases, preparatory to their insertion in his decree, 
order the Clerk to estimate the costs. Dial v. Tap- 
pan, 20 S. C. 167. 

But an appeal alleging error in awarding costs 
against parties not liable in law therefor will be 
determined bv the Supreme Court. Scott v. 
Alexander. 20 S. C. 120. When a board of alder- 
men have the one issue involved in a case, charg- 
ing them with excess of authority, decided against 
them, they are liable for costs. Ih. 

But plaintiff should not be required to pay costs 
incurred in contest between codef endants. Mc- 
Crady v. Jones, 36 S. C. 136, 15 S. E. 430. And 
a pretended purchaser who resists action for fore- 
closure should pay costs. Dendy v. Waite, 36 S. 
C. 569, 15 S. E. 712. 

The special provision in the General Statutes 
as to dower, requiring defendant to pay the ex- 
penses, must be regarded as an exception to this 
general rule as to costs, and the defendant is not 
liable for costs on exceptions to return of com- 
missioners. Fooshe V. Merriweather, 20 S. C. 
337. 

Plaintiff should not be required to pay costs in- 
curred in a contest between codefendants. Mc- 
Crady v. Jones, 36 S. C. 136, 15 S. E. 430. Pre- 
tended purchaser resisting action for foreclosure 
should pay costs. Dendy v. Waite, 36 S. C. 569, 
15 S. E. 712. If Circuit Court makes no order 
as to such costs the Supreme Court will not. 
Walker v. Walker, 17 S. C. 339; Harbin v. 
Parker, 19 S. C. 598; Scott v. Alexander, 23 S. 
C. 120: Johnson v. Pelot, 24 S. C. 255; Webb v. 
Chisolm, 24 S. C. 487; Gary v. Barnwell, 24 _S. 
C. 595. The reversal on appeal of a decree which 
directs the payment of the costs sets aside this 
direction, although it is not made a ground of 
appeal. Bratton v. Massey, 18 S. C. 555. In ac- 
tions for the benefit of persons unable to contract, 
or by one of a class for the benefit of all, the 
costs and disbursements should be apportioned and 
paid out of the fund in Court. Nimmons v'. 
Stewart, 13 S. C. 445; Roberts v. Johns, 24 S. C. 
580. But where there are liens upon part of the 
fund, costs are primarily chargeable upon the un- 
encumbered part. Baxter v. Baxter, 23 S. C. 114. 
An appeal lies from a judgment, in an action at 
law, as to taxation of costs. Stegall v. Bolt, 11 
S. C. 522; Dilling v. Foster, 21 S. C. 340; Daunt- 
less Co. V. Davis, 24 S. C. 539. An appeal al- 
leging error of law may be taken frorn an order 
made upon the sole question of costs in a chan- 
cery case. Scott v. Alexander, 23 S. C. 120. But 
the Supreme Court has no original jurisdiction as 
to costs. Huff V. Watkins, 20 S. C. 479. 

See, also, note to § 4207, Civil Code, as to 
costs on appeal. 

See Lockwood v. Lockwood, 73 S. C. 20, 52 
S. E. 735. 

Sallv V. S. A. L. Railway, 79 S. C. 388, 60 S. 
E. 938. 

Costs in action for damages for trespass on 
lands where title involved. Vassey v. Spake, 83 
S. C. 566, 65 S. E. 825. 

In equity, liability for costs is generally con- 
trolled bv decision of Circuit Judge. Cauthen v. 
Cauthen,'81 S. C. 313, 315. 62 "S. E. 319. 

In this case within discretion of Judge to or- 
der costs of litigating account against estate by 
certain heirs paid out of estate fund':. Cauthen 
V. Cauthen, 81 S. C. 313, 62 S. E. 319. 



§§363-365] Of SOUTH CAROLINA. 143 

and proper, such costs and disbursements to be taxed and adjusted by the clerk 
of said Court under direction of the Court; that when the clerk has taxed such 
costs and disbursements under the direction of the Court, he shall certify the 
taxation to the clerk of the Court of Common Pleas for the county in which 
the party resides against whom such costs and disbursements have been taxed; 
that the said clerk of the Court of Common Pleas shall enter judgment therefor, 
as other judgments are entered, and shall issue execution for the enforcement 
of said judgment ; that the judgment so entered shall have the same force and 
effect in all respects as judgments rendered by the Court of Common Pleas: 
Provided, That in no case shall the costs exceed the sum of one hundred dol- 
lars. 

1909. XXVI, 162. 

§ 363. Officers May Take Out Execution for Costs. — Whenever a 
case may be settled or determined at the mutual costs of parties, or discon- 
tinued or settled by plaintiff, or the judgment shall be for defendant, or the 
execution against the defendant shall be returned nulla bona, any of the officers 
aforesaid shall have power to issue an execution for his costs, or the Clerk may 
issue for the whole, directed to the Sheriff, who is authorized and required to 
execute such process as in other cases of execution delivered to him. 

1878, XVI, 631. 

§ 364. Interest on Verdict or Report — When Allowed. — When the 
judgment is for the recovery of money, interest from the time of the verdict 
or report, until judgment be finally entered, shall be compiuted by the Clerk, and 
added to the costs of the party entitled thereto.^ 

1870, XIV, § 336. 

§ 365. Costs — How to Be Inserted in Judgment — Adjustment of In- 
terlocutory Costs. — The Clerk shall insert in the entry of judgment, on the 
application of the prevailing party, upon five days' notice to the other, except 
when the attorneys reside in the same city, village or town, and then, upon 
two days' notice, the sum of the allowances for costs and disbursements, as 
provided by law, the necessary disbursements, including the fees of officers al- 
lowed by law, the fees of witnesses, the reasonable compensation of commission- 
ers in taking depositions, the fees of referees, and the expense of printing the 
papers for any hearing, when required by a rule of the Court. The disburse- 
ments shall be stated in detail and verified by affidavit. A copy of the items of 
the costs and disbursements shall be served, with a notice of. adjustment. 

AVhenever it shall be necessary to adjust costs in any interlocutory proceed- 
ing in an action, or in any special proceedings, the same shall be adjusted by 
the Judge before whom the same may be heard, or the Court before which the 
same may be decided or pending, or in such other manner as the Judge or Court 
may direct.'^ 

1870, XIV, § 337. 

3. Stegall c'. Bolt, 11 S. C. 552. 20 S. E. 481. Disbursements do not bear interest 

4. Taxation of costs must await final judgment before taxation. Addison v. Sujette, 60 S. C. 58, 
when Circuit decree has been reversed. Addison 38 S. E. 229. The right to disbursements was 
V. Duncan, 35 S. C. 165, 14 S. E. 305. Costs not afFectcd by the repeal of the Act allowing at- 
and disbursements should be inserted in the judg- torney's costs. Durham Fertilizer Co. v. Glenn, 
m.ent. Lewis v. Brown, 16 S. C. 58. Fees of 48 S. C. 494, 26 S. E. 796. What are disburse- 
officers of Court and witnesses should be taxed ments. lb. Printing arguments for Supreme 
to them as costs, if not paid by the party. Lewis Court. McElwee z: Kennedy, 59 S. C. 335, 37 
r. Brown, 16 S. C. 58; Cureton v. Westfield, 24 S. E. 920; Finley v. Cudd, 45 S. C. 87, 22 S. E. 
S. C. 457; Dauntless Co. v. Davis, 24 S. C. 536. 753. Disbursements should be verified by affi- 
But if so paid bv him they are considered as dis- davit. lb.: Cureton v. Westfield, 24 S. C. 457. 
bursements by the prevailing partv. Lewis v. Points and authorities in Supreme Court are tax- 
Brown, 16 S. C. 58; Cureton v. Westfield, 24 S. able as disbursements. Elder v. R. R., 15 S. C. 
C. 457; Dauntless Co. z: Davis, 24 S. C. 536. Dis- 610. _ But copying of case for printer is not so 
bursements should be taxed under fee bill of force taxable. lb. 

at time incurred. Lewis z'. Brown, 16 S. C. 58. Costs are allowed in lieu of damages by ex- 
Expenses of keeping property taken in claim and pense, in carrying on the litigation. Loeb v. 
delivery is properly a disbursement to be taxed Mann, 39 S. C. 469, 18 S. E. 2. Though they 
by Clerk. Addison z: Sujette, 60 S. C. 58, 38 are to be inserted in the judgment as matter of 
S. E. 229; Railway Co. v. Sheppard, 42 S. C. 543, course, it is not error to direct in the decree that 



144 CODE OF CIVIL PROCEDURE [ §§ 366-370 

§ 366. Costs on Postponement of Trial. — When an application shall be 
made to a Court or referee to postpone a trial, the payment to the adverse party 
of a sum not exceeding ten dollars, besides the fees of witnesses, may be im- 
posed, as the condition of granting the postponement. 

1870, XIV, § 340. 

§ 367. Cost on a Motion. — Costs may be allowed on a motion, in the dis- 
cretion of the Court or Judge, not exceeding ten dollars, and may be absolute 
or directed to abide the event of the action.^ 

1870, XIV, § Ml. 

§ 368. Costs against Infant Plaintiif. — When costs and disbursements 
are adjudged against an infant plaintiff, the guardian by whom he appeared 
in the action shall be responsible therefor, and payment thereof may be en- 
forced by attachment. 

1870, XIV, § 342. 

§ 369. Costs in Action by or against Executors, Administrators, 
Trustees or Persons Authorized by Statute. — ^In an action prosecuted or 
defended by an executor, administrator, trustee of an express trust, or a person 
expressly authorized by Statute, costs shall be recovered, as in an action by and 
against a person prosecuting or defending in his own right; but such costs shall 
be chargeable only upon or collected 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 defense.*' 

1870, XIV, § 343. 

§ 370. Costs on Review of Decision of Inferior Court in Special Pro- 
ceeding. — When the decision of a Court of inferior jurisdiction in a special 
proceeding, including appeals from Probate Courts, shall be brought before the 
Circuit Court for review, such proceeding shall, for all purposes of costs, be 
deemed an action at issue, on a question of law, from the time the same shall 
be brought into Court, and costs thereon shall be awarded and collected as pro- 
vided by law.'^ 

1870, XIV, § 344. 

the Clerk shall enter them. Johnson z: Masters, in force at time incurred, lb. But they must be 

49 S. C. 525, 27 S. E. 474. verified or not allowed. Cnreton v. Westfield, 24 

This Section does not require that the costs S. C. 457. 

and disbursements shall be taxed by the Clerk "A rule of Court means a pre-existing rule of 

exclusively; but the Court in equity cases has general operation, and not a mere order pro hoc 

control of the question of costs. Dial v. Tappan, vice. Scott v. Alexander, 27 S. C. 15, 2 S. E. 

20 S. C. 167. 706. 

And it does not prevent taxation by the Master. The rules of Court require printing of papers 

lb. But erroneou.s taxation directed by the Court only in the Supreme Court; so that printing of 

will be reviewed by the Supreme Court. Billing papers in the Circuit Court cannot be taxed. lb. 

71. Foster, 21 S. C. 334. Fees of stenographers cannot be .taxed. lb. 

' Unless ' the costs have been taxed by the Clerk Taxing witnesses' fees as disbursements, 

and a motion to correct the taxation has been de- Mitchell v. Barrs, 64 S. C. 201, 41 S. E. 962. 

cided in the Court below, the Supreme Court will 5. Such costs are discretionary with the Court 

not consider any question as to same. Bradley v. and cannot be taxed without order allowing them. 

Rodlesper^er. 6 S. C. 291; Billing z'. Foster, 21 Bauntless Co. v. Bavis, 24 S. C. 536. 

S. C. 334"; Cooke v. Poole, 26 S. C. 321, 2 S. E. Appeal from refusal of Clerk to tax costs is 

609; Hecht v. Freisleben. 28 S. C. 181, 5 S. E. not such motion. State v. Marshall, 28 S. C. 559, 

475; Armstrong v. Freisleben, 28 S. C. 605, 5 S. 6 S. E. 564. 

U. 479. 6. The Court has no right to require an ad- 

But when the taxation has been heard and con- ministrator to pay costs of an action, personally, 

firmed iiy Circuit Court, appeal lies to Supreme unless he has been guilty of mismanagement or 

Court. Stegall v. Bolt, 11 S. C. 522. But such bad faith in that action. Clark v. Wright, 26 S. 

order of confirmation is not a final judgment that C. 196, 1 S. E. 814. And the Court should charge 

allows previous orders to be reviewed. Huffman the assigned estate with costs where the assignee 

V. Stork, 25 8. C. 267. had not made himself so liable "for mismanage- 

Notice of taxation may be given by Cierk as ment or bad faith in the conduct of the business." 

well as by tlie attorneys. Cureton t. Westfield, Akers v. Rowan, 36 S. C. 87, 15 S. E. 350. 

24 S. C. 457. A committee held liable for the costs of a suit 

The fees of the officers and witnesses are in maliciously prosecuted by him without cause, 

theory the disbursements paid by prevailing party; Ashley v. Holman, 44 S. C. 145, 21 S. E- 624. 

but it is not error to tax them as due to them. Costs chargeable on estate funds. L,ockwood v. 

Lewis V. Brown, 16 S. C. 58. And the costs of Lockwood, 73 S. C. 21, 52 S. E. 786. 

the officers need not be sworn to or certified by 7. A proceeding before Master under the direct 

them. Cureton :'. Westfield, 24 S. C. 451. tax refunding Act of 1891 was not a proceeding 

Production of subpoena writ is not necessary to in an inferior Court, and no costs were taxable 

enti+le witness to tax his fees. lb. _ thereon. Campbell v. Sanders, 42 S. C. 522, 20 

Bisbursements must be taxed under the fee bill S. E. 415. 



§§371-374] OF SOUTH CAROLINA. 145 

§ 371. Costs in Action by 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 cost 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 recovered 
•of the State till after execution issued therefor against such private party and 
return unsatisfied. 

1870, XIV, § 345. 

§ 372. Same. — In an action prosecuted in the name of the State, for the 
recovery of money or property, or to establish a right of 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. 

1870, XIV, § 346. 

§ 373. 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 and 
disbursements in the same manner as if he were a party, and payment thereof 
may be enforced by attachment.^ 

1870, XIV, § 347. 



TITLE XL 

OF APPEALS IN CIVIL ACTIONS. 



Chapter I. Appeals in General, 145. 

Chapter II. Appeals to the Supreme Court, 147. 

Chapter III. Appeal to the Circuit Court from an Inferior Court, 153. 



CHAPTER I. 

Appeals in General. 

Sec. Sec. 

374. Mode of reviewing judgment or or- 379. Clerk to transmit papers to Appel*- 

der. late Court. 

375. Orders made out of Court — How 380. Review of intermediate orders af- 

vacated or modified. fecting judgment 

376. Who may appeal. 381. Judgment on appeal. 

377. Parties — How designated on ap- 382. How and when printing, etc., dis- 

peal. pensed with. 

378. Appeal — How made. 

§ 374. Mode of Reviewing Judgment or Order. — The only mode of re- 
viewing a judgment or order in a civil or criminal action, shall be that prescribed 
by this Title.i 

1870, XIV, § 349. 

S. Costs against a person not party to the action fault. Wasliington z: Hesse, 56 S. C 28, 33 S. 

cannot be taxed by the Clerk; they can only be E. 787. 

enforced by attachment on rule to show cause. Circuit Judge cannot review order granting tern- 
State z: Marshall, 28 S. C. SS9, 6 S. E. 564. porary restraining order made on complaint stat- 

Considered and construed. Walker v. Doty, 76' ing cause of action for injunction and irreparable 

S. C. 465, 57 S. E. 181. injury on notice, after hearing both sides, except 

1. No appeal lies from a verdict of a jury. Win- in some extraordinary emergency subsequently aris- 

smilh T-. Walker, 5 S. C. 473; Bank v. Gary, 14 ing. Jordan v. Wilson, 69 S. C. 55, 48 S. E- 37. 

S. C. 572. Nor from an order made out of Court. Rulings of law on appeal are final arid must be 

without notice to the adverse party. Hill v. Wat- adhered to until the case is finally disposed of. 

son, 10 S. C. 268. Nor from a judgment by de- Forrest v. McBee, 78 S. C. 108, 58 S. E. 955; 

Carpenter v. Lewis, 65 S. C. 400, 43 S. E- 881. 

2 S C C— 10 



146 CODE OF CIVIL PROCEDURE [ §§ 375-381 

§ 375. 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.^ 
1870, XIV, § 350. 

§ 376. Who May Appeal. — Any party aggrieved may appeal in the cases 
prescribed in this Title.^ 
1870, XIV, § 351. 

§ 377. Parties — ^How Designated on Appeal. — The party appearing shall 
be known as the appellant, and the adverse party as the respondent. But the 
title of the action shall not be changed in consequence of the appeal. 

1870, XIV, § 352. 

§ 378. Appeal — How Made. — 1. An appeal must be made by the service 
of a notice, in writing, on the adverse party or his attorney, and, in the cases 
provided by law, on the Judge or Magistrate, or other officer who heard the 
cause, with whom the judgment or order appealed from is entered, stating the 
appeal from the same, or some specified part thereof. 

2. When a party shall give, in good faith, notice of appeal from a judgment 
or order, and shall omit, through mistake, to do any other act necessary to per- 
fect the appeal or to stay proceedings, the Court may permit an amendment on 
such terms as may be just.* 

1870, XIV, § 353; 1878, XVI, 698; 1880, XVII, 368. 

§ 379. Clerk to Transmit Papers to Appellate Court. — If the appellant 
shall not, within twenty days after his appeal is perfected, cause a certified copy 
of the notice of appeal and of the judgment roll, or, if the appeal be from an 
order or any part thereof, a certified copy of such order, and the papers upon 
which the order was granted, to be transmitted to the Appellate Court by the 
Clerk with whom the notice of appeal is filed, the respondent may cause such 
certified copy to be transmitted by such Clerk to the Appellate Court, and re- 
cover the expenses thereof, as a disbursement on such appeal, in case the judg- 
ment or order appealed from shall be in whole or in part affirmed ; and this pro- 
vision shall apply to all appeals heretofore taken, where the appeal has not been 
dismissed in the manner provided by the rules of the Appellate Court. 

1870, XIV, § 354. 

§ 380. Review of Intermediate Orders Affecting- Judgment.^Upon 

an appeal from a judgment, the Court may review any intermediate order in- 
volving the merits and necessarily affecting the judgment.^ 
1870, XIV, § 355. 

§ 381. Judgment on Appeal. — Upon an appeal from a judgment or order, 
the Appellate Court may reverse, affirm, or modify the judgment or order ap- 
pealed from, in the respect mentioned in the notice of appeal, and as to any or 
all of the parties, and may, if necessary or proper, order a new trial. When the 

2. Jordan v. Wilson, 69 S. C. 55, 48 S. E. 37. r. Cole, 30 S. C. 607, 10 S. E. 390; Barnwell v. 

3. Special proceedings are included by the Marion, 56 S. C. 54, 33 S. E. 719. And should 
word "cases." Sease v. Dobson, 36 S. C. 554, 15 be from the judgment, instead of the mere order 
S. E- 703. for judgment. Bo3'lston v. Crews, 2 S. C. 422; 

Where only some of several parties appeal. Grayson v. Harris, 37 S. C. 606, 16 S. E. 154. 
Brantley v. Bittle, 72 S. C. 179, 51 S. E. 561. Written notice of appeal must be given in a 

4. "Notice of appeal" and "notice of intention" criminal case. State v. Avant, 85 S. C. 570, 67 
to appeal are interchangeable. Saverance v. Lock- S. E. 908. 

hart, 66 S. C. 540, 45 S. E. 83. .5. See cases in note to § 11. 

Beldsoe 71. Columbia Mills Co., 75 S. C. 546, Failure to review ruling on interlocutory order 

55 S. E. 886. on appeal from the final judgment renders it res 

Failure to serve exceptions in time, when re- adjudicata. Forrests v. McBee, 78 S. C. 105, 58 

Heved. Crosswell v. Connecticut Indemnity Ass'n, S. E. 955. 
49 S. C. 374, 27 S. E. 388. 

A notice of appeal must be in writing. Abney 



§§ 382-384] OF SOUTH CAROLINA. 147 

judgment is reversed or modified, the Appellate Court may make complete res- 
titution of all property and rights lost by the erroneous judgment/^ 
1870, XIV, § 356. 

§ 382. How and When Printing, etc., Dispensed with. — No rule or 
order of any Court or Judge shall require the printing of any brief, report, or 
other paper connected with appeals by any party to an action or proceeding, who 
makes an affidavit, to be filed with the Clerk of the Supreme Court, that he or 
she is unable to pay for such printing.''' 

1873, XV, 501. 



CHAPTER n. 

Appeals to the Supreme Court. 

Sec. Sec. 

383. Appeal in what cases. 390. Judgment to execute conveyance re- 

384. Notice of intention to appeal — Serv- quires its execution and deposit. 

ing case with exceptions — Objec- 391. When appeal will stay execution, 
tions and alterations. and when not. 

385. When notice of appeal may stay 392. Stay of proceedings upon security 

execution — Undertaking on ap- being given. 

peal. 393. Undertakings may be in one instru- 

• 386. New undertaking in case sureties ment or several. 

insolvent. 394. Securities to be approved and sure- 

387. Extending time for certain steps in ties to justify. 

appeals. 395. When appeal stays proceedings be- 

388. Appeal — How perfected. low — Exceptions. 

389. Judgments for delivery of docu- 396. Undertaking must be filed. 

ments or personalty require its 
deposit or security. 

§ 383. Appeal in What Cases. — An appeal may be taken to the Supreme 
Court in the cases mentioned in Section 11. When the Circuit Court shall ren- 
der judgment upon a verdict taken, subject to the opinion of the Court, the 
questions or conclusions of law, together with a concise statement of the facts 
upon which they arose, shall be prepared by and under the direction of the 
Court, and shall be filed with the judgment roll, and be deemed a part thereof, 
for the purposes of a review in the Supreme Court. 

The provisions of this Section shall apply to any judgment therein mentioned 
that has been heretofore rendered, and upon which an appeal has been brought 
and is now pending, or upon which an appeal shall hereafter be brought. When 
the return has already been filed with the Clerk of the Supreme Court, such 
statement shall be filed with him, and be deemed a part of such return. ^ 

1870, XIV, § 358. 

§ 384. Notice of Intention to Appeal — Serving Case with Exceptions 
— Objections and Alterations. — 1. In every appeal to the Supreme Court 
from an order, decree or judgment granted or rendered at Chambers from 
which an appeal may be taken to the Supreme Court the appellant or his attor- 
ney shall, within ten days after written notice that the said order has been 
granted or decree or judgment rendered, give notice to the opposite party or 
his attorney of his intention to appeal, and in all other appeals to the Supreme 
Court the appellant or his attorney shall, within ten days after the rising of the 

6. In an action at law the Supreme Court can- 1 . Order refusing to quash array of jurors be- 
not modify a judgment of the Court below; it cause of mere irregularities not appealable. Rhodes 
must either reverse or affirm. Hosford v. Winn, v. Railway Co., 68 S. C. 504, 47 S. E. 689. Su- 
22 S. C. 313. But it may direct the respondent preme Court cannot review findings of fact by 
to enter a remittitur on the judgment below, and Circuit Court on appeal from Magistrate's Court, 
grant a new trial upon his failure to so do. Cave Stacv ;■. Cherokee Foundry and M. Works, 70 S. 
v. Insurance Co., 57 S. C. 347, 35 S. E. 580. C. 178, 183, 49 S. E. 223. Supreme_ Court can- 

7. Where typewritten copies are substituted for not review findings of fact by Circuit Court on 
printed, the cost of having same made may be appeal in law case from Magistrate's Court. Tones 
taxed as a disbursement. Finley v. Cudd, 45 S. -: A. C. L. Railroad Co., 70 S. C. 216, 49 S. E. 
C. 87, 22 S. E. 753. 568. 



148 



CODE OP CIVIL PROCBDURB 



584 



Circuit Court, give like notice of his intention to appeal to the opposite party 
or his attorney, and within thirty days after said notice the appellant or his 
attorney shall prepare a case with exceptions and serve them on the opposite 
party or his attorney. The respondent within ten days after service of such 
case may propose any objections thereto or alteration thereof, and the case 
should be settled in such mode as may be provided in the rules of the Supreme 
Court : Provided., That whenever a motion for a new trial upon the Judge's 
minutes shall have been made and the decision thereon not be both heard and 
filed at the term at which the trial is had, then notice of intention to appeal 
either from the judgment or the order granting or refusing a new trial shall be 
given to the opposite party or his attorney within ten days after written notice 
that such order has been granted or rendered. 

3. Docketing oE Cause. — The case shall be placed on the docket of the 
Supreme Court at such time as may be fixed by the rules of the Supreme Court. 

4. Waiver by Failure to Pereect Appeal. — Whenever the appellant shall 
fail to perfect his appeal, his failure to do so shall amount to a waiver thereof, 
unless the Court permit the appeal to be perfected as provided in Sections 378 
and 388. 

5. Agreements upon Statement of Case. — Upon appeals to the Supreme 
Court, in case the attorney for the appellant and respondent shall agree upon a 
statement of the case as prepared by them for the hearing of the Supreme 
Court, such statement of the case shall be a sufficient brief of the same, and no 
return or other paper from the Circuit Court shall be required. 

Upon the transmission of a certified copy of such agreement to the Clerk of 
the Appellate Court, within the time now required by law, he shall place said 
cause on the docket for a hearing by said Court. - 

1875, XV, 863; 1878, XVI, 698; 1880, XVII, 356, 698; 1889, XX, 368; 1902, XXIII, 1905. 



2. The time within which to appeal does not 
commence to run until the order appealed from is 
filed. Archer z: Long, 46 S. C. 292, 24 S. E- 
83. Where an order overruling a motion for a 
new trial is filed six days after the adjournment 
of the term, and judgment entered on the verdict 
the next day, the judgment is to be deemed for 
the purpose of an appeal as though rendered at 
chambers, and the notice of intention to appeal 
may be given within ten days after written notice 
that such order was granted or judgment en- 
tered. Appleby v. S. C. & G. R. Co., 58 S. C. 33, 
36 S. E. 109. Mailing on the tenth day is suffi- 
cient service. Walters v. Laurens Cotton Mill, 53 
S. C. 155, 31 S. E. 1. 

The time for appeal runs from written notice of 
the judgment at chambers notwithstanding actual 
notice previously had. Lake v. Moore, 12 S. 
C. 564. 

Notice of appeal within ten days after entry of 
judgment on a verdict, but more than ten days 
after rising of the Court, is sufficient. Bank v. 
Gary, 14 S. C. 571; Molair v. Railway Co., 31 S. 
C. 510. 10 S. E. 243. 

Where party fails to serve notice of appeal 
within the time, the appeal will be dismissed on 
motion. Rogers v. Nash, 12 S. C. 559. So if he 
fails to serve his case within time. lb.; McEl- 
wee -c'. McElwee, 14 S. C. 623. 

The Supreme Court has no power to remedy the 
omission to give notice of appeal within the ten 
days, which is imperative. Renneker v. Warren, 
20 S. C. 581a. 

Nor to extend the time within which to serve 
the^ case. Scurry f. Coleman, 14 S. C. 166. 

Notice of appeal within ten days from notice of 
filing a decree at chambers, and service of case 
within thirtv days thereafter, is a compliance with 
the law. Godbold v. Vance, 14 S. C. 458. 

Appeal dismissed because notice was not served 
in time. Service being denied, appellant was 
bound to prove it. Allen v. Stokes, 19 S. C. 602. 

The appellant is confined to matters in Judge's 
view of the case and embraced in his exceptions; 
but respondent may rel^ upon other and any 
grounds to sustain the judgment. Southern Co. 



V. Thew, 5 S. C. S; Sheriff v. Welborn, 14 S. 
C. 487. 

Where an exception is founded on facts, they 
must appear in the case, and not in the exception 
alone, or the Supreme Court will not consider it. 
Thompson v. Thornpson, 6 S. C. 279; State v. 
Satterwhite, 20 S. C. 538; McPherson v. McPher- 
son, 21 S. C. 267; State v. Jenkins, 21 S. C. 596, 

The exceptions must be served within the re- 
quired time. Bell v. Wheeler, 3 S. C. 104; 
Weatherly v. Jackson, 3 S. C. 228; Spratt v. Pier- 
son, 4 S. C. 308; Kibler v. Mcllwaine, 12 S. C. 
555; Rogers v. Nash, 12 S. C. 559; Sullivan v. 
Speights, 12 S. C. 561; Ex- parte Clyde, 14 S. C. 
385; Blakely v. Frazier, IS S. C. 600. 

A "case" is a clear and intelligible statement of 
all the proceedings on the trial important to a re- 
view of a cause, upon the points raised by the 
appeal. Sullivan v. Thomas, 3 S. C. 531. 

The proposed case may be served in parts, so 
they are within time. Archer v. Long, 35 S. C. 
585, 14 S. E. 24. A copy of the case may be 
filed. lb. 

The power of a Judge to settle a case is not 
personal, but may be exercised by his successor in 
office. Chalk v. Patterson, 4 S. C. 98. 

He settles the case at the time and place for 
settlement, and must not regard the respondent's 
amendments proposed as abandoned because his 
attorney does not appear. lb. 

The case may be settled upon affidavits and 
other proofs, as well as upon the minutes and 
personal recollections of the Judge. lb. 

If case proposed does not satisfy respondent, he 
must proceed to remedy it under the rules, as no 
ex parte statements will be considered by the Su- 
preme Court. Hornesby v. Burdell, 9 S. C. 303; 
Ransom v. Anderson, 9 S. C. 438. 

If brief presented is not the case as settled, the 
appeal will be dismissed. Collins v. Roumillat, 22 
S. C. 389. 

If case for appeal is incorrect or improper,^ it 
can only be taken advantage of on proper motion 
before the submission or hearing; it is too late 
after hearing begins. Sullivan <■. Thomas, 3 S. 



j§ 385-386 ] 



OF SOUTH CAROLINA. 



149 



§ 38 5. When Notice of Appeal May Stay Execution— Undertaking 
on Appeal. — A notice of appeal from a judgment directing the payment of money 
shall not stay the execution of the judgment, unless the presiding Judge before 
whom the judgment was obtained shall grant a stay of execution; but, after 
notice of appeal, the plaintiff shall not enforce a sale of property without giv- 
ing an undertaking or bond to the defendant, with two good sureties, in double 
the appraised value of the property, or double the amount of the judgment, 
conditioned to pay all damages which the defendant may sustain by reason of 
such sale, in case the judgment is reversed. Nor shall the plaintiff in such case 
be allowed to proceed with a sale of defendant's property if the defendant do 
enter into an understanding, with good sureties, in double the appraised value of 
the said property, or the amount of the judgments, to pay the judgment with 
legal interest, and all costs and damages which the plaintiff may sustain by reason 
of the appeal, or produce the property levied on, and submit to the sale in case 
the judgment be confirmed.^ 

1870, XIV, § 360; 1873, XV, 501. 

§ 386. New Undertaking in Case Sureties Insolvent. — Whenever it 
shall be made satisfactorily to appear to the Court that since the execution of 
the undertaking the sureties have become insolvent, the Court may, by rule or 
order, require the appellant to execute, file, and serve a new undertaking as 
above ; and, in case of neglect to execute such undertaking within twenty days 
after the service of a copy of the rule or order requiring such new undertaking, 
the appeal may, on motion to the Court, be dismissed with costs. Whenever it 



C. 548; Redding z: Railway Co., 5 S. C. 67; Green 
V. Railway Co., 6 S. C. 342. 

The case is defective if it does not contain a 
proper statement of the nature of the issue to. 
which the judgment appealed relates. Trotter v. 
Robinson, 6 S. C. 410. 

And when it does not contain an intelligible 
statement of the case and grounds of appeal it 
will be stricken from the docket. Shumate v. 
Powell, 5 S. C. 286. Or if it does not contain 
exceptions specifying the errors complained of. 
Cureton r. Dargan, 16 S. C. 619. A statement 
referring to papers filed in the office of the Clerk 
of the Supreme Court is not sufficient. In re 
Perry's Estate. 42 S. C. 183, 20 S. E. 84; Moore 
V. Perry, 42 S. C. 369, 20 S. E. 200. 

When party fails to file return within forty 
days, as required by Rule 1 of Supreme Court, 
his appeal will be dismissed on motion. Agnew v. 
Adams, 24 S. C. 90; Nabors v. Latimer, 30 S. C. 
607, 10 S. E. 390; Abney v. Cole, 30 S. C. 607, 
10 S. E. 390; Calvo v. Railway Co., 30 S. C. 608, 
10 S. E. 389. Where both parties appeal, one 
docketing is sufficient. Coleman v. Keels, 31 S. 
C. 601, 9 S. E. 735. 

Time notice of intention to appeal is served de- 
cides whether appellant is entitled to costs under 
23 Stat. 620. Pelzer Mfg. Co. v. Hamburg-Bre- 
men, etc., Ins. Co., 62 Fed. 1. Saverance v. 
Lockhart, 66 S. C. 539, 45 S. _E. 83. Handing an 
attorney an original order with date of filing 
marked thereon is not sufficient notice of filing. 
Greenwood, etc., Ass'n v. Childs, 67 S. C. 251, 45 
S. E. 167. 

Circuit Judge may dismiss appeal to Supreme 
Court for want of prosecution. Equitable Fire 
Tns. Co. V. Fishburne, 72 S. C. 25, 51 S. E. 528. 

Appeal dismissed for failure to serve "case." 
Bledsoe v. Columbia Mills Co., 75 S. . C. 546, 55 
S. E. 886. 

Notice of intention to apjieal not having been 
given within ten days of rising of Circuit Court, 
the appeal is dismissed. Foster v. W. U. Tel. Co., 
77 S. C. 155, 57 S. E. 759. 

Where appellant fails to appear on regular call 
of case on the docket, the appeal will be dis- 
missed, on motion, for want of prosecution. Varn 
V. Williams, 30 S. C. 608, 10 S. _E. .390. 

Where waiver and order of dismissal by Clerk 
have not been brought to attention of the Court, 
and the papers presented show an appeal, the 
Court will consider it. Coleman v. Keels, 31 S. 
C. 601. 9 S. E. 735. 

An "agreed case," with notice of appeal and 



exceptions, constitutes the return, and no other 
papers are required to be filed. McNair v. Craig, 
34 S. C. 9, 12 S. E. 367; Davis v. Pollock, 35 
S. C. 584, 13 S. E. 897. 

It must be filed with Clerk of the Circuit Court, 
within ten da^'s, under Rule 49 of that Court. 
Chisolm v. Providence Co., 35 S. C. 599, 14 S. E. 
349, 480. 

Upon failure to serve proposed case within the 
time limited, an order may be taken declaring the 
appeal abandoned; in the Circuit Court, if the re- 
turn to the Supreme Court has not been filed; and 
if it has been filed, in the Supreme Court. State 
■i: Johnson, 52 S. C. 505, 30 S. E. 592. The ju- 
risdiction of the latter Court not attaching until 
the filing of the return. lb.; Pickens ■;'. Quillian, 
31 S. C. 602, 9 S. E. 743; Pelzer Mfg. Co. v. 
Cely, 40 S. C. 430, 18 S. E. 790. 

As to form of exceptions, see Rules of Court. 

Exception too general. State v. Simmons, 73 
S. C. 235, 53 S. E. 286. 

Time of appeal runs from arising of Court. 
Foster v. Telegraph Co., 77 S. C. 156, 57 S. E. 
760. 

Waiver of requirement that case be served in 
thirty days. Messervy v. Messervy, 80 S. C. 281, 
61 S. E. 442. 

Time within which to serve case held not to 
commence to run until judgment has been en- 
tered. American Publishing Co. v. Gibbes, 59 
S. C. 219. 

The jurisdiction of the Supreme Court is de- 
pendent on the fact that the order is appealable. 
McDaniel v. A. C. L. R. Co., 76 S. C. 193, 56 S. 
E. 956. 

Extension of time bv Circuit Judge. Deal ■". 
Deal, 85 S. C. 262, 264, 67 S. E. 241. 

Equitable Ins. Co. v. Fishburne, 67 S. C. 295, 
45 S. E. 204. 

Mott Iron Works v. Clark, 84 S. C. 493, 494, 
66 S. E. 680. 

3. Notice of appeal from decree directing pay- 
ment of money does not stay execution, unless a 
stay is granted. Pelzer Mfg. Co. v. Cely, 40 S. 
C. 430, 18 S. E. 790. 

The stay of execution is discretionary with the 
Tudee; it is not mandatory. Brown v. Buttz, 15 
"S. C. 488. 

Sheriff after appeal is not guilty of any breach 
of duty in failing to enforce a sale of property, 
without the plaintiff giving the bond so required. 
State V. Gilreath, 16 S. C. 100. 

Review of order is by appeal. Jordan v. Wil- 
son, 69 S. C. 55, 48 S. E. 37. 



150 CODE OF CIVIL PROCBDURB [ §§ 387-389 

shall be necessary for a party to any action or proceeding to give a bond or an 
undertaking with surety or sureties, he may, in lieu thereof, deposit with the 
officer or into Court, as the case may require, money to the amount for which 
such bond or , undertaking is to be given. The Court in which such action or 
proceeding is pending may direct what disposition shall be made of such money, 
pending the action or proceeding. In any case where, by this Section, the money 
is to be deposited with an officer, a Judge of the Court, in term or at Chambers, 
upon the application of either party, may, before such deposit is made, order it 
to be deposited in Court instead of with such officer ; and a deposit, made pur- 
suant to such order, shall be of the same effect as if made with such officer. 

1870, XIV, § 360. 

§ 387. Extending Time for Certain Steps in Appeals. — The time for 
taking any step or proceeding in the preparation and perfection of appeals from 
the Circuit Courts to the Supreme Court, as now prescribed by law, may be 
extended by the Judge who heard the cause, or by any one of the Justices of 
the Supreme Court, upon four days' notice of such motion being first given to 
the opposite party, except the time of giving notice of appeal to the opposite 
party.^ 

1880, XVII, 368. 

§ 388. Appeal — How Perfected.— When any party shall omit, through 
mistake or inadvertence, to do any act or acts necessary to perfect an appeal, or 
to stay proceedings, the Supreme Court may, in their discretion, permit such 
act or acts to be done at any time to perfect the appeal on such terms as may be 
just, provided that the Court shall be satisfied that the appeal was taken bona 
fide, and provided that notice of the same was given as now required by law.^ 

1880, XVII, 368. 

§ 389. Judgments for Delivery of Documents or Personalty Require 
Its Deposit or Security. — If the judgment appealed from direct the assign- 
ment or delivery of documents or personal property, the execution of the judg- 
ment shall not be stayed by appeal, unless the things recjuired to be assigned or 
delivered be brought into Court, or placed in the custody of such officer or 
receiver as the Court shall appoint, or unless an undertaking be entered into on 

4. The Supreme Court has no power to remedy But notice of appeal having been given, the 
the omission to give notice of appeal within the Court has power to relieve against the conse- 
required time of ten days. Renneker v. Warren, quences of other omissions. Wardlaw v. Erskine, 
20 S. C. 581. 20 S. C. 582. 

Such motion for ejrtension of time must be • Court may grant leave to perfect appeal for ex- 
made before the expiration of the time limited. cusable neglect in failing to file exceptions within 
Stribbling v. Johns, 16 S. C. 112; Tribble v. ten days after rising of Court in case of jury 
Poore, 28 S. C. 565. 6 S. E. 577; Deal v. Deal, trial. Harle v. Morgan, 30 S. C. 611, 9 S. E. 
85 S. C. 262, 263, 67 S. E. 241. 659. 

Such extension may be granted where record Where notice of appeal has not been given, in 

cannot be prepared in the time limited. Lysaght writing, as required lay law, no relief under this 

V. Berkeley Co., 41 S. C. 554, 19 S. E. 747. Section can be had. Abney v. Cole, 30 S. C. 

This Section relates only to proceedings on ap- 607, 10 S. E. 390. 
peal. Brown v. Easterling, 59 S. C. 472, 38 S. Where appellant was honestly mistaken -in sup- 
E. 121. posing that the "case" for appeal should con- 
Time for exceptions to Master's report and for stitute a part of the judgment roll and failed to 
appeal to Supreme Court distinguished. Brown z: file the return within the time, he was allowed 
Rogers, 71 S. C. 517, 51 S. E. 257. _ to reinstate his appeal, dismissed by the Clerk for 

5. Extension of time to perfect appeal given on such failure. Tribble v. Poore, 28 S. C. 565, 6 
account of inadvertence, counsel being engaged S. E. 577; Cummings v. Wingo, 28 S. C. 565, 
in the discharge of public duties. Price v. Price, 7 S. E. 48. 

42 S. C. 546, 20 S. E. 743, 22 lb. 791. To relieve But such relief must be obtained on motion 

Hgainst in construing an indefinite agreement as based upon affidavit, and the notice of motion and 

to extension of time. Euerhaus v. De Saussure, copies of the affidavits must be served on the op- 

39 S. C. 548, 17 S. E. 500. Or where a party is posite party at least eight days before hearing, 

misled _ by another to believe that time will not Cummings 7'. Wingo, 28 S. C. 610, 7 S. K. 48_. 

be insisted on. Geddes z'. Hutchinson, 39 S. C. Rule against stenographer to obtain transcript. 

550. 17 S. E. 560. Love v. Turner. 75 S. C. 547. 56 S. E. 232; 

Relief will not be granted for mistakes of law. Bledsoe z'. Columbia Mills Co., 75 S. C. 546, 55 S. 

Simonds 7-. _ Marco, 38 S. C. 554. 16 S. _ E. 830. E. 886. 

Nor for failure to file points and authorities un- Saverance v. L,ockhart, 66 S. C. 539, 541, 45 

der Rule 8. New England Mtg. Co. v. Mc- S. E. 83. 

Millan, 41 S. C. 547, 19 S. E. 692. Power of Circuit Judge to extend time and his 

This Section is only intended to supply defects construction of § 384 become speculative question 

in order to perfect appeals; and as after appeal .nfter extension of time by Supreme Court Justice. 

has been dismissed there is no apneal, it cannot Deal t'. Deal, 85 S. C. 262, 264, 67 S. E. 241. 
apply. Clark v. Wimberly, 24 S. C. 138. 



§§390-392] OF SOUTH CAROLINA. 151 

the part of the appellant, by at least two sureties, and in such amount as the 
Court, or a Judge thereof, shall direct, to the effect that the appellant will obey 
the order of the Supreme Court upon the appeal.*^ 
1870, XIV, § 361. 

§ 390. Judgment to Execute Conveyance Requires Its Execution and 
Deposit. — If the judgment appealed from direct the execution of a conveyance 
or other instrument, the execution of the judgment shall not be stayed by the 
appeal until the instrument shall have been executed and deposited with the 
Clerk with whom the judgment is entered, to abide the judgment of the Supreme 
Court. 

1870, XIV, § 362. 

§ 391. When Appeal Will Stay Execution, and When Not.— If the 
judgment appealed from direct the sale or delivery of possession of real prop- 
erty, the execution of the same shall not be stayed unless a written undertaking 
be executed on the part of the appellant, with two sureties, to the effect that, 
during the possession of such property by the appellant, he will not commit, 
or suft'er to be committed, any waste thereon, and that if the judgment be af- 
firmed, he will pay the value of the use and occupation of the property, from 
the time of the execution of the undertaking until the delivery of possession 
thereof, pursuant to the judgment, not exceeding a sum to be fixed by a Judge 
of the Court by which judgment was rendered, and which shall be specified in 
the undertaking. When the judgment directs the sale of land to satisfy a mort- 
gage of, or other lien, the undertaking shall provide that in case the judgment 
appealed from be affirmed, and the said land be finally sold for less than the 
judgment debt and costs, then the appellant shall pay for any waste committed, 
or suffered to be committed, on said lands, and shall pay a reasonable rental 
value for the use and occupation for said land from the time of the execution 
of said undertaking to the time of said sale, but not exceeding the amount of 
such deficiency, which said sum shall be duly entered as a payment of said 
judgment ; and in case the said lands shall be unimproved lands, then in any 
action or proceeding now pending or hereafter begun in any of the Courts of 
this State, said undertaking shall further provide for the payment by appellant 
fif the judgment be affirmed) of any taxes due at the time of such appeal, or 
already paid by the mortgagee, or becoming due during the pendency of said 
appeal, and also for the payment by appellant of the interest on the debt falling 
due during the pendency of such appeal.''' 

1870, XIV, 363; 1898, XXII, 689; 1900, XXIII, 351. 

§ 392. Stay of Proceedings upon Security Being Given. — Whenever the 
defendant executes the bond hereinbefore prescribed, or the appeal is perfected 
as provided by Sections 385, 389, 390 and 391, it stay all further proceedings in 
the Court below upon the judgment appealed from, or upon the matter embraced 
therein ; but the Court below may proceed upon any other matter included in 
the action, and not affected by the judgment appealed from. And the Court 
below may, in its discretion, dispense with or limit the security required by 
Sections 385, 389 and 391, when the appellant is an executor, administrator, 
trustee, or other person acting in another's right ; and may also limit such secu- 
rity to an amount not less than fifty thousand dollars, in the cases mentioned in 

6. An order directing executor to turn over as- When defendant surrendered possession of the 
sets to a receiver is not stayed by appeal to Su- premises, at the sale, that was "delivery of pos- 
premc Court unless a supersedeas bond be given, session pursuant to the judgment," and the under- 
■as required by order of that Court. Harman v. taking was then payable. Gerald v. Gerald, 30 S. 
Wagnei-, 33 S. C. 487, 12 S. E. 98. C. 348, 9 S. E. 274'; Ex parte Winkler, 31 S. C 

7. Stay of sale, pending appeal from decree of 171. 9 S. E. 792. 

foreclosure, is not permitted unless the appellant Notice of appeal from judgment of _ foreclosure 

"has executed the written undertaking required. does not stay sale unless undertaking given. 

City Council v. Caulfield, 19 S. C. 201; Gerald v. Muckenfuss v. Fishburne, 68 S. C. 45, 46 S. E. 

<ierald, 30 S. C. 348, 9 S. E. 274; Stanley v. 537. 
■Stanley, 35 S. C. 584, 14 S. E. 675. 



152 CODE OF CIVIL PROCEDURE [ §§ 393-395 

Sections 389, 390 and 391, where it would otherwise, according to those Sections, 
exceed that siim.^ 

1870, XIV, § 364; 1873, XV, 501. 

§ 393. Undertakings May Be in One Instrument or Several. — The un- 
dertakings prescribed by Sections 385, 386, and 391, may be in one instrument 
or several, at the option of the appellant; and a copy, including the names and 
residences of the sureties, must be served on the adverse party, with a notice of 
appeal, unless a deposit is made as provided in Section 386, and notice thereof 
given. 

1870, XIV, § 365; 1873, XV, 501. 

§ 394. Securities to Be Approved and Sureties to Justify. — An under- 
taking upon an appeal shall be of no effect unless it be accompanied by the affi- 
davit of the sureties that they are each worth double the amount specified therein. 
The respondent may, however, except to the sufficiency of the sureties within ten 
days after the notice of appeal; and unless they or other sureties justify before 
a Judge or Clerk of the Court below, as prescribed by Sections 246 and 247, 
within ten days thereafter, the appeal shall be regarded as if no undertaking had 
been given. The justification shall be upon notice of not less than five days. No 
Clerk shall take the justification of any surety or sureties in a case in which he 
may be interested, or when either of the parties or such surety or sureties shall 
be connected with him by affinity or consanguinity within the sixth degree, and 
in all cases where the Clerk may have approved, or disapproved of the sufficiency 
of a surety or sureties his action may be reviewed, on motion, after notice before 
a Circuit Judge. And in case at any time in any action now pending or here- 
after brought a respondent shall be of opinion that the surety or sureties on any 
bond already approved are insufficient and shall make affidavit of the fact, set- 
ting out the grounds of such belief and serving a copy thereof upon appellant's 
attorney, then the said sureties or other sureties shall justify anew thereon in 
the same manner and with the same effect as though such new justification were 
an original justification on said bond. 

1901, XXIII, 697. 

§ 395. When Appeal Stays Proceedings below — Exceptions. — In cases 
not provided for in Sections 385, 389, 391 and 392, the notice of appeal shall 
stay proceedings in the Court below, upon the judgment appealed from, except 
that where it directs the sale of perishable property, the Court below may order 
the property to be sold and the proceeds thereof to be deposited, or invested in 
this State or United States bonds, to abide the judgment of the Supreme Court : 
Provided, An appeal from a judgment or decree overruling a demurrer shall stay 
the further hearing of the cause unless the presiding Judge shall be satisfied that 
the ends of justice will be subserved by proceeding with the trial, and shall 
order the trial of the cause to proceed to judgment: Provided, further, That 
nothing contained in the preceding proviso shall be construed to prevent a re- 
view upon appeal from the final order or judgment in the cause of any judg- 
ment or decree on demurrer.^ 
■ 1887, XVIII, 837; 1889, XX, 355. 

8. The discretion of the Court as to security operates as a supersedeas upon all the proceed- 

required will not be exercised without proper ings in the Court below. Simonds v. Haithcock, 

showing to justify it. Stanley v. Stanley, 35 S. 26 S. C. 595, 2 S. E. 616. 

C. 584, 14 S. E. 675. But appeal from order setting aside attachment 

O. Appeal from order overruling demurrer to does not stay trial of cause upon merits. Cureton 

one cause of action shall stay proceedings as to v. Dargan, 16 S. C. 619. 

second cause of action. Hammond v. Railway Appeal from refusal of motion to strike out not 

Co., IS S. C. 10. a supersedeas. Bonner v. W. U. Tel. Co., 71 S. 

When appeal from an order confirming the sale C. 303, 51 S. E. 117. 
in an action for foreclosure has been taken, it Associate Justice may suspend restraining order- 
operates to stay proceedings to put the purchaser pending appeal. Bruce v. Rice, 67 S. C. 237, 45 
in possession. LeConte v. Irwin, 23 S. C. 106. S. E. 153. 

A notice of appeal, orally given, from an order Where order appealed from is not appealable, it 

refusing an oral demurrer, stays the further hear- does not act as a supersedeas. McDaniel v. A. C. 

ing of the cause on the Circuit. Elliott v. Politzer, L. R. Co., 76 S. C. 189, 56 S. E. 956. Appeal 

24 S. C. 81. from order granting mandamus case. Matthews 

Appeal from return of homestead appraisers v. Nance, 49 S. C. 322, 27 S. E. 100. 



§§ 396-398] 



OF SOUTH CAROLINA. 



153 



§ 396. Undertaking Must Be Filed. — The undertaking .must be filed with 
the Clerk with whom the judgment or order appealed from was entered. The 
provisions of this Chapter, as to the security to be given upon appeals, and as 
to the stay of proceedings, shall apply to appeals taken under Subdivision 3 of 
Section 11. 

1S70, XIV, § 368. 



CHAPTER III. 



Appeal to the Circuit Court from an Inferior Court. 



Sec. 

397. Appeals from inferior Courts — Su- 

persedeas — Hearing on the pa- 
pers. 

398. Appeal — When to be taken. 

399. Notice of appeal to be served on 

Magistrate, and on respondent, 
agent, or attorney. 

400. Filing in lieu of service of notice of 

appeal. 

401. Return — When and how made and 

compelled. 

402. Return — Hov^r made if Magistrate be 

out of office. 



Sec 

403. Further return where defective. 

404. Magistrate dead, insane or absent. 

405. Hearing upon return. 

406. Appeal to be heard on original pa- 

pers. 

407. Judgment on appeal — New trial. 

408. Judgment roll. 

409. Costs. 

410. Procedure where judgment below 

has been paid and is reversed. 

411. Setting ofif cost and recovery. 

412. Costs on appeal. 



§ 397. Appeals from Inferior Courts — Supersedeas — Hearing on the 
Papers. — When a judgment is rendered by a Magistrate's Court, by the County 
Commissioners or any other inferior Court or jurisdiction, save the Probate 
Court heretofore provided for in this Code of Procedure, the appeal shall be to 
the Circuit Court of the County wherein the judgment was rendered, and shall 
amount to a supersedeas, if the party against whom judgment is rendered shall 
execute a good and sufficient bond with surety to pay the amount of the judg- 
ment and costs in the event that he fail to sustain such appeal, and in all cases 
in which such bond with surety shall be filed no execution shall issue until the 
termination of such appeal. The said appeal shall be heard by the Court upon 
all the papers in the case, including the testimony on the trial, which shall be 
taken down in writing and signed by the witnesses, and the grounds of excep- 
tion made, without the examination of witnesses in Court. ^ 

1870, XIV, § 369; 1887, XIX, 832. 

§ 398. Appeal — When to Be Taken. — The appellant shall, within five 
days after written notice of judgment has been given him or his attorney by the 
magistrate (except when the judgment is announced at the trial in the presence 
of the appellant or his attorney, in which event no written notice shall be neces- 
sary), serve a notice of appeal, stating the grounds upon which the appeal is 
founded. If the judgment is rendered upon process not personally served, and 
the defendant did not appear, he shall have five days, after personal notice of 



1. This Section does not purport to confer the 
right of appeal in any case; but simply to provide 
to what Court such appeal shall be made, how it 
shall operate as a supersedeas, and how it shall 
be heard. Whipper v. Talbird, 32 S. C. 1, 10 S. 
E. 578. 

No appeal lies from the decision of a State 
Board of Canvassers, it not being an inferior 
Court, lb. 

An appeal from the City Court of Charleston 
does not lie to Circuit Court, but must be taken 
to the Supreme Covirt exclusively, under the par- 
ticular intention declared in § 3883 of the Civil 
Code, although it is an inferior Court. City 
Council V. Weller, 34 S. C. 337, 13 S. E. 628. _ 

This Section as to hearing of appeal in Circuit 



Court did not apply to appeals before it went into 
effect. May 1, 1892. McFadden v. Tant, 20 S. 
C. 5S5. 

An appeal from an order made by two Magis- 
trates discharging a prisoner under habeas corpus 
proceedings cannot be taken to the Supreme Court; 
it must be taken to the Circuit Court. State v. 
Duncan, 22 S. C. 87. 

Party may appeal from judgment by Magis- 
trate without making a motion for new trial be- 
fore him. Minnick v. Fort, 13 S. C. 215. 

The Circuit Court cannot review findings of 
fact to which no exceptions were taken. Burns 
V. Gower, 34 S. C. 160, 13 S. E. 331. 



154 CODE OP CIVIL PROCBDURB [ §§ 399-403 

the judgment, to serve the notice of appeal provided for in this and the next 
section.^ 

1870, XIV, § 370; 1911, XXVII, 140. 

§ 399. Notice of Appeal to Be Served on Magistrate, and on Re- 
spondent, Agent, or Attorney. — The notice of appeal must, within the same 
time, be served on the Magistrate personally, if living and within the County, 
or on his clerk, if there be one, and upon the attorney for the respondent, or on 
the respondent personally, or by leaving it at his residence, with some person of 
suitable age and discretion; or in case the respondent is not a resident of such 
County, or cannot, after due diligence, be found therein, in the same manner, 
on the agent, if any, who is a resident of such County, who appeared for the 
respondent on the trial ; and, if neither the respondent nor such agent or attor- 
ney can be found in the County, the notice may be served on the respondent by 
leaving it with the Clerk of the Appellate Court.^ 

1870, XIV, § 371; 1873, XV, 501, § 20; 1880, XVII, 306. 

§ 400. Filing in Lieu of Service of Notice of Appeal. — When, by rea- 
son of the death of a Magistrate, or his absence from the County, or any other 
cause, the notice of appeal cannot be served as provided by Section 399, it may 
be served by leaving the same with the Clerk of the County. 

1870, XIV, § 376. ' 

§ 401. Return — When and How Made and Compelled. — The Court be- 
low shall thereupon, after ten days, and within thirty days after service of the 
notice of appeal, make a return to the Appellate Court of the testimony, pro- 
ceedings, and judgment, and file the same in the Appellate Court. The return 
may be compelled by attachment. 

1870, XIV, § 377; 1880, XVII, 306. 

§ 402. Return — How Made if Magistrate Be Out of Office. — When a 
Magistrate, by whom a judgment appealed from was rendered, shall have gone 
out of office before a return is ordered, he shall, nevertheless, make a return in 
the same manner, and with the like effect, as if he were still in office. 

1870, XIV, § 378. 

§ 403. Further Return — ^Where Defective. — If the return be defective, 
the Appellate Court may direct a further or amended return as often as may 
be necessary, and may compel a compliance with its order by attachment. And 
the Court shall always be deemed open for these purposes.'^ 

1870, XIV, § 379. 

2. The Circuit Judge has no power to extend the notice on the agent who appeared for him at 
this time within which to appeal. Davis v. the trial, but was also a nonresident of the 
Vaughan, 7 S. C. 342. Nor jurisdiction to hear County, was held insufficient in Sheldon y. Pear- 
an appeal where notice in writing was not served son, 42 S. C. Ill, 20 S. E. 26. The notice must 
within that time. Davis v. Vaughan, 7 S. C. 343; be served personally, not by mail. Bigham v. 
Scott V. Pratt, 9 S. C. 82; Foot v. Williams, 13 Holliday, 52 S. C. 528, 30 S. E. 485. An acknowl- 
S. C. 601. Notice served seven days after order edgment of personal service by the Magistrate 
refusing new trial is too late. Manuel v. lyove- is sufficient to show service on him. Baker v. 
less, 56 S. C. 426, 35 S. E. 1. Irvine, 58 S. C. 436, 36 S. E. 742. But insuffi- 

The notice of appeal must state the grounds in , cient to show service on the respondent. Whet- 

every case. Sternberger v. McSween, 14 S. E. 35. stone v. Livingston, 54 S. C. 539, 32 S. E. 561. 

The grounds of appeal being referred to in no- Exception to judgment in Magistrate's Court 

tice, as being made before the Magistrate on mo- that the verdict is contrary to the law and the ev- 

tion for new trial and on the evidence and idence held sufficient. McKee v. Linton, 74 S. C. 

records, is a sufficient statement of the grounds. 509, 54 S. E. 1016. 

Dargan v. West, 27 S. C. 156, 3 S. E. 68. When Admission by respondent's attorneys of receipt 

no objection is raised in the Circuit Court as to by mail of notice of appeal in case before Mag- 

the sufficiency of the notice of appeal, it cannot istrate gives Circuit Court jurisdiction. Wright 

properly be raised on appeal to Supreme Court. Ih. v. Southern Eailway, 74 S. C. 27, 30, 54 S. E. 

3. Failure to serve the Magistrate with such 211. See Williams v. Rickembaker, 79 S. C. 467, 
notice of appeal within the five days is fatal, and 60 S. E. 1122. 

Circuit Court will dismiss the appeal, being with- 4. Where a return has been made, though de- 
out jurisdiction to hear it. Scott v. Pratt, 9 S. C. fective, it is discretionary with the Circuit Court 
82; Davis v. Vaughan, 7 S. C. 343; Foot v. Wil- whether to order a further or amended return, 
liams, 13 S. C. 601; Manuel v. Loveless, 56 S. C. Lynch v. Heyward, 56 S. C. 562, 35 S. E. 220. 
426, 35 S. C. 1. 

Where respondent was a nonresident, service of 



§§ 404-407] OP SOUTH CAROLINA. 155 

§ 404. Magistrate Dead, Insane or Absent. — If a Magistrate, whose 
judgment is appealed from, shall die, become insane, or remove from the State, 
before having made a return, the Appellate Court may examine witnesses on 
oath as to the facts and circumstances of the trial or judgment, and determine 
the appeal, as if the facts had been returned by the Magistrate. If he shall have 
removed to another County within the State, the Appellate Court may compel 
him to make the return, as if he were still within the County where the judg- 
ment was rendered. 

1870, XIV, § 380. 

§ 405. Hearing upon Return. — If a return be made, the appeal may be 
brought to a hearing by either party. It shall be placed upon the calendar, and 
continue thereon until finally disposed of. But if neither party bring it to a 
hearing before the end of the second term, the Court shall dismiss the appeal, 
unless it continue the same by special order, for cause shown. At least eight 
days before the Court, the party desiring to bring on the appeal shall file the 
return and accompanying papers, if any, with the Clerk, and the Clerk shall 
thereupon enter the cause on the calendar, according to the date of the return, 
and it shall stand for trial without any further notice.^ 

1870, XIV, § 381; XV, 498, § 20. 

§ 406. Appeal to Be Heard on Original Papers. — The appeal shall be 
heard on the original papers, and no copy thereof need be furnished for the use 
of the Court. 

1870, XIV, § 382. 

§ 407. Judgment on Appeal — New Trial. — 1. Upon hearing the appeal, 
the Appellate Court shall give judgment according to the justice of the case, 
without regard to technical errors and defects which do not affect the merits. 
In giving judgment, the Court may affirm or reverse the judgment of the Court 
below, in whole or in part, and as to any or all the parties, and for errors of 
law or fact. If the appeal is founded on an error in fact in the proceedings, not 
affecting the merits of the action, and not within the knowledge of the Magis- 
trate, the Court may determine the alleged error in fact on affidavits, and may, 
in its discretion, inquire into and determine the same upon examination of the 
witnesses. If the defendant failed to appear before the Magistrate, and it is 
shown by the affidavits served by the appellant, or otherwise, that manifest in- 
justice has been done, and he satisfactorily excuses his default, the Court may, 
in its discretion, set aside or suspend judgment, and order a new trial, before the 
same or any other Magistrate in the same County, at such time and place, and on 
such terms, as the Court may deem proper. \Yhere a new trial shall be ordered 
before a Magistrate, the parties must appear before him according to the order 
of the Court, and the same proceedings must thereupon be had in the action as 
on the return of a summons personally served.^ 

5. The Statute does not fix the time when the errors and defects. Dargan v. West, 27 S. C. 156, 
Clerk shall place the case on the calender. Mar- 3 S. K. 68. 

shall f. Mitchell, 59 S. C. 523, 38 S. E. 158. The And the Circuit Court will,_ in order to do jus- 
party desiring to brine on the appeal is only re- tice when the verdict in Magistrate's Court is not 
quired to file the return and accompanying papers in proper form, send the case back there for new 
in the office of the Clerk of Court eight days be- trial. Du Bose v. Armstrong, 29 S. C. 290, 6 S. 
fore Court. lb. This Section is not mandatory. K. 934. 

Manuel v. Loveless, 54 S. C. 346, 32 S. E. 421. The Circuit Court, on appeal, can review and 
Where continued at first term by consent, should reverse errors of fact in Magistrate's Court. Red- 
be dismissed on last day of second term. Bell v. fearn v. Douglass, 35 S. C. 569, IS S. E. 244. 
Pruitt. 51 S. C. 344, 29 S. E. 5. Dismissal for But it cannot review findings of fact by Mag- 
failure of Magistrate to file return. Ramseur v. istrate not excepted to. Burns z'. Cower, 34 S. C. 
Moore, 43 S. C. 304, 21 S. E. 81. 160. 13 S. E. 331. 

It must appear, to justify dismissal, that the The only mode of relief from a Magistrate's 

case was called for trial at the second or some judgment, rendered against a party through his 

subsequent term and neither party, after oppor- excusable defaults, is by appeal to the Circuit 

tunitv to be heard, brought it to trial. York Sup- Court. Doty v. Duvall. 19 S. C. 143; Wolfe v. 

plv Co. V. Southern Ry. Co., 82 S. C. 350, 64 S. Railroad Co., 25 S. C. 379; Lawrence v. Isear, 27 

E.' 387. S. C. 244, 3 S. E. 222. 

6. The Supreme Court will not lend a ready Such relief applies only to cases of judgment by 
ear to any objections based upon mere matter of default, and not where there was trial. Miller v. 
form ; but will decide withovit regard to technical 



156 CODE OF CIVIL PROCEDURE [ § 407 

2. If the issue joined before the Magistrate was an issue of law, the Court 
shall render judgment thereon according to the law of the case; and if such 
judgment be against the pleadings of either party, an amendment of such plead- 
ing may be allowed on the same terms, and in like case, as pleadings in actions 
in the Circuit Court, and the Court may thereupon require the opposite party to 
answer such amended pleading, or join issue thereon, as the case may require, 
summarily. 

3. If, upon an appeal in an issue of law, the Court should adjudge the plead- 
ing complained of to be valid, it shall, in like manner, require the opposite party 
summarily to answer such pleading, or join issue thereon, as the case may 
require. 

4. Every issue of fact so joined or brought upon an appeal shall be tried in 
the manner as provided in Section 397. 

5. The Court shall have the same power over its own determinations, and 
shall render judgment thereon in the same manner, as the Circuit Court in ac- 
tions pending therein, without trial by jury, and may allow either party to 
amend his pleadings upon such terms as shall be just ; and in any appeal, either 
party may, at any time before the trial, serve upon the opposite party an offer, 
in writing, to allow judgment to be taken against him for the sum of property, 
or to the effect in such offer specified, and with or without costs, as said offer 
shall specify. If the party receiving such offer accept the same, and give notice 
thereof, in writing, within ten days, he may file the return and offer, with an 
affidavit of service of notice of acceptance thereof, and judgment shall be en- 
tered thereon according to said offer. If the notice of acceptance be not given, 
the offer is to be deemed withdrawn, and cannot be given in evidence. And if 
the party to whom such offer is made fail to obtain a judgment more favorable 
to him than that specified in said offer, then he shall not recover costs, but must 
pay the other party's costs from the date of the service of the offer. 

6. Either party may move for a new trial in said Court on a case or excep- 
tions, or otherwise, and such motion may be made before or after judgment has 
been entered; and the provisions of this Code of Procedure in relation to the 
proceedings, exceptions to the decisions of the Court, making and settling cases 
and exceptions, motions for new trials, and making up the judgment roll in the 
Circuit Court, are hereby made applicable to all appeals brought up for trial, as 
in this Chapter provided. 

1870, XIV, § 383; 1873, XV, 502, § 20. 

Schmidt, 20 S. C. 588; Green v. County Commis- Court must pass on exceptions affecting the 

sioners, 27 S. C. 9, 2 S. E. 618. merits. Pierce v. Varn, etc., Co., 76 S. C. 359, 

Whether Circuit Court can remand a case to 57 S. E. 184. 

County Commissioners for new trial not deter- Supreme Court cannot make original finding, or 

mined. Green v. County Commissioners, 27 S. C. review of fact. Faust v. Southern Railway, 74 S. 

9, 2 S. E. 618. C. 366, 54 S. E. 566; Wilson v. A. C. L,. R. Co., 

On appeal from the County Commissioners, the 79 S. C. 198, 60 S. E. 663. 

Circuit Court may review the facts, but its finding What alleged errors of_ Circuit Court Supreme 

thereon is not reviewable. Tinsley v. Union Court will consider. Jenkins v. Southern Railway, 

County, 40 S. C. 276, 18 S. E. 794; Aull v. New- 73 S. C. 295, 53 S. E. 480. 

berry County, 42 S. C. 321, 20 S. E. 61. Setting aside Magistrate's default judgment is 

Failure to file notice and grounds of appeal a discretionary with Circuit Judge, and is not ap- 

mere technical error. Perkins v. Douglas, 46 S. pealable. Carey v. Tolbert, 79 S. C. 265, 60 S. 

C. 6, 24 S. E. 42. E. 674. 

An irregularity or defect in summons is waived New trial after default judgment. Williams v. 

by appearance. Grant v. Clinton Cotton Mills, 56 Rickembaker, 79 S. C. 468, 60 S. E. 1122. 

S. C. 554, 35 S. E. 193. Circuit Judge may alter judgment making it 

The Circuit Court may order a new trial before larger than that rendered by Magistrate. Gold- 

the Magistrate. Wideman v. Patton, 64 S. C. 411, stein v. Southern Railway, 80 S. C. 524, 61 S. 

42 S. E. 190. The Court may hear affidavits to E. 1007. 

prove demand in claim and delivery before action. Wall v. Chelsea Plantation Club, 88 S. C. 61, 

Burton v. Laurens Cotton Mills, 64 S. C. 224, 41 65; Marlboro, etc.. Grocery Co. v. Brooke, 70 S. 

S. E. 975. C. 494, 496, 50 S. E. 186. 

Where Magistrate had not acquired jurisdiction Not error for Circuit Court to give judgment 
of person of defendant. Circuit Court should dis- against one member of partnership sued alone 
miss case. Riley v. Insurance Co., 68 S. C. 387, for partnership debt, as demurrer for defect of 
47 S. E. 708. parties was technical and defendant was not de- 
Omitting date in summons does not affect the prived of any defence. Aug. Wright Co. i'. Hod- 
merits. Butler Bros. v. Welch, 76 S. C. 131, 56 ges, 87 S. C. 560, 70 S. E. 316. 
S. E. 668. 



§§ 408-412] OF SOUTH CAROLINA. 157 

§ 408. Judgment Roll. — To every judgment upon an appeal there shall be 
annexed the return on which it was heard, the notice of appeal, with any offer, 
decision of the Court, exceptions, case, and all orders and papers in any way 
involving the merits and necessarily affecting the judgment, which shall be filed 
with the Clerk of the Court, and shall constitute the judgment roll/ 

1870, XIV, § 383. 

§ 409. Costs. — If the judgment be affirmed, costs shall be awarded to the 
respondent. If it be reversed, costs shall be awarded to the appellant. If it be 
affirmed in part, the costs, or such part as to the Court shall seem just, may be 
awarded to either party. 

1870, XIV, § 384. 

§ 410. Procedure Where Judgment Below Has Been Paid and Is 
Reversed. — If the judgment below, or any part thereof, be paid or collected, 
and the judgment be afterwards reversed, the appellate Court shall order the 
amount paid or collected to be restored, with interest from the time of such 
payment or collection. The order may be obtained or proof of the facts made 
at or after the hearing, upon a previous notice of six days ; and if the order 
shall be made before the judgment is entered, the amount may be included in 
the judgment. 

1870, XIV, § 386. 

§ 411. Setting Off Cost and Recovery. — If, upon appeal, a recovery be 
had by one party, and costs be awarded to the other, the appellate Court shall 
set off the one against the other, and render judgment for the balance. 

1870, XIV, § 387. 

§ 412. Costs on Appeal. — Costs shall be allowed to the prevailing party, 
in judgments rendered on appeal, in all cases, with the following exceptions and 
limitations : In the notice of appeal, the appellant shall state in what particular, 
or particulars, he claims the judgment should have been more favorable to him. 
If he claims that the amount of judgment is less favorable to him than it 
should have been, he shall state what should have been its amount. Within 
fifteen days after the service of the notice of appeal, the respondent may serve 
upon the appellant and Magistrate an offer, in writing, to allow the judgment 
to be corrected in any of the particulars mentioned in the notice of appeal. 
The appellant may thereupon, and within five days thereafter, file with the Mag- 
istrate a written acceptance of such offer, who shall , thereupon make a minute 
thereof in his docket, and correct such judgment accordingly, and the same, 
so corrected, shall stand as his judgment, and be enforced accordingly; and any 
execution which has been issued upon the judgment appealed from shall be 
amended by the Magistrate to correspond with the amended judgment. If such 
offer be not made, and the judgment in the appellate Court be more favor- 
able to the appellant than the judgment of the Court below, or if such offer 
be made and not accepted, and the judgment in the appellate Court be 
more favorable to the appellant than the offer of the respondent, the ap- 
pellant shall recover costs : Provided, however, That the appellant shall not 
recover costs unless the judgment appealed from shall be reversed on such ap- 
peal, or be made more favorable to him, to the amount of at least ten dol- 
lars. If the offer be made and accepted by the appellant, the appellant shall 
recover all his disbursements on appeal, and all his costs in the Court below. 
But the appellant shall not recover costs, except as provided in this Chapter. 
The respondent shall be entitled to recover costs where the appellant is not. 
Whenever costs are awarded to the appellant, and when the judgment in the 
suit before the Court below was against such appellant, he shall further be al- 
lowed to tax the costs incurred by him which he would have been entitled to re- 

7. The rettirn mav be used in evidence to show pendency of the case in the Magistrate's Court. 
Cothran v. Kniglit, 47 S. C. .243, 25 S. E. 142. 



158 CODE OF CIVIL PROCEDURE [ § 412 

cover in case the judgment below had been rendered in his favor. If, upon an 
appeal, a recovery for any debt or damages be had by one party, and costs be 
awarded to the other party, the Court shall set off such costs against such debt 
or damages, and render judgment for the balance. The following fees and 
costs, and no others, except fees of officers, disbursements, and witnesses' fees, 
shall be allowed, on appeal, to the party entitled to costs, as herein provided, 
when the new trial is in the Circuit Court: For the proceedings before trial, 
three dollars; for trial of the cause, five dollars; when the amount sued for is 
under twenty dollars, only two dollars and fifty cents. If the judgment ap- 
pealed from be reversed in part, and affirmed as to the residue, the amount of 
costs allowed to either party shall be such sum as the appellate Court may 
award, not exceeding five dollars. If the appeal be dismissed for want of pros- 
ecution, as provided by Section 405, no costs shall be allowed to either party. 
In every appeal, the Magistrate, before whom the judgment appealed from was 
rendered, shall receive sixty cents for his return. If the judgment be reversed, 
for an error of fact in the proceedings, not affecting the merits, costs shall be 
in the discretion of the Court. If, in the notice o.f appeal, the appellant shall 
not state in what particular, or particulars, he claims the judgment should have 
been more favorable to him, he shall not be entitled to costs, unless the judgment 
appealed from shall be wholly reversed.^ 

1870, XIV, § 388; 1873, XV, 502, § 20; XVII, 297, §§ 2, 7. 



TITLE XII. 



OF THE MISCELLANEOUS PROCEEDINGS IN CIVIL ACTIONS, AND 

GENERAL PROVISIONS. 



Chapter I. Submitting a Controversy without Action, 159. 

Chapter II. Proceedings against Joint Debtors, 159. 

Chapter III. Confession of Judgm_ent without Action, 160. 

Chapter IV. Offer of the Defendant to Compromise the Whole or a Part of 

the Action, 162. 

Chapter V. Admission or Inspection of Writings, 163. 

Chapter VI. Examination of Parties, 163. 

Chapter VII. Examination of Witnesses, 165. 

Chapter VIII. Motions and Orders, 168. 

Chapter IX. Entitling Affidavits, 170. 

Chapter X. Computation of Time, 170. 

Chapter XI. Notices, and Filing and Service of Papers, 171. 

Chapter XII. Miscellaneous Provisions, 172. 

S. Where a party appeals from judgment of An application to the Circuit Court to correct 

a Magistrate without stating in what particular errors in the adjustment of costs by the Clerk is 

or particulars the judgment should have been more not an appeal under this Section. Barthers v. 

favorable to him, he will not be entitled to costs, Town Council, 44 S. C. SOO, 22 S. E. 719. 

unless the judgment be wholly reversed. Wall v. As to appeal dismissed for failure to file return. 

Davis, 19 S. C. 455. And where appellant is not Ramseur v. Moore, 43 _S. C 304, 21 S. E.. 81. 

entitled to costs the respondent is. lb. In appeals to Circuit Court from Magistrate's 

Where appellant refuses to accept offer of re- Court parties are not now allowed by Statute $3 

spondent to allow judgment for certain amount, for proceedings before trial and $5 for trial of ap- 

and finally obtains judgment for less than defend- peal. Salley v. Railway, 79 S. C. 455, 60 S. fi. 

ants offer, he is liable for all costs subsequent 1123. 
to the offer. Williford v. Gadsden, 27 S. C. 87, 
2 S. E. 858. 



§§ 413-415 ] OF SOUTH CAROLINA. 159 

CHAPTER I. 

Submitting a Controversy without Action. 

Sec. Sec. 

413. Controversy — How submitted with- 414. Judgment — How entered. 
out action. 

§ 413. Controversy — How Submitted without Action. — Parties to a 
matter in dispute, which might be the subject of a civil action, may, without 
action, agree upon a case containing the facts upon which the controversy de- 
pends, and present a submission of the same to any Court which would have 
jurisdiction if an action had been brought. But it must appear by affidavit 'that 
the controversy is real, and the proceedings in good faith, to determine the rights 
of the parties. The Court shall thereupon hear and determine the case, and 
render judgment thereon, as if an action were depending.^ 

1870, XIV, § 389. 

§ 414. Judgment — How Entered. — Judgment shall be entered, as in other 
cases, but without costs for any proceeding prior to the trial. The case, the 
submission, and a copy of the judgment, shall constitute the judgment roll. 

1870, XIV, § 390. 

Judgment — How Enforced or Appealed Erom. — The judgment may be en- 
forced in the same manner as if it had been rendered in an action, and shall 
be subject to appeal in like manner. 

1870, XIV, § 391. 



CHAPTER II. 

Proceedings against Joint Debtors. 

Sec. Sec. 

415. Parties not summoned in action on 418. Party summoned may answer and 

joint contract may be summoned defend. 

after judgment. 419. Subsequent pleadings and proceed- 

416. Form of summons. ings the same as in an action. 

417. Summons to be accompanied by af- 420. Answer and reply to be verified as 

fidavit of amount due. in an action. 

§ 415. Parties Not Summoned in Action on Joint Contract May Be 
Summoned after Judgment. — When a judgment shall be recovered against 
one or more of several persons jointly indebted upon a contract, by proceed- 
ing as provided in Section 186, those who were not originally summoned to 
answer the complaint may be summoned to show cause why they should not 
be bound by the judgment, in the same manner as if they had been originally 
summoned.^ 

1870, XIV, § 392. 

1. Cases submitted to Supreme Court. Simpson the agreement, without regard to any legal con- 

V. Willard, 14 S. C. 191; Macoy v. Curtis, 14 S. elusions incorporated with them. Southern Ry. 

C. 367. Original proceedings in mandamus. Car- Co. v. City Council, 49 S. C. 449, 27 S. h. 652. 

olina Grocery Co. v. Burnet, 61 S. C. 205, 39 S. Chester County v. White, 70 S. C. 4 33, 50 S- 

E. 381. E. 28. . , . 

The Court of Common Pleas refused to enter- 1. Judgment was obtained against a copartner- 
tain a case for prohibition under this Section be- ship and one of the firm. Several years after- 
cause § 491, Code, provides that this Section shall wards the other copartner, having returned to the 
not affect the procedure in cases of vtandamus and State, was summoned to show cause why he should 
prohibition. The South Carolina Society r. Gur- not be bound by the judgment. Judgment against 
ney, 3 S. C. 51. him was entered for the sum of the original judg- 

The Court has no jurisdiction 'inless the affi- ment, with interest to date. This was error, as 

davit is filed. Reedei v. Workman, 37 S. C. 415, judgment against him should have been that he 

16 S. E. 187: Bradford v. Buchanan, 2") S. C. "be bound by" the original judgment, and that 

239, 17 S. E. 503. The agreement must be signed plaintiif have leave to issue execution thereon, 

by the parties themselves, and not by their at- Form of such original judgment suggested, 

torneys for them. lb. Adickes v. Allison, 21 S. C. 245. 

The Court will look alone to the facts stated in 



160 CODH OF CIVIL PROCEDURE [ §§ 416-421 

§ 416. Form of Summons. — The summons provided in the last Section 
shall be subscribed by the judgment creditor, his representative or attorney, shall 
describe the judgment, and require the person summoned to show cause, within 
twenty days after the service of the summons; and shall be served in like man- 
ner as the original summons. 

1870, XIV, § 394. 

§ 417. Summons to Be Accompanied by Affidavit of Amount Due. — 

The summons shall be accompanied by an affidavit of the person subscribing 
it, that the judgment has not been satisfied, to his knowledge or information 
and belief, and shall specify the amount due thereon. 
1870, XIV, § 395. 

§ 418. Party Summoned May Answer and Defend. — Upon such sum- 
mons any party summoned may answer within the time specified therein, deny- 
ing the judgment, or setting up any defense thereto, which may have arisen 
subsequently to such judgment; and, in addition thereto, if the party be pro- 
ceeded against according to Section 415, he may make any defense which he 
might have made to the action if the summons had been served on him at the 
time when the same was originall}^ commenced and such defense had been then 
interposed to such action.^ 

1870, XIV, § 396. 

§ 419. Subsequent Pleadings and Proceedings the Same as in an Ac- 
tion. — The party issuing the summons may demur or reply to the answer, and 
the party summoned may demur to the reply; and the issues may be tried and 
judgment may be given in the same manner as in an action, and enforced by 
execution; or the application of the property charged to the payment of the judg- 
ment may be compelled by attachment, if necessary. 

1870, XIV, § 397. 

§ 420. Answer and Reply to Be Verified as in an Action. — The answer 
and reply shall be verified in the like cases and manner, and be subject to the 
same rules, as the answer and reply in an action. 

1870, XIV, § 398. 



CHAPTER III. 

Confession of Judgment without Action. 

Sec. Sec. 

431. Judgment may be confessed for 422. Statement in writing, and form 
debt due or for contingent liabil- thereof. 

ity. 423. Judgment and execution. 

§ 421. Judgment May Be Confessed for Debt Due or for Contingent 
Liability. — A judgment by confession may be entered, without action, either 
for money due, or to become due, or to secure any person against contingent 
liability on behalf of the defendant, or both, in the manner prescribed in this 
Chapter. 1 

1870, XIV, § 399. 

2. In answer to such summons the Statute of or for any reason void. Southern Co. v. _ Thaw, 

Limitations cannot be pleaded to the claim upon 5 S. C. 5. A confession of judgment against it, 

which the judgment had been entered, if not by the president of a corporation, is invalid, it not 

barred when the action commenced. Adickes v. appearing that he had authority to make it, or that 

Allison, 21 S. C. 245. it had been confirmed by acquiescence. lb. 

1. A confession of judgment may be made by A confession of judgment entered without ac- 

a client to his attorney, if made with entire fair- tion in the Clerk's office during vacation is valid, 

ness and full knowledge. Wise v. Hardin, 5 S. Section 305, Subdivision 1, does not conflict with 

C. 325. this Section. Weinges v. Cash, IS S. C. 44. 

A judgment by confession has all the charac- There is no law which requires a confession of 

teristics of an ordinary judgrrcnt and cannot be judgment to be obtained or read in open Court, 

attacked collaterally; the remedy is by application lb. 

to the Court in which the confession is entered to A confession made with view to protect debtor's 

vacate or modify it, if it is insufficient in form property against debts present or which he expects 



§§ 422-423] OF SOUTH CAROLINA. 161 

§ 422. Statement in Writing, and Form Thereof. — A statement in 
writing must be made and signed by the defendant, and verified by his oath, 
to the following effect : 

1. It must state the amount for which judgment may be entered, and author- 
ize the entry of judgment therefor. 

2. If it be for money due, or to become due, it must state concisely the facts 
out of which it arose, and must show that the sum confessed therefor is justly 
•due, or to become due. 

3. If it be for the purpose of securing the plaintiff against a contingent li- 
ability, it must state concisely the facts constituting the liabiHty, and must show 
that the sum confessed therefor does not exceed the same.^ 

1870, XIV, § 400. 

§ 423. Judgment and Execution. — The statement may be filed with the 
Clerk of the Court of Common Pleas, or with a Magistrate, if the amount for 
which judgment is confessed shall not exceed one hundred dollars, who shall 
enter a judgment endorsed upon the statement for the amount confessed, with 
five dollars, plaintiff's attorney's costs, when the confession is entered by an at- 
torney, and the usual fees provided by law to the Clerk of the Court of Com- 
jnon Pleas or Magistrate, as the case may be, for entering up judgments and is- 
suing executions in any cases, together with any necessary disbursements of the 
plaintiff. The statement and affidavit, with the judgment endorsed, shall there- 
upon become the judgment roll. Executions may be issued and enforced thereon 
in the same manner as upon judgments in other cases in such courts. When the 
debt for which the judgment is entered is not all due, or is payable in install- 
ments, and the installments are not all due, the execution may issue upon such 
judgment for the collection of such installments as have become due, and shall 
1)6 in the usual form, but shall have endorsed thereon, by the attorney or per- 
son issuing the same, a direction to the Sheriff to collect the amount due on 
such judgment, with interest and costs, which amount shall be stated, with in- 
terest thereon, and the costs of said judgment. Notwithstanding the issue and 
collection of such execution, the judgment shall remain as security for the in- 
stallments thereafter to become due, and whenever any further installments be- 
come due, execution may, in like manner, be issued for the collection and en- 
forcement of the same.^ 

1870, XIV, § 401; 1884, XVIII, 693. 

to contract may be set aside for fraud, by the sub- by amendment. Ex parte Carroll, 17 S. C. 446. 

sequent creditors. Kohn v. Meyer, 19 S. C. 190. And should be set aside on motion, as proper pro- 

The Clerk of Court may take a confession of ceeding. ]b. And such motion may be made at 

judgment in his own favor. Trimmier v. Win- any time within five years. lb. 

smith, 23 S. C. 449. When statement is false or so grossly inaccurate 

The confession can only be entered in the County as to mislead inquirers, it is void as to other 

where the action could be brought and tried. E.v creditors. 'Kohn v. Meyer, 19 S. C. 190. 

parte Ware Furniture Co., 49 S. C. 20, 27 S. "For goods sold and delivered" is a sufficient 

£,. 9. statement. Ex parte Graham, 54 S. C. 163, 32 

2. A confession is not void merely because the S. E. 67. A confession of judgment on note with- 

value of the consideration is less than the amount out mentioning the indebtedness for which the 

of the confession. Wise v. Hardin, 5 S. C. 325. ■ note was given is void. Woods v. Bryan, 41 S. 

A confession for an amount less than what is C. 74, 19 S. E. 218. 

actually due contains a sufficient statement. 3. Debtor confessing judgment to Clerk him- 

Weinges v. Cash, 15 S. C. 44. self, his creditor cannot object that the Clerk had 

A description of the debt without a statement of no right to consider his application and statement 

its consideration and facts out of which it arose and enroll the judgment. Trimmier v. Winsmith, 

is insufficient. Ex parte Carroll, 17 S. C. 446. i3 S. C. 449. 

Kohn V. Meyer, 19 S. C. 190. A confession in- "The Clerk" is the Clerk of the County where 

-ufficient in statement is not merclv irregular, but the defendant resides. Ex parte Ware Furniture 

is invalid. Ex parte Carroll, 17 S^ C. 446; Kohn Co., 49 S. C. 20, 27 S. E. 9. Entry on the ab- 

■V. Meyer, 19 S. C. 190. And cannot be corrected stract of judgments is sufficient. Putney v. Mc- 



S C C— 11 



Dow. 54 S. C. 172, 32 S. E. 67. 



162 CODE OF CIVIL PROCEDURE [ §§ 424-426 

CHAPTER IV. 

Offer of the Defendant to Compromise the Whole or a Part of the Action. 

Sec. Sec. 

' 424. Ofifer of compromise. 426. Effect of acceptance or refusal of 

425. Defendant may offer to liquidate offer, 

damages. 

§ 424. Offer of Compromise.- — The defendant may, at a:ny time before 
the trial or verdict, serve upon the plaintiff an offer in writing to allow judgment 
to be taken against him for the sum or property, or to the effect therein speci- 
fied, with costs. If the plaintiff accept the offer, and give notice thereof in writ- 
ing within ten days, he may file the summons, complaint and offer, with an affi- 
davit of notice of acceptance, and the Court shall direct judgment to be entered 
thereon accordingly. If the notice of acceptance be not given, the offer is to be 
deemed withdrawn, and cannot be given in evidence; and if the plaintiff fail to 
obtain a more favorable judgment, he cannot recover costs, but must pay the 
defendant's costs from the time of the offer; and in case the defendant shall 
set up a counterclaim in his answer to an amount greater than the plaintiff's 
claim, or sufficient to reduce the plaintiff's recovery below fifty dollars, then the 
plaintiff may serve upon the defendant an offer in writing to allow judgment 
to be taken against him for the amount specified, or to allow said counterclaim 
to the amount specified, with costs. If the defendant accept the offer, and 
give notice thereof in writing within ten days, he may enter judgment as above 
for the amount specified, if the offer entitled him to judgment, or the amount 
specified in said offer shall be allowed him in the trial of the action. If the 
notice of acceptance be not given, the offer is to be deemed withdrawn, and can- 
not be given in evidence; and if the defendant fail to recover a more favorable 
judgment, or to establish his counterclaim for a greater amount than is speci- 
fied in said offer, he cannot recover costs, but must pay the plaintiff's costs from 
the time of the offer. 

1870, XIV, § 402; 1873, XV, 502, § 21. 

§ 425. Defendant May Offer to Liquidate Damages. — In an action 
arising on contract, the defendant may, with his answer, serve upon the plain- 
tiff an offer in writing that, if he fail in his defense, the damages be assessed 
at a specified sum; and if the plaintiff signify his acceptance thereof in writ- 
ing, before trial, and on the trial have a verdict, the damages shall be assessed 
accordingly. 

1870, XIV, § 403. 

§ 426. Effect of Acceptance or Refusal of Offer. — If the plaintiff do 
not accept the offer, he shall prove his damages as if the offer had not been 
made, and shall not be permitted to give it in evidence. And if the damages 
assessed in his favor shall not exceed the sum mentioned in the offer, the de- 
fendant shall recover his costs incurred in consequence of any necessary prep- 
aration or defense in respect to the question of damages. 

1870, XIV, § 404. 



5§ 427-429 ] 



OF SOUTH CAROLINA. 



163 



CHAPTER V. 

Admission or Inspection of Writings. 

Sec. 
437. Inspection and copy of books, papers, etc. — How obtained. 

§ 427. Inspection and Copy of Books, Papers, etc. — How Obtained. 

— Either party may exhibit to the other, or to his attorney, at any time be- 
fore the trial, any paper material to the action, and request an admission in writ- 
ing of its genuineness. If the adverse party, or his attorney, fail to give the 
admission, within four days after the request, and if the party exhibiting the 
paper be afterwards put to expense in order to prove its genuineness, and the 
same be finally proved or admitted on the trial, such expense shall be paid by 
the party refusing the admission, unless it appear to the satisfaction of the 
Court that there were good reasons for the refusal. The Court before which 
an action is pending, or a Judge or Justice thereof, may, in their discretion, and 
upon due notice, order either party to give to the other, within a specified time, 
an inspection and copy, or permission to take a copy, of any books, papers, and 
documents in his possession or under his control, containing evidence relating to 
the merits of the action or the defense therein. If compliance with the order 
be refused, the Court, on motion, may exclude the paper from being given in 
evidence, or punish the party refusing, or both.^ 

1870, XIV, § 405. 



CHAPTER VI. 

Examination of Parties. 



Sec. 

428. Action for discovery abolished. 
439. Party may examine his adversary 
as a witness. 

430. Examination of adversary also al- 

lowed before trial — Proceedings 
therefor. 

431. Adverse party — How compelled to 

attend. 



Sec. 

433 



be re- 



Testimony of party may 
butted. 

433. Effect of refusal to testify. 

434. Rebuttal testimony not responsive 
to inquiries. 

435. Persons for whom action is brought 
or defended may be examined. 

436. Examination of co-plaintifif or co- 

defendant. 

§ 428. Action for Discovery Abolished. — No action to obtain discovery 
under oath, in aid of the prosecution or defense of another action, shall be al- 
lowed, nor shall any examination of a party be had on behalf of the adverse 
party, except in the manner prescribed by this Chapter.^ 

1870, XIV, § 406. 

§ 429. Party May Examine His Adversary as a Witness. — A party to 
an action may be examined as a witness, at the instance of the adverse party, 
or of any one of several adverse parties, and for that purpose may be com- 
pelled, in the same manner, and subject to the same rules of examination as 
any other witness, to testify, either at the trial, or conditionally, or upon com- 
mission.2 

1870, XIV, § 407. 



1. The Master is a special tribunal and has no 
power as a Court to require the defendants to 
produce a deed in their possession, no such power 
having been conferred upon him. Cartee v. 
Spence, 24 S. C. SSO. 

Doubted whether a Circuit Judge on motion au- 
thorized to do so. lb. 

Before the order can be made the affidavit must 
show the facts which call for the exercise of the 
Judge's discretion. It must show there was a 
request for the inspection and notice given the 
other party. Wenzel v. Palmetto Brewing Co., 
48 S. C. 80, 26 S. E. 1. 

A penalty_ for refusal to comply with the order 
will not be imposed until it is judicially ascertained 



that such refusal was without good reason. Jen- 
kins V. Bennett, 40 S. C. 393, 18 S. E. 929. 

1. Reynolds v. Burgess Co., 57 I,. R. A. 948, 
955. 

2. Party examined on his own behalf is entitled 
to the same means of refreshing his memory as 
are allowed to other witnesses. Bull v. Lambson, 
5 S. C. 285. 

One of two defendants may be examined on 
behalf of the plaintiff. Devereux r. McCrady, 46 
S. C. 133, 24 S. E. 77. 

This Section does not authorize the physical 
examination of the plaintiff in an action for per- 
sonal injuries. Easier v. Southern R. Co., 60 S. 
C. 117, 38 S. E. 258. 



164 CODE OF CIVIL PROCEDURE [ §§ 430-436 

§ 430. Examination of Adversary Also Allowed before Trial — Pro- 
ceedings Therefor. — The examination, instead of being had at the trial, as 
provided in the last Section, may be had at any time before trial, at the option 
of the party claiming it, before a Judge of the Court, on a previous notice to 
the party to be examined, and any other adverse party, of at least five days, 
unless, for good cause shown, the Judge order otherwise. But the party to be 
examined shall not be compelled to attend in any other County than that of his 
residence, or where he may be served with a summons for his attendance. 

1870, XIV, § 408. 

§ 431. Adverse Party — How Compelled to Attend. — The party to be 
examined, as in the last Section provided, may be compelled to attend in the 
same manner as a witness who is to be examined conditionally ; and the exami- 
nation shall be taken and filed by the Judge in like manner, and may be read by 
either party on the trial.-'^ 

1870, XIV, § 409. 

§ 432. Testimony of Party May Be Rebutted. — The examination of the 
party, thus taken, may be rebutted by adverse testimony. 
1870, XIV, § 410. 

§ 433. Effect of Refusal to Testify. — If a party refuse to attend and 
testify, as in the last four Sections provided, he may be punished as for a con- 
tempt, and his complaint, answer, or reply may be stricken out.^ 

1870, XIV, § 411. 

§ 434. Rebuttal of Testimony Not Responsive to the Inquiries. — A 
party examined by an adverse party, as in this Chapter provided, may be exam- 
ined on his own behalf, subject to the same rules of examination as other wit- 
nesses. But if he testify to any new matter, not responsive to the inquiries put 
to him by the adverse party, or necessary to explain or qualify his answers 
thereto, or discharge when his answers would charge himself, such adverse party 
may ofTer himself as a witness on his own behalf in respect to such new matter, 
subject to the same rules of examination as other witnesses, and shall be so 
received. 

1870, XIV, § 412. 

§ 435. Persons for Whom Action Is Brought or Defended May Be 
Examined. — A person for whose immediate benefit the action is prosecuted 
or defended, though not a party to the action, may be examined as a witness, 
in the same manner and subject to the same rules of examination as if he were 
named as a party. 

1870, XIV, § 413. 

§ 436. Examination of Co-Plaintiff or Co-Defendant. — A party may be 
examined on behalf of his co-plaintiff, or of a co-defendant, as to any matter in 
which he is not jointly interested or liable with such co-plaintiff or co-defendant, 
and as to which a separate and not joint verdict or judgment can be rendered. 
And he may be compelled to attend in the same manner as at the instance of 
an adverse party; but the examination thus taken shall not be used in the 
behalf of the party examined. And whenever, in the case mentioned in Sec- 
tions 429 and 430, one of the several plaintiffs or defendants who are joint 
contractors, or are united in interest, is examined by the adverse party, the other 
of such plaintififs or defendants may offer himself as a witness to the same cause 
or action or defense, and shall be so received. 

1870, XIV, § 414. 

3. See Houston & T. C. R. Co. v. Anglin, 2 4. Shelton v. Southern Railway, 80 S. C. 77, 

L. R. A., N. S., 386. 61 S. E. 220. 



§§437-438] OF SOUTH CAROLINA. 165 

CHAPTER VII. 

Examination of Witnesses. 

Sec. Sec. 

437. Interest not to exclude witness. 438. Parties to actions and special pro- 

ceedings competent witnesses ex- 
cept in certain cases. 

§ 437. Interest Not to Exclude Witness. — No person offered as a wit- 
ness shall be excluded by reason of his interest in the event of the action.^ 
1870, XIV, § 414. 

§ 438. Parties to Actions and Special Proceedings Competent Wit- 
nesses Except in Certain Cases. — A party to an action or special proceeding 
in any and all Courts, and before any and all officers and persons acting judi- 
cially, may be examined as a witness on his own behalf, or in behalf of any 
other party, conditionally, on commission, and upon the trial or hearing in the 
case, in the same manner and subject to the same rules of examination as any 
other witness : Provided, hozvever. That no party to the action or proceed- 
ing, nor any person who has a legal or equitable interest which may be affected 
by the event of the action or proceeding, nor any person who, previous to such 
examination, has had such an interest, however the same may have been trans- 
ferred to, or come to the party to the action or proceeding, nor any assignor of 
anything in controversy in the action, shall be examined in regard to any trans- 
action or communication between such witness and a person at the time of such 
examination, deceased, insane_, or lunatic, as a witness against a party then 
prosecuting or defending the action as executor, administrator, heir at law, next 
of kin, assignee, legatee, devisee, or survivor of such deceased person, or as 
assignee or committee of such insane person or lunatic, when such examination, 
or any judgment or determination in such action or proceeding, can in any man- 
ner affect the interest of such witness or the interest previously owned or rep- 
resented by him. But when such executor, administrator, heir at law, next of 
kin, assignee, legatee, devisee, survivor, or committee, shall be examined on his 
own behalf in regard to such transaction or communication or the testimony of 
such deceased or insane person or lunatic, in regard to such transaction or com- 
munication (however the same may have been perpetuated or made competent), 
shall be given in evidence on the trial or hearing in behalf of such executor, 
administrator, heir at law, next of kin, assignee, legatee, devisee, survivor, 
or committee, then all other persons not otherwise rendered incompetent shall 
be made competent witnesses in relation to such transaction or communication 
on said trail or hearing. Nothing contained in Section 8 of this Code of Pro- 
cedure shall be held or construed to affect or restrain the operation of this 
Section. 

1. In any trial or inquiry in any suit, action, or proceeding in any Court, 
or before any person having, by law, or consent of parties, authority to examine 
witnesses or hear evidence, the husband or wife of any party thereto, or of any 
person in whose behalf any such suit, action, or proceeding is brought, pros- 
ecuted, opposed, or defended, shall, except as hereinafter stated, be competent 
and compellable to give evidence, the same as any other witness, on behalf of 
any party to such suit, action, or proceeding. 

2. No husband or wife shall be compellable to disclose any confidential com- 
munication made by one to the other during their marriage. - 

1870, XIV, § 415. 

1. Cain V. Atlantic, etc., R. Co., 74 S. C. 89, the trial; (3) a person who has had such an in- 
92, 54 S. E. 244. terest, but which has been in any manner trans- 

2. 'This Section describes four classes of per- ferred to, or has in any manner come to, a party 
sons and three characteristics of testimony. The to the action or proceeding: (4) an assignor of a 
four classes of persons are these: (1) A party thing in controversy in the action. The three 
to the action or proceeding; (2) a person having characteristics of the testimony are these: (a) In 
an interest that may be affected by the event of regard to any transaction or communication be- 



1:66 



CODE OF CIVIL PROCEDURE 



[§ 438 



tween the witness and a person deceased, insane, 
or lunatic; (b) against a party prosecuting or de- 
fending the action as executor, administrator, heir 
at law, next of kin, assignee, legatee, devisee, or 
survivor of such deceased person, or as assignee 
or committee of such insane person or lunatic; 
(c) when the present or previous interest of the 
witness may in any manner be affected by the 
testimony 'or by the event of the trial. It will 
thus be seen that, to justify the exclusion of 
testimony under this proviso of Section 439, it 
should be shown to the satisfaction of the trial 
Judge — First, that the witness belongs to one or 
more or all of the four classes of persons whose 
testimony may under certain eircumstanc-is be 
excluded; and, secondly, that his testimony par- 
takes of, not merely one or two of the disqualify- 
ing characteristics classified under a, b, and c, but 
that it possesses all three of those characteristics." 
Norris v. Clinkscales, 47 S. C. 488, 25 S. E. 797; 
Lewie V. Hollman, S3 S. C. 18, 30 S. E. 601; 
Martin v. Jennings, 52 S. C. 371, 29 S. E. 808; 
Burkhim v. Pinkussohn, 58 S. C. 469, 36 S. E- 
908: Westbnry -.•. Simmons, 57 S. C. 467, 35 S. 
E. 764; Sloan v. Hunter, 56 S. C. 385, 34 S. E- 
658. 

This Section is in restriction of the general 
right conferred by the preceding Section and can- 
not be extended by construction beyond its clearly 
expressed design. Guery v. Kinsler, 3 S. C. 423; 
Jones V. Plunkett, 9 S. C. 392. The provisi9ns 
of this Section applj' to criminal as well as civil 
actions. State %: Reynolds, 48 S. C. 384, 26 S. 
E. 679. 

Only persons included in the particular relations 
therein referred to can be considered as embraced 
in the proviso or exceptions; others not named, 
though within the mischief intended to be pre- 
vented, cannot be included. Guery v. Kinsler, 3 
S. C. 423; Tones v. Plunkett, 9 S. C. 392; Colvin 
i: Phillips," 25 S. C. 228; Brown v. Moore, 
26 S. C. 160, 2 S. E. 9; Huff v. Latimer, 33 S. 
C. 255, 11 S. E. 758: Rapley v. Klugh, 40 S. C. 
134, 18 S. E. 680. But the Section must be con- 
strued b}' the intent appearing on its face, and 
whether the proviso should be applied must be 
determined by the issue raised through the plead- 
ings and not bv the form of the action. Boykin 
V. Watts, 6 S. 'C. 76. 

These provisions do not apply where the wit- 
ness is not a party to the action, has no interest 
in the event of it, and cannot be affected bv it. 
Bollman v. Bollman, 6 S. C. 29; Twitty '■. Houser, 
7 S. C. 153; Blakely v. Frazier, 11 S. C. 122; 
Shaw v. Cunningham, 16 S. C. 631. 

"It was not error to allow an assignee of a life 
policy, who has assigned to defendant, to testify, 
in an action to recover the money collected by de- 
fendant thereunder, that he _ had advanced _ the 
monev to pav the first premium on the policy." 
Westbury v. Simmons, 57 S. C. 467, 35 S. E. 764. 

A person is not excluded as a witness whose lia- 
bility on a note will in no way be increased or 
diminished by the event of the suit. Twittv v. 
Houser, 7 S. C. 153: Sanders v. Bagwell, 37 S. 
C. 145, 15 S. E. 714. 

It is the possibility that "any person who has 
a legal or equitable interest which may be affected 
by the event of the action" that will exclude him 
as a witness. Roe v. Harrison, 9 S. C. 279. • 

If the defendant, though not named as executor, 
defends for the benefit of the estate of his testator, 
whose declarations the plaintiff is offered to prove, 
he is protected against such testimony. Boykin 
T. Watts, 6 S. C. 76. 

A party as witness is incompetent to testify 
as to communication with deceased person against 
his administrator where the judgment would affect 
his interest. Earle v. Harrison, 18 S. C. 329; 
Trammell r. Trammel!, 57 S. C. 89, 35 S. E. 533. 

A witness in interest is not incompetent to 
testify to communications and transactions had be- 
tween a person deceased and some third person. 
Roe V. Harrison, 9 S. C. 279; Brock v. O'Dell, 44 
S. C. 25, 21 S. E. 977; Hughey v. Eichelberger, 
11 S. C. 36; Shaw v. Cunningham, 16 S. C. 631; 
McLaurin v. Wilson, 16 S. C. 402; Robinson v. 
Robinson, 20 S. C. 567; Kennemore v. Kenne- 
more, 26 S. C. 251, 1 S. E. 881; Moore 7'. Trim- 
mier. 32 S. C. 511. 11 S. E. 548; Brice v. Miller, 
.35 S. C. 537. 15 S. E. 272; Sloan v. Hunter, 56' 
S. C. 385, 34 S. E. 658; Archer v. Long, 38 S. 
C. 272, 16 S. E. 998; Bruckle v. Leach, 55 S. C. 
510. 33 S. E. 720. 

Nor to testify against his own interest, though 



his testimony should affect the rights of others. 
Shell V. Boyd, 32 S. C. 539, 11 S. E. 205. 

The interest affected means the interest pro- 
moted; parties are competent to testify against 
their interest. Boykin v. Watts, 6 S. C. 76; Rob- 
inson V. Robinson, 20 S. C. 567; Moffatt v. Har- 
din, 22 S. C. 25; Griffin v. Earle, 34 S. C. 246, 
13 S. E. 473. 

A factor in his action against executor of own- 
ers of cotton for reclamation cannot testify to 
conversation had with him. Blakely v. Frazier, 

11 S. C. 122. 

Where assignee of sealed note sues, the defend- 
ant may prove the loss of the receipt given him 
by assignor, since deceased, but he cannot testify 
to contents of it. Standeridge v. Powell, 11 S. C. 
549. 

The introduction of testimony other than that 
of the representative of the deceased, as to certain 
transactions or communications of the deceased, 
does not render a party in interest competent to 
testify as to the same matter. Brice v. Hamilton, 

12 S. C. 32. 

A legatee under lost will, in attempting to set 
up same, cannot testify to communications or 
transactions with testator. Bauskett '■. Keitt, 22 
S. C. 187. 

In proceeding to revive execution by administra- 
tor of the assignee the defendant cannot testify 
that he had placed two notes in hands of the de- 
ceased assignee to collect. Monts v. Koon, 21 S. 
C. 110. 

A ward, in action for account brought Dy him 
after majority, against the executor of his de- 
ceased guardian, cannot testify to communications 
made to him by the deceased upon the matter of 
compromise formerly made between them, as to 
the value of the estate, although the returns of 
the guardian had been introduced in evidence by 
the executor. Owens v. Watts, 24 S. C. 76. 

Where plaintiff sues administrator of deceased 
on account for services rendered the deceased, 
he cannot testify that the account is correct, as 
that is, in substance and effect, testifying that the 
services had been rendered under contract or upon 
request, and related to a contract with deceased. 
Boyd V. Cauthen, 28 S. C. 72, 5 S. E. 170. 

A surviving executor may not testify to corn- 
inunications or transactions between himself and 
the deceased executor affecting their liability to 
each other for the administration of their testator's 
estate. Williams v. Mower, 29 S. C. 332, 7 S. 
E. 505. 

In action by creditor to set aside a judgnient 
confessed by father, since deceased, to defendant, 
his daughter, and to set aside sale of land there- 
under, the plaintiff could not prove communica- 
tions had by him with the deceased. Martin v. 
Adams, 29 S. C. 597, 6 S. E. 860. 

In action by survivor of firm against devisee 
of deceased partner to recover his share of certain 
lands held in deceased partner's name, but being 
really partnership property, the plaintiff was in- 
competent to prove any communications or trans- 
actions between the deceased and himself. Jones 
V. Smith, 31 S. C. 527, 10 S. E. 340. 

When defendant, as administrator of deceased 
son, being sued on note by the executor of the 
deceased father, testified as to the facts of the 
conversations with the testator, relative to the 
note, without giving any detail thereof, the plain- 
tiff could not, in repb', prove the substance of 
conversation with his testator about the note. 
Richards v. Munro, 30 S. C. 284, 9 S. E. 108. 

A trustee is not the representative of his de- 
ceased predecessor, and the obligor of bond, given 
to the latter, can prove payment to him in the 
action thereon by the former. Guery v. Kinsler, 
3 S. C. 423. 

In an action to recover land, brought against 
one who claimed as purchaser under A, who had 
purchased from C, deceased, A was a competent 
witness to prove C's declarations as to the title 
to the land. Jones v. Plunkett, 9 S. C. 392. 

A remote alienee of one deceased is within the 
mischief intended to be remedied by the exception, 
but she is not within its express terms, and can 
testify as to communications and transactions be- 
tween herself and the deceased as to the land 
she seeks to recover in the action. Cantey v. 
Whittaker, 14 S. C. 527; Brice v. Miller, 35 S. 
C. 537, 15 S. E. 272; Rapley v. Klugh, 40 S. C. 
134, 18 S. E. 680. 

Plaintiff in action against a town can testify as 



438] 



OF SOUTH CAROLINA. 



167 



to the transactions between himself and a former 
intendant of the town, acting foi the corporation, 
but at the time of trial leceased. Coleman v. 
Chester, 14 S. C. 286. 

In action to recover share of crop m?.de by plain- 
tiff on defendant's farm revived after defendant's 
death against his executors, the plaintiff could 
testify as to his_ own acts in connection with the 
subject matter, in no way attempted to be con- 
nected with the deceased. Rookhcart v. Dean, 
21 S. ,C. 597. 

In action by executrix, an attorney can testify 
to communications between himself as attorney 
for the testator and the administrator, now de- 
ceased, of an estate under which defendants claim. 
Reynolds v. Rees, 23 S. C. 438. 

A defendant to an action for partition is not 
incompetent to testify to communications between 
himself and a former trustee of the property now 
deceased, under whom plaintiff claimed, the plain- 
tiff not holding _ any of the relations to the de- 
ceased specified in this Section. Minton v. Pick- 
ens, 24 S. C. 592. 

And the assignee of a judgment, in his action 
thereon against the administrator of the deceased 
judgment debtor, can testify to communications 
between his assignor, then owner of the judgment, 
and the judgment debtor. Colviii v. Phillips, 25 
S. C. 228. 

In a contest between two claimants under the 
obligee in a bond for titles, the obligor can testify 
to communications between himself and the de- 
ceased obligee, as such a witness, though a party 
to the cause, has no interest in the action. Wood 
r. Wood, 25 S. C. 600. 

Witness, through whom defendants cl.iimed, was 
competent to testify in their behalf that he per- 
mitted another party, since deceased, to remain on 
the land in dispute, the testimony relating to an 
act of the witness and not a transaction with the 
deceased. Brown v. Mooi e, 26 S. C. 160, 2 S. 
K. 9. 

A grantor, as against her grantee, is a compe- 
tent witness to prove the declaration of one de- 
ceased under whom both of the parties to the 
cause derived their title. Blohme i). f^vnch, 26 S. 
C. 300, 2 S. E. 136. 

In action by beneficiaries under a policy of life 
insurance against a bank for the possession of the 
policy, the president and cashier of the bank can 
testify as to conversations and transactions by 
them with the assured, since deceased, as to the 
policy, because the plaintiffs are not prosecuting 
the action in any of the representative characters 
referred to in this Section. Macauley v. National 
Bank, 27 S. C. 215, 3 S. E. 193. 

Where the defendant, as administrator of de- 
ceased executor, brings out on cross-examination 
of the plaintiff, the surviving co-executor, that cer- 
tain payments have been made to him by defend- 
ant's intestate, the plaintiff was allowed to testify 
as to whether other alleged payments had been 
made to him. Williams :■. Mower, 29 S. C. 332, 
7 S. E. 505. 

In action by creditor to set aside judgment con- 
fessed to defendant by her father, who died be- 
fore the trial, and to set aside the sale of land 
under the judgment, a witness who held none of 
the relations prohibited under this Section could 
testify to communications had by him with the 
father. Martin v. Adams, 29 S. C. 597, 6 S. E. 
860. 

Defendant, as administrator of deceased son, 
being sued on note by executor of deceased father, 
was competent to prove the facts that he had had 
repeated conversations with the father and he 
had never made demand upon the defendant, as 
administrator, for pavment of the note. Richards 
V. Munro, 30 S. C. 284, 9 S. E. .108. 

In action by creditor to set aside for fraud a 
deed made by his debtor, now deceased, one of 
the grantees to the deed, and party defendant, 
who has sold his interest in the land, can testify 
to the circumstances of the transaction and the 
declarations of the grantor, to show the fraud. 
Shell V. Boyd, 32 S. C. 359, 11 S. E. 205. 

In action by tenant to recover personal prop- 
erty seized by the executor of the land owner 
for rent, which had been paid by plaintiff to one 
from whom he claimed to have leased the land, 
such person can testify as to communications and 
transactions with the deceased land owner, he 
being no party to action nor interested in the 
result, and the action being against the defend- 
pnts individually and not as executors. Huff v. 
Latimer, 33 S. C. 255, 11 S. E. 758. 



In action against administrator of a deceased 
debtor to recover the value of work done in build- 
ing and repairing houses, the plaintiff may testify as 
to what work was done by him on the premises 
of intestate, in his presence, that being an inde- 
pendent fact. Foggette v. Gaffney, 33 S. C. 303, 
12 S. E. 260. 

The testimony of the plaintiff, in a suit for 
services rendered to a person since deceased, that 
she rendered services for a specified time, and on 
cross-examination as to what she received from 
the deceased, was not incompetent. Marshall v. 
Mitchell, 59 S. C. 523, 38 S. E. 158. 

In action by assignee of mortgage, the mortgagor 
may testify that she never had any communication 
or transaction with the mortgagee, now deceased. 
Griffin v._ Earle, 34 S. C. 246, 13 S. E. 473. 

In action by surviving executor against admin- 
istrator of deceased co-executor, for account and 
settlement, the plaintiff can testify to the fact 
that he had conversations with defendant's in- 
testate as to certain matters, and when, where, 
and in whose presence such conversations was 
had, the statements of witness or deceased not 
being disclosed. Williams v. Mower, 35 S. C. 
206, 14 S. E. 483. 

Testimony incompetent under this Section is 
admissible if not objected to at time. Tompkins 
V. Tompkins, 18 S. C. 1; Burris v. Whitncr, 3 
S. C. 510; Bollman v. Bollman, 6 S. C. 30; Mc- 
Cougan V. Hall, 21 S. C. 601. 

It was error _ for Probate Judge to strike out 
on motion testimony as incompetent under this 
Section, where such testimony had been previously 
given without objection. Stark v. Hopson, 22 S. 
C. 42. And Circuit Judge erred in holding such 
testimony to be competent and sustaining the de- 
cree below; he should have ordered a new trial 
so that the Coui-t below might first consider such 
testimony. Ih. 

A party examined on his own behalf ma3^ like 
other witnesses, refresh his memory by book en- 
tries and other memoranda. Bull v. Lambson, 
S S. C. 284. 

An heir at law, codefendant with an adminis- 
trator, in a suit on a debt of the intestate, may 
testify as to conversation between her and the 
deceased, and as to the contents of a letter from 
plainti.ff to the deceased. Martin v. Jennings, 52 
S.^ C. 371, 29 S. E. 808. 

To permit a defendant in a suit by an adminis- 
trator to testify he met the deceased on several 
occasions, with certain amounts of money on his 
person, that he did not have when he left him. 
is a palpable effort to evade the provisions of 
this Section. Martin i'. Fowler, 51 S. C. 499, 
29 S. E. 261. 

One who petitioned for letters of administra- 
tion could testify that he paid a doctor's bill for 
the deceased, since the testimony was not given 
in an action against any of the parties named in 
the Section. Burkhim z'. Pinkhussohn, 58 S. C. 
469. 36 S. E. 908. 

Testimony of physician, who presents bill for 
services in attending on deceased, as to his phys- 
ical condition, is competent. Sullivan ?/. Latimer, 
38 S. C. 158, 17 S. E. 701. 

An executor is a competent witness as to a 
conversation had with his testator, against the 
interest of the testator, if such witness has no 
individual interest in the controversy. Devereux 
v. McCrady, 46 S. C. 133, 24 S. E. 77. 

The heirs at law and grantee of deceased, by 
introducing the testimony of deceased, taken de 
bene esse, as to transactions between her and the 
plaintiff, make the testimony of the plaintiff as to 
such transactions competent. Ellis v. Cribb, 55 
S. C. 328,. 33 S. E. 484. 

Communications and transactions between plain- 
tiff and intestate cannot be proved by the former. 
Glenn v. Gerald, 64 S. C. 236, 42 S. E. 156. 

Conversation between defendant's agent and de- 
ceased to show latter's knowledge inadmissible. 
Rhodes v. Railway Co., 68 S. C. 494, 47 S. E- 
689. 

Statement by deceased conductor admissible to 
show res gestae. Cain v. Railway Co., 74 S. C. 89, 
54 S. .E. 244. 

Testimony of grantee as to leaving deed with 
deceased grantor. Brucke v. Hubbard, 74 S. C. 
144, 54 S.. E. 249. 

Communication between husband and deceased 
wife inadmissible. Corbett v. Fogle, 72 S. C. 312, 
51 S. E. 884. 

Conversation between agent of plaintiff and tes- 



168 



CODE OF CIVIL PROCBDURB 



§§ 439-440 



Sec. 

439. Definition of order. 

440. Definition of motion. 

441. Notice of motion. 



CHAPTER VIII. 

Motions and Orders. 

Sec. 



442. In absence, etc., of Judge at Cham- 
bers, motion may be transferred 
to another Judge. 

443. Enlarging time for the proceedings 
in an action. 

§ 439. Definition of Order. — Every direction of a Court or Judge, made 
or entered in writing, and not included in a judgment, is denominated an order.^ 

1870, XIV, § 416. 

§ 440. Definition of Motion. — 1. An application for an order is a mo- 
tion.2 

2. Motions — How and When Made. — Motions may be made to a Judge or 
Justice of Court, except for a new trial on the merits.^ 

3. Orders Out oE Court without Notice. — Orders made out of Court, 
without notice, may be made by the Judge of the Court, in any part of the State.* 

4. Motions — Where Made. — Motions upon notice must be made within the 
Circuit in which the action is triable, or, in the absence or inability of the Judge 



tator of defendant not incompetent. Kean v. 
Landrum, 72 S. C. 556, 52 S. E. 421. 

Declarations of intestate as to advancements 
made to party. McCutchen v. McCutchen, 77 S. C. 
138, 57 S. E. 678, 12 L. R. A., N. S., 1140n. 

What is a transaction. Langston v. Cothran, 78 
S. C. 23, 58 S. E. 956. 

Conversation between insiired, since deceased, 
and agent of insurer. Clarke v. Home Ivife Ins. 
Co.. 79 S. C. 494, 61 S. E. 80. 

Proof of claim against decedent's estate. Gas- 
ton V. Gaston, 80 S. C. 163, 61 S. E. 393. 

Grandson of life tenant may testify in action by 
remaindermen to recover possession. Mims v. 
Hair, 80 S. C. 460, 61 S. E. 968. 

Statements bv agent since deceased admissible. 
Berry v. Virgiriia State Ins. Co., 83 S. C. 13, 64 
S. E. 859. 

Pollock V. Jones, 124 Fed. 163, 166. 

That decedent was in possession of land when 
he made the conveyance to witness is not trans- 
action between witness and deceased. L,angston v. 
Cothran, 78 S. C. 23, 58 S. E. 956. 

One indicted as principal with one as accessory 
may testify against accessory, tried separately, be- 
fore his own trial and without having been dis- 
missed from the record. State v. Kennedy, 85 S. 
C. 146, 67 S. E. 152. 

1. The refusal of a motion for nonsuit, never 
being "made or entered in writing," is not an or- 
der. Agnew V. Adams, 24 S. C. 86. 

A Judge has no power of his own mere motion 
to make an order affecting the rights of a party. 
State V. Parker, 7 S. C. 235. 

The order of one Court or Judge cannot be set 
aside or disregarded for irregularity by another. 
Furman v. R. R. Co., 3 S. C. 438. 

The order of one Judge granting leave to a 
party to make a motion before another Judge is 
without force. Steele v. R. R. Co., 14 S. C. 324. 

Order passed in equity cause valid, although the 
cause is not on calendar. Wright v. Herlong, 16 
S. C. 620. 

2. Motion is proper mode of obtaining relief in 
a cause not ended. Wright v. Herlong, 16 S. C. 
620. 

Such motions must, be first made before the 
Judge of the Court having jurisdiction of the 
case. State v. Black, 34 S. C. 194, 13 S. E. 361. 

Motion refused on one ground may be renewed 
on another. Messervy v. Messervy, 79 S. C. 58, 
60 S. E. 692. 

3. As a Judge cannot vacate a iudgment at 
chambers. Bank v. Mellett, 44 S. C. 383, 22 S. 
E. 444; Claussen v. Hutchinson, 14 S. C. 517; 
Charles v. Jacobs, 5 S. C. 348; Turner v. Fore- 
man, 47 S. C. 31, 24 S. E. 989. So he cannot 
give a judgment at chambers. Badham v. Brad- 
iiam, 54 S. C. 400, 32 S. E. 444. Nor can he, on 



motion to dissolve an attachment, decided on the 
merits of the action. Williamson v. Association, 
54 S. C. 582, 32 S. E. 765; Moore v. Rountree, 57 
S. C. 75, 35 S. E. 386. So a Judge of one Circuit 
cannot hear a petition for mandamus arising in 
another Circuit, the Courts of which he is not 
holding. Cunningham ?'. Williams, 52 S. C. 416, 
29 S. E. 814. Nor can application for such writ 
be heard outside of Circuit. EaMotte v. Smith, 
50 S. C. 558, 27 S. E. 933. 

The following motions may be made at cham- 
bers: 

Motion to dissolve an " attachment upon notice. 
Cureton v. Dargan, 12 S. C. 122. 

Motion for leave to file a supplemental com- 
plaint. Edwards v. Edwards, 14 S. C. 11. 

Motion to vacate a warrant of seizure to en- 
force agricultural lien. Segler v. Coward, 24 S. 
C. 119; Moore v. Rountree, 57 S. C. 75, 35 S. E- 
386. 

Motion for leave to amend complaint. Ellen v. 
Ellen, 26 S. C. 99, 1 S. E. 413. 

Motion for order of reference, on notice. Bank 
of Hampton v. Fennell, 55 S. C. 379, 33 S. E. 
485. 

Motion for alimony pendente lite. Smith v. 
Smith. 51 S. C. 379, 29 S. E. 227. 

Motion to authorize issuance of receiver's cer- 
tificates. State V. R. Co., 45 S. C. 413, 23 S. 
E. 363. 

Circuit Judge has power at chambers to grant 
leave for discontinuance. Shelton v. Southern 
Railway, 80 S. C. 77, 61 S. E. 220. 

Judge has discretionary power to add names of 
defendants at chambers. Hellaras v. Prior, 64 S- 
C. 544, 43 S. E. 25. Judge could make order of 
reference under circvimstances at chambers. Monta- 
gue V. Best, 65 S. C. 458, 43 S. E. 963. 

Order allowing alimony may be made at cham- 
bers. Messervy v. Messervy, 80 S. C. 282, 61 S. 
E. 442; Smith v. Smith,- 51 S. C. 379, 29 S. E- 
227. 

Motion for writ of assistance. Murchison v. 
Miller, 64 S. C. 428, 42 S. E. 177. 

4. Order to show cause why party should not 
be attached for contempt. Battle v. Eumber Co., 
72 S. C. 327, 51 S. E. 873. _ 

Judge can correct mere clerical error in his de- 
cree on ex i?arte application out of Court. Chafee 
V. Rainev, 21 S. C. 11. 

It is doubted whether this subdivision applies to 
the granting of a writ of certiorari. State v. 
Black. 34 S. C. 194, 13 S. E. 361. 

Orders at foot of decree to carry it into effect. 
Miller V. Cramer, 48 S. C. 282, 26 S. E- 657. Or 
give certificate as to default judgment being for 
purchaFe money. Odom v. Burch, 52 S. C. 305,. 
29 S. E. 726. 



§§441-442] OF SOUTH CAROLINA. 169 

of the Circuit, may be made before the resident or presiding Judge of a Circuit 
adjoining that in which it is triable.^ 

5. Preference oe Motions. — A motion to modify or vacate a provisional 
remedy, and an appeal from an order allowing a provisional remedy, shall have 
preference over all other motions. 

6. Stay oe Proceedings. — No order to stay proceedings for a longer time 
than twenty days shall be granted by a Judge out of Court, except upon previous 
notice to the adverse party, of at least four days, unless the Circuit Judge pre- 
scribe a shorter period.® 

7. Appointment oe ReeerEE to Take Requisite Aeeidavits. — When any 
party intends to make or oppose a motion in any Court of record, and it shall 
be necessary for him to have the affidavit of any person who shall have refused 
to make the same, such Court, or a Judge thereof, may, by order, appoint a 
referee to take the affidavit or deposition of such person. Such person may be 
subpoenaed and compelled to attend and make an affidavit before such referee,, 
the same as before a referee to whom it is referred to try an issue. And the 
fees of such referee for such service shall be three dollars per day. 

8. Decision on Motion. — Whenever a motion shall be made in any cause or 
proceeding in any of the Courts in this State to obtain an injunction order, order 
of arrest, or warrant of attachment, granted in any such case or proceeding, it 
shall be the duty of the Judge, Magistrate, or other officer before whom such 

^^motion is, made, to render and make known his decision on such motion within 
twenty days after the day upon which such motion shall or ma}' be submitted to 
him for his decision. 

1870, XIV, § 417; 1899, XXIII, 39. 

§ 441. Notice of Motion. — When a notice of a motion is necessary, it 
must be served four days before the time appointed for the hearing ; but the 
Court or Judge, may, by an order to show cause, prescribe a shorter time."^ 

1870, XIV, § 418. 

§ 442. In Absence, etc., of Judge at Chambers, ' Motion May Be 
Transferred to Another Judge. — When notice of a motion is given, or an 
order to show cause is returnable before a Judge out of Court, and at the time 
fixed for the motion he is absent or unable to hear it, the same may be trans- 
ferred, by his order, to some other Judge, before whom the motion, in case of 
his absence or inability, might originally have been made.® 

1870, XIV, § 419. 

5. This subdivision does not empower ■ a Cir- ceeding, so as to require notice. Wilcox, etc., 
cuit Judge to perform judicial duties outside of Guano Co. i'. Phoenix Ins. Co., 60 Fed. 929, 933. 
his own Circuit. Ex parte Parker, 6 S. C. 472. 7. An order cannot be made without notice ta 

But Judge may render a decree in cause heard the party prejudiced by it. State v. Parker, 7 S. 

by him in one Circuit after he had entered upon C. 235. 

his duties in another Circuit. Chafee v. Rainey, An order to enjoin a decree for sale of mort- 

21 S. C. 11. gaged premises cannot be made without four days' 

Motion to set asi^e a decree of foreclosure can notice. Rice v. Mahaffey, 9 S. C. 281. 

be made only in the Circuit where the action is Motion for security for costs should be notified 

pending. Thomas v. Raymond, 4 S. C. 347. four days before the time for hearing. Dulany v. 

It is error to grant relief beyond the terms of Elford, 22 S. C. 304. 

the notice. De Walt v. Kinard, 19 S. C. 286. Orders granted upon notice for less time should 

Applications for writ of mandamus must be be' set aside. In re 'Shier, 35 S. C. 417, 14 S. E. 

heard in Circuit. LaMotte v. Smith, 50 S. C. 558, 931. 

27 S. E. 933. And must be heard by the Judge Notice of motion to change venue. Willoughby 

of, or holding the Courts in the Circuit. Cunning- z: N. E. R. Co., 46 S. C. 317, 24 S. E. 308. 

ham V. Williams, 52 S. C. 416, 29 S. E. 814. Notice not necessary for all motions. Fish- 

Ex parte Postal Tel. Co., 72 S. C. 553, 52 S. burne v. Minott, 72 S. C. 571, 52 S. E. 648. 

E. 676. What notice sufficient. Fishburne v. Minott, 72 

6. This Section applies only to a Circuit Judge, S. C. 574, 52 S. E. 646. 

and not to a Justice of the Supreme Court. Salinas 8. This Section extends the provisions of § 440, 

V. Aultman, 49 S. C. 378, 27 S. E. 407. Nor does Subdivision 4, to the case of a motion already 

it refer to injunctions against individuals: or, if noticed or ordered to be heard in proper Circuit, 

so, it merely makes the restraining order nugatory Ex parte Parker, 6 S. C. 472. 

after the lapse of twenty days, and not irregular It does not enlarge the authority of the Judges 

ab initio. Strom v. American Freehold, etc., Co., to perform judicial acts beyond the limits of their 

'42 S. C. 97, 20 S. E. 16. The defect, if any, by own Circuits. Ih. 

motion to vacate within the twenty days. Mein. Does not apply to proceedings in mandamus. 

hard V. Youngblood, 37 S. C. 223, 15 S. E. 947. Cunningham v. Williams, 52 S. C 416, 29 S. E- 

Enlarging time to answer does not stay a pro- 814. 



170 CODE OF CIJIL PROCEDURE [ §§ 443-445 

§ 443. Enlarging Time for the Proceedings in an Action. — The time 
within which any proceeding in an action must be had, after its commencement, 
except the time within which an appeal must be taken, may be enlarged, upon 
an affidavit showing grounds thereof, by a Judge of the Circuit Court. The affi- 
davit, or a copy thereof, must be served with a copy of the order, or the order 
may be disregarded.^ 

1870, XIV, § 420. 



CHAPTER IX. 

Entitling Affidavits. 



Sec. 
444. Affidavits defectively entitled valid. 

§ 444. Affidavits Defectively Entitled Valid. — It shah not be necessary 
to entitle an affidavit in the action ; but an affidavit made without a title, or with 
a defective title, shall be as valid and effectual, for every purpose, as if it were 
duly entitled, if it intelligibly refer to the action or proceeding in which it is 
made.^ 

1870, XIV, § 421. 



CHAPTER X. 

Computation of Time. 

Sec. 
445. Time — How computed. 

§ 445. Time — How Computed. — The time within which an act is to be 
done, as herein provided, shall be computed by excluding the first day and in- 
cluding the last. If the last day be Sunday, it shall be excluded. ^ 

1870, XIV, § 422. 

9. No notice required of motion to _ extend time 978, 7 Am. & Dng. Ann. Cas. 693, 7 I^. R. A., N. 

to answer or demur. Fishburne v. Minott, 72 S- S., 433n. 

C. 570, 52 S. E. 648. 1. When an order allowing twenty days in 

Enlarging time to answer does not stay a pro- which to serve an answer is affirmed, the defendant 

ceeding, so as to require notice. Wilcox, etc., has twenty days after the remittitur reaches the 

Guano Co. .■. Phcenix Ins. Co., 60 Fed. 929, 933. lower Court in which to do so. Barnwell v. 

1. It is not necessary to state the venue in the Marion, 56 S. C. 54. 33 S. E. 719. 

affidavit. Clemson College v. Pickens, 42 S. C. Williams v. Halford, 64 S. C. 403, 42 S. E. 187. 

511, 20 S. E;. 401. An affidavit defined; before Sunday to be included in computation of time 

whom to be taken. Marine Wharf Co. v. Parsons, for service of papers. Salley v. S. A. L. Railway, 

49 S. C. 136, 26 S. E. 956. The affidavit need 76 S. C. 177, 56 S. E. 782. 

not be signed by the affiant, Armstrong v. Austin, Pledge filed on 2d January is filed five days be- 

45 S. C. 69, 22 S. E. 763. As to the necessity fore election on January 7. Holt v. Democratic 

of the officer signing the jurat. Doty v. Boyd, 46 Executive Committee, 79 S. C. 264, 60 S. E. 659. 

S. C. 39. 24 S. E. 59. Defendant has twenty days after leave to file 

An affidavit is a written statement sworn to. amended complaint. Hubbard* v. Furman Uni- 

The fact that it was sworn to may be proved by versity, 80 S. C. 63, 61 S. E. 210. 

the Magistrate before whom it was made. State v. This section does not apply where thing to be 

Williams, 76 S. C. 135, 56 S. E. 783. done, e. g., notice to be given, requires not less 

The official title of officer need not be signed. than certain number of days. Williams v. Hal- 

McCreary i: Coggeshall, 74 S. C. 42, 53 S. E. ford, 67 S. C. 296, 306, 45 S. E. 207. 



§§ 446-451 1 OP SOUTH CAROLINA. 171 

CHAPTER XL 

Notices, and Filing and Service of Papers. 

Sec. Sec. 

446. Notices, etc. — How served. 451. Notice of motion, etc., where per- 

447. Service — How made. sonally served. 

448. Service by mail. . 452. When papers need not be served on 

449. Deposit of papers, address, and pay- defendant. 

ment of postage. 45.3. Service of papers where parties re- 

450. Double time where service by side out of State. 

mail. 454. Summons and pleadings to be filed. 

455. Service on attorney. 

456. When this Chapter does not apply. 

§ 446. Notices, etc. — How Served. — Notices shall be in writing, and 
notices and other papers may be serv^ed on the party or attorney, in the manner 
prescribed in the next three Sections, where not otherwise provided by this Code 
of Procedure.^ 

1870, XIV, § 423. 

§ 447. Service — How Made. — The service may be personal, or by deliv- 
ery to the party or attorney on -whom the service is required to be made ; or it 
may be as f ollow^s : 

1. If upon an attorney, it may be made during his absence from his office, 
by leaving it with the clerk therein, or with a person having charge thereof ; or, 
when there is no person in the office, by leaving it, between the hours of six in 
the morning and nine in the evening, in a conspicuous place in the office; or, 
if it be not open so as to admit of such service, then by leaving it at the attor- 
ney's residence, with some person of suitable age and discretion. 

2. If upon a party, it may be made by leaving the paper at his residence be- 
tween the hours of six in the morning and nine in the evening, with some per- 
son of suitable age and discretion. ^ 

1870, XIV, § 424. 

§ 448. Service by Mail. — Service by mail may be made where the person 
making the service and the person on whom it is to be made reside in different 
places, between which there is a regular communication by mail.^ 

1870, XIV, § 425. 

§ 449. Deposit of Papers, Address, and Payment of Postage. — In 

case of service by mail, the paper must be deposited in the postoffice, addressed 
to the person on whom it is to be served, at his place of residence, and the post- 
age paid.'* 

1870, XIV, § 426. 

§ 450. Double Time Where Service by Mail. — When the service is by 
mail, it shall be double the time required in cases of personal service. ^ 
1870, XIV, § 427. 

§ 451. Notice of Motion, etc., Where Personally Served. — Notice of a 
motion or other proceeding before a Court or Judge, when personally served, 

1. Telephone notices, being verbal, do not 4. Rule to show cause properly served on non- 
comply to this Section. In re Shier, 35 S. C. 417, resident by leaving copy with him in foreign State. 
14 S. E. 931. Notice of appeal. Abney v. Cole, State r. Johnson, 77 S. C. 253, 57 S. E. 846. 

30 S. C. 609, 10 S. E. 390; Barnwell v. Marion, Effect of not receiving notice. Martin v. Hutto. 

36 S. C. 54, 33 S. E. 719. _ _ 82 S. C. 437, 64 S. E. 421. 

2. Leaving with wife at residence sufficient. 5. This provision is intended for the benefit of 
Allen V. Cooley, 53 S. C. 77, 30 S. E. 721. the party upon whom the service is made and not 

_3. Service by mailing on last day sufficient. for the party making the service. The service is 
Walters v. Laurens Cotton Mills, 53 S. C. 155, complete as soon as the paper is deposited in post- 
31 S. E. 1. office, properly addressed and stamped. Sullivan 

Service of notice of appeal on Magistrate. v. Speights, 12 S. C. 561. The time for service 

Wright V. Southern Railway, 74 S. C. 30, 54 S. of exceptions upon the Judge, after rising of the 

E. 211. Court, not extended when sent by mail. lb. 

Martin v. Hutto, 82 S. C. 432, 438, 64 S. E. 
-121. 



172 CODE OP CiriL PROCEDURE [ §§ 452-458-^^ 

shall be given at least four days before the time appointed therefor.*^ 
1870, XIV, § 428. 

§ 452. When Papers Need Not Be Served on Defendant. — When a 
defendant shall not have demurred or answered, service of notice or papers in 
the ordinary proceedings in an action need not to be made upon him unless he 
be imprisoned for want of bail, but shall be made upon him or his attorney, if 
notice of appearance in the action has been given. 

1870, XIV, § 429. 

§ 453. Service of Papers Where Parties Reside Out of State. — Where 
a plaintiff or a defendant who has demurred or answered, or gives notice of ap- 
pearance, resides out of the State, and has no attorney in the action, the service 
may be made by mail, if his residence be known; if not known, on the Clerk, 
for the party. 

1870, XIV, § 430. • . 

§ 454. Summons and Pleadings to Be Filed. — The summons and the 
several pleadings in an action shall be filed with the Clerk within ten days after 
the service thereof respectively, or the adverse party, on proof of the omission, 
shall be entitled without notice to an order from a Judge that the same be filed 
within a time to be specified in the order, or be deemed abandoned. 

1870, XIV, § 431. 

§ 455. Service on Attorney. — Where a party shall have an attorney in 
the action, the service of papers shall be made upon the attorney instead of the 
party. '^ 

1870, XIV, § 432. 

§ 456. When This Chapter Does Not Apply. — The provisions of this 
Chapter shall not apply to the service of a summons, or other process, or of any 
paper to bring a party into contempt. 

1870, XIV, § 433. 



CHAPTER XII. 

Miscellaneous Provisions. 

Sec. Sec. 

457. Papers lost or withheld— How sup- 459. Time for publication of notices — 

plied. How computed. 

458. Where undertakings to be filed. 460. Printed copies of foreign laws to be 

admitted as presumptive evi- 
dence. 

§ 457. Papers Lost or Withheld — How Supplied.— If an original plead- 
ing or paper be lost or withheld by any -person, the Court may authorize a copy 
thereof to be filed and used instead of the original. ^ 

1870, XIV, § 437. 

§ 458. Where Undertakings to Be Filed.— The various undertakings re- 
quired to be given by this Code of Procedure must be filed with the Clerk of 
the Court, unless the Court expressly provides for a different disposition thereof, 
except that the undertakings provided for by the Chapter on the claim and de- 

6. An order to enjoin a decree for sale of to Pet aside an execution sliould be served on the 
mortgaged premises cannot be made without four parties; service upon attorney who renewed the 
days' notice. Rice v. Mahaffey, 9 S. C. 281. Mo- execution is not sufficient. Lb. 

tion requiring security for costs should be notified Service of notice of survey, after action com- 

fnur days beforehand. Dulany v. Elford, 22 S. mcnccd, should be made on attorneys. Kolh v. 

C 304 Tones, 62 S. C. 193, 40 S. E. 168. 

'Notice of motion for change of venue. Wil- 1. This Section confers no new powers but 

loughby V. N. E. Ry. Co., 46 S. C. 317, 24 S. E. sirarly recognizes the genera! power already ex- 

308 isting in the Court of so substituting new records. 

7, Applies only after action has been com- OuBois -.'. Thomas, 14 S. C. 30. Such general au- 
menced. Duncan r. Brown, 15 S. C. 416. Notice thority inrhides judgments. Ih. 



§§ 459-461 ] OF SOUTH CAROLINA. 173 

livery of personal property, shall, after the justification of the svireties, be de- 
livered by the Sheriffs to the parties, respectively, for whose benefit they are 
taken. 

1870, XIV, § 438. 

§ 459. Time for Publication of Notices — How Computed. — The time 

for publication of legal notices shall be computed so as to exclude the first day of 

publication, and include the day on which the act or event, of which notice is 

.given, is to happen, or which completes the full period required for publication. 

1870, XIV, § 440. 

§ 460. Printed Copies of Foreign Laws ^to Be Admitted as Presump- 
tive Evidence. — All printed copies of statutes, codes, decided cases or other 
written law enacted by any other sovereignty. State, territory or government pur- 
porting to be published under the authority thereof, or purporting to be an au- 
thentic publication by a reputable publisher shall be admitted by the courts and 
ofificers of this State as presumptive evidence of such laws without further proof. 
The unwritten or common law of any other sovereignty. State or Territory, or 
foreign government, may be proved as facts by parol evidence ; and the books 
of reports of cases adjudged in their Courts may also be admitted as presumptive 
evidence of such law. 

1911, XXVII, 146. 



TITLE XIII. 

ACTIONS IN PARTICULAR CASES. 



Chapter I. Actions against Foreign Corporations, 173. 

Chapter II. Action in Place of Scire Facias, Quo Warranto, and of Informa- 
tions in the Nature of Ouo Warranto, 174. 



CHAPTER I. 

Actions against Foreign Corporations. 

Sec. 
461. Where and by whom action brought. 

§ 461. Where and by Whom Action Brought. — An action against a cor- 
poration created by or under the laws of any other State, government, or coun- 
try, may be brought in the Circuit Court : 

1. By any resident of this State, for any cause of action. 

2. By a plaintiff not a resident of this State, when the cause of action shall 
have arisen, or the subject of the action shall be situated, within this State. ^ 

1870, XIV, § 442. 

1. A complaint in a Court of general jurisdiction tral R., etc., Co. v. Georgia Constr., etc., Co., 32 

is not demurrable on the ground of want of juris- S. C. 319, 11 S. E. 192. 

■diction, because of the nonresidence of the plain- The cause of action arises at the place of per- 

tiff, it not appearing therefrom what his residence formance, presumably the place of making. Till- 

is. Pollock V. B. & E. Ass'n, 48 S. C. 65, 25 S. inghast v. Boston Lumber Co., 38 S, C. 484, 18 

5J_ 977, S. E. 120; Curnow v. Phoenix Ins. Co., 37 S. C. 

Where such corporation appears and answers on 407, 16 S. E. 132; Carpenter v. American Acci- 

the merits, it submits itself to the jurisdiction of dent Co., 46 S. C. 541, 24 S. E. 500. 

the Court, and the complaint will not then be In an action against a foreign corporation U is 

held defective because it failed to show that the unnecessary to allege in what State defendant is 

plaintiff was a resident of the State. Chafee v. incorporated. Machen v. W. U. Tel. Co., 63 S. 

Postal Co., 35 S. C. 372, 14 S. E. 764. C. 425, 41 S. E. 448. . 

A nonresident can sue a foreign corporation only Does not prohibit actions against foreign cor- 

in the two cases specified in Subdivision 2, and porations in Magistrate's Court. Best v. Seaboard 

this action cannot be maintained unless it appear Air Line Railway, 72 S. C. 482, 52 S. _E. 223. 

that it is brought in one case or the other. Cen- Foreign corporations, though domesticated, may 

be sued in any County plaintiff may elect. Elms 
r. Power Co., 78 S. C. 326, 58 S. E. 809. 



174 CODE OF CIVIL PROCEDURE [ §§ 462-464 

CHAPTER 11. 

Action in Place of Scire Facias, Quo Warranto, and of Informations ia 
the Nature of Quo Warranto. 

Sec. Sec. 

46?. Scire facias and quo warranto abol- 473. Proceedings against defendant on 

ished, and this Chapter substi- his refusal to deliver books or 

tuted. papers. 

463. Action by direction of Legislature, 473. Damages — How recovered. 

by Attorney General, to vacate 474. One action against several persons 
a charter. claiming office and franchise. 

464. Action to annul corporation by At- 475. Penalty for usurping office or fran- 

torney General, by leave of Su- chise — How awarded. 

preme Court. 476. Judgment of forfeiture against cor- 

465. Leave to sue — How obtained. poration. 

466. Action upon information or com- 477. Costs against corporation, or per- 

plaint of course. sons claiming to be such — How 

467. Action — When and how brought to collected. 

vacate letters patent. 478. Restraining corporation, and ap- 

468. Relator — When to be joined as pointment of receiver. 

plaintifif. 479. Copy of judgment roll against cor- 

469. Complaint and arrest of defendant poration — Where to be filed. 

in action for usurping office. 480. Entry of judgment relating to let- 

470. Judgment in such actions. ters patent. 

471. Assumption of office, etc., by re- 481. Action for forfeiture of property to 

lator, when judgment is in his State, 

favor. 

§ 462. Scire Facias and Quo Warranto Abolished, and This Chapter 
Substituted. — The writ of scire facias, the writ of quo warranto, and proceed- 
ings by information in the nature of quo warranto, are aboHshed ; and the 
remedies heretofore obtainable in those forms may be obtained by civil actions 
under the provisions of this Chapter. But any proceeding heretofore com- 
menced, or judgment rendered, or right acquired, shall not be affected by such 
abolition.^ 

1870, XIV, § 443. 

§ 463. Action, by Direction of Legislature, by Attorney General, to 
Vacate a Charter. — An action may be brought by the Attorney General in 
the name of the State, whenever the Legislature shall so direct, against a cor- 
poration, for the purpose of vacating or annulling the Act of incorporation, or 
an Act renewing its corporate existence, on the ground that such Act or renewal 
was procured upon some fraudulent suggestion or concealment of a material 
fact, by the persons incorporated, or by some of them, or with their knowledge 
and consent. 

1870, XIV, § 444. 

§ 464. Action to Annul Corporation by Attorney General, by Leave of 
Supreme Court. — An action may be brought by the Attorney General in the 
name of the State, on leave granted by the Supreme Court or a Justice thereof, 
or a Circuit Judge, for the purpose of vacating the charter or annulling the ex- 
istence of a corporation, other than municipal, whenever such corporation shall : 

1. Offend against any of the provisions of this Code of Procedure, or the Acts 
creating, altering, or renewing such corporation; or, 

2. Violate the provisions of any law by which such corporation shall have 
forfeited its charter by abuse of its powers ; or, 

1. The Supreme Court still retains power con- does not affect it as a remedy to estreat a recog- 

ferred upon it by Cons., Art. IV., § 4, to issue nizance in the Court of General Sessions. State v. 

writs of quo warranto in the sense that it has Wilder, 13 S. C. 344. 

jurisdiction of such proceedings. This Section Complaint and answer are necessary to try title 

does not attempt to abolish that jurisdiction, but to office. Bruce v. Rice, 66 S. C. 5, 44 S. E- 80. 

simply to abolish the formal characteristics of the Proceedings in quo warranto; trial of title to 

writ. Alexander v. McKenzie, 2 S. C. 81; State office. Jernigan v. Stickley, 80 S. C. 64, 61 S. E. 

V. Bowen, 8 S. C. 382. 211, 128 Am. St. Rep. 855, IS Am. & Eng. Ann. 

Relates only to scire facias as a civil remedy; Cas. 136. 



§§465-468] OF SOUTH CAROLINA. . 175 

3. Whenever it shall have forfeited its privileges or franchises by failure to 
exercise its powers; or, 

4. Whenever it shall have done or omitted any act which amounts to a sur- 
render of its corporate rights, privileges, and franchises ; or, 

5. Whenever it shall exercise a franchise or privilege not conferred upon it 
by law. 

And it shall be the duty of the Attorney General, whenever he shall have rea- 
son to believe that any of these acts or omissions can be established by proof, to 
apply for leave, and, upon leave granted, to bring the action, in every case of 
public interest, and, also, in every other case in which satisfactory security shall 
be given, to indemnify the State against the costs and expenses to be incurred 
thereby.- 

1870, XIV, § 445. 

§ 465. Leave to Sue — How Obtained. — Leave to bring the action may be 
granted upon the application of the Attorney General; and the Court or Judge 
may, at discretion, direct notice of such application to be given to the corpora- 
tion or to its officers, previous to granting such leave, and may hear the corpora- 
tion in opposition thereto. 

1870, XIV, § 446. 

§ 466. Action upon Information or Complaint of Course. — An action 
may be brought by the Attorney General in the name of the State, upon his own 
information, or upon the complaint of any private party, or by a private party 
interested, on leave granted by a Circuit Judge, against the parties offending, 
in the following cases : 

1. When any person shall usurp, intrude into, or unlawfully hold or exercise 
any public office, civil or military, or any franchise within this State, or any 
office in a corporation created by the authority of this State ; or, 

2. When any public officer, civil or military, shall have done or suffered an 
act which, by the provisions of law, shall make a forfeiture of his office ; or, 

3. When any association or number of persons shall act within this State as a 
corporation, without being duly incorporated. 

1870, XIV, § 447. 

§ 467. Action — When and How Brought to Vacate Letters Patent. — 

An action may be brought by the Attorney General, in the name of the State, 
for the purpose of vacating or annulling the letters patent granted by the people 
of this State in the following cases : 

1. When he shall have reason to believe that such letters patent were obtained 
by means of some fraudulent suggestion or concealment of a material fact, made 
by the person to whom the same were issued or made, or with his consent or 
knowledge ; or, 

2. When he shall have reason to believe that such letters patent were issued 
through mistake, or in ignorance of material fact; or, 

3. When he shall have reason to believe that the patentee, or those claiming 
nnder him, have done or committed an act, in violation of the terms and con- 
ditions on which the letters patent were granted, or have, by any other means, 
forfeited the interest acquired under the same. 

1870, XIV, § 448. 

§ 468. Relator — When to Be Joined as Plaintiff. — When an action shall 
be brought by the Attorney General, by virtue of this Chapter, on the com- 
plaint of any private party, or by a person having an interest in the question, 
the name of such person shall be joined with the State as plaintiff; and, in every 

2. Validity of existence of corporation cannot be attacked collaterally. Atlantic, etc., R. Co. v. 
Epperson, 85 S. C. 134, 136, 67 S. E. 235. 



176 CODE OF CIVIL FROCBDURB [ §§ 469-472 

case, the Attorney General, or Circuit. Judge, as the case may be, may require 
as a condition precedent to bringing such action, that satisfactory security shall 
be given to indemnify the State against the costs and expenses to.be incurred 
thereby; and in every case brought by the Attorney General where such se- 
curity is given, the measure of compensation to be paid by such person to the 
Attorney General, shall be left to the agreement, express or implied, of the 
parties. 

1870. XIV, § 449. 

§ 469, Complaint and Arrest of Defendant in Action for Usurping 
Office, — When such an action shall be brought against a person for usurping an 
office, the Attorney General, or private party bringing the same, in addition to 
the statement of the cause of action, may also set forth in the complaint the 
name of the person rightfully entitled to the office, with a statement, of his right 
thereto; and in such case, upon proof by affidavit that the defendant has re- 
ceived fees or emoluments belonging to the office, and by means of his usurpa- 
tion thereof, an order may be granted by a Judge of the Circuit or Justice of the 
Supreme Court for the arrest of such defendant, and holding him to bail; and 
thereupon he shall be arrested and held to bail in the manner, and with the same 
effect, and subject to the same rights and liabilities, as in other civil actions where 
the defendant is subject to arrest.-^ 
1870, XIV, § 450. 

§ 470, Judgment in Such Actions. — In every case, judgment shall be 
rendered upon the right of the defendant, and also upon the right of the party 
so alleged to be entitled, or only upon the right of the defendant, as justice shall 
require. 

1870, XIV, § 451. 

§ 471. Assumption of Office, etc., by Relator, When Judgment Is in 
His Favor. — If the judgment be rendered upon the right of the person so al- 
leged to be entitled, and the same be in favor of such person, he shall be entitled, 
after taking the oaths of office, and executing such official bond as may be 
required by law, to take upon himself the execution of the office; and it shall 
be his duty, immediately thereafter, to demand of the defendant in the action 
all the books and papers in his custody, or within his power belonging to the 
office from which he shall have been excluded. 

1870, XIV, § 452. 

§ 472. Proceedings against Defendant on His Refusal to Deliver 
Books or Papers. — If the defendant shall refuse or neglect to deliver over 
such books or papers, pursuant to the demand, he shall be guilty of a misde- 
meanor, and the following proceedings shall be had, to compel delivery of 
such books or papers : 

1. Whenever any person shall be removed from office, or the term for which 
he shall have been elected or appointed shall expire, he shall, on demand, de- 
liver over to his successor all the books and papers in his custody as such of- 
ficer, or in any way appertaining to his office. Every person violating this 
provision shall be deemed guilty of a misdemeanor. 

2. If any person shall refuse or neglect to deliver over to his successor any 
books or papers, as required in the preceding Section, such successor may make 
complaint thereof to any Judge of the Circuit Court, or Justice of the Supreme 
Court, where the person so refusing shall reside; and if such officer be sat- 
isfied by the oath of the complainant, and such testimony as shall be offered, 
that any such books or papers are withheld, he shall grant an order directing 
the person so refusing to show cause before him, within some short reasonable 
time, why he should not be compelled to deliver the same. 

3. Quo warranto proper remedy to recover possession of public office. Sanders v. Belue, 78 S. 
C. 171, 58 S. C. 762. 



§§ 473-474] OF SOUTH CAROLINA. \77 

3. At the time so appointed, or at any other time to which the matter may 
be adjourned, upon due proof being made of the service of the said order, 
such officer shall proceed to inquire into the circumstances. If the person 
charged with withholding such books or papers shall make affidavit before such 
officer that he has truly delivered over to his successor all such books and papers 
in his custody, or appertaining to his office, within his knowledge, all further 
proceedings before such officer shall cease, and the person complained against 
shall be discharged. 

4. If the person complained against shall not make such oath, and it shall 
appear that any such books or papers are withheld, the officer before whom 
such proceedings shall be had shall, by warrant, commit the person so with- 
holding to the jail of the County, there to remain until he shall deliver such 
books and papers, or be otherwise discharged according to law.* 

5. In the case stated in the last Section, if required by the complainant, such 
officer shall also issue" his warrant, directed to any Sheriff or Constable, com- 
manding him in the day time to search such places as shall be designated in 
such warrant for such books and papers as belong to the officer so removed, or 
whose term of office expired, in his official capacity, and which appertained 
to such office, and seize and bring them before the officer issuing the warrant. 

6. Upon any books or papers being brought before such officer, by virtue 
of such warrant, he shall inquire and examine whether the same appertained to 
the office from which the person so refusing to deliver was removed, or of 
which the term expired, and he shall cause the same to be delivered to the 
complainant. 

7. If any person appointed or elected to any office shall die, or his office 
shall in any way become vacant, and any books or papers belonging or apper- 
taining to such office shall come to the hands of any person, the successor to 
such office may, in like manner as hereinbefore prescribed, demand such books 
or papers from the person having the same in his possession; and on the same 
being withheld, an order may be obtained, and the person charged may, in 
like manner, make oath of the delivery of all such books and papers that ever 
came to his possession; and in case of omission to make such oath, and to 
deliver up the books and papers so demanded, such person may be committed 
to jail, and a search warrant may be issued, and the property seized by virtue 
thereof may be delivered to the complainant, as hereinbefore prescribed.^ 

1870. XIV, § 453. 

§ 473. Damages— How Recovered. — If judgment be rendered upon the 
right of the person so alleged to be entitled, in .favor of such person, he may 
recover, by action, the damages which he shall have sustained by reason of 
the usurpation by the defendant of the office from which such defendant has 
been excluded. 

1870, XIV, § 454. 

§ 474. One Action against Several Persons Claiming OflEice and 
Franchise. — Where several persons claim to be entitled to the same office or 
franchise, one action may be brought against all such persons, in order to try 
their respective rights to such office or franchise. 

1870, XIV, § 455. 

4. A party having prima facie title to an ap- of the office and its books, records and property, 

pointive office is entitled to a summary order without awaiting a judgment in his favor under a 

against the party in possession of the books be- proceeding in quo warranto; and his predecessor in 

longing to the office. Verner v. Seibels, 60 S. C. office may be committed to jail, as for contempt, 

572 39 S E; 274. for refusal to obey an order of the Circuit Judge 

.-'. Where a person has been elected Probate directing him to surrender such office and prop- 
Judge and he qualifies and is commissioned _ as erty to his successor. In re Whipper, 32 S. C. 5, 
such, he is prima facie entitled to the possession 10 S. K. 579. 

2 S C C— 12 



178 CODE OF CIVIL PROCEDURE [ §§ 475-481 

§ 475. Penalty for Usurping- Office or Franchise — How Awarded. — 

When a defendant, whether a natural person or corporation, against whom 
such action shall have been brought, shall be adjudged guilty of usurping or 
intruding into, or unlawfully holding or exercising, any office, franchise, or 
privilege, judgment shall be rendered that such defendant be excluded from 
such office, franchise, or privilege, and also that the plaintiff recover costs 
against -such defendant. The Court may also, in its discretion, fine sucli de- 
fendant a sum not exceeding two thousand dollars, which fine, when collected, 
shall be paid into the Treasury of the State. 
1870, XIV, § 456. 

§ 476. Judgment of Forfeiture against Corporation. — If it shall be 
adjudged that a corporation against which an action shall have been brought 
pursuant to this Chapter, has, by neglect, abuse, or surrender, forfeited its 
corporate rights, privileges, and franchises, judgment shall be rendered that 
the corporation be excluded from such corporate rights, privileges, and fran- 
chises, and that the corporation be dissolved. 

1870, XIV, § 457. 

§ 477. Costs against Corporation, or Persons Claiming to Be Such 
— How Collected. — If judgment be rendered in such action against a cor- 
poration, or against persons claiming to be a corporation, the Court may cause 
the costs herein to be collected by execution against the persons claiming to be 
a corporation, or by attachment or process against the directors or other officers 
of such corporation. 

1870, XIV, § 458. 

§ 478. Restraining Corporation, and Appointment of Receiver. — 

When such judgment shall be rendered against a corporation, the Court shall 
have power to restrain the corporation, to' appoint a receiver of its property, 
and to take an account, and make distribution thereof among its creditors ; and 
it shall be the duty of the Attorney General, immediately after the rendition of 
such judgment, to institute proceedings for that purpose. 
1870, XIV, § 459. 

§ 479. Copy of Judgment RoU against Corporation — Where to Be 
Filed. — Upon the rendition of such judgment against a corporation, or for the 
vacating or annulling of letters patent, it shall be the duty of the Attorney Gen- 
eral to cause a copy of the judgment roll to be forthwith filed in the office of 
the Secretary of State. 

1870, XIV, § 460. 

§ 480. Entry of Judgment Relating to Letters Patent. — Such Secre- 
tary shall thereupon, if the record relates to letters patent, make an entry in the 
records of the office of the Secretary of State, of the substance and effect of 
such judgment, and of the time when the record thereof -was docketed; and the 
real property granted by such letters patent may thereafter be disposed of in 
the same manner as if such letters patent had never been issued. 

1870, XIV, § 461. 

§ 481. Action for Forfeiture or Property to State. — Whenever, by the 
provisions of law, any property, real or personal, shall be forfeited to the State, 
or to any officer for its use, an action for the recovery of such property, alleging 
the grounds of the forfeiture, may be brought by the proper officer in the Cir- 
cuit Court. 

1870, XIV, § 462. 



§§ 482-488] OF SOUTH CAROLINA. 179 

TITLE XIV. 

GENERAL PROVISIONS. 

Stc. Sec. 

482. Definition of real property. 489. Judges to meet and make general 

483. Definition of personal property. rules. 

484. Definition of property. 490. Justices of Supreme Court may 

485. Definition of Clerk. make rules. 

486. Undertakings in civil action or spe- 491. Proceedings by mandamus and pro- 

cial proceedings. hibition not affected, etc. 

487. Rules of construction. 493. Equity Rules to prevail in cases of 

488. Inconsistent statutory provisions re- conflict. 

pealed. 

§ 482. Definition of Real Property.— The words "real property" and 
"real estate," as used in this Code of Procedure, are coextensive with lands, 
tenements, and hereditaments. 

1870, XIV, § 466. 

§ 483. Definition or Personal Property. — The words "personal prop- 
erty," as used in this Code of Procedure, include money, goods, chattels, things 
in action, and evidences of debt.^ 

1870, XIV, § 467. 

§ 484. Definition of Property. — The word "property," as used in this 
Code of Procedure, includes property, real and personal. 
1870, XIV, § 468. 

§ 485. Definition of Clerk. — The word "Clerk," as used in this Code of 
Procedure, signifies the Clerk of the Court where the action is pending, and, in 
the Supreme Court, the Clerk of the County mentioned in the title of the com- 
plaint, or in another County to which the Court may have changed the place of 
trial, unless otherwise specified. 

1870, XIV, § 469. 

§ 486. Undertakings in Civil Action or Special Proceedings. — In all 

cases in which an undertaking is or may be required by any party to a civil 
action or special proceeding with sureties, such person or persons may in lieu 
thereof, secure and furnish a bond of indemnity or policy of assurance or in- 
surance for the amount of such undertaking written by any surety or indemnity 
company duly incorporated and authorized to do business in this State. 

1910, XXVI, 755. 

§ 487. Rules of Construction. — The rule of common law, that Statutes 
in derogation of that law are to be strictly construed, has no application to this 
Code of Procedure. 

1870, XIV, § 470. 

§ 488. Inconsistent Statutory Provisions Repealed. — All Statutory 
piovisions inconsistent with this Code of Procedure are repealed; but this re- 
peal shall not revive a Statute or law which may have been repealed or abolished 
by the provisions hereby repealed. And all rights of action given or secured 
by existing laws may be prosecuted in the manner provided by this Code of 
Procedure. If a case shall arise in which an action for the enforcement or pro- 
tection of a right, or the redress or prevention of a wrong, cannot be had under 
this Code of Procedure, the practice heretofore in use may be adopted so far 
as may be necessary to prevent a failure of justice.^ 

1870, XIV, § 471. 

1. Held to include debts evidenced by bonds 2. Remedy can be had under the Code, in ac- 

and mortgages. Williamson v. Association, 54 S. tion already pending, according to its new forins 

C. 582, 32 S. E. 765. of proceeding if practicable; if not practicable, in 

Mess'ervy v. Messervy, 82 S. C. 560, 64 S. E- order to prevent failure of justice, resort might 
753. 



180 CODE OF CIVIL PROCEDURE [ §§ 489-492 

§ 489. Judges to Meet and Make General Rules. — The Justices of the 
Supreme Court and the Judges of the Circuit Courts shall meet in general con- 
vention on such day and at such place as may be designated by the Chief Jus- 
tice, at least once in every two years, counting from the year of our Lord one 
thousand eight hundred and eighty-two, for the purpose of revising and amend- 
ing the Rules of the Circuit Court, and establishing such additional rules as may 
be deemed necessary to regulate the practice in the Circuit Courts : Provided, 
Such alterations or additions be not inconsistent with any of the Statutes of 
this State : Proinded, further. That said Judges shall cause to be transmitted 
to all the Clerks of the Circuit Courts of this State copies of all rules amended 
and revised, and of all new rules made by them, within ten days from such 
amendment, revision or adoption.-^ 

1870, XIV, § 473; 1882, XVIII, 56; 1908, XXV, 1035. 

§ 490. Justices of Supreme Court May Make Rules. — The Justices of 
the Supreme Court shall, from time to time, make such rules for the orderly 
conduct of business in said Court as they may deem proper, not inconsistent 
with this Code of Procedure. 

1870, XIV, § 474. 

§ 491. Proceedings by Mandamus and Prohibition Not Affected, 
etc. — Until the Legislature shall otherwise provide, the second part of this 
Code of Procedure shall not affect proceedings by mandamus or prohibition.'^ 

1870, XIV, § 475. 

§ 492. Equity Rules to Prevail in Oases of Conflict. — Generally in all 
matters in which there is any conflict or variance between the rules of equity 
and the rules of the common law, with reference to the same matter, the rules 
of equity shall prevail.^ 

1870, XIV, § 476. 

be had to the former practice. Parnell v. Maner, rant for seizure of crop under agricultural lien. 

16 S. C. 348; Arthur v. Allen, 22 S. C. 432. In Sharp v. Palmer, 31 S. C. 444, 10 S. E. 98. 

the light of this Section so much of the Act of The authority of the Rules, so adopted, not in- 

1878 as to appeals (16 Stat. 698), is inconsistent consistent with the Code, recognized. Ketchin v. 

with Section 345, Subdivision 2, and must be con- lyandecker, 32 S. C. ISS, 10 S. E. 936; Town- 

sidered as repealed. Molair v. R. Co., 31 S. C. send v. Sparks, SO S. C. 380, 27 S. E. 802. 

510, 10 S. E. 243. 4. LaMotte v. Smith, SO S. C. SS8, 27 S. E. 

The Code making no provision as to proceed- 933; Cunningham v. Williams, S2 S. C. 416, 29 

ings in case of certiorari, the "practice hereto- S. E. 814. 

fore in use" must govern in such case. Ex parte An issue in mandamus proceedings shottid be 

Black, 34 S. C. 194, 13 S. E- 361. tried where the respondent resides. Kirven v. 

3. Such convention has no power to prescribe Scarborough, 70 S. C. 294, 49 S. E. 860. 

rules for the exercise of any special jurisdiction 5. Rule of practice in equity making discon- 

conferred by Statute upon a Clerk or Magistrate. tinuance to depend on discretion of Court should 

Rule 66 of the Circuit Court does not apply to be applied to legal actions. State v. Southern R. 

sureties on a bond given by lienee to obtain war- Co., 82 S. C. 12, IS, 62 S. E- 1116. 



INDEX TO CODE OF CIVIL PROCEDURE. 



ABANDONED CHILDREN - 

Police officers to apprehend abandoned 
children, § 77. 

ABATEMENT, REVIVAL AND SUR- 
VIVAL 

Demurrer, § 194. 
Executions, § 342. 
Judgments and decrees, § 348. 
Exempt property, § 348. 
Indexing- renewals of judgment, 

§ 348. 
Manner, § 348. 
Not to apply to judgments prior to 

1870, § 348. 
Revival of Code judgments prior to 

November, 1883, § 348. 
Service, § 348. 
When actions do not abate, § 170. 

ABBEVILLE COUNTY 

Time and place for l.'olding court, § 25. 

ABSCONDING DEBTOR 

Arrest in civil actions, § 230. 
Attachment, § 279. 

"ABSTRACT OF JUDGMENTS" 

Clerk of Court, § 339. 

ACCOUNTS 

Limitation of actions, § 141. 
Magistrates: 

Action or defense founded upon an 

account, § 97. 
Refusing exhibit of account or 
statement of nature, § 97. 
Pleadings: 

How to State an account in plead- 
ing, § 208. 

ACTION FOR RECOVERY OF PER- 
SONAL PROPERTY 

See "Actions:" "Claim and Delivery 
of Personal Property;" "Magis- 
trates." 

Damages, § 338. • 

Exemplary damages, § 338. 

Judgment, § 338. 

Limitation of action, § 137. 

ACKNOWLEDGMENT OF DEBT 

See "Limitation of Actions." 

ACTION IN PLACE OF SCIRE FA- 
CIAS, QUO WARRANTO, AND 
OF INFORMATIONS IN THE 
NATURE OF QUO WARRANTO, 

§§ 462-481. 
Action, by direction of Legislature, by 

Attorney General, to vacate a charter, 

§ 463. 
Action for forfeiture of property to 

State, § 481. 



ACTION, ETC.— Continued. 

Action to annul corporation by At- 
torney General, by leave of Supreme 
Court, § 464. 

Action upon information or complaint 
of course, § 466. 

Action — When and how brought to va- 
cate letters patent, § 467. 

Assumption of office, etc., by relator, 
when judgment is in his favor, § 471. 

Complaint and arrest of defendant in 
action for usurping office, § 469. 

Copy of judgment roll against corpo- 
ration — Where to be filed, § 479. 

Costs against corporation, or persons 
claiming to be such — How collected, 
§ 477. 

Damages — How recovered, § 473. 

Entry of judgment relating to letters 
patent, § 480. 

Judgment in such actions, § 470. 

Judgment of forfeiture against corpora- 
tion, § 476. 

Leave to sue — How obtained, § 465. 

One action against several persons 
claiming office and franchise, § 474. 

Penalty for usurping office or franchise 
— How awarded, § 475. 

Proceedings against defendant on his 
refusal to deliver books or papers, 
§ 472. 

Relator — When to be joined as plain- 
tiff, § 468. 

Restraining corporation, and appoint- 
ment of receiver, § 478. 

Scire facias and quo warranto abol- 
ished, and this chapter substituted, 
§ 462. 

ACTIONS 

Abatement, Revival and Survival: 

See "Abatement, Revival and Sur- 
vival." 
Action to Recover Personal Property: 
Claim and delivery of personal prop- 
erty: 

See "x\ction for Recovery of 

Personal Property;" "Claim 

and Delivery of Personal 

Property." 

Admission or inspection of writings, 

§ 427. 
Adverse possession: 

Action by grantee of land held ad- 
versely, § 160. 
Amendments: 

See "Amendments." 
Answer: 

See "Answer." 
Appeals: 

See "Appeals." 
Arrest: 

See "Arrest in Civil Cases." 



182 



INDEX TO CODE OF CIVIL PROCEDURE. 



ACTIONS— Continued. 
Arrest in civil actions: 

See "Arrest in Civil Actions." 
Bail: 

See "Bail." 
Bond: 

See "Undertakings." • 
Civil actions: 

See infra, "Form of Civil Actions." 

See "Magistrates." 

Answer: 

See "Ansv/er." 
Appeals: 

See "Appeals." 
Arrest in civil actions: 

See "Arrest in Civil Actions." 
Civil and criminal remedies not 

merged in each other, § 7. 
Complaint: 

See "Complaint." 
Costs: 

See "Costs." 
Definition of a civil action, % 6. 
Division of actions into civil and 

criminal, § 4. 
How commenced, § 177. 
Parties to civil actions: 

See "Parties." 
Place of trial of civil actions: 

See "Venue." 
Pleadings: 

See "Pleadings." 
Reply: 

See "Reply." 
Time of commencing civil actions: 
See "Limitation of Actions." 
Claim and delivery of personal property: 
See "Claim and Delivery of Personal 
Property." 
Commencement of actions: 

See "Commencement of Actions;" 
"Summons and Process." 
Complaint: 

See "Complaint." 
Compromise: 

See "Compromise." 
Computation of time, § 445. 
Confession of judgment without ac- 
tion: 

See "Confession of Judgment." 
Costs: 

See "Costs." 
Criminal action: 

Civil and criminal remedies not 

merged in each other, § 7. 
Definition of a criminal action, § 5. 
Division of actions into civil and 
criminal, § 4. 
Definition of a civil action, § 6. 
Definition of a criminal action, § 5. 
Definition of an action, § 2. 
Demurrer: 

See "Demurrer." 
Division of actions into civil and crimi- 
nal, § 4. 
Documentary evidence'. 

See "Documentary Evidence." 
Entitling affidavits, § 444. 
Evidence: 



ACTIONS— Continued. 
See "Evidence." 
Examination of parties: 

See "Examination of Parties." 
Feigned issues not allowed, § 117. 
Fictitious actions, § 117. 

See. "Sham Pleading." 
Foreign corporations: 

Actions against foreign corpora- 
tions, § 461. 
Where and by v/hom action 
brought, § 461. 
Form of civil actions: 

Actions on judgments, § 116. 
Feigned issues not allowed, § 117. 
One form of action established, 

§ 114. 
Parties — How designated, § 115. 

Inspection and copy of books, papers, 

etc. — How obtained, § 427. 
Issues: 

See "Issues." 
Joint debtors: 

See "Joint Debtors." 
Judgments: 

See "Judgments and Decrees." 

Actions on judgments, § 116. 
Limitation of actions: 

See "Limitation of Actions." 
Lost instruments and records, § 457. 
Magistrates: 

See "Magistrates." 

Forms of action, § 97. 

Rules, § 97. 

Magistrates' jurisdiction, § 80. 
Merger: 

Civil and criminal remedies not 
merged in each other, § 7. 
Motions: 

See "Motions." 
Name: 

Fictitious name, § 236. 
Notice: 

See "Notices." 
Ofifer of compromise: 

See "Compromise." 
Orders: 

See "Orders." 
Parties: 

See "Parties." 
Place of trial of civil actions: 

See "Venue." 
Pleading*: 

See "Pleadings." 
Proceedings against joint debtors: 

See "Joint Debtors." 
Process: 

See "Summons and Process." 
Production of documents, § 427. 
Quo warranto: 

See "Action in Place of Scire Fa- 
cias, Quo Warranto, and of In- 
formations in the Nature of Quo 
Warranto." 
Real property: 

Limitation of Actions: 

See "Limitation of Actions." 

Time of commencing actions: 
See "Limitation of Actions." 



JXDEX TO CODE OF CIJIL PROCEDURE. 



183 



ACTIONS— Continued. 
Reference: 

See "Reference." 
Reply: 

See "Reply." 
Scire facias: 

See "Action in Place of Scire Fa- 
cias, Quo Warranto, and of In- 
formation in the Nature of Quo 
Warranto." 
Service of process: 

See "Summons and Process." 
Statute of limitations: 

See "Limitation of Actions." 
Submitting a controversy v^ithout ac- 
tion: 

See "Submission of Controversy." 
Supplementary proceedings: 

See "Supplementary Proceedings." 
Suing party by fictitious name, § 226. 
Time of commencing actions: 

See "Limitation of Actions." 
Undertaking: 

See "Undertaking." 
Venue: 

See "Venue." 
Witnesses: 

See "Witnesses." 

ADJOURNMENT 

Circuit Courts, § 35. 
Common pleas: 

Judge's pow^er to adjourn Court of 
Common Pleas, § .31. 
.Costs, § 366. 
Supreme Court, § 16. 

ADMINISTRATION 

See "Executors and Administra- 
tors." 

ADMISSIONS 

Pleadings: 

Allegations not denied — When to 
be deemed true, § 219. 

ADVERSE POSSESSION, §§ 128-130. 
Actions: 

Action by grantee of land held ad- 
versely, § 160. 
Convicts, § 133. 
Infants, § 133. 
Insane persons, § 133. 
Landlord and tenant, § 131. 
Limitations of actions for recovery of 
real property: 
See "Limitation of Actions." 
Parties: 

Action by grantee of land held ad- 
versely, § 160. 

ADVERTISEMENT 

See "Notice." 

AFFIDAVITS 

Affidavits defectively entitled valid, 

§ 444. 
Affidavits on motion to vacate order of 

arrest or reduce bail, § 256. 



AFFIDAVITS— Continued. 

Arrest in civil actions, §§ 232, 235. 
Attachment, § 281. 

Claim and delivery of personal prop- 
erty, §§ 258, 268. 
Injunction, § 271. 

Affidavits on ♦motion, § 278. 
Magistrates, § 80. 

AIKEN COUNTY 

Time and place for holding court, § 19. 

ALIENS 

Limitation of actions, § 150. 

AMENDMENTS 

Amendments by the court, § 224. 
Amendments of course, and after de- 
murrer, § 223. 
Appeals, § 378. 

Court may give relief in case of mis- 
take, § 225. 
Demurrer: 

Amendments of course, and after 

demurrer, § 223. 
How to proceed, if complaint be 
amended, § 196. 
Magistrates, § 97. 
No error or defect to be regarded unless 

it affect substantial rights, § 227. 
Service of amended pleading, § 223. 

AMOUNT AND CONTROVERSY 

Magistrates, §§ 80, 87. 

ANDERSON COUNTY 

Time and place for holding court, § 27. 

ANOTHER ACTION PENDING 

Demurrer, § 194. 

ANSWER 

Amendments: 

See "Amendments." 
Counterclaim, § 200. 
Court may give relief in case of mistake, 

§ 225. 
Demurrer: 

See "Demurrer." 

Defendant to demur or answer, 

§ 193. 
Demurrer and answer — When al- 
lowed, § 201. 
Demurrer to answer, § 203. 
Distress: 

Answer in actions to recover prop- 
erty distrained for damage, § 217. 
General rules of pleading: 

See "Pleadings." 
Injunction: 

Injunction after answer, § 272. 
Joint debtors: 

Answer and reply to be verified as 

in an action, § 420. 
Party summoned may answer and 
defend, § 418. 
Judgment and decrees: 

Motion for judgment upon answer, 
§ 204. 



184 



INDEX TO CODE OF CIVIL PROCEDURE. 



ANSWER— Continued. 

Judgment for sum admitted due, § 303. 

Judgment on failure to answer, § 305. 

Judgment on frivolous demurrer, an- 
swer or reply, § 306. 

Libel and slander, § 215. 

Objection not appearing on complaint, 
§ 197. 

Several defenses, § 300. 

Sham and irrelevant defenses to be 
stricken out, § 202. 

Supplemental answer, § 228. 

Variance: 

See "Variance." 

Waiver of objection, § 198. 

What to contain, § 199. 

APPEAL AND ERROR, § 324. 

Afifidavit: 

How and when printing, etc., dis- 
pensed with, § 382. 
Amendments, § 378. 
Appeal from Probate to Circuit Court: 

Appeal to Circuit Court to be taken 
within fifteen days, § 63. 

Appellant neglecting to enter appeal 
judgment affirmed with costs, 
§ 67. 

Appellate jurisdiction of Circuit 
Court, § 61. 

Certified copies of record to be filed 
in Circuit Court, § 64. 

Final decision to be certified to 
Probate Court, § 68. 

How Circuit Court may proceed to 
trial, § 66. 

Jurisdiction of Supreme Court in 
probate matters, § 62. 

Notice, § 63. 

Probate judge no voice in determin- 
ing appeal— When may practice 
law, § 69. 

Proceedings stayed by appeal, § 65. 
Bond: 

See infra, "Undertaking on Appeal." 
Case made: 

See infra, "Statement of Case." 
Circuit Court, §§ 397-412. 

Appeals from inferior courts — Su- 
persedeas — Hearing on the pa- 
pers, § 397. 

Appeal to be heard on original pa- 
pers, § 406. 

Appeal — When to be taken, § 398. 

Appellate jurisdiction over Probate 
Court, § 61. 

Costs, § 409. 

Costs on appeal, § 412. 

Filing in lieu of service of notice 
of appeal, § 400. 

Further return — Where defective, 
§ 403. 

Hearing upon return, § 405. 

Judgment on appeal — New trial, 
§ 407. 

Judgment roll, § 408. 

Magistrate dead, insane or ab- 
sent, § 404. 

Notice of appeal to be served on 



APPEAL AND ERROR— Continued. 

magistrate, and on respondent,, 
agent, or attorney, § 399. 
Procedure where judgment below 
has been paid and is reversed, 
§ 410. 
Return — How made if magistrate 

be out of office, § 402. 
Return — When and how made and 

compelled, § 401. 
Setting off costs and recovery, 
§ 411. 
Civil and Criminal Court of Charleston, 

§ 108. 
Clerk of Court: 

Fee for services in remitting judg- 
ment, § 12. 
Clerk to transmit papers to Appellate 

Court, § 379. 
Costs, § 409. 

Costs on appeal, § 412. 
Costs on review of decision of in- 
ferior court in special proceeding, 
§ .370. 
Setting off costs and recoverv, 
§ 411. 
Death: 

Magistrate dead, insane or absent,. 
§ 404. 
Docket: 

Docketing of cause, § 384. 
Exceptions and objections: 

See "Exceptions and Objections." 
Final judgments and decrees, § 380. 
Hearing upon return, § 405. 
How made, § 378. 
In general, §§ 374-382. 
Injunction, § 11. 
Judges: 

When Circuit Judges to sit also,. 

§ 14. 
Judgment on appeal from Magis- 
trate's Court, § 407. 
Judgment roll, § 408. 
Judgments and decrees: 

Judgment on appeal, § 381. 
Judgments for delivery of docu- 
ments or personalty require its 
deposit or security, § 389. 
Opinion attached by clerk to judg- 
ment, § 12. 
Powers of court in cases of appeal, 

§ 12. 
Procedure where judgment below 
has been paid and is r.eversed, 
§ 410. 
When decisions of Supreme Court 
filed, § 12. 
Jurisdiction of the Supreme Court: 

See "Courts." 
Magistrates: 

See infra, "Circuit Court." 
Mistake or inadvertence, §§ 378, 388. 
Mode of reviewing judgment or order, 

§ 374. 
New trial, § 11. 

Appeals from magistrate's and other 
inferior courts, § 407. 
No error or defect to be regarded un- 



INDEX TO CODE OF CI I'll PROCEDURE. 



185 



APPEAL AND ERROR— Continued. 

less it affect substantial rights, § 227. 
Notice of appeal, § u78. 

Filing in lieu of service of notice of 

appeal, § 400. 
Judgment or order granting or re- 
fusing new trial, § 384. 
Notice of appeal to be served on 
magistrate, and on respondent, 
agent, or attorney, § o99. 
Notice of intention to appeal, § 384. 
Notice that appeal has been 

granted, § :)84. 
Notice to the opposite part}^ §§ 63, 

384. 
Objections to case, § 384. 
Service of case v\ath exceptions, 

§ 384. 
Stay of proceedings: 

See "Supersedeas and Stay of 
Proceedings." 
Orders: 

Review of intermediate orders af- 
fecting judgment, § 380. 
Orders made out of court — How va- 
cated or modified, § 375. 
Parties, §§ 376, 377. 

How designated on appeal, § 377. 
Perfection of appeal, §§ 378, 384, 388. 
Principal and surety: 

See infra, "Undertaking on Appeal.'' 
Printing: 

How and when printing, etc., dis- 
pensed with, § 383. 
Probate: 

See infra, "Appeal from Probate to 

Circuit Court." 
Appeal to Circuit Court to be 

taken within fifteen days, § 63. 
Jurisdiction of Supreme Court m 
probate matters, § 62. 
Reference, § 332. 
Return: 

Defective return, § 403. 

Further return, § 403. 

Hearing upon return, § 405. 

How made if magistrate be out of 

ofifice, § 402. 
Magistrate dead, insane or absent, 

§ 404. 
When and how made and com- 
pelled, § 401. 
Service of notice, § 378. 
Special proceedings, § 11. 
■ Statement of case, §§ 324, 328, 384. 

Agreements upon statement of case, 

§ 384. 
Preparation of, § 384. 
Service of, § 384. 
Stay of proceedings: 

See "Supersedeas and Stay of Pro- 
ceeding." 
Supersedeas: 

See "Supersedeas and Stay of Pro- 
ceeding." 
Supreme Court, §§ 383-396. 

Appeal — How perfected, § 388. 
Appeal in what cases, § 383. 
•Extending time for certain steps in 
appeals, § 387. 



APPEAL AND ERROR— Continued. 

Judgments for delivery of docu- 
ments or personalty require its 
deposit or security, § 389. 

Judgment to execute conveyance 
requires its execution and deposit, 
§ 390. 

New undertaking in case sureties 
insolvent, § 386. 

Notice of intention to appeal — 
Serving case with exceptions- 
Objections and alterations, § 384. 

Reviews by Supreme Court, § 312. 

Securities to be approved and sure- 
ties to justify, § 394. 

Stay of proceedings upon securit}'' 
being given, § 392. 

Undertaking may be in one instru- 
ment or several, § 393. 

Undertaking must be filed, § 396. 

When appeal stays proceedings be- 
low — Exceptions, § 395. 

When appeal will stay execution, 
and v/hen not, § 391. 

When notice of appeal may stay 
execution — Undertaking on ap- 
peal, § 385. 
Time: 

Extending time for certain steps in 
appeals, § 387. 

When to be taken. §§ 384, 398. 

Trial by court, § 338. 
Undertaking on appeal: 

See "Supersedeas and Stay of Pro- 
ceedings." . 

Appeal to the Circuit Court from 
an inferior court, § 397. 

Effect, § 385. 

Judgments for delivery of docu- 
ments or personalty require its 
deposit or security, § 389. 

Necessity, § 385. 

New undertaking in case sureties in- 
solvent, § 386" 

Sale of property, § 385. 
■ Securities to be approved and sure- 
ties to justify, § 394. 

Stay of proceedings, § 385. 

Stay of proceedings upon security 
being- given, § 392. 

Undertaking may be in one instru- 
ment or several, § 393. 

Undertaking must be filed, § 396. 

When appeal stays proceedings be- 
low — Exceptions, § 395. 

When appeal will stay execution, 
and when not, § 391. 
Waiver by failure to perfect appeal, 

§ 384. 
When allowed, § 383. 
When judgments and orders appealable, 

§ 11. 
When to be taken. § 398. 
Who may appeal, § 376. 

APPEARANCE 

Magistrates, § 97. 

Voluntary appearance equivalent to 
personal service, § 189. 



186 



INDEX TO CODE OP CIVIL PROCEDURE. 



APPRAISEMENT 

Attachment, § 301. 

ARBITRATION AND AWARD 

See "Reference." 
Submitting a controversy without ac- 
tion, §§ 413, 414. 

Appeal from judgment, § 414. 
Entering judgment, § 414. 
How submitted, § 413. 
Judgment, § 414. 
Real controversy, § 413. 

ARREST IN CIVIL ACTIONS 

See "Bail;" "Supplementary Pro- 
ceedings." 
Absconding debtor, § 330. 
Affidavits on motion to vacate order of 

arrest or reduce bail, § 256. 
Affidavit to obtain order for arrest, 

§ 232. 
Arrest in civil actions in what cases, 

§ 230. 
Attorney and Client, § 230. 
Bail: 

See "Bail." 
Banks and Banking: 

Officer of Bank, § 230. 
Complaint and arrest of defendant in 

action for usurping office, § 469. 
Corporations: 

Officers, § 230. 
Embezzlement, § 230. 
Execution against the person — In what 

cases, § 346. 
Executors and administrators, § 230. 
Fraud and deceit, § 230. 
Guardian and ward, § 230. 
How arrest made, § 236. 
No person to be arrested in civil action, 

except as prescribed, § 229. 
Officers, § 230. 
Order for arrest — By whom to be made, 

§ 231. 
Order for arrest — When it may be 

made, and its form, § 234. 
Original affidavit and order delivered to 

sheriff, and copy to defendant, § 235. 
Principal and agent, § 230. 
Security by plaintiff before obtaining 

order for arrest, § 233. 
Solicitor, § 230. 
Trusts and trustees, § 230. 
Vacating order of arrest or reducing 

bail, § 255. 
Women, § 230. 

ASSAULT AND BATTERY 

Costs, § 361. 

Limitations of actions, § 139. 

ASSIGNMENTS 

Costs: 

Costs against assignee, after action 
brought, of cause of action, § 373. 
Parties, § 161. 

ATTACHMENT 

Absconding debtor, § 279. 



ATTACHMENT— Continued. 

Affidavits, § 281. 

Appraisement, § 301. 

Assignment, § 373. 

Bond to sheriff on attachment — How 
disposed of on judgment for defend- 
ant, § 294. 

By whom granted, § 280. 

Certificate of defendant's interest to be 
furnished, § 291. 

Claim of third persons — Proceedings 
on, § 287. 

Clerk of Court, § 280. 

Corporations: 

Shares of stock, §§ 289, 290. 

Debt: 

As to attachment when debt is not 
due, § 288. 

Discharge of property and return of 
property or proceeds on defendant's 
appearance, § 295. 

Execution on property incapable of 
manual delivery, § 290. 

Foreign corporations, § 279. 

How attachment made, § 300. 

In what cases attachments may be is- 
sued — Affidavits to be filed, § 281. 

Judges, § 280. 

Judgment and decrees, § 292. 
Satisfaction, § 292. 

Jury: 

Trial by jury, § 302. 

Magistrates, § 280. 

Perishable property, § 286. 

Pilotage, § 281. 

Principal and surety, § 293. 

Security on obtaining attachment, § 
282. 

Property of foreign corporations, and 
of non-resident, absconding or con- 
cealed defendants, may be attached, 
§ 279. 

Property to be attached, § 284. 

Prosecution of action to recover notes, 
etc., in action in which attachment is- 
sued, § 293. 

Purchase money past due, § 298. 

Satisfaction of judgment, § 292. 

Security on obtaining attachment, § 282. 

Shares of stock, §§ 289, 290. 

Sheriffs and constables, § 293. 

Attachment — To whom, directed 

and what to require, § 283. 
Bond of sheriff, §§ 293, 294. 
Sheriff's duties in case of seizure. 
§ 285. 

Ships and shipping, §§ 281, 289. 

Stock, §§ 289, 290. 

To whom directed, § 283. 

Undertaking — Direction, § 299. 

Undertaking on part of defendant, 
§ 296. 

When an attachment may be issued, 
§ 281. 

When sheriff to return attachment, with 
his proceedings thereon, § 297. 

ATTORNEY AND CLIENT 

Arrest in civil actions, § 230. 



INDEX TO CODE OF CIVIL PROCEDURE. 



187 



ATTORNEY AND CLIENT— Continued. 

Attorney for prosecution in city in Civil 
and Criminal Court of Charleston, § 
104. 

Probate judge: 

When judge may practice law, § 69. 

Service on attorney, §§ 447, 455. 

ATTORNEY GENERAL 

See "Action in Place of Scire Fa- 
cias, Quo Warranto, and of In- 
formations in the Nature of Quo 
Warranto." 

BAIL 

Affidavits on motion to vacate order of 
arrest or reduce bail, § 356. 

Allowance of bail, §§ 83, 247. 

Defendant to be discharged on giving 
bail or making a deposit, § 237. 

Delivery of undertaking of bail to plain- 
tiff, and its acceptance or rejection by 
him, § 243. 

Discharge on bail, §§ 239, 240, 242. 

Exoneration of bail, § 242. 

How bail proceeded against, § 241. 

How given, § 238. 

Tustification of bail, §§ 82, 244, 246. 

New bail, § 244. 

Notice of justification — New bail, § 244. 

Qualification of bail, §§ 81, 345. 

Sheriff: 

Bail liable to sheriff, § 254. 
Proceedings on judgment against 

sheriff, § 253. 
When liable as bail, § 252. 

Surrender of defendant, §§ 239, 240. 

Vacating order, of arrest or reducing 
bail, § 255. 

BAMBERG COUNTY 

Time and place for holding court, § 19. 

BANKS AND BANKING 

Arrest in civil actions: 

Officer of bank, § 230. 

BARNWELL COUNTY 

Time and place for holding court, § 19. 

BATTERY 

See "Assault and Battery." 

BEAUFORT COUNTY 

Time and place for holding court, § 26. 

BERKELEY COUNTY 

Time and place for holding court, § 18. 



BILL OF PARTICULARS, 



208. 



BILLS, NOTES AND CHECKS 

Assignment, § 161. 
Attachment, §§ 290, 292. 
Limitation of actions, § 155. 
Parties, § 161. 

One action against the different 
parties to bills and notes, § 169. 
Pleading, § 183. 



BOND 

Appeals: 

See "Appeals;" "Undertakings." 

Attachment: 

See "Attachment." 

Filing, § 458. 

Limitation of actions, § 136. 

Magistrates: 

See "Magistrates." 
Receivers, § 303. 

Bonds to be made payable to Clerk 
of Court, § 303. 

BOOKS 

Inspection and copy of books, papers, 
etc. — How obtained, § 427. 

CALENDAR, §§ 312, 314. 

See "Terms of Court." 
Order of disposing of issues on the 
calendar, § 317. 

CALHOUN COUNTY 

Time and place for holding court, § 18. 

CASE MADE, §§ 324, 328, 384. 
See "Appeal." 

CERTAINTY 

Pleadings, § 210. 

CERTIORARI 

Supreme Court, § 11. 

CHAMBERS AND VACATION 

In absence, etc., of judge at chambers, 
motion may be transferred to another 
judge, § 443. 

Motions, § 440. 

Orders, § 440. 

Orders made out of court — How va- 
cated or modified, § 375. 

Supreme Court, § 11. 

CHANGE OF VENUE, § 176. 
Magistrates, § 97. 

CHARLESTON 

Civil and Criminal Court of Charleston: 
See "Courts." 

. CHARLESTON COUNTY 

Time and place for holding court, § 26. 

CHEROKEE COUNTY 

Time and place for holding court, § 24. 

CHESTER COUNTY 

Time and place for holding court, § 23. 

CHESTERFIELD COUNTY 

Time and place for holding court, § 21. 

CHILDREN 

See "Rescue Orphanages." 

CIRCUIT COURTS 

See "Courts." 
State divided into twelve circuits, § 17. 



188 



INDEX TO CODE OF CIVIL PROCBDURB. 



CIVIL ACTION 

See "Actions." 

CIVIL AND CRIMINAL COURT OF 
CHARLESTON 

See "Courts." 

CLAIM AND DELIVERY OF PER- 
SONAL PROPERTY, §§ 257-268. 

Affidavit and its requisites, § 258. 

Claim of property by third person, 
§ 267. 

Defendant — When entitled to re-deliv- 
ery, § 262. 

Exception to sureties, § 261. 

Justification of defendant's sureties, 
§ 263. 

Limitation of action, § 137. 

Magistrate, § 86. 

Notice" and affidavit — When and where 
to be filed, § 268. 

Property — How kept, § 366. 

Property— How taken when concealed 
in building" or enclosure, § 265. 

Qualification and justification of sure- 
ties, § 264. 

Requisition to sheriff to take and de- 
liver property, § 259. 

Security by plaintiff, § 260. 

When plaintiff may claim immediate de- 
livery, § 257. 

CLARENDON COUNTY 

Time and place for holding court, § 20. 

CLERK OF COURT 

"Abstract of judgments," § 339. 
Appeal and error: 

Fee for services in remitting judg- 
ment, § 12. 

Attachment, § 280. 
Carrying dockets forward, § 314. 
Civil and Criminal Court of Charles- 
ton, § 106. 
Clerk and Deputy Clerk of Circuit 

Courts, § 38. 
Costs: 

See "Costs." 

Officers may take out execution for 
costs, § 363. 
Definition of clerk, § 485. 
Deputy: 

Clerk and Deputy Clerk of Circuit 
Courts, § 38. 
Docketing cases, § 314. 
Forfeiture of fees, § 314. 
Probate Court: 

Adjournment of court, § 60. 
Appointment and removal, § 40. 
Duties of clerk, § 41. 
Practicing law, § 40. 
Summons and complaint to be filed in 
clerk's office — Docketing cases, § 314. 

CODE 

Division of the Code of Procedure, § 8. 

COLLETON COUNTY 

Time and place for holding court, § 26. 



COMMENCEMENT OF ACTIONS 

Exception — Defendant out of State, 

§ 147. 
How actions commenced, § 177. 

See "Summons and Process." 
Magistrates, § 97. 
Time of commencing civil actions: 

See "Limitation of Actions." 
When action deemed commenced, § 146. 

COMMITMENT 

See "Rescue Orphanages." 

COMMON PLEAS 

See "Courts." 

COMPLAINT, § 191. 

See "Answer;" "Demurrer." 
Amendments: 

See "Amendments." 
Complaint and arrest of defendant in 

action for usurping office, § 469. 
Damages, § 216. 
Demand for relief, § 192. 
Dismissal, discontinuance and nonsuit: 
Complaint may be dismissed for 
neglect to prosecute action, § 335. 
General rules of pleading: 

See "Pleadings." 
Libel and slander: 

^How libel and slander pleaded, 
§ 314. 
Names of parties, § 192. 
Statement of cause of action, § 192. 

Summons and complaint to be filed in 
clerk's office- — Docketing cases, § 314. 
Supplemental complaint, § 228. 
Title of cause, § 192. 
Variance: 

See "Variance." 
Waiver of objection, § 198. 
What complaint shall contain, § 192. 

COMPROMISE 

Counterclaim, § 424. 

Costs, § 424. 

Defendant ma3^ offer to liquidate dam- 
ages, § 425. 

Effect of acceptance or refusal of offer,. 
§ 426. 

Magistrate's Court, § 97. 

Offer of compromise, § 424. 

Offer of the defendant to compromise 
the whole or a part of the action, 
§§ 424-426. 

COMPUTATION OF TIME, § 445. 
Publication of notices, § 459. 

CONDITIONS 

Pleadings: 

How conditions precedent are tO' 
be pleaded, § 212. 

CONFESSION OF JUDGMENT, §§421- 
423. 

Judgment and execution, § 423. 
Judgment may be confessed for debt 
due or for contingent liability, § 421. 



INDEX TO CODE OF CIVIL PDOCEDURE. 



189 



CONFESSION OF JUDGMENT— Con- 
tinued. 
Statement in writing, and form thereof, 
§ 422. 

CONSTABLES' SALES 

See "Sheriffs' Sales." 

CONSTRUCTION 

Pleadings: 

Pleadings to be liberally construed, 
§ 309. 
Rules of construction, § 487. 

CONTEMPT 

Civil and Criminal Court of Charleston, 

§ 105. 
Judgments and decrees, § 343. 
Probate Court, § 52. 
Probate Judge, § 72. 
Production of documents, §§ 389, 472. 
Refusal of party to be sworn, § 433. 
Service of papers, § 456. 
Supplementary proceedings, § 360. 
Witnesses, § 433. 

• CONTRACTS 

Limitation of actions, § 137. 

Clause in contract not in conform- 
ity to Statute of Limitation de- 
clared void, § 144. 

CONVICTS 

Adverse .possession, § 133. 
Limitation of actions, § 133. 
Limitation of actions, §§ 148, 153. 
Service by publication, § 185. 

CORONERS 

Limitation of actions, § 138. 

CORPORATIONS 

Action in place of scire facias, quo war- 
ranto, and of informations in the na- 
ture of quo warranto, §§ 463, 464, 466. 
Arrest in civil actions: 

Officers, § 230. 
Attachment: 

Shares of stock, §§ 289, 290. 
Attorney general: 

See infra, "Dissolution." 
Charter: 

Action to vacate charter: 
See infra, "Dissolution." 
•Costs: 

Costs against corporation, or per- 
sons claiming to be such — How 
collected, § 477. 
Dissolution: 

A>,ction, by direction of Legislature, 
by Attorney General, to vacate a 
charter, § 463. 
Action to annul corporation by At- 
torney General, by leave of Su- 
preme Court, § 464. 
Leave to sue — How obtained, § 465. 
Forfeiture of charter: 

See infra, "Dissolution." 
Injunctions: 

Restraining corporation, and ap- 
pointment of receiver, § 478. 



CORPORATIONS— Continued. 

Security upon injunction to suspend 
business of corporations, § 276. 
Judgments and decrees: 

Copy of judgment roll against cor- 
poration — Where to be filed, 
§ 479. 
Judgment of forfeiture against cor- 
poration, § 476. 
Limitation of actions: 

Actions against directors or other 

stockholders, § 156. 
Evidences of debt issued by mon- 
eyed corporations, § 155. 
Magistrates: 

Service on corporations, § 97. 
Receivers, § 303. 

Restraining corporations, and ap- 
pointment of receiver, § 478. 
Service of process, §§ 97, 184. 

COSTS 

Additional allowance of costs, § 359. 

Adjustment, § 366. 

Adjustment of interlocutory costs, 

§ 365. 
Appeals, § 409. 

Costs on appeal, § 412. 
Costs on review of decision of in- 
ferior court in special proceeding, 
§ 370. 
Setting off cost and recovery, § 411. 
Assault and battery, § 361. 
Assignments: 

Costs against assignee, after action 
brought, of cause of action, § 373. 
Clerk of court: 

Officers may take out execution for 
costs, § 363. 
Compromise, § 424. 

Costs, except in chancery cases, to fol- 
low event of action — Proviso, § 361. 
Costs in action by or against executors, 
administrators, trustees or persons 
authorized by statute, § 369. 
Costs on review of decision of inferior 

court in special proceeding, § 370. 
Counterclaim, § 424. 
Criminal conversation, § 361. 
Defendant unreasonably defending, 

§ 181. 
Dismissal, § 335. 
Equity, § 361. 
Executions: 

Officers may take out execution for 
costs, § 363. 
Executors and administrators: 

Costs in action by or against ex- 
ecutors, administrators, trustees 
or persons authorized by statute, 
§ 369. 
False imprisonment, § 361. 
Husband and wife, § 335. 
Infants: 

Costs against infant plaintiff, § 368. 
Interest on verdict or report — When al- 
lowed, § 364. 
Judgments and decrees: 

How costs to be inserted in judg- 
ment, § 365. 



190 



INDEX TO CODE OF CIVIL PROCEDURE. 



COSTS— Continued. 

Libel and slander, § 361. 

Magistrates, § 94. 

Malicious prosecution, § 361. 

Married women, § 335. 

Motions, § 367. 

Notice: 

Defendant unreasonably defend- 
ing, § 181. 
Officers may take out execution for 

costs, § 363. 
Postponement of trial, § 366. 
Prevailing party, § 361. 
Seduction, § 361. 
Service of process, § 183. 
Sheriffs and constables: 

Officers may take out execution for 
costs, § 363. 
Special proceedings: 

Costs on review of decision of in- 
ferior court in special proceeding, 
§ 370. 
State: 

Costs in action by State, §§ 371, 372. 
Supplementary proceedings, § 359. 
Supreme court: 

Costs in actions brought in original 
■ jurisdiction of Supreme Court, 
§ 362. 
Trusts and trustees: 

Costs in action by or against exec- 
utors, administrators, trustees or 
persons authorized by statute, 
§ 369. 

COUNTERCLAIM 

Answer, § 200. 

Compromise, § 424. 

Costs, § 424. 

Judgment for excess over counterclaim, 

§ 305. 
Magistrate's Court, § 97. 
Motion for judgment upon answer, 

§ 204. 
Order, § 424. 
Reply, § 203. 
Set up by answer, § 199. 
Several defenses, § 199. 
Verdict, § 321. 
What constitutes, § 199. 
What may be set-up, § 200. 

COUNTY COMMISSIONERS 

To provide furniture, etc., for office of 
Probate Judge, § 71. 

COURT OF COMMON PLEAS 

See "Courts." * 

COURT OF GENERAL SESSIONS 

See "Courts." 

COURT OF PROBATE 

See "Courts." 

COURTS 

See "Judges." 
Adjournment: 

Probate Court: 

Clerk of Court, § 60. 



COURTS— Continued. 

When court may be adjourned, . 
§ 60. 
Adjournment of Circuit Courts, § 35. 
Calendar, § 312. 
Circuit Courts: 

Adjournment of Circuit Courts, 

§ 35. 
Appeal in probate matters: 

Appeal to Circuit Court to be 
taken within fifteen days, 
§ 63. 
Appellant neglecting to enter 
appeal judgment affirmed 
with costs, § 67. 
Appellate jurisdiction of Cir- 
cuit Court, § 61. 
Certified copies of record to be 

filed in Circuit Court, § 64. 
Final decision to be certified to 

Probate Court, § 68. 
How Circuit Court may pro- 
ceed to trial, § 66. 
Jurisdiction of Supreme Court 

in probate matters, § 62. 
Probate Judge no voice in de- % 
termining appeal — When rnay 
practice law, § 69. 
Proceedings stayed by appeal, 
§ 65. 
Appellate jurisdiction over Probate 

Court, § 61. 
Appeals: 

See "Appeals." 
Circuit courts made courts of rec- 
ord, § 37. 
Court of Common Pleas after gen- 
eral sessions, § 30. 
Courts in eleventh circuit, § 28. 
Calling of calendars, § 28. 
Edgefield County, § 28. 
Lexington .County, § 28." 
Saluda County, § 28. 
Courts in fifth circuit, § 22 
Kershaw County, § 22. 
Richland County, § 22. 
Spring and fall terms, § 22. 
Courts in first circuit, § 18. 
Berkeley County, § 18. 
Calhoun County, § 18. , 

Dorchester County, § 18. 
Orangeburg County, § 18. 
Courts in fourth circuit, § 21. 
Chesterfield County, § 21. 
Darlington, § 21. 
Dillon County, § 21. 
Marlboro County, § 21. 
Opening Court of Common 

Pleas, § 21. 
Time pleadings, etc., are re- 
turnable, § 21. 
Courts in eighth circuit, § 25. 
Abbeville County, § 25. 
Greenwood County, § 25. 
Laurens County, § 25. 
Newberry County, § 25. 
Courts in ninth circuit, § 26. 
Beaufort County, § 26. 
Charleston County, § 26. 
Colleton County, § 26. 



INDEX TO CODE OF CIllL PROCEDURE. 



191 



COURTS— Continued. 

Courts in second circuit, § 19. 
Aiken County, § 19. 
Bamberg County, § 19. 
Barnwell County, § 19. 
Hampton County, § 19. 
Courts in seventh circuit, § 24. 
Cherokee County, § 24. 
Opening Court of Common 

Pleas, § 24. 
Powers of special judge, § 24. 
Spartanburg County, § 24. 
Union County, § 24. 
Courts in sixth circuit, § 23. 

Business at sessions' terms, 

§ 23. 
Chester County, § 23. 
Fairfield County, § 23. 
Lancaster County, § 23. 
Time for equity cases, § 23. 
York County, § 23. 
Courts in tenth circuit, § 27. 
Anderson County, § 27. 
Greenville County, § 27. 
Oconee County, § 27. 
Pickens County, § 27. 
Courts in third circuit, § 20. 
Clarendon County, § 20. 
Lee County, § 20. 
Opening Court of Common 

Pleas, § 20. 
Separate juries for general ses- 
sions and common pleas, § 20. 
Sumter County, § 20. 
Williamsburg County, § 20. 
Courts in twelfth circuit, § 29. 

Court of general sessions of 

twelfth circuit, § 29. 
Florence County, § 29. 
Georgetown County, § 29. 
Horry County, § 29. 
Marion County, § 29. 
Petit jurors in common pleas and 

general sessions, § 34. 
Special sessions of Circuit Courts, 
§ 33. 
Civil and Criminal Court of Charleston: 
Appeal allowed, § 108. 
Attorney to represent prosecution, 

§ 104. 
Contempt, § 105. 
Court established, § 98. 
Entry of judgments, execution and 

transcript, § 109. 
Forms and mode of procedure, 

§ 110. 
Judge may appoint clerk — Duties, 

§ 106. 
Judicial Magistrate's Court abol- 
ished, § 112. 
Jurisdiction, § 99. 
Jury: 

Custody of box, § 103. 

Empanelling, § 102. 

Fine for failure to appear, 

§ 102. 
Jury box, §§ 102, 103. 
Jury to serve without pay in 

certain cases, § 107. 
Number of jurors, § 102. 



COURTS— Continued. 

Preparation of jury box, § 103. 

Right to jury trial, § 102. 

Statements under oath as to 
preparation of jury box, § 103. 

Summoning, § 102. 

Venire facias, § 102. 
Ministerial magistrates, § 101. 
Pleading, § 110. 
Presiding judge — Compensation, 

§ 100. 
Re-enacting clause, § 113. 
Rule of practice, § 110. 
Solicitor, § 104. 
Summons and process, § 101. 
Time for holding court, § 110. 
Vacancy, § 111. 
Clerk of court: 

See "Clerk of Court." 
Common Pleas: 

Court of Common Pleas after gen- 
eral sessions, § 30. 
Judge's power to adjourn Court of 

Common Pleas, § 31. 
Petit jurors in Common pleas and 

general sessions, § 34. 
Power to open common pleas be- 
fore completion of criminal busi- 
ness, § 32. 
Time and place of holding: 

Abbeville County, § 25. 

Aiken County, § 19. 

Anderson County, § 27. 

Bamberg County, § 19. 

Barnwell County, § 19. 

Beaufort County, § 26. 

Berkeley County, § IS. 

Calhoun County, § 18. 

Charleston County, § 26. 

Cherokee County, § 24. 

Chester County, § 23. 

Chesterfield County, § 21, 

Clarendon County, § 20. 

Colleton County, § 26. 

Darlington County, § 21. 

Dillon County, § 21. 

Dorchester County, § 18, 

Edgefield County, § 28. 

Fairfield Count3^ § 23. 

Florence County, § 29. 

Georgetown County, § 29, 

Greenville County, § 27. 

Greenwood County, § 25. 

Hampton County, § 19. 

Horry County, § 29. 

Kershaw County, § 22. 

Lancaster County, § 23, 

Laurens County, § 25. 

Lee County, § 20. 

Lexington County, § 38. 

Marlboro County, § 21. 

Marion County, § 29. 

Newberry County, § 25. 

Oconee County, § 27. 

Orangeburg County, § 18, 

Pickens County, § 27. 

Richland County, § 22. 

Saluda County, § 28. 

Spartanburg County, § 24. 

Sumter County, § 20. 



192 



INDEX TO CODE OF CIVIL PROCEDURE. 



COURTS— Continued. , 

Union County, § 24. 
Williamsburg County, § 20. 
York County, § 23. 
Court of General Sessions: 

See infra^ "Circuit Courts." 
Court of Probate: 

See infra, "Probate Court." 
Court of Record: 

Circuit Courts made Courts of Rec- 
ord, § 37. 

Probate Court, § 40. 
Deposit of money, etc., in court, § 303. 
Exceptions, § 312. 
General sessions: 

See infra, "Circuit Courts." 
Issues of law tried by court, § 312. 
Issues_ triable by court, §§ 312, 313. 
Jurisdiction: 

See infra, "Supreme Court" and see 
"Jurisdiction." 

Generally, § 10. 

Probate Court: 

See infra, "Probate Court." 

Their jurisdiction generally, § 10. 
Jury: 

See "Jury." 
Magistrates: 

See "Magistrates." 
Order of disposing of issues on the 

calendar, § 317. 
Payment into Court: 

Deposit in lieu of bail: 
See "Bail." 
Place of holding court: 

Abbeville County, § 25. 

Aiken County, § 19. 

Anderson County, § 27. 

Beaufort County, § 26. 

Berkeley County, § 18. 

Bamberg County, § 19. 

Barnwell .County, § 19. 

Calhoun County, § 18. 

Charleston Co'Snty, § 26. 

Cherokee County, § 24. 

Chester County, § 23. 

Chesterfield County, § 21. 

Clarendon County, § 20. 

Colleton County, § 26. 

Darlington County, § 21. 

Dillon County, § 21. 

Dorchester County, § 18. 

Edgefield County, § 28. 

Fairfield County, § 23. 

Florence County, § 29. 

Georgetown County, § 29. 

Greenville County, § 27. 

Greenwood County, § 25. 

Hampton County, § 19. 

Horry County, § 29. 

Kershaw County, § 22. 

Lancaster County, § 23. 

Laurens County, § 25. 

Lee County, § 20. 

Lexington County, § 28. 

Marion County, § 29. 

Marlboro County, § 21. 

Newberry County, § 25. 

Oconee County, § 27. 

Orangeburg County, § 18. 



COURTS— Continued. 

Pickens County, § 27. 

Richland County, § 22. 

Saluda County, § 28. 

Spartanburg County, § 24. 

Sumter County, § 20. 

Union County, § 24. 

Williamsburg County, § 20. 

York County, § 23. 
Pleadings: 

Court to be furnished with copy of 
pleadings, § 319. 
Probate Court: 

Adjournment of court — When by 
clerk, § 60. 

Appellant neglecting to enter ap- 
peal judgment affirmed with costs, 
§ 67. 

Appellate jurisdiction of Circuit 
Court, § 61. 

Appeal to Circuit Court to be taken 
within fifteen days, § 63. 

Authorized to permit sale and settle 
accounts of guardian, § 57. 

Certain probate notices or citations 
not required to be published, § 46. 

Certified copies of record to be filed 
in Circuit Court, § 64. 

Clerk of Court, §§ 40, 41. 

Contempt, §§ 52, 72. 

Court of Record— Clerk, § 40. 

Depositions, § 53. 

Duties of clerk, § 41. 

Empowered to issue executions, 
§ 75. 

Enrollment of decrees, § 73. 

Executors and administrators: 

See "Executors and Adminis- 
trators." 

Final disposition to be certified to 
Probate Court, § 68. 

Granting administration, § 44. 

How Circuit Court may proceed to 
trial, § 66. 
.Judge may commit lunatics, etc., to 
State Hospital for Insane, § 76. 

Judges may appoint times and 
places for holding courts, § 58. 

Judges not to act when interested — 
When judges of adjoining county 
to act, § 49. 

Jurisdiction exclusive after once 
acquired, § 54. 

Jurisdiction in relation to guard- 
ians, § 43. 

Jurisdiction not to be collaterally 
impeached, § 55. 

Jurisdiction of judges, § 42. 

Jurisdiction of Supreme Court in 
probate matters, § 62. 

Notices, § 46. 

Open at all times for certain busi- 
ness, § 59. 

Orphanage may intrust children to 
individual or family, § 79. 

Police officers to apprehend aban- 
doned children — Investigation by 
Probate Judge — Rescue orphan- 
ages, § 77. 



INDEX TO CODB OF CIVIL PROCEDURE. 



193 



COURTS— Continued. 

Power to administer oaths, § 50. 

Probate Court may issue warrants 
and processes, § 51. 

Probate judge no voice in determin- 
ing appeal — When may practice 
law, § 69. 

Probate of wills, 5 44. 

Proceedings may be commenced by 
petition, § 70. 

Proceedings relative to estates un- 
der guardianship, § 48. 

Proceedings stayed by appeal, 
§ 65. 

Rights and authority of orphanage, 
§ 78. 

Sessions, § 39. 

Settlement of estate in county 
where will proved — Sale of real 
estate, § 45. 

Supreme Court to make rules — 
County Commissioners to pro- 
vide furniture, etc., for office, § 71. 

To keep index of decrees enrolled. 
§ 74. _ 

When minor may choose guardian 
— Guardian interested — Where 
appointed, § 56. 

When to grant discharge to admin- 
istrators, etc., § 47. 
Provisional remedies, § 303. 
Receivers: 

See "Receivers." 
Reference: 

See "Reference." 
Rules of Court: 

Judges to meet and make general 
rules, §§ 489, 490. 

Justices of Supreme Court may 
make rules, § 490. 

Supreme Court to make rules for 
Probate Court; § 71. 
Service of process: 

When jurisdiction of action ac- 
quired, § 189. 
Sessions: 

See infra, "Terms of Court." 
Special sessions of Circuit Courts, § 33. 
Stenographers: 

Circuit judges to appoint special 
stenographers when stenographer 
is disabled, § 316. 

Compensation of stenographers, 
§ 315. 

How appointed, § 315. 

Submitting a controversy without 
action, §§ 413, 414. 

Appeal from judgment, § 414. 

Entering judgment, § 414. 

How submitted, § 413. 

Judgment, § 414. 

Real controversy, § 413. 
Supreme Court: 

Adjournment, § 16. 

Appellate jurisdiction in Chancery, 

Appellate jurisdiction in law cases, 

§ 11. 
Appeals: 

See "Appeals." 
2 S C C— 13 



COURTS— Continued. 

Calling in judges of Circuit Court, 

§ 14. 
Certiorari, § ll. 
Chambers and vacation, § 11. 
Costs in actions brought in original 

jurisdiction of Supreme Court, 

§ 362. 
Courts — Where held — Adjournment, 

§ 16. 
Decisions, when filed, § 12. 
Division of opinion, § 14. 
Extra term, § 13. 
Fees of clerk, § 12. 
Final judgments, § 11. 
Habeas corpus, § 11. 
Injunction, § 11. 
Issues of fact, § 11. 
Judgment in Appellate Court, § 11. 
Judgment on appeal, §§ 11, 12. 
Jurisdiction of Supreme Court, § 11. 
Jurisdiction of Supreme Court in 

probate matters, § 62. 
Leave of, § 464. 
Mandamus, § 11. 
May call extra term, § 13. 
Meetings, time of, § 13. 
New trials, § 11. 
Number to agree to constitute a 

judgment — When Circuit Judges 

to sit also, § 14. 
Opinion attached by clerk to judg- 
ment, § 12. 
Order affecting a substantial right, 

Original jurisdiction, § 11. 

Original writs, § 11. 

Place of holding court, § 16. 

Powers of court in cases of appeal, 
§ 12. 

Prohibition, § 11. 

Quorum, § 14. 

Quo warranto, § 11. 

Sheriffs to provide rooms, etc., § 15. 

Special proceedings, § 11. 

Supreme Court to make rules for 
Probate Court, § 71. 

Supreme Court to order time al- 
lotted to hearing of causes from 
each circuit, § 13. 

Terms, § 13. 

Time of meetings, § 13. 
Terms of courts: 

Civil and Criminal Court of Charles- 
ton, § 110. 

Court of Common Pleas after gen- 
eral sessions, §§ 30, 32. 

Courts in eighth circuit, § 25. 

Courts in eleventh circuit, § 28. 

Courts in fifth circuit, § 22. 

Courts in first circuit, § 18. 

Courts in fourth circuit. § 21. 

Courts in ninth circuit. § 26. 

Courts in second circuit, § 19. 

Courts in seventh circuit, § 24. 

Courts in sixth circuit, § 23. 

Courts in tenth circuit, § 37.' 

Courts in third circuit, § 20. ' 

Courts in twelfth circuit, § 29. 

Power to open common pleas be- 



194 



INDEX TO CODE OF CIVIL PROCEDURE. 



COURTS— Continued. 

fore completion of criminal busi- 
ness, § 32. 
Probate Court, § 39. 

Judges may appoint times and 

places for holding courts, 

§ 58. 

Open at all times for certain 

business, § 59. 

Special sessions of Circuit Courts, 

§ 33. 
Supreme Court, § 13. 
Supreme Court may call extra term, 
■ § 13. 
Trial and decision at same term, 
§ 312. 
The several courts of this State, § 9. 
Time of holding court: 

See infra, "Terms of Court." 
Trial by court: 

Exceptions — How and when taken 
— Judgment at general term, 
§ 328. 
Issues triable by court, §§ 312, 313, 

326. 
On trial by court — Judgment — How 
given — Motion for new trial, 
§ 327. 
Proceedings upon judgment on is- 
sue of law, § 329. 

COURTS OF MAGISTRATES 

See "Magistrates." 

CRIMINAL ACTION 

See "Actions." 

CRIMINAL CONVERSATION 

Costs, § 361. 

Limitation of actions, § 137. 

Magistrate's court, § 87. 

DAMAGES 

Assessment of, after appeal to Supreme 

Court, § 11. 
Husband and wife, § 335. 
Injunction: 

Damages occasioned by injunction, 
§ 276. 
Jury to assess, § 323. 
Liquidation of damages: 

Defendant may ofifer to liquidate 
damages, § 425. 
Married women, § 335. 
Measure of damages, § 337. 
Mitigation, § 215. 
Ofificers: 

Usurpation, § 473. 

Pleadings: 

See "Pleading." 
Rates of damages where damages are 

recoverable, § 337. 
Receivers: 

Receiver improperly appointed, 
§ 303. 

Verdict: 

Jury to assess defendant's damages 
in certain cases, § 323. 
Writ of inquiry, § 204. 



DARLINGTON COUNTY 

Time and place for holding court, § 21. 

DEATH 

Abatement, revival and survival; 

See "Abatement, Revival and Sur- 
vival." 
Admissibility of transactions and com- 
munications with deceased persons in 
evidence, § 438. 
Appeals: 

Magistrate dead, insane or absent, 
§ 404. 
Insane persons: 

Magistrate dead, insane or absent, 
§ 404. 
Limitation of actions: 

Death of person entitled before 
limitation expires, § 149. 
Magistrates: 

Magistrate dead, insane or absent, 
§ 404. 
Verdict: 

Death after verdict, § 170. 

DEBTORS 

See "Joint Debtors;" "Supplemen- 
tary Proceedings." 
^ Examination of debtors: 

See "Supplementary Proceedings." 

DECISIONS 

Decisions of Supreme Court, § 12. 

DECREES 

See "Judgments and Decrees." 

DEFAULT 

See "Judgment." 
Magistrates, § 97. 

DEFENDANT 

See "Parties." 

DEFICIENCY 

Mortgages : 

Judgment for deficiency, § 318. 

DEFINITENESS 

Pleadings, § 210. 

DELIVERY 

See "Claim and Delivery of Per- 
sonal Property." 

DEMURRER 

Amendments: 

See "Amendment." 
Abatement, revival and survival, § 194. 
Another action pending, § 194. 
Answer: 

See "Answer." 
Answer by complaint, § 194. 
Counterclaim, § 203. 
Defendant to demur or answer, § 193. 
How to proceed, if complaint be 

amended, § 196. 
Infants, § 194. 
Insanity, § 194. 
Joinder, § 194. 



INDEX TO CODE Of CJJ'JL PROCEDURE. 



195 



DEMURRER— Continued. 

Judgment on frivolous demurrer, an- 
swer or reply, § 306. 

Jurisdiction, § 194. 

Magistrates, § 97. 

Misjoinder, § 194. 

Objection by answer, § 197. 

Objection not appearing on complaint, 
§ 197. 

Objection waived, § 198. 

Parties, § 194. 

Reply, § 205. 

Service, § 193. 

Time of service, § 194. 

Verification, § 206. 

Waiver of objection, § 198. 

What demurrer to specify, § 195. 

When the defendant may demur, § 194. 

DEPOSIT 

Deposit in lieu of bail: 

Certificate of deposit, § 248. 
Deposit — How disposed of after 

judgment in the action, § 231. 
Payment of deposit into court, 

§ 249. 
Right to make, § 248. 
Substituting bail for deposit, § 250. 

DEPOSIT IN COURT 

See "Payment into Court." 
DEPOSITIONS 

Motions, § 440. 
Probate Court: 

When depositions may be taken 
and used, § 53. 

DEPUTIES 

Clerk of court: 

See "Clerk of Court." 

DESCENT AND DISTRIBUTION. 

Descent cast, § 132. 
DESCENT CAST 

Descent and distribution, § 132. 

DETENTION OF PERSONAL PROP- 
ERTY 

See "Claim and Delivery." 

DETINUE 

Limitation of actions, § 137. 

DILLON COUNTY 

Time and place for holding court, § 21. 

DIRECTORS 

Limitation of actions, § 156. 

DISABILITIES 

See "Aliens;" "Husband and Wife;" 
"Infants;" "Insane Persons." 

DISCONTINUANCE 

See "Dismissal, Discontinuance and 
Nonsuit." 

DISCOVERY 

See "Examination of Parties;" "Sup- 
plementary Proceedings." 



DISMISSAL, DISCONTINUANCE 
AND NONSUIT 

Appeals from magistrate, § 405. 
Complaint: 

Complaint may be dismissed for 

neglect to prosecute action, § 335. 

In magistrate's court, title to land being 

involved, § 90. 
Limitation as to new action to recover 

real estate, § 123. 
Magistrates: 

Suit discontinued on undertaking 
of defendant, § 90. 

DISSOLUTION OF CORPORATION 

See "Corporations." 

DISTRESS 

Answer: 

Answer in actions to recover prop- 
erty distrained for damage, § 217. 
Venue, § 172. 

DOCKET, § 314. 
Appeals: 

Docketing of cause, § 384. 
Judgments and decrees: 

Decree of Probate Court to be en- 
tered in office of Clerk of Circuit 
Court on judgment, § 73. 
Magistrate: 

Magistrate to enter judgments in, 

§ 96. 
Magistrate to enter pleadings in, 
§ 97. 
When cause to be entered on, § 314. 

DOCKETING, § 314. 
DOCUMENTARY EVIDENCE 

Printed copies of foreign laws to be ad- 
mitted as presumptive evidence, § 460. 

DORCHESTER COUNTY 

Time and place for holding court, § 18. 

EDGEFIELD COUNTY 

Time and place for holding court, § 28. 

EMBEZZLEMENT 

Arrest in civil actions, § 230. 

EQUITY 

Appellate jurisdiction, § 11. 
Costs, § 361. 

Equity rules to prevail in cases of con- 
flict, § 492. 
Framing of issues, § 312. 
Terms of court. § 30. 

ERROR 

Writ of: 

See "Appeals." 

EVIDENCE 

Admission or inspection of writings, 

§ 427. 
Examination of parties: 

See "Examination of Parties." 
Foreign records and laws: 

Printed copies of foreign laws to 
. be admitted as presumptive evi- 
dence, § 460. 



196 



INDEX TO CODE OF CIVIL PROCEDURE. 



EVIDENCE— Continued. 
Husband and wife, § 438. 
Inspection and copy of books, papers, 

etc. — How obtained, § 427. 
Magistrates, § 97. 
Parties: 

See "Examination of Parties." 
Pleadings: 

Pleadings not to be evidence in 
criminal proceedings, § 207. 
Production of documents, § 427. 
Reference, § 333. 
Self crimination: 

Supplementary proceedings, § 351. 

See "Supplementary Proceedings." 
Supplementary proceedings: 

Examination not evidence in crimi- 
nal proceedifigs, § 351. 
Variance: 

See "Variance." 
Witnesses: 

See "Witnesses." 

EXAMINATION OF DEBTOR 

See "Supplementary Proceedings." 

EXAMINATION OF PARTIES, 

§§ 428-436. 
Adverse party — How compelled to at- 
tend, § 431. 
Discovery abolished, § 428. 
Eflfect of refusal to testify, § 433. 
Examination of adversary also allowed 

before trial — Proceedings therefor, 

§ 430. 
Examination of coplaintif¥ or codefend- 

ant, § 436. 
Party may examine his adversary as a 

witness, § 429. 
Persons for whom action is brought or 

defended may be examined, § 435. 
Rebuttal of testimony not responsive to 

the inquiries, § 434. 
Testimony of party may be rebutted, 

§ 432. 
Transactions with deceased persons, 

§ 438. 

EXAMINATION OF WITNESSES 

See "Witnesses." 

EXCEPTIONS AND OBJECTIONS, 

§§ 312, 324. 
Appeal, § 384. 

May be served within thirty days 

after notice of appeal, § 384. 
To sureties on appeal to Supreme 
Court, § 394. 
Claim and delivery: 

To sureties on claim and delivery, 
§ 361. 
How stated in case, § 324. 
Need not be signed, nor sealed, nor 
need a bill of exceptions be made, 
§ 324. 
Reference, § 332. 
Separating, § 324. 
Settlement of, § 325. 

To be reduced to writing or entered on 
minutes of court, § 324. 



EXCEPTIONS AND OBJECTIONS— 

Continued. 
Trial by court, §§ 327, 328. 

May be taken within ten days after 
written notice of the judgment, 
§ 328. 

EXCEPTIONS, BILL OF, §§ 324, 328, 
384. 

EXECUTIONS 

Abatement and revival, § 342. 

Actions on judgments after lapse of 

twenty years, § 350. 
Confession of judgment, § 423. 
Contents, § 347. 
Costs: 

Ofificers may take out execution for 
costs, § 363. 
Execution against the person: 

See "Arrest in Civil Cases." 

In what cases, § 346. 
Execution sale: 

See "Sherififs'. Sales." 
Executors and administrators, § 342. 
Exemption, § 348. 
Forms of execution, § 347. 
Judgments — How enforced, § 343. 
Limitation of actions, §§ 342, 349, 350. 
Magistrates, §§ 96, 97, 349. 
Married women, §§ 163, 345. 
Probate Court: 

Empowered to issue executions, 
§ 75. 
Return, § 349. 
Revival of judgment, § 348. 

See "Judgments and Decrees." 

See "Sherififs' Sales." 
Sheriff of any county where judgment 

is docketed, § 345. 
Supersedeas and stay of proceedings: 
See "Supersedeas and Stay of Pro- 
ceedings." 
Supplementary proceedings: 

See "Supplementary Proceedings." 
The different kinds of executions, § 344. 
To what counties execution issued, 

§ 345. 
When executions may issue, § 349. 

EXECUTION SALES 

See "Sheriffs' Sales." 

EXECUTORS AND ADMINISTRA- 
TORS 

Arrest in civil actions, § 230. 

Costs: 

Costs in action by or against ex- 
ecutors, administrators, trustees 
or persons authorized by statute, 
§ 369. 

Executions, § 342. 

Jurisdiction of Judge of Probate, § 44. 
When to grant discharge to admin- 
istrators, etc., § 47. 

Parties, § 162. 

Sale of real estate, § 45. 

Settlement of estate in county where 
will proved, § 45. 

Venue, § 174. 



INDEX TO CODE OF CIVIL PROCEDURE. 



197 



EXEMPLARY DAMAGES 

Action for recovery of personal prop- 
erty, § 338. 
Pleadings, § 216. 

EXEMPTION 

Arrest, § 230. 
Executions, § 348. 

EXONERATION 

Bail, § 242. 

EXPRESS COMPANY 

Service of process, § 184. 

FACTS 

See "Issues." 

FAIRFIELD COUNTY 

Time and place for holding court, § 23. 

FALSE IMPRISONMENT 

Costs, § 361. 

Limitation of actions, § 139. 

Magistrates' Courts, § 87. 

FEES 

See "Costs." 
Service of process, § 183. 

FEIGNED ISSUES 

See "Sham Pleading." 
Feigned issues not allowed, § 117. 
Submission of Controversy, § 414. 

FEMALE 

Arrest, § 23.0. 

FICTITIOUS ACTIONS 

See "Sham Pleading." 
Feigned issues not allowed, § 117. 
Submission of controversy, § 413. 

FICTITIOUS NAMES 

Suing party by fictitious name, § 226. 

FILING 

Affidavits, § 281. 

Appeal papers from Probate Court, § 64. 

Complaint, § 180. 

Complaint in cases of service by publi- 
cation, § 185. 

Copy in lieu of original, § 457. 

Decrees of Probate Court in office of 
Clerk of Circuit Court, § 73. 

Magistrate's Court, § 96. 

Notice and affidavit on claim and de- 
livery, § 268. 

Notice of lis pendens, § 182. 

Order appointing receiver, § 356. 

Papers, § 454. 

Transcript of judgment, § 341. 

Undertakings, § 458. 

FINAL JUDGMENTS AND DECREES, 

§ 11. 

See "Judgments and Decrees." 



FIRM 



See "Partnership." 



FLORENCE COUNTY 

Time and place for holding court, § 29. 

FORECLOSURE OF MORTGAGES 

See "Mortgages." 
FOREIGN CORPORATIONS 

Actions, § 461. 

Attachment, § 279. ]' 

Receivers, § 303. 

Service by publication, § 185. 

Service of process, § 184. 

FOREIGN LAWS 

Evidence: 

Printed copies of foreign laws to 
be admitted as presumptive evi- 
dence, § 460. 

FORFEITURE 

See "Action in Place of Scire Fa- 
cias, Quo Warranto, and of In- 
formations in the Nature of Quo 
Warranto;" "Penalties." 

Limitation of actions, §§ 138, 139. 

Venue, § 173. 

FORMS OF PLEADING 

See "Pleading." 
FRAUD AND DECEIT 

Arrest in civil actions, § 230. 
Limitation of actions, § 137. 
Magistrate's Jurisdiction, § 80. 
Service by publication, § 185. 

FRIVOLOUS PLEADING 

See "Sham Pleading." 
GENERAL SESSIONS 

See "Courts." 
GEORGETOWN COUNTY 

Time and place for holding court, § 29. 

GREENVILLE COUNTY 

Time and place for holding court, § 27. 

GREENWOOD COUNTY 

Time and place for holding court, § 25. 
GUARDIAN AD LITEM 

Convicts, § 185. 
Costs, § 368. 
Infants, §§ 164, 165. 

GUARDIAN AND WARD 

Actions by and against infants, § 164. 
Appointment of guardian: 

When minor may choose guardian 
— Guardian interested — Where 
appointed, § 56. 
Arrest in civil actions, § 230. 
Parties, §§ 164. 165. 
Probate Court: 

Authorized to permit sale and set- 
tle accounts of guard'an, § 57. 
Jurisdiction, §§ 42, 43. 
Proceedings relative to estates un- 
der guardianship, § 48. 
When minor may choose griardian 
— Guardian interested — Where 
appointed, § 56 



198 



INDEX TO CODE OF CIVIL PROCEDURE. 



HABEAS CORPUS 

Supreme Court, § 11. 

HAMPTON COUNTY 

Time and place for holding court. § 19. 

HEIRS 

See "Descent and Distribution;" 
"Executors and Administrators." 

Effect of descent cast, § 132. 

May commence new action after ances- 
tor's death, § 148. 

May commence new action after re- 
versal, etc., § 151. 

Of person under disability, § 133. 

Person prosecuting or defending suit 
as, not to testify to transactions with 
deceased persons, § 438. 

HORRY COUNTY 

Time and place for holding court, § 29. 

HOSPITALS AND ASYLUMS 

Judge of Probate may commit lunatics, 
etc., to State Hospital for Insane, 
§ 76. 

HOUSE OF CORRECTION 

See "Rescue Orphanages." 
HUSBAND AND WIFE 

Costs, § 335. 
Damages, § 335. 
Evidence, § 438. 
Executions, §§ 163, 345. 
Judgments and decrees: 

Damages and costs against married 
women, § 335. 
Married women need not prosecute or 
defend by next friend or guardian, 
§ 163. 
Parties: 

Actions by and against married 
women, § 163. 
Privileged Communications, § 438. 
Witnesses, § 438. 

IDIOTS 

See "Insane Persons." 

ILLEGAL CONTRACTS 

Limitation of actions: 

Clause in contract not in conform- 
ity to statute of limitation de- 
clared void, § 144. 

IMPRISONMENT 

See "Arrest in Civil Actions." 

INDEX 

Judge of Probate to keep, of money 

decrees, § 74. 
Judgments and decrees, § 340. 

INFANTS 

See "Guardian and Ward;" "Res- 
cue Orphanages." 
Adverse possession, § 133. 
Costs against infant plaintiff, § 368. 
Demurrer, § 194. 
Guardian ad litem, §§ 164, 165. 
Limitation of actions, §§ 133, 148, 153. 



INFANTS— Continued. 

Master: 

Actions by and against infants, 
§ 164. 
Parties: 

See "Parties." 
Service of process, § 185. 

INFORMATION 

See "Indictment and Information." 
INJUNCTION 
Affidavit, § 271. 

Affidavits on motion, § 278. 
Answer: 

Injunction after answer, § 272. 
Appeal and error, § 11. 
Corporations: 

See "Corporations." 
Damages: 

Damages occasioned by injunction, 
§§ 374, 276. 
Judicial sales: 

Regulations for granting injunc- 
tions to stay certain sales, § 273. 
Limitation of actions: 

Stay of action by injunction, etc., 
§ 152. 
Motion to vacate or modify injunction, 

§ 277. 
Notice: 

Temporary injunction may be 
granted without notice, § 303. 
Order to show cause why injunction 

should not be granted, § 275. 
Principal and surety: 

Security upon injunction — Dam- 
ages — How ascertained, § 274. 
Security upon injunction to sus- 
pend business of corporation, 
§ 276. 
Receivers: 

Temporary injunction may be 
granted without notice, § 303. 
Regulations for granting injunctions to 

stay certain sales, § 273. 
Service of affidavit, § 271. 
Sheriffs' sales: 

Regulations for granting injunc- 
tions to stay certain sales, § 273. 
Supreme Court, § 11. 
Temporary injunction — In what cases 

granted, § 270. 
Time injunction may be granted, § 271. 
Writ of injunction abolished, and order 
substituted, § 269. 

INSANE PERSONS 

Adverse possession, § 133. 

Demurrer, § 194. 

Evidence as to transactions with, § 438. 

Judge of Probate may commit luna- 
tics, etc., to State Hospital for In- 
sane, § 76. 

Jurisdiction of Probate Judge, §§ 42, 43. 

Limitation of actions, §§ 133, 153. 

Magistrates: 

Magistrates dead, insane or absent, 
§ 404. 

Service by publication, § 185. 

Service of process, § 185. 



INDEX TO CODE OF CIVIL PROCEDURE. 



199 



INSOLVENCY AND BANKRUPTCY 

Receivers: 

See "Receivers." 

INSPECTION 

Inspection and copy of books, papers, 
etc. — How obtained, § 437. 

INSURANCE 

Limitation of actions, § 137. 
Service of process, § 184. 
Venue: 

Suits against insurance companies 

may be brought in county where 

loss occurs, § 175. 

INTEREST 

Verdict: 

Interest on verdict or report — 
When allowed, § 364. 

INTERLOCUTORY JUDGMENTS, 

§ 11. 

INTERPLEADER 

Claim of property by third person, 

§ 267. 
Parties, § 171. 

INTERPRETATION 

Pleadings: 

Pleadings to be liberally con- 
strued, § 209. 
Rules of construction, § 487. 

INTERVENTION 

Claim of property by third person, 

§ 267. 
Parties, § 171. 

INVENTORY 

To be made of property seized on at- 
tachment, § 285. 

To be returned to officer issuing war- 
rant, § 285. 

IRRELEVANCY 

Pleadings, § 210. 

ISSUES 

Framing of issues, § 312. 

Issues of both law and fact, the issues 

to be tried together, § 310. 
Issue of fact, § 309. 
Issues of fact tried by jury, § 312. 
Issue of law, § 308. 
Issues of law tried by court, § 312. 
Reference: 

See "Reference." 
The different kinds of issues, § 307. 
Trial of issues regulated, § 312 
When trial to be ordered, § 312. 
Where issues of fact arise in Supreme 

Court, § 11. 

JOINDER 

Defenses, § 200. 
Demurrer, § 194. 
Parties, §§ 167, 168. 

What causes of action may be joined, 
§ 218, 



JOINT DEBTORS, § 352. 

Answer and reply to be verified as in 
an action, § 420. 

Form of summons, § 416. 

Parties not summoned in action on 
joint contract may be summoned 
after judgment, § 415. 

Party summoned may answer and de- 
fend, § 418. 

Subsequent pleadings and proceedings 
the same as in an action, § 419. 

Summons to be accompanied by affi- 
davit of amount due, § 417. 

Supplementary proceedings against, 
§ 352. 

JUDGES 

See "Courts." 
Adjournment: 

See "Adjournment." 
Appeal and error: 

When circuit judges to sit also, 
§ 14. 
Attachment, § 280. 

Civil and Criminal Court of Charles- 
ton, § 100. 

Vacancy, § 111. 
Interests: 

Judges not to act when interested 
— When judges of adjoining 
county to act, § 49. 
Oath: 

Before whom Circuit Judge may 
qualify, § 36. 
Probate Judge: 
See "Courts." 

Judges not to act when interested 
— When judges of adjoining 
county to act, § 49. 
Jurisdiction of judges, § 42. 
When judge may practice law, § 69. 
Qualification: 

Before whom Circuit Judge may 
qualify, § 36. 
Referee, § 333. 
Rules of court: 

See "Courts." 
Special judge: 

Powers of special judge in seventh 
circuit, § 24. 
Vacancy: 

Civil and Criminal Court of Charles- 
ton, § 111. 

JUDGMENTS AND DECREES 

"Abstract of judgments," §§ 339, 340. 

Actions on judgments, § 116. 

Actions on judgments after lapse of 

twenty years, § 350. 
Answer: 

Judgment on failure to answer, 

§ 305. 
Motion for judgment upon answer, 
§ 204. 
Appeals: 

See "Appeals." 
Attachment, § 292. 

Civil and Criminal Courts of Charles- 
ton, § 109. 



200 



INDEX TO CODE OF CIVIL PROCEDURE. 



JUDGMENTS AND DECREES— Con- 
tinued. 
Clerk to keep "abstract of judgments," 
§ 339. 

Confession of judgment: 

See "Confession of Judgment." 
Contempt, § 343. 
Corporations: 

Copy of judgment roll against cor- 
poration — Where to be filed, 
§ 479. 
Judgment of forfeiture against cor- 
poration, § 476. 
Costs: 

See "Costs." 

How costs to be inserted in judg- 
ment, § 365. 
Defaults: 

Aiken Court of Common Pleas, 

§ 19. 
Court of Common Pleas of Claren- 
don County, § 20. 
Court of Common Pleas of Lee 

County, § 20. 
Court of Common Pleas of Sumter 

County, § 20. 
Courts in eighth circuit, § 25. 
Courts in ninth circuit, § 26. 
Magistrates, § 97. 
Opening defaults, §§ 185, 325, 305. 
Richland County, § 22. 
Definition of judgment, § 304. 
Docket: 

Decree of Probate Court to be en- 
tered in office of Clerk of Cir- 
cuit Court on judgment, § 73. 
Enrollment of decrees of Probate Court, 

§ 73. 
Entering judgment, §§ 324, 335-341. 
Executions: 

See "Executions." 
Final judgments, § 348. 
How judgments enforced, § 343. 
Husband and wife: 

Damages and costs against married 
women, § 335. 
Index, § 340. 

Renewal of judgment, § 348. 
Judgment for sum admitted due, § 303. 
Judgment in action for recovery of per- 
sonal property, § 338. 
Judgment may be for or against any of 
parties to action, § 335. 

Affirmative relief to defendant, § 335. 

Complaint may be dismissed for 

neglect to prosecute action, § 335. 

Damages and costs against married 

women, § 335. 
Judgment against one or more of 
defendants, § 335. 
Judgment on frivolous demurrer, an- 
swer or reply, § 306. 
Judgment roll, §§ 341, 408. 
Judgment to be entered in "abstract of 
judgments" — Index to judgments, 
§ 340. 
Lien, §§ 341, 348. 

Exempt property, § 348. 
Lien on real estate for ten years, 
§ 348. 



JUDGMENTS AND DECREES— Con- 
tinued. 

Limitations, § 348. 
Revival of judgment, § 348. 
Limitation of actions, §§ 136, 349, 350. 

Where judgment reversed, § 151. 
Magistrates: 

Docketing judgments, § 96. 

New trial, § 96. 

Operation of judgments of Circuit 

Court, § 96. 
Sale and execution, § 96. 
Setting aside judgment, § 96. 
Transcript of judgments, § 96. 
Manner of entering judgment, §§ 335- 

341. 
Mistake: 

Court may give relief in case of 
mistake, § 225. 
Money decrees, § 73. 
Mortgages: 

See "Mortgages." 
Motions: 

Judgment for amount admitted in 

answer, § 303. 
Motion for judgment on frivolous 
pleading, § 306. 
No error or defect to be regarded un- 
less it affect substantial rights, § 227. 
Officers: 

Action for office, §§ 470, 471. 
Parties: 

See infra, "Judgment May Be for 
or against Any of Parties to Ac- 
tion." 
Pleadings: 

How judgment to be pleaded, § 211. 
Probate Court: 

Enrollment of decrees, § -73. 
Money decrees, § 73. 
To keep index of decrees enrolled, 
§ 74. 
Proceedings upon judgment on issue of 

law, § 329. 
Public lands: 

Entry of judgment relating to let- 
ters patent, § 480. 
Rates of damages where damages are 

recoverable, § 337. 
Recording acts, § 341. 
Relief to be awarded to plaintiff, § 336. 
Remand. § 12. 

Renewal of judgment, § 348. 
Revival of judgment, § 348. 

See "Abatement," etc. 
Service of process: 

See "Summons and Process." 
Submission of controversy, § 414. 
Summons and process: 

See "Summons and Process." 
Supplementary proceedings: 

See "Supplementary Proceedings." 
Transcript of judgment, §§ 341, 348. 
Transcript of judgment filed in any 

other county, § 341. 
Trial by court, §§ 327, 328. 

JUDICIAL SALES 

See "Sheriflfs' Sales." 
By whom made, § 345. 



INDEX TO CODE OF CIVIL PROCEDURE. 



201 



JUDICIAL SALES— Continued. 
Injunction, § 273. 

Regulations for granting injunc- 
tions to stay certain sales, § 273. 
Master, § 345. 
Master to make sales in what cases, 

§ 345. 
Place, § 345. 
Probate Court, § 45. 
Sheriffs, § 345. 

JURISDICTION 

See "Courts." 
Civil and Criminal Court of Charleston: 

See "Courts." 
Demurrer, § 194. 
Magistrates: 

See "Magistrates." 
Probate Court: 

See "Courts." 
Summons and process: 

When jurisdiction of action ac- 
quired, § 189. 

JURY 

Attachment: 

Trial by jury, § 302. 
Civil and Criminal Court of Charleston: 

Custody of box, § 103. 

Empanelling, § 102. 

Fine for failure to appear, § 102. 

Jury box, §§ 102, 103. 

Jury to serve without pay in cer- 
tain cases, § 107. 

Numbers of jurors, § 102. 

Preparation of jury box, § 103. 

Right to jury trial, § 102. 

Statements under oath as to prep- 
aration of jury box, § 103. 

Summoning, § 102. 

Venire facias, § 102. 
Dorchester County, § 18. 
Issues of fact tried by jury, § 312. 
Issues tried by jury, §§ 312, 313. 
Petit jurors in common pleas and gen- 
eral sessions, § 34. 
Separate juries for general sessions and 
common pleas, § 20. 

Lee County, § 20. 

Sumter County, § 20. 

Williamsburg County, § 20. 
Trial: 

See "Trial." 
Waiver of trial by jury, § 326. 
Williamsburg County, § 20. 

JUSTICES OF THE PEACE 

See "Magistrates." 

JUSTICES 

Supreme Court: 
See "Courts." 

JUSTIFICATION 

Slander, § 214. 

KERSHAW COUNTY 

Time and place for holding court, § 22. 

LANCASTER COUNTY 

Time and place for holding court, § 23. 



LAND 

See "Real Property." 

LANDLORD AND TENANT 

Adverse possession, § 131. 
Magistrate's jurisdiction, § 80. 
Possession by tenant deemed that of 

landlord, § 131. 
Presumption, § 131. 

LAURENS COUNTY 

Time and place for holding court, § 25. 

LAW 

See "Issues." 

LEE COUNTY 

Time and place for holding court, § 20. 

LEGAL NOTICE 

See "Notice." 

LEXINGTON COUNTY 

Time and place for holding court, § 28. 

LIBEL AND SLANDER 

Answer, § 215. 
Complaint: 

How libel and slander pleaded, 
§ 214. 
Costs, § 361. 
Judgment lien: 

See "Judgments and Decrees." 
Justification, § 214. 
Limitation of actions, § 138. 

LIMITATION OF ACTIONS 

Accounts, § 141. 

Action for recovery of real property: 

Action after entry, or right of en- 
try, § 125. 

Adverse possession under claim of 
title not written, § 130. 

Adverse possession under written 
instrument, etc., § 128. 

After forty years, no action what- 
ever allowed, § 134. 

Descent cast — Effect of, § 132. 

Occupation under written instru- 
ment, etc., § 127. 

Persons under disability, § 133. 

Plaintifif limited to two actions, 
§ 123. 

Possession — When presumed — 
Occupation when deemed under 
legal title, § 126. 

Premises actually occupied held 
adversely, § 129. 

Relation of landlord and tenant, 
as affecting adverse possession, 
§ 131. 

Seizin within ten years — When nec- 
essary in action or defense 
founded on title, etc., §§ 123, 124. 

When action by State or their 
grantees to be brought within 
ten years, § 122. 

When action cannot be brought by 
grantee from State, § 121. 

When State will not sue, § 120. 



202 



INDEX TO CODE OF CIVIL PROCEDURE. 



LIMITATION OF ACTIONS— Contin- 
ued. 

Actions generally: 

Limitation not to apply when ac- 
tion commenced or right of ac- 
tion accrued, § 118. 
Time for commencing actions, etc., 
§§ 119, 135. 
Aliens, § 150. 

Assault and battery, § 139. 
Bills, notes and checks, § 155. 
Bonds, § 136. 
Commencement of actions: 

Exception — Defendant out of State, 

§ 147. 
When action deemed commenced, 
§ 146. 
Contracts, § 137. 

Clause in contract not in conform- 
ity to statute of limitation de- 
clared void, § 114. 
Convicts, §§ 133, 148, 153. 
Coroners, § 138. 
Corporations: 

Actions against directors or other 

stockholders, § 156. 
Evidences of debt issued by mon- 
eyed corporations, § 155. 
Criminal conversation, § 137. 
Death of person entitled before limi- 
tation expires, § 149. 
Detinue, § 137. 
Directors, § 156. 
Disabilities, § 148. 

Disability must exist when right ac- 
crued, § 153. 
Exception as to persons under dis- 
abilities, § 148. 
Infants, §§ 133, 148, 153. 
Insane person, §§ 133, 153. 
Two or more disabilities, § 154. 
Executions, §§ 343, 349, 350. 
False imprisonment, § 139. 
Forfeiture, §§ 138, 139. 
Fraud and deceit, § 137. 
Illegal contracts: 

Clause in contract not in conform- 
ity to statute of limitation de- 
clared void, § 144. 
Infants: 

See infra, "Disabilities." 
Injunction: 

Stay of action by injunction, etc., 
§ 152. 
Insane persons: 

See infra, "Disabilities." 
Insurance, § 137. 
Judgments and decrees, §§ 136, 350. 

Where judgment reversed. § 151. 
Judgment lien, § 348. 
Libel and slander, § 138. 
Money, § 155. 
Mortgages: 

Limitation of actions on instru- 
ments secured by, § 136. 
New promise must be in writing, § 157. 
Partners only liable for their own acts 
after dissolution of partnership, § 158. 
Part payment, § 159. 
Payment, §§ 157, 158, 159. 
Penalties, §§ 138, 139, 142. 



LIMITATION OF ACTIONS— Contin- 
ued. 
Public lands: 

See "Public Lands." 
Sheriffs and constables, § 138. 
State: 

See "State." 
Stay of action by injunction, etc., § 152. 
Stockholders, § 156. 
Supersedeas and stay of proceedings, 

§§ 152, 273. 
Time of commencing action other than 
for recovery of real property, 
§§ 119, 135. 
Actions by State, § 145. 
Actions for other relief, § 143. 
Actions for penalties, § 142. 
Actions upon current account, 

§ 141. 
Clause in contract not in conform- 
ity to statute of limitation de- 
clared void, § 144. 
Limitation prescribed, § 135. 
One year, § 140. 
Three years, § 138. 
Twenty years, § 136. 
Two years, § 139. 
Trespass, § 137. 
War, § 150. 

LIS PENDENS 

Notice of lis pendens, § 182. 
Pending action, § 182. 
Provisions as to, § 182. 
Real property, § 183. 

LOST INSTRUMENTS AND REC- 
ORDS 

Papers lost or withheld — How supplied, 

§ 457. 

MAGISTRATES 

Accounts: 

Action or defense founded upon an 
account, § 97. 

Refusing exhibit of account or 
statement of nature, § 97. 
Affidavit, § 80. 
Allowance of bail, § 83. 
Amendments, § 97. 
Amount in controversy, §§ 80, 87. 
Answer, § 97. 
Answer of title, § 88. 
Answer of title as to one cause of ac- 
tion, § 95. 
Appeals: 

See "Appeals." 
Appearance, § 97. 
Attachment, § 280. 
Change of venue, § 97. 
Civil and Criminal Court of Charleston: 

See "Courts." 
Civil jurisdiction, § 80. 
Claim of property by third person, § 86. 
Claim and delivery: 

See infra, "Suit to Recover Posses- 
sion of Personal Property." 
Commencement of action, § 97. 

See "Commencement of /*ction." 
Complaint, § 97. 

Time for serving complaint, § 97. 



INDEX TO CODE OF CIVIL PROCEDURE. 



203 



MAGISTRATES— Continued. 
Constables' sales: 

See "Sheriffs' Sales." 
Corporations: 

Service, on corporations, § 97. 
Costs, § 94. 
Death: 

Magistrate dead, insane or absent, 
§ 404. 
Default, § 97. 
Demurrer, § 97. 
Docket: 

Magistrate to enter judgments in, 

§ 96. 
Magistrate to enter pleadings in, 
§ 97. 
Evidence, § 97. 
Executions, §§ 96, 97, 349. 

Issuance of execution tc sheriff, 

§ 97. 
Issuance of magistrates' executions, 
§ 97. 
Forms of action, § 97. 
Forthcoming and delivery bond, § 80. 
Insane persons: 

Magistrate dead, insane or absent, 
§ 404. 
Judgments and decrees: 

Docketing judgment in "office of 

Clerk of Circuit Court, § 349. 
Docketing judgments, § 96. 
New trial, § 96. 
Operation of judgments of Circuit 

Court, § 96. 
Sale and execution, § 96. 
Setting aside judgment, § 96. 
Transcript of judgments, § 96. 
Jurisdiction, §§ 80, 87. 
Justification of bail, § 83. 
Landlord and tenant, § 80. 
Liquidated and unliquidated demand, 

§ 97. 
Ministerial magistrates, § 101. 
New action, § 93. 
New trial, § 96. 

See "New Trial." 
Parties, § 97. 
Pleadings, § 97. 

Amendment of pleadings, § 97. 
Property — How kept, § 85. 
Property — How taken when concealed 

in building or enclosure, § 84. 
Publication: 

Magistrates may grant order of 
publication of summons against 
absent parties, § 185. 
Qualification of bail, § 81. 
Removal of cases from one magistrate 

to another, § 97. 
Replevin, § 80. 
Rules. § 97. 

Sheriffs' sales, §§ 96, 97. 
State: 

Suits in Magistrates' Courts, § 87. 
Suit to recover possession of personal 
property, § 80. 
Affidavit, § 80. 
Bail, §§ 81-83. 

Claim of property by third person, 
§ 86. 



MAGISTRATES— Continued. 

Constable's duty, § 80. 
Property — How kept, § 85. 
Property — How taken when con- 
cealed in building or enclosure, 
§ 84. 
Summons and process: 

Service on corporations, § 97. 
Time for serving complaint, § 97. 
Title to real property, §§ 87, 88. 
Undertaking by defendant, § 89. 

If undertaking not given, §§ 91, 92. 

New action, § 93. 

Suit discontinued on undertaking of 

defendant, § 90. 
Where defendant was arrested, § 89. 
Written undertaking by defendant, 
§ 89. 
Variance, § 97. 
Venue, § 97. 

MAIL 

Service by mail: 
See "Notice." 
Service of process, § 185. 

MALICIOUS PROSECUTION 

Costs. § 361. 
Magistrates, § 87. 

MANDAMUS 

Proceedings by mandamus and prohibi- 
tion not affected, etc., § 491. 
Supreme Court, § 11. 

MANDATE, § 12. 

MARION COUNTY 

Time and place for holding court, § 29. 

MARLBORO COUNTY 

Time and place for holding court, § 21. 

MARRIAGE 

Abatement of action, § 170. 
Parties, § 170. 

MARRIED WOMEN 

See "Husband and Wife." 
MASTER 

See "Reference." 
Guardian and ward, §§ 164, 165. 
Infants: 

Actions bv and against infants, 
§ 164. 
Judicial sales, § 345. 

Orders for publication of summons, 
§ 185. 

MERGER 

Actions: 

Civil and criminal remedies not 
merged in each other, § 7. 

MISJOINDER 

See "Joinder." 
Demurrer, § 194. 

MISNOMER 

Amendment, § 226. 



204 



INDEX TO CODE OF CIVIL PROCEDURE. 



MISTAKE 

Judgments and decrees: 

Court may give relief in case of 
mistake, § 325. 
Pleadings, §§ 220-228. 

MITIGATION 

See "Damages." 

MONEY 

Limitation of actions, § 155. 

MOOT QUESTIONS 

Feigned issues not allowed, § 117. 

MORTGAGES 

Foreclosure of rnortgages: 

Parties in action for strict fore- 
closure and sale, § 318. 
Judgments and decrees: 

Judgment for residue of mortgage 

debt, § 318. 
Judgment to be credited, § 218. 
Rendering judgment and ordering 
sale at same time, § 218. 
Limitation of actions: 

Limitation of actions on instru- 
ments secured by, § 136. 
Venue: 

Foreclosure of mortgages, § 172. 

MOTIONS 

Appointment of referee to take affida- 
vits, § 440. 
Costs, § 367. 

Decision on motion, § 440. 
Definition of motion, § 440. 
Depositions, § 440. 
Enlarging time for the proceedings in 

an action, § 443. 
How^ and when made, § 440. 
In absence, etc., of judge at chambers, 
motion may be transferred to an- 
other judge, § 442. 
Judgments and decrees: 

Judgment for amount admitted in 

answer, § 303. 
Motion for judgment on frivolous 
pleading, § 306. 
New trial: 

See "New Trial." 
Notice, § 440. 
Notice of motion, § 441. 
Orders out of court without notice, 

§ 440. 
Preference of motions, § 440. 
Reference: 

Questions of fact arising on motion 
may be referred, § 331. 
Stay of proceedings, § 440. 
Transfer of motion, § 442. 
Where made, § 440. 

NAME 

Amendment, § 226. 

Names to be stated in complaint, § 192. 

Suing party by fictitious name, § 226. 

NEWBERRY COUNTY 

Time and place for holding court, § 25. 



NEW PROMISE 

Limitation of actions, § 157. 

NEWSPAPER 

See "Notice." 

NEW TRIAL 

Appeal and error, §§ 11, 324. 

Appeals from magistrate's and 
other inferior courts, § 407. 
Magistrates, § 96. 

Change of venue, § 97. 

Power to grant, § 97. 

Time for motion for new trial, § 97. 
Motion for new trial, § 334. 

Appeal, §§ 11, 324. 

Discretion of judge, § 324. 

Time of hearing, § 324. 

Trial by court, § 327. 
Motion for new trial, or for judgment 
on special verdict — Where to be 
heard, § 325. 
When granted, § 312. 

NONRESIDENTS 

See "Foreign Corporations." 
Attachment, § 279. 
Service of papers on, § 453. 
Summons and process: 

See "Summons and Process." 

NONSUIT 

See "Dismissal, Discontinuance and 
Nonsuit." 

NOTICE 

See "Lis Pendens;" "Summons and 
Process." 
Appeals, § 378. 

See "Appeals." 
Claim and delivery of personal prop- 
erty, § 268. 
Injunction: 

Temporary injunction may be 
granted without notice, § 303. 
Motions, §§ 440, 441. 
Orders, §§ 440, 441. 
Probate notices: 

Certain probate notices or citations 
not required to be published, § 46. 
Publication: 

See "Summons and Process." 
Receivers, § 303. 
Service, § 446. 

Attorney, § 447. 

Deposit of papers, address, and 

payment of postage, § 449. 
Double time where service by mail, 

§ 450. 
How made, § 447. 
How served, § 446. 
Leaving paper at residence, § 447. 
Notice of motion, etc., where per- 
sonally served, § 451. 
Personal, § 447. 
Service by mail, §§ 448, 453. 
Service of papers where parties re- 
side out of State, §§ 448, 453. 
Service on attorney, § 455. 
Time, § 451. 



INDEX TO CODE OF CIVIL PROCEDURE. 



20= 



NOTICE— Continued. 

When papers need not be served 

on defendant, § 452. 
When this chapter does not apply, 
§ 456. 
Time for publication of notices — How 

computed, § 459. 
Writing, § 446. 

OATH 

Before whom Circuit Judge may qual- 
ify, § 36. 

Judges to take constitutional oath 
against dueling, § 36. 

Probate Court, § 50. 

Referee may administer, § 332. 

Supreme Court, § 11. 

OBJECTIONS 

See "Exceptions and Objections." 

OBLIGATIONS 

See "Bail." 

OCCUPATION 

Limitation of actions, §§ 126, 127. 

OCONEE COUNTY 

Time and place for holding court, § 27. 

OFFICERS 

Action in place of scire facias, quo war- 
ranto, and of informations in the na- 
ture of quo warranto, § 466. 
Arrest in civil actions, §§ 230, 469. 
Complaint and arrest of defendant in 
action for usurping office, §§ 270, 469. 
Damages: 

Usurpation, § 473. 
Judgments and decrees: 

Action for office, §§ 470, 471. 
One action against several persons 

claiming office and franchise, § 474. 
Penalty: 

Penalty for usurping office or fran- 
chise—How awarded, § 475. 
Proceedings against defendant on his 
refusal to deliver books or papers, 
§ 472. 
Usurper: 

See "Action in Place of Scire Fa- 
cias, Quo Warranto, and of In- 
formations in the Nature of Quo 
Warranto." 
Venue, § 173. 

OPINIONS OF COURT, § 12. 

ORANGEBURG COUNTY 

Time and place for holding court, § 18. 

ORDERS 

Appeals: 

See "i\ppeals." 

Review of intermediate orders af- 
fecting judgment, § 380. 
Arrest: 

See "Arrest in Civil Cases." 
By whom and where made. § 440. 
Copy of affidavit to be served with, 
§ 443. 



ORDERS— Continued. 

Definition of order, § 439. 
New trial: 

See "New Trial." 
Orders made out of court — How va- 
cated or modified, § 375. 
Publication: 

See "Notice;" "Summons and Proc- 
ess." 
Stay of proceedings: 

See "Supersedeas and Stay of Pro- 
ceedings." 
To show cause, § 442. 

ORPHANAGES 

See "Rescue Orphanages." 

PAPERS 

Filing papers, § 454. 
Lost papers: 

See "Lost Instruments and Rec- 
ords." 
Service: 

See "Notice." 

PARTICULARS, BILL OF, § 208. 

PARTIES 

Abatement, revival and survival: 

See "Abatement, Revival and Sur- 
vival." 
Adverse possession: 

Action by grantee of land held ad- 
versely, § 160. 
Appeals: 

See "Appeals." 
Assignments, § 161. 
Bills, notes and checks, § 161. 

One action against the different 
parties to bills and notes, § 169. 
Court to decide controversy, etc. — In- 
ter-pleading, § 171. 
Death: 

See "Abatement." 
Defendants, § 167. 
Demurrer, § 194. 
Examination of parties: 

See "Examination of Parties." 
Executors and administrators, § 162. 
Guardian and ward, §§ 164, 165. 
How designated, § 115. 
Infants: 

Actions by and against, § 164. 

Appearance by guardian, § 164. 
Appointment of guardian by 

court, § 164. 
How guardian appointed, § 165. 
Master, § 164. 
When infant is defendant. 

§ 165. 
When infant is plaintifif, § 165. 
Who may appoint guardian, 
§ 164. 
Interpleader, § 171. 
Intervention, § 171. 
Joinder, §§ 167, 168. 
Judgments: 

See "Judgments and Decrees." 
Magistrates, § 97. ' 

Marriage, § 170. 



206 



INDEX TO CODE OF CIVIL PROCEDURE. 



PARTIES— Continued. 

Married women: 

Actions by and against married 
women, § 163. 
Mortgages: 

Parties in action for strict fore- 
closure and sale, § 218. 
One action against the different parties 

to bills and notes, § 169. 
One or more may sue or defend for all, 

§ 168. 
Party in interest to sue, § 160. 
Plaintiffs, § 166. 
Relator, § 468. 
Substituting parties: 

On death, or transfer of interest, 

§ 170. 
Where another claimant to the sub- 
ject matter, § 171. 
Service: 

See "Notice;" "Summons and Proc- 
ess." 
Suing party by fictitious name, § 236. 
Trusts and trustees, § 162. 
Venue: 

See "Venue." 
Witnesses, § 438. 

See "Examination of Parties." 
Who may be defendants, § 167. 
Who may be plaintiffs, § 166. 

PARTITION 

Venue, § 172. 
PARTNERSHIP 

Limitation of actions: 

Partners only liable for their own 
acts after dissolution of partner- 
ship, § 158. 

Summons and process, § 186. 

PART PAYMENT 

Limitation of actions, § 159. 

PAYMENT 

Limitation of actions, §§ 157, 158, 159. 
When payment of money ordered, § 303. 

PAYMENT INTO COURT, § 303. 
Deposit in lieu of bail: 

See "Deposit." 
Limitation of actions, §§ 138, 139, 142. 
Officers: 

Penalty for usurping office or fran- 
chise — How awarded, § 475. 
Venue, § 173. 

PENALTIES 

Limitation of actions, §§ 138, 139, 142. 
Venue, § 173. 

PERISHABLE PROPERTY 

Appeal, § 395. 
Attachment, § 286. 

PERSONAL PROPERTY 

See "Claim and Delivery of Per- 
sonal Property." 
Definition, §§ 482, 483. 

PETITION 

See "Pleadings." 



PICKENS COUNTY 

Time and place for holding court, § 27. 

PILOTAGE 

Attachment, § 281. 

PLACE OF TRIAL 

See "Venue." 

PLEADINGS 

Accounts: 

How to state an account in plead- 
ing, § 208. 
Admissions: 

Allegation not denied — When to be 
deemed true, § 219. 
Amendments: 

See "Amendment." 
Answer: 

See "Answer." 
Certainty, § 210. 
Civil and Criminal Court of Charleston, 

§ 110. 
Complaint: 

See "Complaint." 

Complaint need not be served v/ith 
summons, § 180. 
Conditions: 

How conditions precedent are to be 
pleaded, § 212. 
Courts to be furnished with copy of 

pleadings, § 319. 
Damages: 

How two or more causes of action 
for damages may be pleaded, § 216. 

Pleadings in actions ex delicto for 
damages regulated, § 216. 
Definiteness, § 210. 
Demurrer: 

See "Demurrer." 
Docket: 

See "Docket." 
Evidence: 

Pleadings not to be evidence in 
criminal proceedings, § 207. 
Exemplary damages, § 216. 
Filing, § 454. 

Filing summons and pleadings, § 454. 
Forms of pleading, § 190. 
Frivolous pleadings: 

Judgment on frivolous demurrer, 
answer or reply, § 306. 
General rules of pleading, §§ 206-219. 
Interpretation: 

Pleadings to be liberally construed. 
§ 209. 

Irrelevancy, § 210. 
Issues: 

See "Issues." 
Joinder of actions: 

See "Joinder of actions." 
Joint debtors: 

See "Joint Debtors." 
Judgments and decrees: 

How judgment to be pleaded, § 211. 
Libel and slander: 

How stated in complaint, § 214. 
Magistrates, § 97. 

Amendment of pleadings, § 97. 
Mistake, §§ 200-222. 



INDEX TO CODE OF CIVIL PROCEDURE. 



207 



PLEADINGS— Continued. 

No error or defect to be regarded un- 
less it affects substantial rights, § 227. 
Petition: 

Probate proceedings may be com- 
menced by petition, § 70. 
Pleadings in courts of record prescribed 

in Code, § 190. 
Private statutes, § 213. 
Probate: 

Proceedings may be commenced by 
petition, § 70. 
Redundancy, § 210. 
Reply: 

See "Reply." 
Sham pleading: 

See "Feigned Issues." 
Sham and irrelevant defenses to be 
stricken out, § 202. 
Signature, § 206. 
Statutes: 

Private statutes — How to be 
pleaded, § 213. 
Subscription, § 206. 
Suing party by fictitious name, § 226. 
Supplemental complaint, answer, and 

reply, § 228. 
Time pleadings are returnable, § 21. 
Torts: 

Pleading in actions ex delicto for 
* damages regulated, § 216. 
Variance: 

See "Variance." 
Verification, § 206. 

See "Verification." 

POLICE 

See "Rescue Orphanages." 
Police officers to apprehend abandoned 
children, § 77. 

POSSESSION 

See "Adverse Possession." 
Landlord and tenant: 

Possession by tenant deemed that 
of landlord, § 131. 
Limitation of actions, § 126. 
Presumption as to possession of land, 
§ 126. 

POSTPONEMENT 

See "Adjournment." 
PRACTICE 

All inconsistent with Code repealed, 
§ 488. 

In cases not provided for by Code. 
§ 488. 

In Probate Court, to conform to com- 
mon pleas, § 70. 

Rules to regulate, § 489. 

PRELIMINARY INJUNCTION 

See "Injunction." 
PRESUMPTION 

Landlord and tenant, § 131. 
Possession, § 126. 

PRINCIPAL AND AGENT 

Arrest in civil actions, § 230. 



PRINCIPAL AND SURETIES 

See "Claim and Delivery of Per- 
sonal Property." 
Appeals: 

See "Appeals;" "Bail." 
Attachment, § 293. 

Security on obtaining attachment, 
§ 282. 
Injunction, §§ 274, 276. 
See "Injunction." 

PRINTING 

Not required where party is unable to 
pay for it, § 382. 

Papers for court to be taxed as dis- 
bursement, § 365. 

PRISONS AND PRISONERS 

See "Convicts." 
Guardian ad litem, § 185. 

PRIVATE STATUTES 

Pleadings, § 213. 

PRIVILEGED COMMUNICATIONS, 

§ 438. 

PROBATE COURT 

See "Courts." 

PROCEEDINGS 

See "Supplementary Proceedings." 

PROCESS 

See "Summons and Process." 

PRODUCTION OF DOCUMENTS, 

§ 427. 

PROHIBITION, § 11. 

Proceedings by mandamus and prohiti- 
tion not affected, etc., § 491- 

PROPERTY 

Definition, § 482. 

PROVISIONAL REMEDIES, § 303. 

PUBLICATION 

See "Notices." 
Service of process: 

See "Summons and Process." 

PUBLIC LANDS 

Action — When and how brought to va- 
cate letters patent, § 467. 
Judgments and decrees: 

Entry of judgment relating to kt- 
ters patent, § 480. 
Limitation of actions : 

When action by State or their 
grantees to be brought within 
ten years, § 122. 
When action cannot be brought by 

grantee from State, § 121. 
When State will not sue, § 120. 

PUBLIC OFFICERS 

See "Officers." 



208 



INDEX TO CODE OF CIVIL PROCEDURE. 



PUNITIVE DAMAGES 

See "Exemplary Damages." 

QUESTION OF LAW AND FACT 

Sec "Issues. 
Questions of fact, §§ 308, 309. 

QUO WARRANTO 

See "Action in Place of Scire Fa- 
cias, Quo Warranto, and of In- 
formations in the Nature of Quo 
Warranto." 
Supreme Court, § 11. 

REAL PROPERTY 

See "Judicial Sales." 
Adverse possession: 

See "Limitation of Actions." 
Definition, § 483. 
Lien, attachment, § 284. 
Limitation of actions: 

See "Limitation of Actions." 
Lis pendens, § 182. 

See "Lis Pendens." 
Service by publication, § 18-o. 
Title in question: 

See "Magistrates." 
Venue, § 172. 

When title to, need not be set forth, 
§ 217. 

REARGUMENT 

Appeal, § 14 

RECEIVERS 

Appointment, § 303. 
Bonds, § 303. 

Bonds to be made payable to Clerk 
of Court, § 303 
Corporations, § 303. 

Restraining corporation, and ap- 
pointment of receiver, § 478. 
Court to fix value of property to be 

affected, § 303. 
Damages: 

Receiver improperly appointed, 
§ 303. 
Deposit of money in court, § 303. 
Injunction: 

Temporary injunction may be 
granted without notice, § 303. 
Notice, § 303. 

Powers of courts as to receivers, § 303. 
Supplementary proceedings: 

Judge may appoint receiver and 
prohibit transfer of property, 
§ 356. 

RECORD 

Proof of record of foreign state, § 460. 

RECORDING ACTS 

Judgments and decrees, § 341. 

RECOVERY OF PERSONAL PROP- 
ERTY 

See "Claim and Delivery." 

REDUNDANCY 

Pleadings. § 210. 



REFEREES 

See "Reference." 

REFERENCE 

Admissibility of evidence, § 332. 

After judgment on issue of law, § 329. 

All issues referable by consent, § 330. 

Appeal, § 332. 

Appointment of referees, § 333. 

Causes to be referred, § 331. 

Costs, § 332. 

Efifect of report, § 332. 

Effect of special verdict, § 332. 

Evidence, § 332. 

Expenses, § 332. 

Extension of time, § 332. 

For trial issue of fact, § 312. 

In default cases, § 305. 

Interest, § 364. 

Judge or justice as referee, § 333. 

Mode of trial, § 332. 

Motions: 

Questions of fact arising on motion 
may be referred, § 331. 
Objections to evidence, § 332. 
Of questions arising on motion, etc., 

§§ 331, 440. 
Question of fact may be referred, §§ 330. 

332. 
Reducing testimony to writing, §• 332. 
Referees, §§ 332, 333. 
Referees in Saluda County — Proviso, 

§ 334. 
Report, §§ 331, 332, 333. 

Interest, § 364. 
Review, § 332. 
Stenographers, § 332. 
Supplementary proceedings, § 358. 
Supreme Court, § 11. 
Testimony, § 332. 
Time prescribed for report, § 332. 
To ascertain damages on injunction. 

§ 276. 
To ascertain damages on receivership 

iDeing vacated, § 303. 
Trial by master, § 332. 
When references may be compulsorily 

ordered, § 331. 
Who may act as referee, § 333. 

RELATOR, § 468. 

Joinder as plaintiff in action by attor- 
ney general, § 468. 
Rights, on judgment in favor of, § 471. 

RELIEF 

Demand of, § 192. 

In cases of mistake, § 225. 

Time of limitation in certain actions 

for, §§ 137, 143. 
To be consistent with case made, § 330. 
To defendant, § 335. 
When there is no answer, extent of, 

§ 336. 

REMEDIES 

See "Actions." 
Division of remedies, § 1. 



INDEX TO CODE OF CIVIL PROCEDURE. 



209 



REMITTITUR 

From Supreme Court, § 12. 
To be certified to Probate Court, when, 
§ 68. 

REMOVAL 

Removal of cases from one magistrate 
to anotlier, § 97. 

REPEAL 

See "Statutes." 

REPLEVIN 

See "Action for Recover}' of Per- 
sonal Property;" "Claim and De- 
livery of Personal Property." 
Magistrates, § 80. 

REPLEVIN BOND, § 80, et seq. 

REPLY, § 203. 

Court may give relief in case of mis- 
take, § 225. 

Contents, § 203. 

Demurrer, § 205. 

General rules of pleading: 
See "Pleadings." 

Joint debtors, § 419. 

Judgment on frivolous demurrer, an- 
swer, or reply, § 306. 

Motion for judgment upon answer, 
§ 204. 

New matter in, deemed controverted, 
§ 219. 

Supplemental reply, § 228. 

When Court may order a, § 203. 

When to be put in, and what to con- 
tain, § 203. 

REPORT 

Reference: 

See "Reference." 

RESCUE ORPHANAGES 

Commitment, § 77. 

Investigation by Probate Judge, § 77. 
Orphanage may intrust children to in- 
dividual or family, § 79. 
Rights and authority of orphanage, § 78. 

RESIDENTS 

See "Nonresidents." 

RESTITUTION 

After reversal or inodification of judg- 
ment on appeal, §§ 381, 410. 

RESTRAINING ORDER 

See "Injunction." 

RETURN 

Appeal from magistrate, § 401. 
Appeal to Supreme Court, § 379. 
Executions: 

See "Executions." 
Summons: 

See "Summons and Process." 

2 S C C— 14 



REVERSAL OF JUDGMENT 

Cost on, § 409. 

Not allowed for errors or defects not 

affecting the merits, § 227. 
On appeal, §§ 381, 407. 
Time for commencing action after, 

§ 151. 

REVIVAL OF ACTIONS 

See "Abatement, Revival and Sur- 
vival." 

RICHLAND COUNTY 

Time and place for holding court, § 22. 

RULES OF COURT 

See "Courts." 

SALES 

See "Judicial Sales;" "SheriflFs' 
Sales." 
Ships and shipping, § 289. 

SALUDA COUNTY 

Referees in Saluda County — Proviso, 

§ 334. 
Time and place for holding court, § 28. 

SATISFACTION OP EXECUTION 

Return of, Sheriff to make, § 349. 
What property may be ordered to be 

applied to, § 355. 
When debtor to judgment debtor may 

make, § 351. 

SCIRE FACIAS 

See "Action in Place of Scire Fa- 
cias, Quo Warranto, and of In- 
formations in the Nature of Quo 
Warranto." 

SECURITY 

See "Attachment;" "Principal and 
Surety;" "Undertaking." 

SEDUCTION 

Costs, § 361. 

SEIZIN 

Limitation of actions, §§ 123, 124. 
Necessary in real actions, §§ 123, 124. 

SEPARATE TRIALS, § 318. 

SERVICE OF PROCESS 

See "Notice;" "Summons and Proc- 
ess." 

SET-OFF 

See "Counterclaim." 
Assignee of right of action takes sub- 
ject to, § 161. 
Exceeding plaintiff's demand, § 323. 

SETTLEMENT OF ESTATES OF DE- 
CEDENTS 

See "Executors and Administra- 
tors." 



210 



INDBX TO CODE OF CIVIL PROCEDURE. 



SEVERANCE 

In rendering- judgments, § 335. 
Of actions, § 223. 

SHAM PLEADING 

■ Sham and irrelevant defenses to be 
stricken out, § 202. 

SHERIFFS AND CONSTABLES 

Arrest: 

See "Arrest in Civil Actions." 
Attachment: 

See "Attachment." 
Bail: 

See "Bail." 
Claim and delivery of personal property: 

See "Claim and Delivery of Per- 
sonal Property." 
Constable's duty in suit to recover per- 
sonal property, §§ 80, 84, 85. 
Costs: 

Officers may take out executioa 
for costs, § 363. 
Executions: 

See "Executions." 
Judicial sales: 

See "Judicial Sales." 
Limitation of actions, § 138. 
Probate Court: 

To execution of, § 75. 
Sale: 

See "Sheriff's Sale." 
Service of process: 

See "Summons and Process." 
Supreme Court: 

Sheriffs to provide rooms, § 15. 

SHERIFFS' SALES, § 345. 
By whom made, § 345. 
Conveyance, § 345. 
Injunction: 

Regulations for granting injunctions 
to stay certain sales, § 273. 
Land, § 345. 
Magistrates, §§ 96, 97. 
Place, § 345. 
Real estate, § 345. 

SHIPS AND SHIPPING 

Attachment, §§ 279, 281, 282, 289. 
Sales, § 289. 

SLANDER 

See "Libel and Slander." 
Arrest in civil actions, § 230. 
Civil and Criminal Court of Charleston, 
§ 104. 

SPARTANBURG COUNTY 

Time and place for holding court, § 24. 

SPECIAL PROCEEDING 

Appeal and error, § 11. 

Costs on review of decision of inferior 

court in special proceeding, § 370. 
Definition of a special proceeding, § 3. 
Review, § 11. 

SPECIAL SESSIONS 

See "Courts." 



SPECIAL VERDICT 

See "Verdict." 

STATE 

See "Action in Place of Scire Fa- 
cias, Quo Warranto, and of In- 
formations in the Nature of Quo 
Warranto." 
Action for forfeiture of property to 

State, § 481. 
Actions in name of, § 463. 
Costs: 

Costs in action by state, §§ 371, 372. 
Liniitation of actions: 

Actions by State, § 145. 
When action by State or their 
grantees to be brought within ten 
years, § 122. 
When action can not be brought by 

grantee from State, § 121. 
When State will not sue, § 120. 
Magistrate: 

Suits in Magistrates' Courts, § 87. 

S,TATE HOSPITAL FOR INSANE 

See "Hospitals and Asylums." 

STATEMENT OF CASE ON APPEAL 

See "Appeals." 

STATUTE OF LIMITATIONS 

See "Limitation of Actions." 

STATUTES 

Foreign laws: 

See "Foreign Laws." 
How proved, § 460. 

Interpretation and construction, § 487. 
Pleadings: 

Private statutes — How to be 
pleaded, § 213. 
Repeal: 

Inconsistent statutory provisions re- 
pealed, § 488. 

STAY OF PROCEEDINGS 

See "Supersedeas and Stay of Pro- 
ceedings." 

STENOGRAPHERS 

Courts; 

See "Courts." 
Duties of, §§ 315, 316. 
Reference, § 332. 

STOCKHOLDERS 

See "Corporations." 

SUBMISSION OF CONTROVERSY, 

§§ 413, 414. 
Appeal from judgment, § 414. 
Entering judgment, § 414. 
How submitted, § 413. 
Judgm.ent, § 414. 
Real controversy, § 413. 

SUBSCRIBING 

Execution, § 347. 
Pleadings, § 206. 
Summons, § 178. 



INDEX TO CODE OF CIVIL PROCEDURE. 



211 



SUBSTITUTING PARTIES 

See "Parties." 

SUMMARY REMEDIES, § 303. 

SUMMONS AND PROCESS 

Civil and Criminal Court of Charleston, 

§ 101. 
Commencement of action: 

Actions to be commenced by serv- 
ice of summons, § 177. 
Summons commences action, § 146. 
Complainant need not be served with 

summons, § 180. 
Defendant unreasonably defending, 

§ 181. 
Evidence: 

Proof of services, § 188. 
Filing, §§ 314, 454. . 
Filing complaint, §§ 185, 314. 
Joint debtors: 

See "Joint Debtors." 
Summons to be accompanied by af- ■ 
fidavit of amount due, § 417. 
Jurisdiction: 

When jurisdiction of action ac- 
quired, § 189. 
Lis pendens, § 182. 
Magistrates: 

Service on corporations, § 97. 
Time for serving complaint, § 97. 
Mail, § 185. 
Nonresidents: 

See infra, "Publication of Sum- 
mons." 
Notice: 

Defendant unreasonably defending, 
§ 181. 
Notice to be inserted in summons, § 179. 
Partnership, § 186. 
Personal service out of State, § 185. 
Probate Court may issue w^arrants and 

processes, § 51. 
Proceedings when part only of defend- 
ants served — Partners, § 186. 
Publication of summons, § 185. 
Affidavit, § 185. 

Complaint must first be filed, § 185. 
Convicts, § 185. 
Defendant absconding with intent 

to defraud, § 185. 
Foreign corporations, § 185. 
General provisions as to, § 185. 
Insane persons, § 185. 
Judgment after service, § 305. 
Magistrates may grant order of 
publication of summons against 
absent parties, § 185. 
Nonresidents, § 185. 
Order for publication, § 185. 
Order by master, § 185. 
Party cannot be found, § 185. 
Proof of publication, § 188. 
Subject of action of real or personal 

property, § 185. 
When service by publication com- 
plete, § 187. 
Service of process: 

Actions commenced by service of 
summons, § 177. 



SUMMONS AND PROCESS— Contin^ 

ued. 

Appearance, § 189. 

At residence, § 184. 

By whom summons served, § 183. 

Complaint, § 180. 

Costs, § 183. 

Dismissal of judgment for default 

in, § 335. 
Fees for service, § 183. 
How served, § 184. 
Infants, § 184. 
Insane persons, § 184. 
Mail, § 185. 
Order of arrest, § 234. 
. Partnership, § 18C. 
Personal service, § 184. 
Proceedings when part only of de- 
fendants are served, § 186. 
Proof of service, § 188. 
Provisions as to other papers do 

not apply, § 456. 
Publication: 

See infra, "Publication." 
Service of other papers: 

See "Notice." 
Sheriff, § 183. 

Suits against corporations, § 184. 
Summons, § 183. 

Complaint need not be served 

with summons, § 180. 
Notice to be inserted in sum- 
mons, § 179. 
Requisites of, § 178. 
When service complete, § 187. 

SUMTER COUNTY 

Time and place for holding court, § 20. 

SUPERSEDEAS AND STAY OF PRO- 
CEEDINGS 

Amendment, §§ 378, ^^88. 

Appeal from Probate Court, § 65. 

Appeal to the Circuit Court from an in- 
ferior court, § 397. 

Injunction of execution or judicial sale, 
§ 273. 

Judgments for delivery of documents 
or personalty require its deposit or 
security, § 389. 

Judgment to execute conveyance re- 
quires its execution and deposit, § 390. 

Limitation of actions, §§ 152, 273. 

Mistake or inadvertence, §§ 378, 388. 

Notice, § 440. 

Order, § 440. 

Securities to be approved and sureties 
to justify, § 394. 

Stay of proceedings upon security be- 
ing given, § 392. 

Undertaking may be in one instrument 
or several, § 393. 

Undertaking on appeal, § 385. 
See "Appeals." 

Undertakings must be filed, § 396. 

When appeal stays proceedings below — 
Exceptions, § 395. 

When appeal will stay execution, and 
when not, § 391. 

When notice of appeal may stay execu- 
tion, § 385. 



212 



INDEX TO CODH OF CIVIL PROCEDURE. 



SUPPLEMENTAL PLEADINGS, § 228. 

Complaint, action may be continued by, 
§ 170. 

SUPPLEMENTARY PROCEEDINGS, 

§§ 351-360. 

Absconding debtor, § 351. 

Affidavit, § 351. 

Any debtor to execution debtor may 
pay his debt to sheriff, § 351. 

Appointment of receiver in, § 353. 

Arrest of debtor, § 351. 

Compelling party or witnesses to at- 
tend, § 354. 

Contempt, § 360. 

Costs, § 359. 

Discovery, § 351. 

Disobeying orders in, § 360. 

Evidence: 

Examination not evidence in crimi- 
nal proceedings, § 351. 
Examination of debtors of judgment 
debtor, or of persons having prop- 
erty belonging to him, § 352. 
Examination in, to be on oath, § 352. 
Examination of judgment debtor, § 351. 
Order for discovery of property, § 351. 
Prohibiting transfer of property, § 354. 
Receiver, § 356. 

Judge may appoint receiver and 
prohibit transfer of property, 
§ 356. 
Reference, § 358. 
Self crimination, § 351. 
Third persons: 

Proceedings on claims of others to 
property or on denial of indebted- 
ness, § 357. 
What property may be ordered to be 

applied to execution, § 355. 
When an order for the examination of 
the judgment debtor may be applied 
for, § 351. 
Witnesses, §§ 353, 354. 
Witnesses required to testify, § 353. 

SUPREME COURT 

See "Courts." 

SURETYSHIP 

See "Principal and Surety." 

SURPRISE 

Relief in cases of neglect or, § 225. 

SURRENDER OF BAIL, §§ 239, 240. 

SURVIVAL OF ACTIONS 

See "Abatement, Revival and Sur- 
vival." 

TAXATION OF COSTS 

See "Costs." 

TELEGRAPHS AND TELEPHONES 

Service of process on agent of, § 184. 

TERMS OF COURT 

See "Courts." 



TESTIMONY 

See "Depositions;" 
"Witnesses." 



"Evidence: 



THIRD PERSON 

Claim of property by third person, 

§§ 267, 287. 
Supplementary proceedings: 

Proceedings on claims of others to 
property or on denial of indebt- 
edness, § 357. 

TIME 

Compulation of, § 445. 

Publication of notices, § 459. 

TITLE 

Answer of, in magistrates' courts, § 88. 

Certificate that it came in question, § 88. 

Color of, §§ 127, 129. 

Costs when it comes in question, § 90. 

Magistrates have no jurisdiction of ac- 
tions involving, to real estate, § 87. 

Need not be set forth in answer to ac- 
tion to recover property distrained 
damage feasant, § 217. 

Of action not changed on appeal, § 377. 

Of affidavit, § 444. 

Of cause to be stated in complaint, 
§ 192. 

TORTS 

Pleading in actions ex delicto for dam- 
ages regulated, § 216. 

TRANSCRIPT OF JUDGMENT 

See "Judgments and Decrees." 

TRESPASS 

Limitation of actions, § 137. 

TRIALS 

See "Actions;" "Issues." 
Adjustment: 

See "Adjustment." 
Definition of trial, § 311. 
Exceptions to rulings, § 312. 
In Probate Court, to conform to, in 

Common Pleas, § 70. 
Issues of fact tried by jury, § 312. 
Issues of law tried by court, § 312. 
Mode of, § 312. 
Motions: 

See "Motions." 
Orders: 

See "Orders." 
Order of disposing of issues on the 

calendar, § 317. 
Place of trial: 

See "Venue." 
Postponement: 

See "Adjournment." 
Referees: 

See "Reference." 
Separate trials, § 318. 

Trial and decision at same term, § 312. 
Trial by court: 

See "Courts." 



INDEX TO CODE OF CIVIL PROCEDURE. 



213 



TRIALS— Continued. 

Trial of issues regulated, § 312. 
When trial to be ordered, § 312. 

TRUSTS AND TRUSTEES 

Arrest in civil actions, § 230. 
Costs: 

See "Costs." 
Jurisdiction of Judge of Probate, § 43. 
Parties, § 162. 

UNDERTAKINGS 

See "Bail." 
Appeal: 

See, "Appeal." 
Filing, § 458. 

Magistrates: 

See "Magistrates." 
On obtaining order of arrest, § 233. 
On obtaining warrant of attachment, 

§ 282. 
To be delivered to parties, § 393. 
To be filed with clerk, § 396. 
Undertaking in civil action or special 

proceedings, § 486. 

UNION COUNTY 

Time and place for holding court, § 24. 

UNREASONABLE DEFENSE 

Costs, § 181. 

USURPING OFFICE OR FRANCHISE 

See "Officers." 

VACATION 

See "Chambers." 

VARIANCE 

Amendment of material variance, § 222. 

Immaterial variances, § 221. 

Magistrates, § 97. 

Material variances, § 220. 

What not deemed a variance, § 222. 

VENUE, §§ 172-176. 

Actions to be tried in county where de- 
fendant resides — Proviso, § 174. 
Actions to be tried w^here cause of ac- 
tion arose, § 173. 
Actions to be tried where subject mat- 
ter situated, § 172. 
Change of venue, § 176. 

See "Change of Venue." 
Changing place of trial, § 176. 
Consent, §§ 172, 174. 
Distress, § 172. 

Executors and administrators, § 174. 
Forfeiture, § 173. 
Insurance: 

Suits against insurance companies 
may be brought in county where 
loss occurred, § 175. 
Magistrates, § 97. 
Mortgages: 

Foreclosure of mortgages, § 172. 
Officers, § 173. 
Partition, § 172. 
Penalties, § 173. 



VENUE— Continued. 

Real property, § 172. 

Suits against insurance companies may 
be brought in county where loss oc- 
curred, § 175. 

Waters and watercourses: 

Situated in two or more counties, 
§ 173. 

VERDICT 

Actions for recovery of personal prop- 

erty,_ § 321. 
Assessing defendant's damages, § 323. 
Damages: 

Jury to assess defendant's damages 
in certain cases, § 323. 
Death of party after, § 170. 
Directing special findings, § 331. 
Efifect of verdict, § 312. 
Entry -of judgment on, § 324. 
Entry of verdict, § 324. 
General and special verdicts defined, 

§ 320. 
Interest: 

Interest on verdict or report — 
When allowed, § 364. 
New trial: 

See "New Trial." 
On issue out of chancery, § 312. 
On special finding with a general ver- 
dict, former to control, § 322. 
Referee's report to have eflfer.t of, § 332. 
Special finding with a general verdict, 
§ 322. 

Special verdict, §§ ,320, 321. 

Motion for new trial, or for judg- 
ment on special verdict — Where 
'^o be heard, § 325. 

Subject to the opinion of the court. 
§ 324. 

When jury may render special or gen- 
eral verdict — Directing special find- 
ings, § 321. 

VERIFICATION 

Demurrer, § 206. 
Pleadings, § 206. 

Attorney or agent, § 207. 

Corporation, § 207. 

How verified, § 207. 

Pleadings to be subscribed and veri- 
fied, § 206. 

Proceedings against joint debtors, 
§ 420. 

When it may be omitted, § 207. 

When necessary, § 206. 

VESSEL 

See "Ships and Shipping." 

WAIVER 

Of defense, § 198. 

Trial by jury, § 326. 

Waiver of objection to complaint, § 198. 

WAR 

Limitation of actions, § 150. 



214 



INDEX TO CODE OF CIVIL PROCEDURE. 



WARRANTS 

Se-e "Arrest." 
Probate Court may issue warrants and 
processes, § 51. 

WATERS AND WATERCOURSES 

Venue: 

Situated in two or more counties, 
§ 173. 

WIFE 

See "Husband and Wife." 

WILLIAMSBURG COUNTY 

Time and place for holding court, § 20. 

WILLS 

Probate of wills: 

Jurisdiction of Judge of Probate, 
§ 44. 

WITNESSES 

Change of place of trial for conven- 
ience of, § 176. 

Compelled to attend, on trial by refer- 
ees, § 332. 

Coplaintiff or codefendant may be ex- 
amined as, § 436. 

Compelling parties to attend as, § 431. 

Examination of parties: 

See "Examination of Parties." 
Examination of witnesses: 

Executors and administrators, § 438. 

Husband and wife, § 438. 

Interest not to exclude witness, 
§ 437. 

Parties to actions and special pro- 



WITNESSES— Continued. 

ceedings competent witnesses ex- 
cept in certain cases, § 438. 
Privileged communications, § 438. 
Transactions with deceased per- 
sons, § 438. 
Transactions with insane persons, 
§ 438. 
Executors and administrators, § 438. 
Husband and wife, § 438. 
In special proceedings, § 438. 
Interest not to exclude witness, § 437. 
Parties: 

See "Examination of Parties." 
Parties to actions and special proceed- 
ings competent witnesses except in 
certain cases, § 438. 
Punishment of, for disobedience to or- 
ders of judge or referee, § 360. 
Pleadings in action on, §§ 97, 212. 
Supplementary proceedings §§ 353, 354. 
See "Supplementary Proceedings." 

WOMEN 

Arrest in civil actions, § 230. 

WRIT OF ERROR 

See "Appeals." 

WRIT OF INJUNCTION 

See "Injunction." 

WRITS 

Time writs are returnable: 

Courts in fourth circuit, § 31. 

YORK COUNTY 

Time and place for holding court, § 23. 



Criminal Code. 



TITLE I. 

CRIMINAL PROCEDURE. 



Chapter 


I. 


Chapte:r 


II. 


Chapter 


III. 


Chapter 


IV. 


Chapter 


V. 


Chapter 


VI. 


Chapter 


VII. 


Chapter VIII. 


Chapter 


IX. 



Of Arrest, Examination, Commitment and Bail, 215. 

Jurisdiction of Magistrates and Their Courts, 220. 

Criminal Proceedings in Municipal Courts, 227. 

Proceedings in Courts of General Sessions, 232. 

Of the Rights of Persons Accused, 235. 

Of Trials, 236. 

Of Appeals and New Trials, 241. 

Of Judgment and Execution, 244. 

Of the Writ of Habeas Corpus, 247. 



CHAPTER I. 
Of Arrest, Examination, Commitment and Bail.^ 



Sec. 



Sec 



1. Who may arrest a felon, and where. 

2. When citizens may arrest and the 

means to be used. 

3. Sheriffs and Deputies to arrest for 

oflfenses committed in view. 

4. Police of any city or town may ar- 

rest within one mile of corpo- 
rate limits. 

5. Authority of County police. 

6. No civil process to be executed on 

any person attending musters. 

7. Officers may issue warrants for fu- 

gitives charged with crime — Pro- 
ceedings. 

8. Agents appointed by Governor to 

receive $3 a day and expenses. 

9. Proceedings for discharge of pros- 

ecutor on own recognizance in 
cases not capital. 



10. Discharge of witnesses on own re- 

cognizance in cases not capital. 

11. Penalty for failure of prosecutor or 

witnesses to appear. 

12. Clerk's costs. 

13. Industrial communities may provide 

prison. 

14. What persons may be confined. 

15. Powers of police officer or Deputy 

for fair associations or places of 
amusement. 

16. Duties of Sheriff of Marlboro 

County. 

17. Governor to appoint constables for 

Chester and Williamsburg Coun- 
ties. 

18. Arrests by inspectors appointed by 

Board of Fisheries. 



§ 1. Who May Arrest a Felon, and Where. — Upon view of felony com- 
mitted, or upon certain information that a felony has been committed, or upon 
view of a larceny committed, any person may arrest the felon or thief, and take 



1. See, also, § 672 as to arrests by railway and 
electric railway conductors and employees; and^ §S 
S3, 60 and 61 as to arrest by certain municipal 
officers. 

Objection to the jurisdiction of the Court over 
the person is waived by appearing, ard defending 
a prosecution upon the merits. State t. Brown- 
ing, 70 S. C. 466, SO S. E. 18S; State v. Mays, 
24 S. C. 190; Ridgeland v. Gens, 83 S. C. 564, 65 
S. E. 828. 



Technical accuracy of an indictment is not re- 
quired in a commitment. State v. Killet, 2 Bail. 
289. A warrant must be subscribed by the officer 
issuing it. Davis v. Sanders, 40 S. C. S07, 19 S. 
E. 138. But need not be under ' seal. State v. 
^^augh, Harp. 313. It need not fully set out the 
charge. State v. Hallback, 40 S. C. 298, 18 S. E- 
919; State v. Killet, 2 Bail. 289; State iK Rowe, 
8 Rich. 17. But the nature of the offense should 
be stated. State v. Everett, Dudley 295. 



216 CRIMINAL CODE [ §§ 2-5 

him to a Judge or Magistrate, to be dealt with according to law.^ 

Crim. Code, 1902, § 1; G. S. 2616; R. S. 1; 1866, XIII. 406; 1898, XXII, 809 

§ 2. When Citizens May Arrest and the Means to Be Used. — It shall 
be lawful for any citizen to arrest any person in the night-time, by such effi- 
cient means as the darkness and the probability of his escape render necessary, 
even if his life should be thereby taken, in cases where he has committed a 
felony, or has entered a dwelling house with evil intent, or has broken or is 
breaking into an outhouse, with a view to plunder, or has in his possession 
stolen property, or, being under circumstances which raise just suspicion of his 
design to steal or to commit some felony, flees when he is hailed.^ 
Crim. Code, 1902, § 2; G. S. 2617; R. S. 2; 1866, XIII, 406. 

§ 3. Sheriffs and Deputies to Arrest for Offenses Committed in 
View. — It shall be lawful for the Sheriffs and Deputy Sheriffs of this State to 
arrest without warrant any and all persons who, within their view, violate any 
of the criminal laws of this State: Provided, Such arrest may be made at 
the time of such violation of law or immediately thereafter.* 

Crim. Code, 1902, § 3; 1898, XXII, 808. 

§ 4. Police of Any City or Town May Arrest within One Mile of Cor- 
porate Limits. — The police authorities of all towns and cities of this State are 
hereby authorized and empowered to make arrests of all offenders against the 
municipal ordinances and statutes of this State committed within the corporate 
limits at any place within a radius of one mile of the corporate limits, with or 
without a warrant, when such police authorities are in pursuit of such offender. 

1908, XXV, 1089. 

§ 5. Authority of County Police. — The Rural or County Policemen for 
Richland, Aiken and Laurens Counties shall have authority for any suspected 
freshly committed crime, whether upon view or upon prompt information or 
complaint, to arrest without warrant, and in pursuit of the criminal to enter 
houses or break therein, whether in their own County or in an adjoining County ; 
and they shall have authority to summon the posse comitatus to assist in en- 
forcing the laws, and any citizen who shall fail to respond and render assist- 
ance when so summoned shall be guilty of a misdemeanor, and upon conviction 
shall be punished by imprisonment for thirty days or fine of one hundred dollars. 

1909, XXVI, 418; 1910, XXVI, 786, 793. 

3. Prior to the amendments of 1898, such an v. Williams, 36 S. C. 493, IS S. E. 554; lyOggins 
arrest could not be made where only a simple v. Southern Railway, 64 S. C. 321, 42 S. EJ- 163; 
petit larceny was committed. State v. Davis, 50 State v. JByrd, 72 S. C. 109, 51 S. E. 542; State 
S. C. 405, 27 S. E. 905. Prior to this Act it was v. Moody, 70 S. C. 56, 49 S. E. 8. But an arrest 
sufficient to justify an arrest in this State, by for a misdemeanor (other than larceny, under § 1, 
private persons, without warrant, to show that supra) not committed in view of the officer, is 
prima facie a felony has been committed in a unlawful, if without warrant. Percival v. Bailey, 
sister State and the party arrested is the perpe- 70 S. C. 72, 49 S. E. 7. 

trator. State v. Anderson, 1 Hill 327. Railway and street railway conductors, etc., may 

This Statvite enables the party making the ar- arrest for offenses committed in their view. IvOg- 

rest to act upon information, although it might gins v. Railway, 64 S. C. 321, 42 S. E. 163; §§ 

not be true, if it is of such a nature as to con- 671 and 672. 

vince a reasonable man that a larceny, or act from The jury is the judge as to how much force was 

which the law presumed a felony, had been com- necessary to be used in making the arrest. State 

mitted by the person arrested. State v. Griffin, 74 7'. Golden, 1 S. C. 292; State v. Anderson, 1 Hill 

S. C. 415, 54 S. E. 603. As to felony committed 237. How arrest should be made. lb. Resistancf 

in another State, see State v. Whittle, 59 S. C. to arrest. State v. Brownfield, 60 S. C. 509, 39 

297, 37 S. E. 923. - S. E. 2; State v. Franklin, 80 S. C. 332, 60 S. E. 

_ Z. This only applies to arrests in the night 953; State v. Byrd, 72 S. C. 104, 54 S. E. 542. 

time, under the circumstances named. State v. An attorney at law is not a suitable person to 

Davis, 50 S. C. 405, 27 S. E. 905. act as a Sheriff's Deputy in making an arrest. 

4. Applies wK re the offense was committed State v. Boyles, 80 S. C. 352, 60 S. E. 233. 
Tvithin the hearing of the officer. State v. Wil- When prosecutor or third person may go to as- 
liams, 36 S. C. 493, 15 S. E- 554. _ sistarce of an ofl;cer assaulted while making an 

Peace officers have at common law the right to arrest. State v. Williams, 76 S. C. 141, 56 S. E- 

arrest, upon view of an offense committed, with- 783. 

out warrant, all persons guilty of h'-' ach of the A person has the same right to resist an unlaw- 

peace or other violation of the criminal laws. City ful arrest as to resist an assault. State v. Davis, 

Council V. Payne, 2 N. & McC. 475; State v. Sims, 53 S. C. 150, 31 S. E. 62. 
16 S. C. 486; State v. Bowen, 17 S- C. 58; State 



§§ 6-8] OF SOUTH CAROLINA. 217 

§ 6. No Civil Process to Be Executed on Any Person Attending Mus- 
ters. — No civil officer shall execute any process arresting and confining the 
person, or requiring bail or surety (unless for treason, felony, or breach of the 
peace), on any person engaged in the military service required by the laws of 
this State, going to or returning from the same, under the penalty of twenty- 
five dollars, and the service of any such process shall be void.^ 

Crim. Code, 1902, § 4; G. S. 2618; R. S. 3; 1794. VIII, 489; 1839, XI, 41; 1841, XI, 
210. 

§ 7. Officers May Issue Warrants for Fugitives Charged with Crime 
— Proceedings. — 1. Any officer in the State authorized by law to issue war- 
rants for the arrest of any person charged with crime shall, on satisfactory in- 
formation laid before him under the oath of any credible person, that any fugi- 
tive in the State has committed, out of the State, and within any other State, 
any offense which by the law of the State in which the offense was committed 
is punishable either capitally or by imprisonment for one year or upwards in 
any State prison, shall have full power and authority, and is hereby required, 
to issue a warrant for said fugitive, and commit him to any jail within the State 
for the space of twenty days, unless sooner demanded by the public authorities 
of the State wherein the offense may have been committed, agreeable to the 
Act of Congress in that case made and provided; if no demand be made within 
the time, the said fugitive shall be liberated, unless sufficient cause be shown 
to the contrary : Provided, That nothing herein contained shall be construed 
to deprive any person so arrested of the right to release on bail as in cases of 
similar character of offenses against the laws of this State. 

2. To Ke;i;p Record and Transmit Copy to Gove;rnor. — Every officer com- 
mitting any person under this Section shall keep a record of the whole proceed- 
ings before him, and immediately transmit a copy thereof to the Governor of 
this State for such action as he may deem fit therein under the law. 

3. Governor to Inform Governor oE Foreign State. — The Governor of 
this State shall immediately inform the Governor of the State in which the crime 
is alleged to have been committed of the proceedings had in such case. 

4. Sheriee and Jaii^er to Surrender Fugitive under Order oe Gov- 
£;rnor.— Every Sheriff or Jailer, in whose custody any person committed under 
this Section shall be, upon the order of the Governor of this State, shall sur- 
render him to the person named in said order for that purpose.^ 

Crim. Code, 1902, § 5; G. S. 2620; R. S- 4; 1882, XVII, 784. 

§ 8. Agents Appointed by Governor to Receive $3 a Day and Ex- 
penses. — In all cases of requisition for the delivery of fugitives from^ justice 
the agents appointed by the Governor to bring such fugitives into this State 
shall receive in compensation for their services the sum of three dollars per day 
for the time actually employed, and shall be reimbursed their expenses actually 
and necessarily incurred in the performance of their duties. 

Approval oe Accounts — Payment. — Upon presentation to the Governor of 
the accounts of such agents, itemized and duly verified by their affidavits thereto 
annexed, the Governor, if he approve the same as correct, shall endorse his ap- 
proval thereon, and upon presentation of the said accounts, so endorsed, to the 
Comptroller General, he shall draw his warrants on the State Treasurer for 
the*amount thereof, payable out of the regular contingent fund of the Gover- 
nor. 

Crim. Code, 1902, § 6; R. S. .5; 1887, XIX, 850. 

5. This Section does not apply to officers in been made upon the Governor for such fugitiye. 
the military service. Moses v. Millett, 3 Strob. State v. Anderson, 1 Hill, 327. 

210. Applied. Gregg v. Summers, 1 McC. 461. As to order of Governor to surrender prisoner 

6. Arrest of such fugitive without warrant. on requisition from another State. Ex parte 
State V. Whittle, 59 S. C. 297, 37 S. E. 923. Swearingen, 13 S. C. 74. . ^ . 

Such warrant may be issued before demand has (See Brief Review Ivaw of Extradition by ttie 

Hon. M. F. Ansel, Columbia, S. C, January 
18-20, 1910.) 



218 CRIMINAL CODE [ §§ 9-15 

§ 9. Proceedings for Discharge of Prosecutor on Own Recognizance 
in Cases Not Capital. — Hereafter, when any prosecutor, resident in the Ju- 
dicial District where the prosecution is instituted, in criminal cases less than 
capital, shall have been committed to jail by reason of his or her inability to 
give surety, on his or her recognizance to prosecute, the Clerk of the Court of 
Common Pleas and General Sessions of such District shall have power to dis- 
charge such prosecutor on his or her own recognizance, upon being satisfied of 
his or her inability to give such surety. 

Crim. Code, 1903, § 7; G. S. 2625; R. S. 6; 1857, XII, 636. 

§ 10. Discharge of Witnesses on Own Recognizance in Cases Not 
Capital. — Whenever any witness in a criminal case less than capital shall have 
been committed to jail by reason of the like inability to give surety on a recog- 
nizance to testify, the Clerk of the Court shall have the like power to discharge 
such witness on his or her own recognizance. 

Crim. Code, 1902, § 8; G. S. 2626; R. S. 7; 1857, XII, 636. 

§ 11. Penalty for Failure of Prosecutor or Witnesses to Appear. — 

Prosecutors or witnesses failing to appear under such recognizance shall be 
deemed guilty of a misdemeanor, and the Attorney General and Solicitors are 
hereby authorized to order warrants to issue against such offenders without affi- 
davit or bond to prosecute. 

Crim. Code, 1902, § 9; G. S. 2627; R. S. 8; 1857, XII, 636. 

§ 12. Clerk's Costs. — The Clerks of the Court shall be entitled to one 
dollar costs for each recognizance taken under the provisions of Sections 9 and 
10 of this Chapter. 

Crim. Code, 1902, § 10; G. S. 2628; R. S. 9; 1857, XII, 636. 

§ 13. Industrial Communities May Provide Prison. — The president or 
treasurer, or other executive officer, having the management of any industrial 
corporation, located in any industrial community, in any County in this State, 
may build or provide a prison or building, at some convenient place, in said in- 
dustrial community, in which arrested persons, charged with violation of the 
law, may be confined until such arrested persons can conveniently be carried be- 
fore a Magistrate. • 

1910, XXVI, 765. 

§ 14. What Persons May Be Confined. — The police officer, or Dep- 
uty Sheriff, in industrial communities shall have the power to confine in such 
prison or building, as the president or treasurer or other executive officer having 
the management of any industrial corporation may provide in industrial com- 
munities, any person or persons who may be arrested charged with violation of 
law until such arrested person or persons can be conveniently carried before 
a Magistrate : Provided, hozn^ever, That such police officer, or Deputy Sheriff, 
«hall not detain any arrested person in said prison longer than eighteen hours, 
except persons arrested on Saturdays, and then not over forty-two hours : Pro- 
vided, further, That such police officer, or Deputy Sheriff, shall provide water 
and food, and shall also furnish such arrested person or persons with sufficient 
bedding or clothing to make them comfortable in cold weather. 

1910, XXVI, 765. 

§ 15. Powers of Police Officer or Deputy for Fair Associations or 
Places of Amusement. — A police officer, or Deputy Sheriff, appointed for any 
fair association, or park or place of amusement under the provisions of Section 
1158 of the Civil Code, shall have, do and exercise all the rights, duties and 
powers prescribed by law for Constables or Magistrates, and such powers as are 
usually exercised by Marshals and Policemen of towns and cities, and shall also 
act as a conservator of the peace ; shall take into custody and carry before the 



§§16-17] OF SOUTH CAROLINA. 219 

nearest Magistrate any person who may in his view engage in riotous conduct 
or violation of the peace, and refusing upon his command to desist therefrom; 
and shall also arrest any person who may in his view commit any felony or 
misdemeanor, and carry him before a Court of competent jurisdiction ; and 
shall execute any and all criminal process from Magistrates' Courts, and shall 
have the power to call to his aid a posse comitatus to assist him in the discharge 
of his duties ; and any person refusing to obey his summons shall be liable to 
indictment and prosecution as for a misdemeanor. 

1908, XXV, 1086, 1153. 

§ 16. Duties of Sheriff of Marlboro County.— 1. The Sheriff of Marl- 
boro County and his deputy shall perform all the duties heretofore devolving 
upon constables appointed under the prohibition, dispensary or other laws relating 
to the traffic in alcoholic, vinous, spirituous, or other intoxicating liquors ; also 
the said Sheriff and deputy shall have and exercise all the powers now conferred 
upon peace officers within this State ; the said Sheriff and deputy shall be spe- 
cially clothed with the authority to arrest, without warrant, any person suspected 
by them, upon satisfactory information, of violating the prohibition or dispen- 
sary law : Provided, That any person so arrested shall, within twenty- four 
hours after his arrest, excepting if arrested on Saturday, then within forty- 
eight hours, be taken before a Magistrate and within a reasonable time there- 
after, given a hearing upon a warrant, which shall have been within that time 
procured. 

2. Compensation. — Said deputy so appointed shall receive a salary of six 
hundred dollars per annum, to be paid monthly ; said deputy, before entering 
upon the discharge of his duties, shall execute an official bond, in the usual form, 
in the sum of one thousand dollars which bond shall be filed with the Clerk of 
the Court of said county, and it shall be the duty of the Sheriff to provide the 
said deputy with the necessary conveyances for the proper discharge of his 
duties. 

3. May Empi^oy De;tective:. — Whenever the said Sheriff shall deem it neces- 
sary for the proper enforcement of law within said county, he may, with the 
consent of the County Supervisor, employ a detective who shall act under his 
directions : Provided, That before any such detective can be employed, the 
County Supervisor and Sheriff shall agree upon his terms of service and com- 
pensation. 

1910, XXVI, 725. 

§ 17. Governor to Appoint Constables for Chester and Williamsburg 
Counties. — 1. The Governor, upon the recommendation of the members of the 
General Assembly from Chester and Williamsburg Counties, respectively, shall 
appoint a constable for each of the Counties of Chester and Williamsburg, 
whose especial duty it shall be to enforce the provisions of law in said counties 
prohibiting the sale of alcoholic liquors, and shall have and exercise all the 
powers now conferred by law upon sheriffs, constables and other peace officers. 
Before entering upon the discharge of his duties each said constable shall enter 
into bond in the sum of five hundred dollars, in the usual form, with sufficient 
surety to be approved by the Clerk of the Court of said counties, respectivelv, 
conditioned for the faithful performance of his duty ; said constable shall be 
subject to removal by the Governor upon request of the Sheriff of said counties, 
respectively. 

2. To Be: unde;r Control of* Sheriff. — The said constables shall be under 
the control of and subject to the orders of the Sheriff of each said countv, re- 
spectively, and each shall receive as compensation for his services eighty dollars 
per month, payable monthly, and such actual expenses as may be incurred in 
the performance of his duties upon the filing of an itemized and sworn statement 



220 



CRIMINAL CODE 



[ 



18-19 



of such expenses : Provided, Said expenses shall not exceed in any one year 
the sum of three hundred dollars. 

3. Expe^nse;s. — The amounts above provided for shall be paid out of the or- 
dinary county funds. All fines collected from persons convicted as a result of 
the arrect by said constable shall be turned into the ordinary county funds, and 
whenever the fines in any year fail to equal the amount paid out on salary and 
expenses of said ofiicer, he shall immediately be dismissed from the service by 
the Sheriff. 

1910, XXVI, 727. 

§ 18. Arrests by Inspectors Appointed by Board of Fisheries. — Any 

inspector appointed under Article 14 of the Civil Code, shall have authority, 
without warrant, to arrest any person found violating the provisions of this Ar- 
ticle of the Civil Code : Provided, That he shall at once take the person so 
arrested before the nearest Magistrate and swear out the proper arrest war- 
rant, and any such inspector shall be authorized and empowered to make all 
seizures provided for in said Sections. 

1907, XXV, 508; 1908, XXV, 1158. 



CHAPTER n. 

Jurisdiction of Magistrates and Their Courts. 



Sec. 

19. 
30. 



21. 

22. 

33. 

24. 
25. 
26. 

27. 

28. 



29. 
30. 



31. 
32. 

33. 



Generally. 

Jurisdiction over offenses where fine 
is under $100 and imprisonment 
less than thirty days. 

Extent to which they may punish 
breaches of peace. 

May arrest all affrayers and others 
threatening breach of peace. 

Jurisdiction of Magistrates in cer- 
tain misdemeanors. 

Jurisdiction in larceny. 

In receiving stolen goods. 

In obtaining property under false 
pretenses. 

Can arrest persons charged with of- 
fenses. 

All proceedings to be by informa- 
tion. 

All persons entitled to trial by jury. 

Penalty for failure of jurors to at- 
tend when summoned by Magis- 
trate or Police Court. 

Magistrate in Charleston can try of- 
fenses against city ordinances. 

Appointing special officers to arrest 
persons charged with crime 
above misdemeanor. 

Magistrates must hold preliminary 
examinations upon demand of 
defendant — When — Rules reg- 
ulating, etc. 



Sec. 

34. Can bind over witnesses. 

35. May command the peace. 

36. Bailing persons charged with crime 

not punishable by death or by 
life imprisonment. 

37. Person charged before Magistrates 

may make deposit in lieu of re- 
cognizance. 

38. Scale of recognizances — Witnesses 

and prosecutors. 

39. Arrest and committal of witnesses 

on refusal to enter into recogni- 
zances. 

40. Magistrates to return papers to 

Clerk ten days before Court. 

41. Duty of Magistrate on information 

of impending duel. 

42. Change of venue. 

43. Costs in criminal cases where venue 

is changed. 

44. Constable not to swear out war- 

rants. 

45. Prosecutor not to serve warrant. 

46. Magistrates may issue search war- 

rants. 

47. Warrants to be endorsed in County 

where served- — Execution. 

48. Fines at fairs of State Agricultural 

and Mechanical Society trans- 
ferred to treasurer thereof. 



§ 19. Generally. — Magistrates shall have and exercise, within their respec- 
tive Counties, all the powers, authority and jurisdiction in criminal cases herein 
after set forth. 

Crim. Code, 1902, § 11; G. S. 82.2; R. S. 10; 1870, XIV, 402. 



§§ 20-23 J OF SOUTH CAROLINA. 221 

§ 20. Jurisdiction over Offenses Where Fine Is under $100 and Im- 
prisonment Less than Thirty Days. — They shall have jurisdiction of all 
offenses which may be subject to the penalties of either fine or forfeiture not 
exceeding one hundred dollars, or imprisonment in the jail or workhouse not 
exceeding thirty days; and may impose any sentence within those limits, singly 
or in the alternative.^ 

Crim. Code. 1902, § 12; G. S. 823; R. S. 11; 1870, XIV, 40S. 

§ 21. Extent to Which They May Punish Breaches of Peace.— They 

may punish by fine not exceeding one hundred dollars, or imprisonment in the 
jail or house of correction not exceeding thirty days, aU assauhs and batteries, 
and other breach of the peace, when the offense is not of a high and aggravated 
nature, requiring, in their judgment, greater punishment. ^ 

Crim. Code, 1902, § 13; G. S. 824; R. S. 12; Const., Art. V, § 21; 1870, XIV, 402. 

§ 22. May Arrest All Affrayers and Others Threatening Breach of 
Peace. — They may cause to be arrested ah affrayers, rioters, disturbers, and 
breakers of the peace, and all who go armed offensively, to the terror of the 
people, and such as utter menaces or threatening speeches, or otherwise dan- 
gerous and disorderly persons. Persons arrested for any of said offenses shall 
be examined by the Magistrate before whom they are brought, and may be 
tried before him, and if found guilty may be required to find sureties of the peace, 
and be punished within the limits prescribed in Section 21, or, when the offense 
is of a high and aggravated nature, they may be committed or bound over for 
trial before the Court of General Sessions.^ 

Crim. Code, 1902, § 14; R. S. 13; 1870, XIV, 402. 

§ 23. Jurisdiction of Magistrates in Certain Misdemeanors. — Any 

person, upon conviction of any one of the following named misdemeanors, 
shall be subject and liable for each offense to a fine not to exceed one_ hundred 
dollars or to imprisonment for a term not exceeding thirty days, to wit: Car- 
rying concealed about the person any deadly weapon, such as are enurnerated 
in Section 158; disturbing a religious meeting in any way, or otherwise violating 
the provisions of Section 703, when no weapons were actually used and no 
wounds inflicted; all riots, routs or affrays where no weapons were actually 

1. This, construed with § 104. gives power to is within his jurisdiction, where it is_ an assault 

fentence to imprisonment, at hard labor on cham of a high and aggravated nature, as with a pistol, 

gang, not exceeding thirty days. The case of State is not binding on the Circuit Court. State v. 

1-. Williams, 40 S. C. 373, 19 S. E. 5, decided un- Burch, 43 S. C. 3, 20 S. E. 758. Since the Con- 

der the Constitution of 1868, does not apply since stitution of 189S the Circuit Court has had con- 

the Constitution of 1895. current jurisdiction. But prior to 1895 it was 

Magistrates have jurisdiction of an offense only held that if the indictment in the Court of • Gen- 

where the punishment is limited to a fine of $100, eral Sessions did not show on its face that the 

or to imprison:-nent for thirty days. State v. Mad- assault and battery was of a high and aggravated 

den, 28 S. C. 50, 4 S. E. 810. nature, it was without jurisdiction and was e_x-- 

When the punishment of petit larceny was not clusively within the jurisdiction of the Magis- 

so limited, Magistrates had no jurisdiccion of it. trate's Court. State v. McKetterick, 14 S. C. 353; 

State V. Williams, 13 S. C. 546; State ■-■. Jenkins, State v. Grant, 34 S. C. 109, 12 S. E. 1070. 

26 S. C. 121, 1 S. E. 437. But since Act 1887 Where an indictment charged an assault and 

(19 Stat. 819), so limiting the punishment, they battery with intent to kill in the first count and 

have jurisdiction of that offense. State -•. Cooler, carrying concealed weapons in the second, and a 

30 S. C. 105, 8 S. E. 692. f-ue' bill was returned only as to the second, the 

They have no jurisdiction of the offense of tak- ^-^^^ ^y^g properlv rcm.anded to a Magistrate for 

ing or stealing a boat under the Act of 1695, be- (rial. State v. McClenton, 59 S. C, 226, 37 S. 

cause the penalty is indefinite. State v. Weeks, 14 £_ 319 

S. C. 402. In assaults and batteries all participants are 

Under Art. V, § 18, Constitution of 1895, the principals. State v. Hunter, 79 S. C. 73, 60 S. 

Circuit Court has concurrent jurisdiction in all p 240 

cases where "exclusive'' jurisdiction is "ot given the ^^ ' , governing assaults and batteries, see 

Magistrates Court. State v. Wolf, 61 S. E. 2o, g^^^^ ^_ Dawlon, 85 S. C. 235, 67 S. E. 313; 

<.-5" \ ;» A f. A Ctot= , ■P„,,„ 70 Q r State v. McKellar, 85 S. C. 236, 67 S. E. 314; 

Q7 P.^"'l^"i?"*o,/^^"^'^- ^*^*^ '■ ^°P^' ^^ ^- ^- State V. Collins, 69 S. C. 460, 48 S. E. 469; Ed- 

S7 60 b. E. ^34 ai c r 7 8 Ai q T? wards v. Wessinger, 65 S. C. 161, 43 S. E. 518, 

Central v. Madden, 81 S. C. 7, 8, 61 S. E. ^5 ^^_ g^_ Rep 789; State v. Williamson, 65 S. 

Jurisdiction of mayor of a town. Union -.. ^ 242 43 S.E 671; State « Jones, 74 S,C. 

Hampton, 83 S. C. 46, 64 S. E. 1017. <q^'c V^ fi^^ ' ^' 

3. Jurisdiction to bind over party to keep the °^ >=• -'^- °^^- 

peace, and in default of bond to commit to jail. 3. What is an affray. State v. Summer, 5 

State •:■. Garlington, 56 S. C. 413, 34 S. E. 689. Strob. 53. 

The determination of the Magistrate that a case 



222 CRIMINAL CODE [ §§ 24-28 

used and no wounds inflicted ; malicious mischief and malicious trespass as con- 
templated in Sections 222 and 223, when the damage to such property does not 
exceed twenty dollars ; disposing of property under lien, or obtaining property 
under false pretense, when the value of such property so disposed of, stolen or 
obtained, respectively, does not exceed twenty dollars. 

Crim. Code, 1903, § 15; R. S- 14; 1892, XXI, 93; 1893, XXI, 411; 1894, XXI, 824. 

§ 24. Jurisdiction in Larceny. — Magistrates shall have jurisdiction of 
larcenies, by stealing of the property of another, of money, goods or chattels, 
or any bank note, bond, promissory note, bill of exchange, or other bill, order, 
or certificate, or any book of accounts for or concerning money or goods due, 
or to become due, or to be delivered, or any deed or writing containing a con- 
veyance of land, or any other valuable contract in force, or any receipt, release, 
or defeasance, or any writ, process, or public record, if the property stolen does 
not exceed twenty dollars in value.^ 

Crim. Code, 1902, § 16; G. S. 826; R. S. 15; 1870, XIV, 403. 

§ 2 5. In Receiving Stolen Goods. — They shall have jurisdiction of the 
offenses of buying, receiving or aiding in the concealment of stolen goods and 
other property, where they would have jurisdiction of the larceny of the same 
goods or property. 

Crim. Code, 1902, § 17; G. S. 827; R. S. 16; 1870, XIV, 403. 

§ 26. In Obtaining Property under False Pretenses. — They shall have 
jurisdiction of the offenses of obtaining property by any false pretense, or any 
privy or false token, or by any game, device, sleight of hand, pretensions to 
fortune-telling, trick or other means, by the use of cards or other implements 
or instruments, where they would have jurisdiction of a larceny of the same 
property, and may punish said offenses the same as larceny. 

Crim. Code, 1902, § 18; G. S. 828; R. S. 17; 1870, XIV, 403. 

§ 27. Can Arrest Persons Charged with Offenses. — They shall cause 
to be arrested all persons found within their Counties charged with any offense, 
and persons who after committing any offense within the County escape out of 
the .same ; examine into treasons, felonies, grand larcenies, high crimes and mis- 
demeanors ; and commit or bind over for trial those who appear to be guilty of 
crimes or offenses not within their jurisdiction, and punish those guilty of such 
offenses within their jurisdiction. 

Crim. Code, 1902, § 19; G. S. 829; R. S. 18; 1870, XIV, 403. 

§ 28. All Proceedings to Be by Information. — All proceedings before 
^Magistrates in criminal cases shall be commenced on information, under oath, 
plainly and substantially setting forth the offense charged, upon which, and only 
which, shall a warrant of arrest issue. 

The information may be amended at any time before trial. 

All proceedings before Magistrates shall be summary, or with only such delay 
as a fair and just examination of the case requires. ^ 

Crim. Code, 1902, § 20; G. S. 830; R. S. 19; 1870, XIV, 403. 

4. When there was no law limiting punishment sworn to is unconstitutional, null and void. State 
of petit larceny to one hundred dollars' fine or v. Wimbush, 9 S. C. 309. 

thirty days' imprisonment, this Section was un- This Section was only intended to require the 

constitutional, and Magistrates had no jurisdiction sworn information to so set forth the charge 

of the crime, and the jurisdiction was exclusively "plainly and substantially" as that the accused 

in the Court of General Sessions. State v. Wil- would understand the nature of the offense with 

Hams, 13 S. C. 546; State v. Jenkins, 26 S. C. 121, which he was charged and might prepare to meet 

1 S. ■£. 437. But since Act of 1887 (19 Stat. it. It was not designed to require any formality 

819), so limiting the punishment, Magistrates have or technical accuracy in stating the offense. Mc- 

jurisdiction of petit larceny. State v. Cooler, 30 Connell v. Kennedy, 29 S. C. 180, 7 8. E. 76; 

S. C. 105, 8 S. E. 692, 3 L. R. A. 181. Concur- McCall v. Alexander, 81 S. C. 134, 61 S. E. 1106; 

rently with the Circuit Court since the Constitu- Rogers v. Marlborough County, 32 S. C. 555, 11 

tion of 1895. S. E. 383. 

5. The affidavit may be amended before trial. Where the facts stated in affidavit constitute no 
State V. Nash, 51 S. C. 321, 28 S. E. 946. offense, both the person instituting the prosecution, 

A warrant issued upon a statement of facts not and the officer serving the warrant, are liable to 



§§29-33] .. OP SOUTH CAROLINA. 223 

§ 29. All Persons Entitled to Trial by Jury. — Every person arrested and 
brought before a Magistrate, charged with an offense within his jurisdiction, 
shall be entitled, on demand, to a trial by jury, which shall be selected as pro- 
vided in Section 1395 of the Civil Code.® 

Crim. Code, 1902, § 21; G. S. 831; R. S. 20; 1870, XIV, 403. 

§ 30. Penalty for Failure of Jurors to Attend When Summoned by 
Magistrate or Police Court. — If any juror duly summoned shall neglect or 
refuse to appear in obedience to any venire issued by any Police or Municipal 
or Magistrate's Court, and shall not within forty-eight hours render to the Re- 
corder or Magistrate holding such Police or Magistrate Court, and issuing the 
venire, a sufficient reason for his delinquency, he shall forfeit and pay a fine of 
ten dollars ($10.00) to the treasury of the municipality or County where the 
cause is tried, to be assessed by such Recorder or such Magistrate so holding the 
Police or Magistrate Court and collected on his warrant without other process ; 
and a failure to pay forthwith such fine so assessed shall constitute a contempt 
of Court and be punished accordingly : Provided, No person shall be required 
to serve on a jury in said Courts oftener than once in each month of the year. 

1907, XXV, 609; 1908, XXV, 1087. 

§ 31. Magistrates in Charleston Can Try Offenses against City Or- 
dinances. — Magistrates residing within the limits of the City of Charleston 
are vested with jurisdiction to try, determine and impose the penalties authorized 
by ordinance of the City Council of Charleston. 

Crim. Code, 1902, § 22; G. S. 832; R. S. 21; 1870, XIV, 382. 

§ 32. Appointing Special Officers to Arrest Persons Charged with 
Crime Above Misdemeanor. — Whenever a Magistrate shall have issued a war- 
rant for the arrest of any person charged with an offense above the grade of a 
misdemeanor, such Magistrate shall be authorized to select any citizen or citi- 
zens of the County to execute the same, upon his endorsement upon the said 
warrent that, in his judgment, the selection of such person or persons will be 
conducive to the certain and speedy execution of the said warrant ; and the per- 
son or persons so selected shall have all the powers now or hereafter conferred 
by law upon any Constable within this State ; and any person or persons selected 
in the manner provided for in this Section shall be required forthwith to pro- 
ceed to execute the said warrant; and upon his wilfully, negligently or carelessly 
failing to make the arrest, or permitting the party to escape after arrest, he or 
they shall be punished, upon conviction, on indictment, by fine and imprison- 
ment, in the County jail, in the discretion of the Judge before whom the in- 
dictment may be tried ; said imprisonment not to be less than six months." 

Crim. Code, 1902, § 23; G. S. 838; R. S. 22; 1871, XIV, 666. 

§ 33. Magistrates Must Hold Preliminary Examinations upon De- 
mand of Defendant — ^When — Rules Regulating, etc. — It shall be the duty 
of any Magistrate who issues a warrant charging a crime beyond his jurisdic- 
tion to grant and to hold a preliminary investigation of the same upon demand 
of the defendant at any time before trial, at which investigation the defendant 
shall have the right to cross-examine the State's witnesses in person or by coun- 

an action for false imprisonment. Whaley v. Law- 6. Demand for jury made after State has closed 

ton, 62 S. C. 91, 40 S. E. 128. its case comes too late. State v. Mays, 24 S. C. 

The affidavit, or charge, may be amended. Ridge- 194. 

land V. Gens, S3 S. C. 562, 6^ S. E. 828. A prosecutor may demand a jury trial. State v. 

The Magistrate may in his discretion continue Nash, 51 S. C. 319, 321, 28 S. E. 946. 

the hearing of case from time to time. State v. The Magistrate may instruct Constable as to 

Pope, 79 S. C. 87, 60 S. E. 235. preparation of the jury list. State v. Pincknty, 

As to notice of time of trial to be given, see 74 S. C. 445, 54 S. E. 606. 

State V. Spray, 74 S. C. 444, 54 S. E. 600. 7. A Magistrate cannot verbally authorize a 

Magistrate has jurisdiction to issue warrant for person not a Constable by legal appointment to 

one charged with bastardy. State v. Edens, 88 convey a prisoner to jail. State v. Clark, 51 S. 

S. C. 302, 306. C. 265, 28 S. E. 906. 



224 CRIMINAL CODE [ §§ 34-35 

sel, and to have the reply in argument if there be counsel for the State, and to 
be heard in argument in person or by counsel as to whether a probable case 
has been made out and as to whether the case ought to be dismissed by the 
Magistrate and the defendant discharged without day. And the defendant 
when first brought before the Magistrate shall have the right to demand a re- 
moval of the hearing to the next Magistrate on the same ground as in cases 
within the jurisdiction of the Magistrate, and shall be granted two days, if re- 
quested, within which to prepare a showing for removal : Provided, The de- 
fendant be held by recognizance in bailable cases or committed for custody in 
the meantime.^ 

Crim. Code, 1902, § 24; 1898, XXII, 698. 

§ 34, Can Bind over Witnesses. — Upon information made of the ma- 
teriality of any witness within the State, to support any accusation made, or 
where the materiality of such witness shall be within the knowledge of any 
Magistrate, he shall issue his warrant, requiring such witness to appear before 
him or the next Magistrate, to enter into recognizance, with good security, if 
deemed proper, which warrant shall authorize the arrest and detention of any 
such witness in any County in the State, and on being brought before such Mag- 
istrate, and refusing to enter into recognizance, such witness may be committed 
by the said Magistrate; and the accused shall, in felonies, and no other case, have 
the like process to compel the attendance of any witness in his behalf as is 
granted or permitted on the part of the State : Provided, That no Magistrate 
shall receive any fees for issuing more than one warrant for witnesses on the 
part of the State, or upon the part of the accused, in the same case, unless, on 
the second or other application, oath shall be made that the prosecutor or ac- 
cused was not aware, at the issuing of the previous warrant, of the materiality 
of such witness. 

Crim. Code, 1902, § 25; G. S. 835; R. S. 24; 1830, XI, 22. 

§ 35. May Command the Peace. — Any Magistrate shall be authorized 
and required to command all persons who, in his view, may be engaged in riot- 
ous or disorderly conduct, to the disturbance of the peace, to desist therefrom, 
and to arrest any such person who shall refuse obedience to his command, and 
to commit to jail any such person who shall fail to enter into sufficient re- 
cognizance either to keep the peace or to answer to an indictment, as the Mag- 
istrate may determine. In like manner he shall arrest and commit, if necessary, 
any person who, in his view, shall perpetrate any crime or misdemeanor what- 
soever. In making any such arrest, the Magistrate shall have power to com- 
mand any Constable, bystander, or the posse comitatus, as the emergency may 
require; and any person who shall refuse to aid in such arrest, when required 
by the Magistrate, shall be liable to indictment as for a misdemeanor. When- 
ever there shall be an indictment for any offense committed in his view, the 

S. See post, § 44. Section, to examine accused persons or to take 

This Act repeals by implication G. S. 834; R. their statements in writing, unless they are sworn 

S. 23. as witnesses on behalf of the State by their own 

No formal indictment is required in a Magis- consent; and if he does so, it is not an official 

trate's Court. State v. Brown, 14 S. C. 380. act; but he is not prohibited from doing so. State 

Failure to appear at the preliminary examina- ?•. Branham, 13 S. C. 389; State v. Howard, 32 S. 

tion, after notice, waives right to cross-examine C. 91, 10 S. E. 831. 

the witnesses. State v. Rabens, 79 S. C. 542, 60 A Magistrate cannot supplement the testimony 

S. E. 442, 1110. of a witness as taken, after it is signed by the 

The holding of a preliminai-y examination is not witness, by appending a statement as to the testi- 

a necessary prerequisite to indictment. State v. mony. State v. Freeman, 43 S. C. 105, 20 S. E. 

Bnnvn. 62 S. C. 374, 40 S. E. 776; State v. Bow- 974. The Magistrate may discharge absolutely on 

man, 43 S. C. 108, 20 S. E. 1010; State v. Bui- the preliminary examination. State v. Tones, 32 

lock, 54 S. C. 300, 313, 32 S. E. 424; State v. S. C. 583, 10 S. E. 577. 
Rabens, 79 S. C. 542, 60 S. E. 442, 1110. The written statements taken by Magistrate at 

Magistrates have no authority in cases of the preliminary are the best evidence of what the 

felony, except to so examine the prisoner and accused there said. State v. Winter, 83 S. C. 153, 

commit or bind him over for trial in the General 65 S. E. 209. 
Sessions. Cherry v. McCants, 7 S. C. 224. 

It is not the duty of the Magistrates, under this 



§§ 36-39] OF SOUTH CAROLINA. 225 

Magistrate shall be the prosecutor, and he shall bind in recognizance all neces- 
sary witnesses.^ 

Crim. Code, 1902, § 26; G. S. 836; R. S. 25; 1830, XI, 21. 

§ 36. Bailing Persons Charged with Crime Not Punishable by Death 
or by Life Imprisonment. — Magistrates may admit to bail any person charged 
with any offense the punishment of which is other than death or imprisonment 
for life ; and if any person under lawful arrest on a charge regularly made and 
not bailable, be brought before a Magistrate he shall commit the prisoner to jail ; 
but if the offense charged be bailable, the Magistrate shall take recognizance, 
with sufficient surety, if the same be offered ; in default whereof, such party 
shall be committed to prison, unless it shall clearly appear, upon examination, 
that the charge is not founded in probability; in which case the party may be 
discharged. 1^ 

Crim. Code, 1903, § 28; G. S. 2621; R. S. 34; 1839, XI, 23. 

§ 37. Persons Charged before Magistrates May Make Deposit in 
Lieu of Recognizance. — All persons charged (and to be tried) before any Mag- 
istrate for any violation of law, shall be entitled to deposit with said Magis- 
trate, in lieu of entering into recognizance, a sum of money not to exceed the 
maximum fine in the case for which said person or persons are to be tried. 

1904, XXIV, 388. 

§ 38. Scale of Recognizances — Witnesses and Prosecutors. — Recog- 
nizances entered into before a Magistrate shall be according to the following 
scale : 

1. If the offense charged be punishable with fine and imprisonment, or either, 
the recognizance of the accused shall not be for less than two hundred dollars. 
In all cases the Magistrate taking the recognizance shall cause the same to be 
in such large amount as the circumstances may seem to require. 

2. The recognizance of any prosecutor or witness, in case of misdemeanor, 
shall not be for less than one hundred dollars ; and in case of capital felony, for 
not less than five hundred dollars ; though in all cases the Magistrate shall cause 
the same to be in such large amount as the circumstances may seem to require. 

Crim. Code, 1903, § 39; G. S. 3622; R. S. 35; 1839, XI, 22; 1885, XIX, 349. 

§ 39. Arrest and Committal of Witnesses on Refusal to Enter into 
Recognizances. — Upon information, made of the materiality of any witness 
within the State to support any accusation made, or where the materiality of such 
witness shall be within the knowledge of any Magistrate, he shall issue his war- 
rant requiring such witness to appear before him or the next Magistrate to enter 
into recognizance, with good security, if deemed proper ; which warrant shall au- 

9. The authority here given to a Magistrate to failure to appear at preliminary examination. State 
arrest_ and commit for said offenses committed "in v. Rabens, 79 S. C. 542, 60 S. E. 442, 1110. 

his view" extends to such offenses committed in Objections to recognizance come too late after 

his hearing. State v. Williams, 36 S. C. 493, IS estreat. Barton v. Keith, 2 Hill 537. 

S. K. 554 No objection, that there is a variance between 

This authorizes arrests for misdemeanors as it and warrant. State v. Rowe, 8 Rich. 17. 

well as for felonies. State v. Byrd, 72 S. C. 109, It must appear on its face to have been issued 

54 S. E. 542. by competent authority; otherwise it will be held 

10. Recognizance is valid without signature of invalid on objection, ore tenus. State v. Ahrens, 
the principal. State v. Quattlebaum, 67 S. C. 203, 12 S. C. 493. 

45 S. E. 162; State v. Cornell, 70 S. C. 409, 50 Surety not estopped from denying validity of 

S. E. 22. recognizance because another made payments 

Seal not necessary to the recognizance. State thereon. State v. Bright, 14 S. C. 7. 

V. Foot, 2 Mill 123. Court of Gerjeral Sessions may estreat recogni- 

l,egal obligation of surety is, that principal shall zance by scire facias. State v. Wilder, 13 S. C. 

appear and abide by judgment of the Court. 344: State z'. Jackson, 13 S. C. 344. 

Reynolds 7'. Harral, 2 Strob. 87. And rule to show cause why not is not appeal- 

And sureties are liable notwithstanding dis- able. State v. McNinch, 13 S. C. 452. 

charge of prisoner by United States Judge. State Magistrate has jurisdiction to bind over to Cir- 

v. Davis, 12 S. C 528. cuit Court one charged with and shown to be 

In felony, it requires the personal appearance probably guilty of bastardy where he denies the 

of the principal. State v. Rowe, 8 Rich. 17. paternity of the child ard refuses to enter into 

Even failure to appear and plead will estreat recognizance to maintain the child. State v. 

recognizance. State v. Minton, 19 S. C. 282. So Edens, 88 S. C. 302. 

2 S C C— 15 



226 CRIMINAL CODE [ §§ 40-44 

thorize the arrest and detention of any such witness in any County in the State ; 
and on being brought before such Magistrate, and refusing to enter into recogni- 
zance, such witness may be committed by the said Magistrate to the jail of the 
County, there to remain until he shall be regularly discharged, or shall enter into 
recognizance as required by this Chapter. 

Crim. Code, 1902, § 30; G. S. 2623; R. S. 36; 1839, XI, 22. 

§ 40. Magistrates to Return Papers to Clerk Ten Days before Court. 

— All Magistrates before whom recognizances of witnesses, defendants, or pros- 
ecutor, for their respective appearances at any of the Courts of Sessions for this 
State shall be taken, or before whom any information or other paper returnable 
to the same shall be made, shall lodge the said recognizances, information, or 
other papers, in the respective Clerks' offices of the Courts to which they are 
returnable, at least ten days before the meeting of the said Courts, respectively. 
Crim. Code, 1902, § 31; G. S. 2624; R. S. 37; 1836, VI, 552; 1839, XI, 23. 

§ 41. Duty of Magistrate on Information of Impending Duel. — 

Whenever any Magistrate shall receive information in writing, and under oath, 
that any person or persons are about to leave this State for the purpose of 
sending or receiving a challenge to fight a duel, or for the purpose of fighting 
a duel after such challenge shall have been sent or received, it shall be the duty 
of such Magistrate forthwith to issue his warrant for the arrest of such person 
or persons, to be carried before some Magistrate who shall require such per- 
sons to enter into recognizance in such sum as to such Magistrate may seem 
meet, conditioned that such person or persons shall keep the peace within this 
State, and shall not leave the State for the purpose of sending or receiving a 
challenge to fight a duel, or for the purpose of fighting a duel after such chal- 
lenge has been sent or recei