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Full text of "Code of laws of South Carolina, 1902"

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Joseph R. Cross 
May 21, 1984 



i 



Digitized by the Internet Archive 

in 2010 with funding from 

Lyrasis IVIembers and Sloan Foundation 



http://www.archive.org/details/codeoflawsofsout02will 



CODE OF LAWS 



OF 



South Carolina, 



1902. 



IN TWO VOLUMES. 



VOLUME II. 



Code of Civil Procedure 



AND 



Criminal Code. 



COLUMBIA, S. C. 

THE STATE COMPANY, STATE PRINTERS. 

1902. 






Entered According to Act of Congress, in the Year 1902, by 

William H. Townsend, as Code Commissioner of the State 

OF South Carolina, for the Use of Said State, in 

the Office OF the Librarian of Congress, 

AT Washington, D. C. 



^ \\ 



CODE OF LAWS 



OF 



South Carolina, 

1902. 



IN TWO VOLUMES. 



VOLUME II. 



Code of Civil Procedure 



AND 



Criminal Code. 



THE STATE COMPANY, STATE PRINTERS^ 

COLUMBIA, S. C, 

1902. 



Entered According to Act of Congress, in the Year 1902, by William H. 

TOWNSEND, AS CoDE COMMISSIONER OF THE StATE OF SoUTH CAROLINA, 

FOR THE Use of Said State, in the Office of the 
Librarian of Congress, at Washington, D. C. 



Code of Civil Procedure. 

TABLE OF CONTENTS. 
PART I. 

PAGE. 

Chapter I. — The Code of Procedure 3 

COURTS OF JUSTICE AND THEIR JURISDICTION. 

TITLE I. 

Courts of Justice. 

Chapter I. — Their designation 5 

TITLE II. 
Supreme Court 6 

TITLE III. 
Circuit Courts 14 

TITLE IV. 
Probate Court 29 

TITLE V. 
Courts of Magistrates 39 



IV TABLE OF CONTENTS. 

PART II. 

CIVIL ACTIONS. 



TITLE I. 



PAGE. 

Form of Civil Actions 53 

TITLE II. 
Time of Commencing Civil Actions. 

Chapter I. — Actions Generally 54 

Chapter II. — For the Recovery of Real Property 56 

Chapter III. — Other than for the Recovery of Real Property 61 

Chapter IV. — General Provisions 64 

TITLE III. 
Parties to Civil Actions 67 

TITLE IV. 
Of the Place of Trial of Civil Actions 74 

TITLE V. 
Manner of Commencing Civil Actions yy 

TITLE VI. 

Of the Pleadings in Civil Actions. 

Chapter I. — The Complaint 86 

Chapter II. — The Demurrer 88 

Chapter III. — The Answer 90 

Chapter IV. — The Reply 93 

Chapter V. — General Rules of Pleadings 95 

Chapter VI. — Mistakes and Amendments 102 

TITLE VII. 
Of the Provisional Remedies in Civil Actions. 

Chapter I. — Arrest and Bail 109 

Chapter II. — Claim and Delivery of Personal Property 115 

Chapter III. — Injunction 118 

Chapter IV. — Attachment 122 

Chapter V. — Provisional Remedies 133 



TABLE OF CONTENTS. V 

PAGE. 
TITLE VIII. 

Of the Trial and Judgment in Civil iVcTiONS. 

Chapter I. — Judgment Upon Failure to Answer, &c 138 

Chapter II. — Issues and the Mode of Trial 141 

Chapter III. — Trial by Jury 146 

Chapter IV. — Trial by Court I49 

Chapter V. — Trial by Referees • 151 

Chapter VI. — Manner of Entering Judgment I5S 

TITLE IX. 
Of the Execution of the Judgment in Civil Actions. 

Chapter I. — The Execution 158 

Chapter II. — Proceedings Supplementary to the Execution 166 

TITLE X. 

Of the Costs in Civil Actions 172 

TITLE XL 
Of Appeals in Civil Actions. 

Chapter I. — Appeals in General I77 

Chapter II. — Appeals to the Supreme Court I79 

Chapter III.— Appeals to the Circuit Court from an Inferior Court 187 

TITLE XII. 

Of the Miscellaneous Proceedings in Civil Actions, and General 

Provisions. 

Chapter I. — Submitting a Controversy without Action 195 

Chapter II. — Proceedings Against Joint Debtors 196 

Chapter III. — Confession of Judgment without Action 197 

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

Part of the Action I99 

Chapter V. — Admission or Inspection of Writings 200 

Chapter VI. — Examination of Parties 201 

Chapter VII. — Examination of Witnesses 203 

Chapter VIII. — Motions and Orders 208 

Chapter IX. — Entitling Affidavits 211 

Chapter X.^ — Computation of Time 211 

Chapter XL — Notices and Filing and Serving of Papers 212 

Chapter XII. — Miscellaneous Provisions 214 

TITLE XIII. 
Actions in Particular Cases. 

Chapter I. — Actions Against Foreign Corporations 215 

Chapter II. — Actions in Place of Scire Facias, Quo Warranto, and of 

Informations in the Nature of Quo Warranto 216 

TITLE XIV. 
General Provisions . . . .' 222 



The Code of Civil Procedure. 



Sec. 

1. Division of remedies. 

2. Definition of an action. 

3. Definition of a special proceed- 

ing. 

4. Division of actions into civil 

and criminal. 



TITLE I. 

The Code of Procedure. 

Sec. 



A. D. 1902. 



5. Definition of a criminal action. 

6. Definition of a civil action. 

7. Civil and criminal remedies not 

merged in each other. 

8. Division of the Code of Pro- 

cedure. 



"The Code of Procedure has made no material changes in the primary rights of 
parties, or in the different causes of action, nor undertaken to give any new re- 
dress; but has only changed the mode by which redress is reached and applied." — 
Anderson v. Lynch, 37 S. C, 577; 16 S. E., 774; Chapman v. Lipscomb, 18 S. C, 
222; Sullivan v. Sullivan, 20 S. C, 509. The only changes in the mode of redress, 
are such as relate to the pleading and its incidents. — Price v. Brown, 4 S. C, 144. 
It has not interfered with the essential and inherent distinctions between the dif- 
ferent causes of actions. — McConnell v. Kennedy, 29 S. C, 187; 7 S. E., yd. Nor 
the distinctions between law and equity. "What was equitable before still remains 
equitable, and what was legal is still legal, and the mode of trial of each is still 
preserved." — McMahan v. Dawkins, 22 S. C, 320; Knox v. Campbell, 52 S. C, 
461; 30 S. E., 485. "It allows only one form of action, and special pleas are not 
admitted." — Smith v. Chamberlain, 38 S. C, 542; 17 S. E., 371. The General Stat- 
utes of 1882 and the amended Code then adopted must be regarded as one Act and 
construed together. — Fooshe v. Merriwether, 20 S. C, 337; City Council v. Weller, 
34 S. C, 357; 13 S. E., 628. 

Section 1. Remedies in the Courts of justice are divided remedies""^ 
into: I. Actions. 2. Special proceedinsrs. isto, xiv., 

. . 423, § 1 

Sec. 2. An action is an ordinary proceeding in a Court of 

. - , , , , - , Definition of 

justice, by which a party prosecutes another party for the en- an action. 
forcement or protection of a right, the redress or prevention 76., § 2. 
of a wrong, or the punishment of a public offence. 

This definition has been substantially adopted in all the Codes. — -Henderson v. 
Hyatt, 8 S. C, 112. The distinction between the action, the method of applying 
the remedy for a wrong, and the cause of action, or wrong itself, and the remedy, 
or object of the action, is clearly defined in Bliss on Code Pleadings, 3d Ed., § 2. 
Nothing constitutes a cause of action under the Code which did not constitute 
a cause of action at law or suit in equity, prior to the adoption of the Code. — South- 
ern Porcelain Co. v. Thew, 5 S. C, s; Parker v. Jacobs, 14 S. C, 112; and a com- 
plaint fails to state a cause of action under the Code only when, upon the facts 
alleged the plaintiff is entitled to no relief, either at law or in equity. — Mordecai 
v. Seignious, 53 S. C, 95; 30 S. E., 721; Lathan v. Harby, 50 S. C, 428; 27 S. E., 
862. Attachment being a form of process incident to an action, is embraced in 
the term "action;" is not a special proceeding. — Campbell v. Home Ins. Co., i S. 
C, 158; Allen V. Partlow, 3 S. C, 417. Appeal from Probate Court to Circuit 
Court upon the merits is an action, not a special proceeding. — Henderson v. Hyatt, 
8 S. C, 112. 



4 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

r ' Sec. 3. Every other remedy is a special proceeding. 

Definition of Rule against Sheriff for official misconduct is a special proceeding. — Emory v. 
ceedino-. Davis, 4 S. C, 23. Attachment of crop under lien is a special proceeding. — Jolin- 
-stone V. Manigault, 13 S. C, 406; Sease v. Dobson, 33 S. C, 235; 11 S. E., 728; 

I^-' § 3. 36 s. C, 554; IS S. E., 703. 

„. . . r Sec. 4. Actions are of two kinds: i. Civil. 2. Criminal. 

Division of 

cfvii°Tnd^rim°- ^^^' ^* ^ Criminal action is prosecuted by the State, as a 

^^ party, against a person charged with a public offence, for the 

lb., § 4. punishment thereof. 

Definition of Criminal prosecutions are actions. — State v. Reynolds, 48 S. C, 384; 26 S. E.,679. 

^'°"- Sec. 6. Every other is a civil action. 

lb., § 5. gg(,_ 7_ Where the violation of a right admits of both a civil 

dvfi"actSn°^ and criminal remedy, the right to prosecute the one is not 

"^ Yq merged in the other. 
Civil and ^^^- ^' This Code of Proccdurc is divided into two Parts : 

dliT'not me™-- the first relates to Courts of Justice and their jurisdiction; the 

e d i n each gg^ond rclatcs to civil actions in the Courts of this State. 

other. 

77 TT Prior to the Act of 1884, XVIII., 727, the provisions of the Code as to pro- 

'' ' ceedings on appeal did not apply to criminal cases. — State v. Pitts, 12 S. C, 180. 

Division o f The second part of the Code applies only to the Court of Common Pleas except 
the Code of ^yjigre express reference is made to inferior Courts. — Doty v. Duval, 19 S. C, 43. 
" The provisions of Sec. 400 expressly apply also to criminal actions. — State v. Rey- 

lb., § 8. nolds, 48 S. C, 384; 26 S. E., 679. 



PART 1. 



OF THE COURTS OF JUSTICE AND THEIR JURIS- 
DICTION. 



TITLE I. 

OF COURTS OF JUSTICE. 



CHAPTER I. 

Their Designation. 

^ A. D. 1902. 

Sec. I Sec. v^*-V"«w^ 

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

Section 9. The following are the Courts of justice in this ^^The several 
State : ^^ 

1. The Court for Trial of Impeachments. „ g^^c'on'^Ai^t'. 

2. The Supreme Court. ^•' § "• 

3. The Circuit Courts, to wit: (i.) 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. 

Sec. 10. These Courts shall exercise the jurisdiction now j. Their juris- 

•'_ _ diction gener- 

vested in them respectively, except as otherwise prescribed byaiiy^ 



this Code of Procedure or the laws of the State. , is7o, xiv., 

s w. 



CODE OF CIVIL PROCEDURE 



A. D. 1902, 



TITLE II. 

SUPREME COURT. 



Sec. 

11. Its jurisdiction. 



12. 
13. 



Power of Court. 

Terms. Preference of causes. 



Sec. 

14. Judgment ; retiearing. Opinions. 

15. Siieriffs to provide rooms, t&c. 

16. Courts, where held. Adjourn- 

ment. 



Jurisdiction 
of the Su- 
preme Court. 



Wliere issues 
of fact arise. 



lb. 



Section 11. (A) The Supreme Court shall have power to 
issue writs or orders of injunction, mandamus, quo warranto, 
1896, XXII., prohibition, certiorari, habeas corpus and other remedial and 
original writs : each of the Justices of the Supreme Court &hall 
have the same power at chambers to administer oaths, issue 
writs of habeas corpus, mandamus, quo warranto, certiorari, 
prohibition and interlocutory writs or orders of injunction as 
when in open Court : Provided, An appeal shall be allowed from 
his decision to the Supreme Court. 

(B) 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 plead- 
ings, 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 jurisdic- 
tion 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 possessed by the Circuit Court of 
the State for the appointment of Referees to take testimony 
and report thereon, under such instructions as may be pre- 
scribed by said Court, in any cases arising in the Supreme 
Court wherein issues of fact shall arise. 

(C) 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. 

(D) The Supreme Court shall have appellate jurisdiction 
for correction of errors of law in law cases, and shall review 
upon appeal : 



A p p e Ilant 
jurisdiction in 
chancery. 

Ih. 



In law cases. 



lb. 



OF SOUTH CAROLINA. 



I. Any intermediate judgment, order or decree in a law case 
involving the merits in actions commenced in the Court of 
Common Pleas and General Sessions, brought there by original 
process, or removed there from any inferior Court or jurisdic- 
tion, and final judgments in such actions: Provided, If no ap- 
peal 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. 

An order to involve the merits must finally determine some substantial right in 
the case. — Henderson v. Hyatt, 8 S. C, 112; Blakely v. Frazier, 1 1 S. C, 122. 

The terms "Involving the merits" and "necessarily affecting the judgment" are 
equivalent. — Blakely v. Frazier, 1 1 S. C, 122. 

What orders involve the merits and are so reviewable before judgment: — 

An order setting aside verdict for plaintiff without notice to him. — Williams v. 
Charleston, 7 S. C, 71. 

An order refusing to change place of trial to County where defendant resides. — 
Blakely v. Frazier, 11 S. C, 122. 

An order refusing an oral demurrer. — Elliott v. Pullitzer, 24 S. C, 86; McCown 
V. McSween, 29 S. C, 131; 7 S. E., 140. 

An order refusing to allow amendment, upon legal grounds. — -Sibley v. Young, 
26 S. C, 415; 2 S. E., 314. 

An appeal from an order of reference on jurisdictional grounds. — Simms v. Phil- 
lips, 46 S. C, 149; 24 S. E., 99. 

An order of reference that deprives party of mode of trial which the law allows 
him. — Ferguson v. Harrison, 34 S. C, 169; 13 S. E., 332; McLaurin v. Hodges, 43 
S. C, 187; 20 S. E., 991; Alston v. Limehouse, 61 S. C, i; 39 S. E., 192 

Orders that are based upon error in law and will prejudice trial. — Bank v. Stell- 
ing, 32 S. C, 102; 10 S. E., 766; Sease v. Dobson, 34 S. C, 345; 13 S. E., 530; 
Capell V. Moses, 36 S. C, 559; 15 S. E., 711. 

An appeal from an intermediate order, leaving unaffected a former order, is 
conclusive of appeal from former order. — Pringle v. Sizer, 7 S. C, 131. 

What orders do not involve the merits and are not so reviewable before judgment: 

Orders refusing motions to make pleadings more definite and certain. — Fladger 
V. Beckman, 42 S. C, 547; 20 S. E., 790; Hawkins v. Wood, 60 S. C, 521; 38 S. 
E., 9. 

An order requiring security for costs or nonsuit, and an order discharging Clerk 
on rule for refusing to enter judgment, and reinstating the case. — McMillan v. Mc- 
Call, 2 S. C, 390. 

Orders on motions to dissolve attachment. — Allen v. Patton, 3 S. C, 418; Clau- 
sen V. Easterling, 19 S. C, 519. 

An order of Circuit Court allowing appeal, which had been denied by Probate 
Court, as it merely affects form of procedure. — Henderson v. Hyatt, 8 S. C, 112. 

An order refusing nonsuit. — Agnew v. Adams, 24 S. C, 86. 

Orders as to recommitting case to referee being discretionary. — Westfield v. 
Westfield, 13 S. C, 482; Watkins v. Lang, 17 S. C, 13; Symmes v. Symmes, 18 
S. C, 601; Lowndes v. Miller, 25 S. C, 119; Smith v. Thomason, 26 S. C, 607; 
12 S. E., 96; Hubbard v. Camperdown, 26 S. C, 581; 2 S. E., 576. 

An interlocutory order of injunction, "without prejudice." — Garlington v. Cope- 
land, 25 S. C, 41. 

Orders 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 v. Garvin, 
21 S. C, 92; Douthit V. Westfield, 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 v. Wise, 33 
S. C, 582; 12 S. E., 556; Latimer v. Latimer, 42 S. C, 205; 20 S. -C, 159. 

An order referring it to Master to take testimony as to claims in case. — Pal- 
metto Co. V. Risley, 25 S. C, 309; Jones v. Trumbo, 29 S. C, 26; 6 S. E., 887. 

An order refusing a reference to take testimony in a chancery case. — Farmers' 



A. D. 1902, 



CODE OF CIVIL PROCEDURE 



A. D. 1902. 



^— — Y— — ' Ins. Co. V. Berry, 31 S. E., 53; 53 S. C, 129. 

An order refusing to refer issue to a jury in a chancery case. — Hammond v. 
Foreman, 43 S. C, 264; 21 S. E., 3. 

An order transferring case from one calendar to another to try issues involved. — 
Knox V. Campbell, 52 S. C, 461; 30 S. E., 485. 

An order granting a new trial nisi. — Stuckey v. 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. — Du- 
pont v. DuBos, 33 S. C, 389; 11 S. E., 1073. 

What orders reviewable on appeal from final judgment: — 

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

Order overruling demurrers. — Mobley v. Cureton, 6 S. C, 55. 

All material rulings and charges of Circuit Judge excepted to. — Brice v. Hamil- 
ton, 12 S. C, 35. 

An order denying the right to open and reply. — Bennett v. 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 review of only siKh 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 v. McBurney, 17 S. C, 150; Lee v. Fowler, 19 S. C, 
607; Thatcher v. Massey, 20 S. C, 547; Bomar v. R. R. Co., 30 S. C, 50; 9 S. E., 
512; Sullivan v. Latimer, 32 S. C, 281; 10 S. E., 1071; McCrady v. Jones, 36 S. C, 
136; IS S. E., 430; Wallace v. R. R. Co., 36 S. C, 599; 15 S. E., 452; Morgan v. 
Smith, 57 S. C, 49; 37 S. E., 44. And such review includes all rulings and charges 
material to the judgment, though no motion for new trial was made to Circuit 
Court. — Brice v. Hamilton, 12 S. C, 32. 

And upon appeal from a final judgment, rendered after appeal from an inter- 
mediate order by one party, the other party may review such order. — Hyatt v. Mc- 
Burney, 17 S. C, 143. 

Is a decree which allows judgment for foreclosure "as soon as the amount is 
ascertained" such reviewable intermediate order? — Wallace v. Carter, 32 S. C, 314; 
II S. E., 97. 

The better practice is to await appeal from final order and then review inter- 
mediate 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 involving the merits. — McWilliam v. Mc- 
Call, 2 S. C, 393; Donaldson v. Bank, 4 S. C, 114. 

Final judgments: 

The decision disposing of all the issues and directing 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 judgment. — lb. 

The decision of two Trial Justices upon habeas corpus proceedings before them 
is not appealable to Supreme Court but to Circuit 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. 

'i|oi. XXIII., 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 discon- 
tinues 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 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 



OF SOUTH CAROLINA. 



absolute upon the right of the appellant; and after the pro- 
ceedings are remitted to the Court from which the appeal was 
taken, an assessment of damages, or other proceedings to ren- 
der the judgment effectual, may be then and there had in 
cases where such subsequent proceedings are requisite. 

What orders are appealable under this subdivision: 

An order refusing leave to defendant to file his answer and giving judgment by 
default against him.— Ayer v. Chassereau, i8 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, 37^; 7 S. E., 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; lo 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. R., 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 order 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 con- 
demnation proceedings. — 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. — Am. Pub. Co. v. Gibbes, 37 S. E., 
753; 59 S. C, 215. 

What orders are not: 

An order, though it affect substantial right, unless 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. Hornik, 51 S. C, 313; 28 S. E., 941; Clement v. Dean, 51 
S. C, 317; 28 S. E., 942; Ruberg v. Brown, 50 S. C, 873; 27 S. E., 397. 

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. — \\'ashington v. Hesse, 56 S. C, 28; 33 S. E., 787. 

An order granting or refusing new trial for error of fact. — Floyd v. Abney, 
I S. C, 114; Elmore v. Scurry, i 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. R. 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, 15 S. C, 407; Donaldson 
v. Ward, 20 S. C, 585; Blakely v. Frazier, 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, loi; I S. E., 414; Glover v. Burbridge, 2^ 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; McCord v. 
Blackwell, 31 S. C, 126; Brown v. Thompson, 31 S. C, 436; 10 S. E., 95; Cantwell 
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., 66i; Durant v. Durant, 36 
S. C, 49; Frick v. Wilson, 36 S. C, 65; 15 S. E., 331; Pelzer v. Sun, 36 S. C, 
213; 15 S. E., 562; State v. Haines, 36 S. C, 505; 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 



A. D. 1902. 



10 CODE OF CIVIL PROCEDURE 

A. D. 1902. — — 

^ -> can correct errors of law 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; Joplin v. 
Carrier, 11 S. C, 329; Brice v. Hamilton, 12 S. C, 34; Maxwell v. Thompson, 
IS S. C, 612; Kappan v. Ryan, 16 S. C, 358; Cowan v. Neel, 17 S. C, 589; 
Crawford v. Crawford, 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. Charles- 
ton, 19 S. C, 601; Ex Parte Reed, 19 S. C, 604; Blakely v. 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. Bar- 
ber, 22 S. C, 50; 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. R., 26 S. C, 187; i 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., 576; 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. Holmes, 
32 S. C, 434; Miller v. R. R., 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 v. 
Durant, 36 S. C, 49; 14 S. E., 391. 

Appeals allowed under subdivisions i 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 assuming its correct- 
ness, and if the object is to affect a judgment by setting it aside, reversing or 
modifying it, the appeal must be authorized by subdivision i or 2. — Cureton v. 
Hutchinson, 3 S. C, 606; Gibbes v. Elliott, 8 S. C, 62. 

3. A final order affecting a substantial right made in any 
special proceeding, or upon a summary application in any ac- 
tion after judgment, and upon such appeal to review any inter- 
mediate order involving the merits and necessarily affecting 
the order appealed from. 

An order setting aside assignment of homestead, made upon a summary appli- 
cation after judgment, affects a substantial right, and is appealable. — Weatherby 
V. Jackson, 3 S. C, 228. 

Such final order on rule against Sheriff is appealable.— Emory v. Davis, 4 S. 
C, 23. So is judgment in special proceeding under Agricultural Lien Act. — 
Johnstone v. Manigault, 13 S. C, 403. And order refusing appeal costs in special 
proceeding. — Sease v. Dobson, 36 S. C, 554; 15 S. E., 703. But an order dis- 
solving attachment is not. — Allen v. Partlow, 3 S. C, 417. 

An order refusing a writ of mandamus is. — Ex 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 ap- 
peal from decree refusing to allow prisoner benefit of Insolvent Debtors Act. — 
Hurst V. Samuels, 29 S. C, 476; 7 S. E., 822. 

Order in quo warranto containing a preliminary injunction does not involve 
the merits and is not appealable. — The State v. Westmoreland, 29 S. C, 1 ; 6 S. 
E., 847. 

Order in certiorari permanently staying proceedings below is such final order. — 
Coleman v. Keels, 30 S. C, 614; 9 S. E., 270. 

4. An interlocutory order or decree in the Court of Com- 
mon Pleas, granting or continuing or modifying or refusing an 
injunction, or else granting or continuing or modifying or re- 



OF SOUTH CAROLINA. ii 

A. D. 1902. 



fusing the appointment of a Receiver hereafter granted in any ^-^'v'*-^ 
action -.Provided, That the notice of appeal must be given within 
ten days from written notice of the fiHng 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 below. 

This Act of 1 90 1 does not apply to orders made before its ratification. — Alstone 
V. Limehouse, 61 S. C, : ; 39 S. E., 192. Prior to this Act, an order dissolving 
a temporary injunction to restrain a sale under mortgage was held appealable. — 
Strom V. American Mortgage Company, 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 injunction 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 appealable. — S. B. 
R. R. Co. V. Am. Tel., &c., Co., 58 S. C, 21; 35 S. E., 797. 

Sec. 12. The Supreme Court may reverse, affirm or modify Powers of in 

. . cases of appeal 

the judgment, decree or order appealed from m whole or m 

J ^ > ^^ i896, XXII. 

part, and as to any or all of the parties, and thei. 
judgment shall be remitted 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 considered and decided, and the 
reason thereof shall be concisely and briefly stated in writing 
and preserved in the record of the case. 

The Justices of the Supreme Court shall file their decisions d e c i sions, 
in sixty days from the last day of the Court at which the cases 
were heard. 

Therefore, it has no power to grant leave to defendant to answer over.- — Johnson 
V. Dawkins, 20 S. C, 533. It cannot originally determine the right to counsel 
fees.- — Otis v. Brown, 20 S. C, 586. It can make no original decision upon a point 
not ruled below. — Railroad Com. v. Railroad Co., 22 S. C, 231; Dulaney v. El- 
ford, 22 S. C, 313. 

In case at law it cannot modify the judgment below; can only reverse or af- 
firm. — Hosford v. Wynn, 22 S. C, 313. 

Filing of petition for rehearing does not stay remittitur; there must be an order 
of one of the Justices. — ^Ex Parte Dunovant, 16 S. C, 300. Stay of remittitur 
refused. — State v. Jacobs, 28 S. C, 609; 6 S. E., 577. Stay of remittitur rescinded. 
— Ex Parte Smith, 35 S. C, 606; 15 S. E., 800. Motion to recall remittitur re- 
fused. — State V. Merriman, 35 S. C, 607; 14 S. E., 394. 

A remittitur which states that judgment below is affirmed is sufficient transcript 
of the judgment above. — Ex Parte Dial, 14 S. C, 586. 

Supreme Court loses jurisdiction when remittitur is issued, and not when filed 
below. — Ex- Parte Dunovant, 16 S. C, 300; Brooks v. Brooks, 16 S. C, 621. And 
cannot entertain a motion for rehearing after it is issued. — Sullivan v. Speights, 
14 S. C, 360; Ex Parte Dial, 14 S. C, 585. 

The judgment when remitted cannot be altered or modified by the Circuit Court, 
but must be enforced. — Pringle v. Sizer, 3 S. C, 337; Ex Parte Dunovant, 16 S. C, 
300; Ex Parte Knox, 17 S. C, 217. 



T2 CODE OF CIVIL PROCEDURE 

A. D. 1902. ■ 

v^rfp-Y-^fc^ If judgment be afiirmed, it needs no further action b}- the Circuit Court. — Adger 

V. Pringle, 13 S. C, 36. And action of Circuit Court is not affected bj^ pending 
motion to recall remittitur. — lb. 

A remittitur which orders a new trial in effect sets aside the verdict and judg- 
ment appealed from. — State v. Stephens, 13 S. C, 287. 

ing™^ ° ™^^ ' Sec. 13. The Supreme Court shall hold annually at the seat 
of government two sessions, the one commencing on the fourth 

314. ' ' ■' 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. Additional 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 Justices 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 ofH- 
cer, 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. 

Ex Parte Eason, 35 S. C, 602; 15 S. E., 800. 

to'^order ^hat '^^^ Supreme Court shall on or before the last day of any 
ai?otted"to the stated term make and file an order designating the order in 
h e a r 1 n g 01 -\yhich the causcs from the several circuits shall be called at the 

causes i r o m 

each Circuit, stated tcrms of the Court next ensuing, which order shall 
488^^^' ^■^^^■' designate the time to be alloted to the hearing of the causes 
from each circuit. 
May c a 1 1 jf ^]-^g cascs from the several circuits cannot be heard in the 

extra term, inc. 



■yr^ii period allotted &s prescribed in the following Section, the Court 

^- shall continue the same to be heard after the regular call of the 

Circuits, or may call an extra term for the hearing of the same 

or continue them until the next stated term thereafter. 

Ho w many ggp^ \/^ jj^ ^lW cases dccidcd by the Supreme Court the con- 
must agree to j sr 

ju°d"ment"*^ ^ currcncc of three of the Justices shall be necessary for a re- 

Yi, versal of the judgment below: but if the four Justices equally 

divide in opinion the judgment below shall be affirmed, subject 



OF SOUTH CAROLINA. 13 

A. D. 1902. 



to the provisions hereinafter prescribed. Whenever upon the ^--^v^<— ' 
hearing of any cause or question 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 be- 
tween the Constitution and laws of this State and of the United ci^uft^ judges 
States, or between the duties and obligations of her citizens gf^^^^f^^l'^^fg'gy" 
under the same, upon the determination of which the entire p''^'"^ Judges. 
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 involved 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 Cir- 
cuit 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 number shall retire. Whenever the Circuit Judges are 
called to sit with the Justices 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. 

Sec. 15. If, at any term of the Supreme Court, proper and pj.^Jj^"^QQ^g° 

convenient room, both for the consultation of the Judges and ^ 

the holding of the Court, with furniture, attendants, fuel, lights ^gg^^''''- ^^'*''-' 

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 carrying the order into effect shall be paid from the 

State Treasury. 

Sec. 16. The Supreme Court may be held in other buildings Courts where 

t^ J o held. Adjourn- 

than those designated by law as places for holding Courts, and ment. 

lb., § 16. 




CODE OF CIVIL PROCEDURE 



at a different place, in the same city or town, from that at 
which it is appointed to be held. Any one or more of the 
Judges may adjourn the Court with the like effect as if all 
were present. 



TITLE III. 



CIRCUIT COURTS. 



Sec. 

17. Division of tlie State into Cir- 

cuits. 

18. Time of holding Courts in First 

Circuit. 

19. Time of holding Courts in Second 

Circuit. 

20. Time of holding Courts in Third 

Circuit. 

21. Time of holding Courts in Fourth 

Circuit. 

22. Time of holding Courts in Fifth 

Circuit. 

23. Time of holding Courts in Sixth 

Circuit. 

24. Time of holding Courts in Sev- 

enth Circuit. 

25. Time of holding Courts in Eighth 

Circuit. 



Sec. 

26. After General Sessions Court, 

Judge may open Court of 
Common Pleas. 

27. Judges' power to adjourn Courts 

of Common Pleas. 
27a. Power to open Common Pleas 
before completion of crimi- 
nal business. 

28. Special sessions of Circuit Courts. 

29. Petit jurors in Common Pleas 

and General Sessions. 

30. Adjournment of Circuit Court. 

31. Qualification of Judges. 

32. Circuit Courts made Courts of 

record. 

33. Clerk and Deputy Clerk of Cir- 

cuit Courts. 



Division of 
the State into 
Circuits. 

1S70,XIV., §17; 
1868, XIV., 5, 
72; 1869, XIV., 
19 8; 1872, 
XV., 146;XVI, 
376; lb., 296; 
1871, XIV., 659, 
§2; 1882,XVII., 
682; 1889, XX., 
518; lS71,XiV., 
696, § C; 1897, 
XXII., 583, § 
10, and 597, § 
5; 1807, XXII., 
592, § 7; 1897, 
XXII., 609, § 
11; Con., 1895, 
page 90 and 
189 6, XXII., 
250, § 6; 1899, 
XXIII., 31, § 
5; 1898, XXII., 
879 ; 1899 , 
XXIII., 179, § 
4. 



Section 17. The State is divided into eight Circuits, as fol- 
lows : 

1. The Counties of Charleston, Berkeley, Dorchester and 
Orangeburg shall constitute the First Circuit. 

2. The Counties of Aiken, Bamberg, Barnwell, Beaufort, 
Colleton and Hampton shall constitute the Second Circuit. 

3. The Counties of Sumter, Clarendon, Williamsburg, 
Georgetown and Florence shall constitute the Third Circuit. 

4. The Counties of Chesterfield, Marlboro, Darlington, 
Marion and Horry shall constitute the Fourth Circuit. 

5. The Counties of Kershaw, Richland, Edgefield, Lexing- 
ton and Saluda shall constitute the Fifth Circuit. 

6. The Counties of Cherokee, Chester, Lancaster, York and 
Fairfield shall constitute the Sixth Circuit. 



OF SOUTH CAROLINA. 




7. The Counties of Greenwood, Newberry, Laurens, Spar- 
tanburg, and Union, shall constitute the Seventh Circuit. 

8. The Counties of Abbeville, Anderson, Oconee, Pickens, 
and Greenville shall constitute the Eighth Circuit. 

Sec. 18. The Courts of the First Circuit shall be held as 
follows : 

I. The Court of General Sessions at Charleston, for the p-;°t"''* Qrcui't 
County of Charleston, on the fourth Monday in February, ^.^c^f'^"'"" 
the third Monday in June and the first Monday in November ; issr, xix., 
and the Court of Common Pleas at the same place on theyi^jig^g^g^'xxii', 
second Monday in March, the first Monday in July and the xx^jjj^gi ^^^d 
second Monday in November. The jurors for the March term xxni.,'^ 309.°' 
of the Court of Common Pleas shall not be summoned to 
attend said Court until the Monday after the day fixed herein 
for the holding of said Court; but in case the business of the 
Court of General Sessions be completed before the said last 
mentioned day, but after the day herein fixed for the holding 
of said March term of the 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 
give judgment by default, and transact all other business ex- 
cept trials by jury. With a view to facilitate the hearing of 
equity cases no jurors shall be summoned for the July term 
of the Court of Common Pleas, but the Court may retain the 
juries serving in the Court of General Sessions as juries in the 
Court of Common Pleas, for the purpose of rendering verdicts 
by default in cases requiring the intervention of a jury on the 
call of the default docket, and said Court shall also hear any 
pending motions to refer the issues of fact in equity cases to a 
jury as though the trial of said issues could be heard at said 
term. 



2. The Court of General Sessions for the County of Berke- ^ in Berkeley 

■^ . County. 

ley shall be held at Monck's Corner on the first Tuesdays m — — — — — - 

-' •' 1886, XIX., 

February and June and the second Tuesday in October; and 4 73; i|'J*^> 
the Court of Common Pleas at the same place on the Wednes- 
days succeeding the first Tuesdays in February and June and 
the Wednesday succeeding the second Tuesday in October. 

3. The Court of General Sessions for the County of Orange- ^^J^ c?unfy^^' 
burg shall be held at Orangeburg on the second Monday in- ^^ 
January and the first Monday in May and the third Monday in 
September ; and the Court of Common Pleas at the same place 



i6 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^ » ^ on the Wednesdays succeeding the second Monday in January, 

the first Monday in May and the third Monday in September. 

In Dorches- a jhc Court of General Sessions for the County of Dor- 
ter County. ^ -J 

1897 XXII Chester shall be held at St. George's on the second Monday in 

XXII %i^^^' February, and the third Monday in October ; and the Court of 

1901 XXIII Common Pleas at the same place, on the Wednesdays succeed- 

624. ing the second Monday in February, and the third Monday in 

October. 

Sec. 19. The Circuit Courts of the Second Circuit shall be 
held as follows : 
Fall terms of j. Fall tcrms : 

Court for 

Beaufort. The Court of General Sessions at Beaufort, for the County 

6"f^'- W^dl"-^^ Beaufort, on the first Monday of September, and the Court 
igo?' ^ xxin ' ^^ Common Pleas at the same place on the Wednesday follow- 
624- ing said Monday. 

Colleton. The Court of General Sessions at Walterboro, for the County 

xxin ' 310°°' °^ Colleton, on the third Monday in November, and the Court 
of Common Pleas at the same place on the Wednesday follow- 
ing said Monday. 
Hampton. fhc Court of General Sessions at Hampton on the first Mon- 

^^1896, XXII., day in October, and the Court of Common Pleas at the same 
place on the Wednesday following the said Monday. 
Aiken. The Court of General Sessions at Aiken, for the County of 

1897, XXII., Aiken, on the third Monday in October, and the Court of Com- 

444. 

mon Pleas at the same place on Wednesday following the said 
Monday. 
Barnwell. The Court of General Sessions at Barnwell, for the County 

^b- of Barnwell, on the first Monday in November, and the Court 
of Common Pleas at the same place on the Wednesday fol- 
lowing said Monday. 
2. The Winter term. 
Winter terms The Court of General Sessions at Beaufort, for the County 
Beaufort. of Bcaufort, on the first Monday in January, and the Court of 
1901, XXIII., Common Pleas at the same place on the Wednesday follow- 
ing the said Monday. 
Colleton. The Court of General Sessions at Walterboro, for the Coun- 



7b. , 1900, ty of Colleton, on the fourth Mondav of March, and the Court 

XXIII. 310. ^ 

of Common Pleas at the same place on the Wednesday follow- 
ing said Monday. 
Hampton. The Court of General Sessions at Hampton, for the County 



1896, XXII., of Hampton, on the first Monday in February, and the Court 



OF SOUTH CAROLINA. 




of Common Pleas at the same place on the Wednesday follow- 
ing said Monday. 

The Court of General Sessions at Aiken, for the County of -'^'^^"- 

Aiken, on the third Monday of February, and the Court of ^^^j- > ^J ^ '^' 
Common Pleas at the same place on the Wednesday following 
said Monday. 

If there be three weeks for the Winter term of the Court at 
Aiken, three separate sets of petit jurors, one for each week, 
shall be drawn according to law. 

The Court of General Sessions at Barnwell, for the County Bamweii. 
of Barnwell, on the second Monday in March, and the Court ^^• 
of Common Pleas at the same place on the Wednesday follow- 
ing said Monday. 

The Summer term : 

The Court of General Sessions at Beaufort, for the County s™mer^ terms 
of Beaufort, on the fourth Monday in May. Beaufort. 

The Court of General Sessions at Walterboro, for the Coun- ^goi xxiii. 
ty of Colleton, on the first Monday of August. ^"^■ 

The Court of General Sessions at Hampton, for the County '^°"^^°"- 
of Hampton, on the second Monday in June. 310^°°' ■^■^^^■' 

The Court of General Sessions at Aiken, for the County of jj ^^n 
Aiken, on the third Monday in June. is96 xxii 

The Court of General Sessions at Barnwell, for the County 20- 
of Barnwell, on the second Monday in July. Eamweii. 

The Court of Common Pleas for Barnwell County shall hold^^^^- ' ^|^^' 
a Summer term beginning on the third Tuesday of July, at 
which term may be tried civil causes properly triable by a jury 
as at other times of said Court, as well as other causes not re- 
quiring a jury, and the separate set of petit jurors shall be 
drawn for said Court of Common Pleas. • 

4. Courts in Bamberg County : 

The Court of General Sessions for Bamberg County shall For Bamberg. 
be at Bamberg, in said County, on the second Monday of _ i897, xxn., 
April and the fourth Monday of July and the first Monday of 
December in each year ; and tho Court of Common Pleas at 
same place on Wednesdays following the Mondays on which 
the Court of General Sessions opens for said County. 

Sec. 20. The Circuit Courts of the Third Judicial Circuit Courts in 

-' Third Circuit. 

of this State shall be held as follows : ,,^,, 

1SS4, XVIII., 

I. The Court of General Sessions at Florence, for the Coun-sse ; i896, 

XX I I ., 22; 

tv of Florence, on the Monday before the last Monday in Feb-i8 9 9> xxii., 

' - - 3 2 ; 1 9 , 

ruarv, the first Monday after the fourth Monday in May, and xxiii., 3 11 ; 

" ' -^ ^ J > 1901^ XXIII., 

C25. 
2.—C. p. 



i8 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

"^-^v-*-^ the second Monday in October; and the Court of Common 
Pleas, at the same place, on the Wednesday following the Mon- 
day before the last Monday in February, the first Monday after 
the fourth Monday in May, and the second Monday in Octo- 
ber. 

toJn''c?unt^ff" 2. The Court of General Sessions at Georgetown, for the 
County of Georgetown, on the second Monday in March, the 
third Monday in May and the seventh Monday after the fourth 
Monday in October; and the Court of Common Pleas at the 
same place, on the Wednesdays first succeeding the Mondays 
herein fixed for the holding of the Court of General Sessions 
at said place. 

burg County.^' 3- The Court of General Sessions at Kingstree, for the Coun- 
ty of Williamsburg, on the third Monday in March, the fourth 
Monday in May, and the fifth Monday after the fourth 
Monday in October; and the Court of Common Pleas at the 
same place, on the Wednesdays first succeeding the Mondays 
lierein fixed for holding the Court of General Sessions at said 
place, except the j\lay term thereof. 

cJumy!"'''^°" 4- The Court of General Sessions at Manning, for the 
County of Clarendon, on the fourth Monday in March, the 
second Monday after the fourth Monday in May, and the third 
Monday after the fourth Monday in October; and the Court of 
Common Pleas at the same place, on the Wednesdays first suc- 
ceeding the Mondays herein fixed for holding the Court of 
General Sessions at said place, except the summer term thereof. 

County." "™ ^^ 5- The Court of General Sessions at Sumter, for the County 
of Sumter, on the first Monday after the fourth Monday in 
March, the third Monday after the fourth Monday in 
May and the first Monday after the fourth Monday in October ; 
and the Court of Common Pleas, at the same place, on the 
Thursdays first succeeding the Mondays herein fixed for hold- 
ing the Court of General Sessions at said place, except the 
June term thereof : Provided, That no peremptory call of Cal- 
endar No. I shall be made in said County of Sumter before 
the second Monday after the fourth Monday in March, and 
the second Monday after the fourth Monday in October. 

p o w e rs of Nothing contained in this Section shall be construed to pre- 
judges at sum- "^ _ _ ^ 

mer term. vcnt the presiding Judge from hearing and determining in any 

of the Counties of the Third Circuit at the summer term of the 

Court all cases which do not require the intervention of a jury. 

Sec. 21. The Circuit Courts of the Fourth Circuit in the 



OF SOUTH CAROLINA. 



19 



year A. D. 1897, and in every alternate year thereafter, to 
wit: In A. D. 1899, in A. D. 1901, and so on shall be held as 
follows : 

1. The Court of General Sessions for the County of Horry 
at Conway, on the first Monday of March, and the first Mon- 
day of October; and the Court of Common Pleas at the same 
place on the Wednesdays next following the first Monday of 
March and the first Monday of October. 

2. The Court of General Sessions for the County of Marion, 
at Marion on the second Monday of March, the second Monday 
of June, and the second Monday of October ; and the Court of 
Common Pleas at the same place on the Wednesdays following 
the second Monday in ]\Iarch and the second Monday in 
October. 

3. The Court of General Sessions for the County of Darling- 
ton, at Darlington on the fourth Monday of March, the third 
Monday of June, and the fourth Monday of October ; and the 
Court of Common Pleas at the same place on the Wednesdays 
following the fourth Monday of March and the fourth Monday 
of October. 

4. The Court of General Sessions for the County of Chester- 
field at Chesterfield on the Tuesdays next following the third 
Monday after the fourth Monday of March, and the fifth Mon- 
day after the fourth Monday of October; and the Court of 
Common Pleas at the same place on the Wednesdays next fol- 
lowing the third Monday after the fourth Monday of March 
and the fifth Monday after the fourth Monday of October. 

5. The Court of General Sessions for the County of Marl- 
boro, at Bennettsville on the fifth Monday after the fourth 
Monday of March, the fourth Monday in June and the third 
Monday after the fourth Monday of October ; and the Court of 
Common Pleas on the Wednesdays next following the fifth 
Monday after the fourth Monday of March, and the third Mon- 
day after the fourth Monday of October. And the Circuit 
Courts of the Fourth Circuit in the year A. D. 1898, in the 
year 1900, in the year 1902, and so on in each alternate year 
from 1898, shall be held as follows : 

I. The Court of General Sessions for the County of Horry, 
at Conway, on the first Monday of March, and the first Mon- 
day of October ; and the Court of Common Pleas at the same 
place on the Wednesdays next following the first Monday of 
March, and the first Monday of October. 



A. D. 19(B. 



Courts in -Ith 
Circuit in 1897 
and every al- 
ternate year. 

1883, XVIII, 
305;1S8-, XIX., 
9 99, 1897 , 
XXII., 404, 
19 01, XXIII, 
627. 



Horry. 
Marion. 



Darlington. 



Chesterfield. 



Marlboro. 



Horry. 



20 



CODE OF CIVIL PROCEDURE 



A. D. 1902. 



Darlington. 



Chesterfield. 



Marlboro. 



2. The Court of General Sessions for the County of DarHng- 
ton, at Darhngton, on the second Monday of March, the second 
Monday of June, and on the fourth Monday after the fourth 
Monday of October; and the Court of Common Pleas at the 
same place on the Wednesdays next following the second Mon- 
day of March, and the fourth Monday after the fourth Mon- 
day of October. 

3. The Court of General Sessions for the County of Chester- 
field at Chesterfield on the Tuesday next following the first 
Monday after the fourth Monday in March, and the second 
Monday of October; and the Court of Common Pleas at the 
same place on the Wednesdays next following the first Monday 
after the fourth Monday of March and the second Monday of 
October. 

4. The Court of General Sessions for the County of Marl- 
boro, at Bennettsville on the third Monday after the fourth 
Monday of March, the third Monday of June and the fourth 
Monday of October, and the Court of Common Pleas at the 
same place on the Wednesdays next following the third Mon- 
day after the fourth Monday of March and the fourth Monday 
of October. 

5. The Court of General Sessions for the County of Marion, 
at Marion on the fifth Monday after the fourth Monday of 
March, the fourth Monday in June, and the second Monday 
after the fourth Monday of October ; and the Court of Common 
Pleas at the same place on the Wednesdays next following the 
fifth Monday after the fourth Monday of March, and the sec- 
ond Monday after the fourth Monday of October. That all 
recognizances, pleadings, notices and papers whether dated 
heretofore or hereafter, shall be made returnable and appli- 
cable to the terms of the Court as fixed by this Section, and 

given by Clerk the Clerk of Court for each County in this Fourth Circuit shall 
give notice through one County paper at least thirty days be- 
fore each session of Court, stating the day of the month, on 
which the next Court will open for the County. 

The business of the Court of General Sessions shall have 
precedence in the respective Counties of this Circuit, and this 
Section shall not be construed as to terminate the Court of 
General Sessions before the business thereof is disposed of; 
nor shall it be so construed as to prevent the opening of the 
Court of Common Pleas for the purpose of hearing causes by 
consent of parties before the times herein fixed for the opening 



Marion. 



OF SOUTH CAROLINA. 21 

A. D. 1902. 

of the Court of Common Pleas. And the presiding Judge of ' r-'^^ 

any of the said Courts is herebv authorized to open the Court , Opening o f 

'^ the Common 

of Common Pleas, and to try by consent of parties at any time p^^^®- 
between the days on which said Circuit Courts 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. 

Sec. 22. The Circuit Courts of the Fifth Judicial Circuit 
shall be held as follows : 

1. The Court of General Sessions at Camden, for the Coun- fif^^^^^j^'^^^jj^y""' 
ty of Kershaw, on the first Mondays in February, June and ~~^-i ^^ 
September, and the Court of Common Pleas at the same place ^^^^jj 24^899' 
on the Thursdays following the first Mondays in February and ^^m-' 33. 
September. 

2. The Court of General Sessions at Lexington, for the Lexington. 
County of Lexington, on the third Monday in February, the 

second Monday in June and the third Monday in September, 
and the Court of Common Pleas at the same place on the 
fourth Mondays in February and September. 

3. The Court of General Sessions at Edgefield, for '^^'^ -^l^Hlx^ 

County of Edgefield, on the second Monday of March, first County. 

Monday of August, and the third Monday of November; and xxii.^'iss'''^^^' 
the Court of Common Pleas, at the same place, on the third xxii, <m, 1899 
Monday in INIarch, and the fourth Monday in November. 

4. The Court of General Sessions at Columbia, for the 
County of Richland, on the first Monday of April, the fourth 
Monday of June and the third Monday of October, and the 
Court of Common Pleas at the same place on the second Mon- 
day in April and first Monday after the fourth Monday in 
June and the fourth Monday in October. 

<.. The Courts of General Sessions at Saluda Court House, Courts in Sa- 

^ __ luda County. 

for the County of Saluda, on the first Monday of May, the —7. 

third Monday of August, and the first Monday of December; 
and the Court of Common Pleas at the same place, on the 
Wednesday following the first Mondays in May and De- 
cember. 

6. A panel of thirtv-six jurors shall be drawn to serve for . Spedai pro- 

^ ^ ■> visions as to 

one week for the Courts of General Sessions and Common Lexington. 
Pleas in Lexington County for the terms commencing on the^^^^^^- xxii., 
third Mondays in February and September in each year, and 
a like panel for said Courts to serve for the remainder of each 



22 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

"^•^"v"*^ of such term commencing on the fourth Mondays in February 
and September of each year, 

when cifiei^" 7- The presiding Judge shall call calendars two (2) and 

~j^_ three (3) peremptorily at the close of the Sessions Court in 

Lexington County in February and September in each year 
if the Sessions Court is adjourned before the time herein fixed 
for holding the Courts of Common Pleas for said terms. 

s^X'circu'^ Sec. 23. The Circuit Courts of the Sixth Circuit shall be 
1885, XIX., held as follows : 

'xl\i.^,^ii\ I- The Court of General Sessions at Winnsboro, for the 

1^00, xxiiL, County of Fairfield, on the third Monday of February, the 
I n Fairfield sccoud Monday in June and the third Monday in September ; 

County. g^j^^ ^j-^g Court of Commou 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 Cal- 
endar I shall be forced to trial without agreement of attorneys 
until the Mondays following the third Monday in February 
and the third Monday in September. 

County.'^'^'^°''^^ 2. The Court of General Sessions, at Gaffney City, for the 
County of Cherokee, on the first Monday of March, the third 
Monday of June, and the first Monday after the fourth Mon- 
day in September ; and the Court of Common Pleas on the 
Wednesdays following the first Monday of March and the 
first Monday after the fourth Monday in September : Provided, 
That no cause on Calendar i shall be forced to trial without 
agreement of attorneys until the Monday following the first 
Monday of March and the first Monday after the fourth Mon- 
day in September. 

Co^unty^"'^^^*^'^ 3- The Court of General Sessions at Lancaster, for the 
County of Lancaster, on the third Monday of March, the 
Fourth Monday of June, and the third Monday in October; 
and the Court of Common Pleas at the same place on the 
Wednesdays following the third Monday in March and the 
Wednesdays following the third Monday in October: Pro- 
vided, That no jury cases shall be tried before the fourth Mon- 
day in March and the fourth Monday in October, except by 
consent. 

County. " " 4. The Court of General Sessions, at Chester, for the Coun- 
ty of Chester, on the first Monday after the fourth Monday in 
March, the first Monday in July, and the first Monday after the 
fourth Monday in October; and the Court of Common Pleas 
at the same place on the Wednesdays following the first Mon- 



OF SOUTH CAROLINA. 




day after the fourth Monday in March, and the first Alonday 
after the fourth Monday in October : Provided, That Calendar 
I shall not be called peremptorily before the Monday following 
the first Monday after the fourth ^Mondays in ^larch and Oc- 
tober. 

5. The Court of General Sessions, at Yorkville, for the i" ^'°'^ ^o. 
County of York, on the third Monday after the fourth Monday 

in March, the third Monday after the fourth Monday of June, 
and the third Monday after the fourth Monday in October; 
and the Court of Common Pleas, at the same place, on the 
Wednesdays following the third Monday after the fourth 
Monday in March, and the third Monday after the fourth 
Monday in October: Provided, That Calendar i shall not be 
called peremptorily until the ^Mondays following the third 
Monday after the fourth Monday of March, and the third 
Monday after the fourth Monday of October. 

6. Whenever in this Section provision is made for Courts ^P°Yn ^of 
of General Sessions only, the Judge presiding shall, at the Judges at said 
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 cases, 
and transact all other business of a regular term of Court of 
Common Pleas, except trials by jury. 

Sec. 24. The Circuit Courts of the Seventh Judicial Circuit „ Courts in the 

seventh C i r - 

shall be held as follows : cuit. 



1. The Court of General Sessions at Union, for the Countv issq, xx., 

'359;1896, 

of Union, on the third ]\Iondav in January, the third Monday ^xii,25j isos, 
in June and the third Alonday in September; and the Court xxiii; 35. 
of Common Pleas at the same place on the Wednesdays fol- in Union 

1 r- -L County. 

lowing the third ]\'Iondays in January, June and September. 

2. The Court of General Sessions at Laurens, for the Coun- in Laurens 

County. 

ty of Laurens, on the first Monday in February, the third Mon- 
dav in Julv and the second IMonday in October ; and the Court 
of Common Pleas at the same place on the Wednesdays fol- 
lowing the first ^londay in February and the second Monday 
in October. 

3. The Court of General Sessions at Newberry, for the ^i^^gf^'-^^''^ 
Countv of Newberry, on the third IMonday in February, the 

fourth iSIonday in July and the fourth Monday in October; 
and the Court of Common Pleas at the same place on the 
fourth ]\Ionday in February and the Monday following the 
fourth ]\Iondav in October: Provided, hozvever. That provis- 



24 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

• « ' ions of Section 27 of the Code of Civil Procedure shall not 

apply to the Courts of Newberry County. 
Gre°e"nwood 4- The Court of General Sessions at Greenwood, for the 
County. County of Greenwood, on the fourth Monday in March, the 

first Monday in August, and the second Monday in Novem- 
ber ; and the Court of Common Pleas at the same place on the 
Wednesdays following the fourth Monday in March, the first 
Monday in August and the second Monday in November, 
burg Coun'J" 5' '^^^ Court of General Sessions at Spartanburg, for the 
County of Spartanburg, on the first Monday in January, the 
first Monday in March, the first Monday in May, the first 
Monday in July, the first Monday in October, and the fourth 
Monday in November; and the Court of Common Pleas at 
the same place on the second Monday in March, the second 
Monday in May, the second Monday in July, and the first 
Monday after the fourth Monday in November : Provided, 
That should the business of the Court of General Sessions for 
said County at any term be completed, or suspended, before 
the expiration of the term, 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 
time only by consent of the parties or their attorneys, 
appointing 6. Sliould the Circuit Judge assigned to hold said Courts 
c" u^r t°if the be for any reason unable to hold said Courts, the Chief Justice 
is" miab!e°"to of the Supreme Court shall assign another Circuit Judge, dis- 
presi e. engaged, to hold said Courts ; and if there be no Circuit Judge 

disengaged, the Governor shall, on the certificate of the fact 
and the recommendation of the Chief Justice, appoint and com- 
mission a special Judge, some person learned in the law, to hold 
said Courts. The special Judge so appointed shall be paid as 
provided by law for other special Judges. 
drawn. ' 7. The Jury Commissioners of each of said Counties shall 

draw jurors for the several terms of said Courts as now pro- 
vided by law, except in the County of Spartanburg, where they 
shall draw thirty-six jurors to serve at each term of the Court 
of General Sessions, and a like number for each term of the 
Court of Common Pleas ; and separate writs of venire shall be 
issued for the jurors drawn for each of said terms : Provided, 
That the Sheriffs of the Counties of Greenwood and Spartan- 
burg shall be entitled to no more than fifteen dollars for the 
service of each venire. Said Sheriffs mav serve the venire 



OF SOUTH CAROLINA. 




on jurors drawn for any term of said Courts by mail, if, at 
least two weeks before the opening of said term, they shall 
deposit a summons, in the usual form, in the postoffice, sealed 
in an envelope, and addressed to each of them, at the post- 
office nearest his residence, with the postage thereon prepaid. 
Proof of compliance with the foregoing requirements shall 
be held to be prima facie evidence of service. 

The Clerk of Court for Spartanburg and Greenwood Coun- .Notice to be 

^ ° _ given by Clerks 

ties shall each forthwith give notice, by advertisement, of the 
March terms of said Courts to be held by said Counties. 

Sec. 25. The Circuit Courts of the Eighth Circuit shall be issQ, xx 
held as follows : i^i^ s;^ i s^o^e, 

1. The Court of General Sessions at Abbeville, for the Coun-isQs, xxiii , 

' 37;1900, XXIII, 

ty of Abbeville, on the third Monday in February, the third s^i,^^;^ ^g^gg ^' 
Monday in Tune, and the first Mondav after the fourth Mon- ^ ^ . 

•-'' ' .Courts in 

day in September ; the Court of Common Pleas for the said Abbeville Co. 
County at the same place, on the Wednesdays following the 
third Monday in February, the third Monday in June, and the 
first Monday after the fourth Monday in September. 

2. The Court of General Sessions at Anderson, for the Courts in An- 

derson County. 

County of Anderson, on the second Monday in February, the 
second Monday in June, and the fourth Monday in Septem- 
ber; and the Court of Common Pleas at the same place on 
the first Monday in March, the first Monday after the fourth 
Monday in June, and the third Monday after the fourth Mon- 
day in September : Provided, That in the said County of An- 
derson the jurors summoned for the General Sessions Court 
shall serve at the succeeding term of the Court of Common 
Pleas without mileage for said term : Provided, That the 
Court of Common Pleas may be opened at any term of the 
General Sessions for the purpose of taking judgments on Cal- 
endar 3, and for the trial of such other equity causes as may 
be ripe for hearing. 

3. The Court of General Sessions at Walhalla, for the ^^{^^^^ 0*^°"^^ 
County of Oconee, on the second Monday in March, the sec- 
ond Monday after the fourth Monday in June, and the sixth 
Monday after the fourth Monday in September ; and the Court 

of Common Pleas for said County at the same place, on the 
Wednesdays next following the second Monday in March, the 
second Monday after the fourth Monday in June, and the 
sixth Monday after the fourth Monday in September. 

4. The Court of General Sessions at Pickens, for the 



26 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

'' » ' Count}^ of Pickens, on the third Monday in March, the third 

cointy.'^'''^^"" ^on^^y after the fourth Monday in June and the 
fourth jMonday after the fourth Monday in September ; and the 
Court of Common Pleas for said County at the same place on 
the Wednesdays next following the third Monday in March, 
the third Alonday after the fourth Monday in June, and the 
fourth Monday after the fourth Monday in September. 
Greenville. -_ -pj^g Court of General Sessions at Greenville, on the 
629!''^' ■^^^^^•' fourth Monday in January, the last Monday in May and the 
second Monday in September: Provided, That the Court of 
Common Pleas may be opened at any term of the General Ses- 
sions for the purpose of taking judgments on Calendar 3, and 
for the trial of such equity causes as may be agreed upon by 
the parties thereto or by their attorneys ; and the Court of Com- 
mon Pleas for the said County at the same place on the fourth 
Monday in Alarch, the fourth jMonday after the fourth Monday 
in June, and the eighth Monday after the fourth Monday in 
September. 
Civil cases at 6_ Xo civil business requiring a jury shall be heard at the 

Summer terms ^ o j , 

— Summer Term of the Court of Common Pleas for any County 

in said Circuit, except in the Counties of Greenville and An- 
derson. 

After General Scc. 26. Whenever in this Title provision is made for 

sessions Court, _ '■ 

Judge mav Courts of General Sessions onlv, the Judge presiding shall, at 

open Court of _ - ' J & 1" & ' 

Common Pleas the conclusiou of any such Court of General Sessions, open 
1S7S, XVI., the Court of Common Pleas without iuries, and give judg- 

703;18S3, ^ .. 

XVIII., 5S6. ments 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. 

Applies wherever provision is made by the statute for opening the general 

sessions only. — Burwell & Dunn Co. v. Chapman, S. C, ; 38 S. E., 224. 

Though the Common Pleas so opened is not a regular term within the meaning of 
Sec. 311.— McLaurin v. Kelly, 40 S. C, 486; 19 S. E., 143. 

Judge's power gee. 27. Should the business before the Court of General 

to adjourn 

Court of Com- Scssious at auv term not be completed on the arrival of the 

mon Pleas. - _ ^ 

is'o xi\' ^^y fixed by law for the holding of the Court of Common 
|.27; 1SS9, XX, Pleas for said County, the Judge presiding may, in his dis- 
cretion, adjourn said Court of Common Pleas until the bus- 
iness of the Court of General Sessions shall have been con- 
cluded. But the provisions of this Section shall not apply to 
the Courts held in the County of Newberry. 

It is necessary to such adjournment that the Court of Common Pleas should 
be first opened on the day fixed for its holding. — McKellar v. Parker, 29 S. C, 
237; 7 S. E., 295. But where the officers and machinery are present in court 
house on the fixed day, that Court is then opened by operation of law, without 



OF SOUTH CAROLINA. 27 

A. D. 1902. 



any formality. — Hardin v. Trimmier, 30 S. C, 391; 9 S. E., 342; Miller v. George, v^^^y-^.^ 
30 S. C, 526; 9 S. E., 659. 

Sec. 27a. Should the business before the Court of General g;^;^^^^^ ^f/^^ 
Sessions at any Term in any Circuit in this State be completed tb °''of'^°CTimT- 
or suspended before or after the day fixed by law for the open- "ai business. 
ing of the Court of Common Pleas for any County in the State, ^^q^' ^^m-' 
the presiding Judge may, in his discretion, before the comple- 
tion 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. 

Sec. 28. Special sessions of the Courts of Common Pleas gio^P^^f ci?- 
or General Sessions may be held whenever so ordered, either '^"^^ Courts. 
by the Chief Justice or by the Circuit Judge at the time hold- § 2^si'i's7^'' 
ing the Circuit Court of the County for which the extra term i|^^" xviilI 
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 Cir- 
cuit Judge so ordering the same. No cause shall be tried 
at any extra term of the Court of Common Pleas for any Cir- 
cuit unless the said cause shall have been previously docketed 
upon some one of the calendars of the last preceding regular * 
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 pub- 
lished nearest the place where the session is to be holden. All 
processes, writs, and recognizances of every kind, whether 
respecting juries, witnesses, bail, or otherwise, which relate 
to the cases to be tried at the said special session, shall be 
considered 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 special 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. 



28 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

'^ ■ y —"^ As to Other provisions for special terms, see Code of 1902, Vol. i, Sec. . 

An order of reference cannot be granted at a special term in any case not docketed 

at the preceding regular term. — Simms v. Phillips, 4 S. C, 149; 24 S. E., 97. 

But if no objection be raised, any cailse may be heard. — Rivers v. Priester, 58 

S. C, 194; 36 S. E., 543. 

CommoTpiei^ Scc. 29. Petit jurors summoned to attend the Court of Gen- 

IJ'ssion^^'^"^^ ei'al Sessions in any County, except the County of Charles- 

1870, XIV. , ton, shall also attend and serve as jurors for the Court of Com- 

^ -^" mon Pleas next ensuing in and for said County, except as oth- 

ervise provided in Section 2927 of the Code of 1902. 

Sec. 30. 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, whenever there is a dangerous and general disease at 
the place where said Court is usually holden. 

Such adjournment having been ordered, no inquiry can be made as to whether 
conditions existed. — Adickes v. Allison, 21 S. C, 256. But when the term of 
I Court fixed by law has expired, the Judge has no power to continue its existence 

and convene it at another time. — Ex Parte Lilly, 7 S. C, 373. But Judge may 
order adjournment of Court from day to day till a fixed day before the next suc- 
ceeding Court, and trj- a cause on that day. — DeLeon v. Barrett, 22 S. C, 412. 

^Adjournment ^^^^ ^^ jj^g Circuit Judgcs of this State, upon their elec- 
C ourts. ^-Q^^ shall qualify by taking the oaths required by the Consti- 

ib., § 30. tution of this State before a Justice of the Supreme Court, a 
cfr^c^uit^ jud°^ Circuit Judge, ' a Clerk of the Supreme Court, or a Clerk of 
ma y qualify." ^^g Q^^^^ q£ Commou Plcas, or a Probate Judge of the 
X v'i i^ 502I County, and shall forthwith enter upon their duties ; and said 
1^9 8, XXII., Q^ti-^s j^T^^st be filed in the office of the Secretary of State. 
Circuit Courts ^^^' ^^- ^lie Circuit Courts herein established shall be 
™f ^ecord!°"''*^ Courts of rccord, and the books of record thereof shall, at all 
1870, XIV., times, be subject to the inspection of any person interested 
§ ^^- therein. 

Deputy"^^ Clerk ^cc. 33. The Clerk elected in each County pursuant to Sec- 
Cour^s! '' '^ " ' ' tion 27 of Article V. of the Constitution shall be Clerk of the 
75_, § 33 Courts of General Sessions and Common Pleas, and may ap- 
point 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 au- 
thority 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 enter- 
ins: on the duties of the office. 



OF SOUTH CAROLINA. 



Generally as to this Title: 

Proceedings of a Circuit Court, held by the Judge of another Circuit, at a time 
unauthorized 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 holding 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 performance 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., Sees. 13-14; Ex Parte Parker, 6 S. C, 
472; State V. Parker, 7 S. C, 235. 



TITLE IV. 

PROBATE COURT. 



29 



A. D. 1902, 



Sec. 

34. Sessions. 

35. Court of record. Clerk. 

36. Duties of Clerk. 

37. Jurisdiction of Judges. 

38. In relation to guardians 

39. Administration, and probate of 

wills. 

40. Settlement of estate in the Coun- 

ty where will proved ; sale 
of real estate. 

41. When to grant discharge to ad- 

ministrators, &c. 

42. All proceedings relative to estates 

under guardianship, had in 
the Court of Probate. 

43. Judges not to act when inter- 

ested. When Judges of ad- 
joining County to act. 

44. Power to administer oaths. 

45. Probate Court may issue war- 

rants and processes. 

46. In cases of contumacy, may com- 

mit to jail. 

47. When depositions may be taken 

and used. 

48. Exclusive jurisdiction after once 

acquired. 

49. Jurisdiction not to be collaterally 

impeached. 

50. When minor may choose guar- 

dian ; guardian interested ; 
where appointed. 

51. Authorized to permit sale and 

settle accounts of guardian. 

52. Judges may appoint times and 

places for holding Courts. 



Sec. 

53. Open at all times for certain 

business. 

54. Adjournment of Court. When by 

Clerk. 

55. Appellate jurisdiction of Circuit 

Court. 

56. Jurisdiction of Supreme Court in 

probate matters. 

57. Appeal to the Circuit Court to be 

taken within fifteen days. 

58. Certified copies of record to be 

filed in Circuit Court. 

59. Proceedings stayed by appeal. 

60. How Circuit Court may proceed 

to the trial. 

61. Appellant neglecting to enter ap- 

peal, judgment affirmed with 
costs. 

62. Final decision to be certified to 

Probate Court. 

63. Probate Judge not to have voice 

in determining appeal. 
When may practice law. 

64. Proceedings may be commenced 

by petition. 

65. Supreme Court to make rules. 

County Commissioners to 
provide furniture, &c., for 
office. 

66. May punish for contempt. 

67. Enrolment of decrees. 

68. To keep index of decrees enrolled. 

69. Empowered to issue executions. 

70. Judge may commit lunatics, &c., 

to State Hospital for Insane. 



Section 34. A Court of Probate is hereby established in each 



Sessions. 



of the several Counties m this State, which shall hold a session ^gi^^^g^g-x^jX;; 

241; 1870, XI v! 
§ 35. 




CODE OF CIVIL PROCEDURE 



on the first Monday in each month, at or near the Court House, 
and continue thereafter so long as the business may require. 
Court of re- Scc. 35. The Court of Probate shall be a Court of record, 

cord. Clerk. ' 

■— — ^— ^ and have a seal ; may appoint a Clerk, and may remove him at 
1877, XVI., 233 pleasure ; 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. 

Being a Court of record, it is not an inferior 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. Burnside, 33 S. C, 276; 11 S. E., 787. Facts appearing 
on its record cannot be attacked collaterally. — Tederall v. Bouknight, 25 S. C, 275. 

Duties of Clerk Scc. 36. The Clerk of the Court of Probate shall keep a true 
g g^^^''"' '^^^■' 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 at- 
tested shall be legal evidence in the Courts of this State. 
JjJ^^sdktion of Sec. 37. Every Judge of Probate, in his County, shall have 
-jurisdiction in all matters testamentary and of administration, 
in business appertaining to minors, and the allotment of dower, 
in cases of idiocy and lunacy, and of persons non compotes 
mentis. 

As to matters testamentary: 

What is the extent of such jurisdiction, conferred by the Constitution, has not 
been determined. — Thomas v. Poole, 19 S. C, 323. 

It does not include action by cestui que trust against his trustee for account- 
ing, unless it involves matters testamentary. — Poole v. Brown, 12 S. C, 556. 

Nor action of ope legatee against another to recover money paid to her in 
. excess of her share as found by 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 petition of the executors as being 
a matter testamentary. — Iti Re Covin Est., 20 S. C, 476. 

What are not cases of "matters testamentary or of administration." — Caldwell 
V. Little, IS 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 tliis jurisdiction has not been determined. — Thomas v. 
Poole, 19 S. C, 323. 

It is questionable whether it embraces proceedings by a ward having attained 
majority to compel 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. 



lb., § 38. 



OF SOUTH CAROLINA. 31 

A. D. 1902. 



As to dower: '>— y ■ - ■^ 

The jurisdiction is concurrent with the jurisdiction of the Court of Common 
Pleas.— Witte v. Clark, 17 S. C, 323. 

Such jurisdiction is not ousted because questions of fact are involved. — Stewart 
V. Blease, 4 S. C, 37. Nor limited to cases where there is no dispute as to the 
right of dower or the title to the land. — Tibbett v. Langley Man. Co., 12 S. C, 465. 

As to idiocy, lunacy and noii compotes mentis. 

The jurisdiction is not exclusive, but is concurrent with that of Court of Com- 
mon Pleas. — Walker v. Russel, 10 S. C, 82. But the Probate Court cannot grant 
leave to traverse an inquisition in lunacy; that can only be done in the Court 
of Common Pleas. — lb. 

Sec. 38. The Tud^e of Probate shall have jurisdiction in i" relation to 

•^ '-' -' guardians. 

relation to the appointment and removal of guardians of — - — s~~39^ 
minors, insane and idiotic persons, and persons non compotes fon.. Art. v., 
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 re- 
lation to trustees appointed by will. 

Question whether such jurisdiction as to duties of guardians reaches the case 
where the ward is of age. — Waller v. Cresswell, 4 S. C, 355. 

He has no jurisdiction to appoint another trustee in place of deceased testa- 
mentary trustee. — Thomas v. Poole, 19 S. C, 323. 

Sec. 39. The probate of the will and the granting of ad- tion^'Slif'^pro- 
ministration of the estate of any person deceased shall belong ^^^^ °^ ^'"^- 
to the Judge of Probate for the County in which such person . ^0^°' ^^^•' 
was last an inhabitant; but if such person was not an inhab- 
itant of this State, the same shall belong to the Judge of Pro- 
bate in any County in which the greater part of his or her 
estate may be. 

Sec. 40. All proceedings in relation to the settlement of the ^ J^^*^^^?f°*^^^ 
estate of any person deceased shall be had in the Probate Court ^"""l^^^lJI^! 
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 Igg^* ^^''^' ^^• 
of any person deceased is insufficient for the payment of his 
debts, and all persons interested in such estate being first sum- 
moned 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 de- 
ceased 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 administering the assets of such 
deceased person, such proceedings to be by summons and com- 
plaint, the practice wherein shall conform as nearly as may 



32 CODE OF CIVIL PROCEDURE 

A. D. 1902. — 

"-^"W"-^ be to the form and practice in the Courts of Common Pleas of 
this State. 

The Constitution confers the jurisdiction to make such sale of real estate. — 
McXamee v. Waterbury, 4 S. C, 156. It is concurrent with the jurisdiction of 
the Court of Common Pleas in such cases. — Jordon v. Moses, 10 S. C, 431. 
Either in an action by a creditor for that purpose. — Finley v. Robertson, 17 S. 
C, 435; Scruggs V. Foot, 19 S. C, 274. But not until the will has been pro- 
bated or letters of administration granted. — Whitesides v. Barber, 24 S. C, 373. 
Or in such action by the personal representative. — McNamee v. Waterbury, 4 S. C, 
156; Shaw V. Barksdale, 25 S. C, 204. The Probate Judge must determine the 
necessity of such sale. — Hodge v. Fabian, 31 S. C, 212; 9 S. E., 820. His decree 
directing the sale of more land than necessary for the purpose cannot be ques- 
tioned in the Court of Common Pleas. — lb. Xor can he be controlled by mandamus 
from that Court in making such sales or executing titles. — State v. Burnside, 33 
S. C, 276; II S. E., 787. He can determine the validity of an alleged deed under 
which one of defendants claim title from intestate. — Gregory v. Rhoden, -24 
S. C, 90. He can only sell the interest of the deceased in the land, not the 
rights of the parties to the action therein as heirs of another party. — McLaurin 
V. Rion, 24 S. C, 411. Cannot sell as land of deceased land surrendered to dis- 
tributees of deceased by his mortgagor. — Harrison v. Lightsey, 32 S. C, 293; 10 
S. E., 1010. 

grant discharge Scc. 41. It shall not be lawful for any Judge of Probate 
tors^ &c!^^^ ^^' i^ this State to grant a final discharge to any executor, ad- 
^S69, XIV., ministrator, trustee, guardian, or committee, unless such ex- 
XXI., Tig."^" *' ecutor, 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 
having 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 or Probate for a final discharge. Xo such 
discharge shall affect any distributee, legatee, cestui que trust, 
ward, or lunatic, who has not been made a party to such ap- 
plication, either by personal service of the notice, or by publi- 
cation in the mode provided for absent defendants. 

The provisiens of this Section and of Sections 48, 49 and 73 were only intended 
to prescribe the limits of the jurisdiction of the Probate Courts as between 
themselves, and not to limit that of the Court of Common Pleas. — Jordan v. Moses, 
10 S. C, 431. 

All proceed- Scc. 42. All proceedings in relation to the propertv or estate 

ings relative to ^ *- _ _ . ' ^-, 

estates under of anv persou uudcr guardianship shall be had in the Court 

g u a rdianship - '^ 

had in t h e of Probatc of the Countv in which the guardian was ap- 

Court of Pro- . . fe i- 

bate. pointed. 

1S70, XIV., Sec. 43. Xo Judge of Probate shall act as such in the settle- 

§ 42. ^ & 

ment of anv estate wherein he is interested as heir or legatee, 

Judges not ' , . . , . , 

to act when in- exccutor or administrator, or as guardian or trustee oi anv 

terested. ^^'hen 1 t 1 r -n 1 r 1 • • ' 

Judges of ad- person : in everv such case the Judge of Probate of anv adjoin- 

joining Countv ■■■ ' . . ,.,,,,r., 

to act. ing County shall have jurisdiction, and it shall be his duty, 

lb., § 43. upon application, to attend at some term of the Court of Pro- 



OF SOUTH CAROLINA. 33 

A. D. 1902. 



bate in which such case may be pending, which shall not inter- ^^-^^^^^ 
fere with the duties in his own County, and hear and determine 
such case. 

Sec. 44. The Judge or Clerk of the Probate Court shall have ^P'?^^^;: '°J^\ 
power to administer all oaths necessary in the transaction of 1370, xiv., § 
business before the Probate Court, and all oaths required by'^*' 
law to be administered to persons executing trusts under the 
appointment of said Court. 

Sec. 45. Probate Courts may issue all warrants and pro- ^/y ^i|sue^°ai.! 
cesses, in conformity to the rules of law, which may be neces- ^e"ses.^"'^ ^'^°' 
sary to compel the attendance of witnesses, or to carry into j^,^ § ^^ 
effect any order, sentence, or decree, of such Courts, or the 
powers granted them by law. 

Sec. 46. If any person shall refuse or neglect to perform, i" cases of 

-^■■^ ° ^ contvi macy, 

any lawful order, sentence, or decree of a Probate Court, such ?n?y commit to 

Court may issue a warrant, directed to any Sheriff or Con- ~^~r^ 

stable in the State, requiring him to apprehend and imprison 
such person in the common jail of the County, and if there 
be no jail of 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. 

Sec. 47. When a witness whose testimony is necessary to ^jWhen^deposi^ 
be used before any Probate Court shall reside out of this taken and used. 
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 deposi- 
tions taken according to the provisions of the law for taking 
depositions 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. 

Sec. 48. When any Probate Court shall have first t^ken ■^f^^'^.^J.^/'^l 
cognizance of the settlement of the estate of a deceased person, j^^^.^J'^'^^ ^'^" 
such Court shall have jurisdiction of the disposition and set- ~Yb. § 48. 
tlement of all the personal estate of such deceased person to 
the exclusion of all other Probate Courts. 

Jordcn v. Moses, lo S. C, 431. 

Sec. 49. The jurisdiction assumed by any Probate Court in ^/j " "^^^"^ ^o" 
any case, so far at it depends on the place of residence or the^^^^J^J^^^^ ™" 
location of the estate, shall not be contested in any suit or ~Yb^^Y^- 
proceeding whatever, except in an appeal from the Probate 



3.-C. P. 



34 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

'-^'^-^'-^ Court in the original case, or when the want of jurisdiction 
appears on the record. 

Jordon v. Moses, lo S. C, 431; In re Mayor's estate, S. C, ; 38 

S. E., 634. 

may c h o oTI Sec. 50. When, by law, a guardian is required to be ap- 

fuar^dLn 'inter- poiutcd of a miuor, who is interested as heir or legatee, or 

app^oiiitrd. ^ ^^ representative of such heir or legatee, in any estate which is 

ih., § 50. in a course of settlement, such guardian shall be appointed by 

the Probate Court before - which such estate is in course of 

settlement ; 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 guardian 

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. 

Authorized to Scc. 51. The Probate Court by which a guardian shall be 

permit sale and . ... 

settle accounts appointed shall have jurisdiction of the estate of the ward, 

of guardian. ■' . 

—————— and shall be alone authorized to permit the sale of such estate, 

51- ' ' and settle such guardian's accounts. 

Judges may ^®^- ^^- Exccpt as provided in the thirty- fourth Section, the 
and°'pilces™or Probate Court in each County shall appoint such times and 
holding Courts, pjaces for holding Courts, or for hearing any special matter. 



ih. 

1873, 



XV., ^496!^^ shall be judged most convenient for all persons interested, 

and shall give notice of such times and places to the parties 

interested. 

timeffor^^clr- S®^. 53. The Probate Court shall be deemed open at all times 

tain business, f^j. i^^i^ transaction of ordinary business which may be neces- 

^1870, XIV., § ^2sy, when previous notice is not required to be given to the 

persons interested. 
^Adjmirnm^ent ggg_ g^^ ^ Probatc Court may be adjourned as occasion may 
When by clerk, j-equirc ; and when the Judge is absent at the time for holding 
Ih., § 54. ^ Court, the Clerk may adjourn it. 
• Ap.peiiate Sec. 55. The Circuit Court shall have appellate jurisdiction 

jurisdiction of '^^ ■" 

Circuit Court, of all matters originally within the jurisdiction of the Probate 
Ih., § 55. Court. 

The hearing by the Circuit Court is strictly on appeal, limiting the presiding 
Judge to a review of, and judgment on, the evidence taken below, except as to 
questions of fact to be decided by jury under Section 60.— Stewart v. Blease, 4 
S. C, 44; Stark v. Hopson, 22 S. C, 42; Ex Parte White, 33 S. C, 442; 12 S. E., 
5. Findings of fact by Probate Court ought not to be disturbed unless clearly 
erroneous. — Gunning v. Erwin, 13 S. C, 37. But Circuit Judge may remand the 
cause or any particular issue therein to the Probate Court, with instructions to 
take further testimony and report the same. — Twitty v. Houser, 7 S. C, 153. 



OF SOUTH CAROLINA. 




Sec. 56. The Supreme Court shall have jurisdiction of all 
questions of law arising in the course of the proceedings of q/ § " p^r'^eme 
the Circuit Court, in probate matters, in the same manner as ^°tg''^^\"grPy°" 
provided by law in other cases. ^ibZV^- 

Supreme Court, on appeals in such matters, may refer an issue of fact to a 
jury. — Shaw v. Cunningham, 9 S. C, 271. It will not disturb concurrent findings 
of fact by Probate Judge and Circuit Judge. — Black v. White, 13 S. C, 37. An 
order of Circuit Court, without hearing appeal, remanding the case to Probate Judge 
for further hearing, with leave to take further testimony, is appealable. — Ex Parte 
White, 33 S. C, 442 (Sec. 11); 12 S. E., 5. 

Sec. 57. Any person interested in any final order, sentence, circmt Court 
or decree of any Probate Court, and considering himself in-^v°th;n^ fit^teen 

jured thereby, may appeal therefrom to the Circuit Court in _!11 

the same County, at the stated session next after such appeal, xii^ eo, '§ is. ' 
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 decision appealed from. 

The only parties who can appeal are parties to the cause. — Witte v. Clarke, 17 
S. C, 313. A decree refusing appeal because it was not taken in time is appeal- 
able. — Henderson v. Wyatt, 8 S. C, 112. 

On appeal to Circuit Court from order disallowing claim, appellant is not en- 
titled, of right, to trial by jury. — Hughes v. Kirkpatrick, 37 S. C, 169; 15 S. E., 
912. Filing transcript of record to perfect appeal. — Davenport v. Davenport, 61 
S. C, 389; 39 S. E., 548. Appeal by warrantor from order making him a party, 
prior to judgment, premature. — Robertson v. Curlee, 59 S. C, 454; 38 S. E., 116. 
Person adjudged non compos mentis may appeal. — Ex parte Gregory, in re State 
ex rel. Buffington, 58 S. C, 114; 36 S. E., 433. 

Sec. 58. The person appealing shall procure and file in theies^f ^recor^d 
Circuit Court to which such appeal is taken a certified copy of circuit' Court." 
the record of the proceedings appealed from, and of the i87o, xiv., 
grounds of the appeal filed in the Probate Court, together with 
the proper evidence that notice has been given to the adverse 
party according to law. 

Sec. 59. When an appeal, according to law, is taken from Proceedings 

'■ i- ' ^ _ _ stayed by ap- 

any sentence or decree of the Probate Court, all proceedings m peai. 

pursuance of the order, sentence, or decree appealed from, ib., § ei. 
shall cease until the judgment of the Circuit or Supreme Court 
is had; but if the appellant, in writing, waives his appeal be- 
fore the entry of such judgment, proceedings may be had in 
the Probate Court as if no appeal had been taken. 

Sec. 60. When such certified copy shall have been filed in ^ How circuit 

•^-^ Court may pro- 

the Circuit Court, such Court shall proceed to the trial and ceai to the 
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 § 62. ' 
decided, issue may be joined thereon under the direction of 
the Court, and a trial thereof had by jury. 

"According to the rules of law" construed to mean "according to the rules 
regulating the hearing of appeals." — Ex parte White, 33 S. <v., 442; 12 S. E., 5. 



36 CODE OF CIVIL PROCEDURE 

A. D. 1902. ' 

^^-»^,^"— ^ What constitutes the return to the Circuit Court. — Davenport v. Davenport, 6i 

S. C, 389; 39 S. E., 548. 

All issues of fact involved in such appeal must be determined de novo by the 
Circuit Judge, except such issues as are triable by jury under Section 274, 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 
V. Blease, 4 S. C, 37; Luchen v. Wichman, 5 S. C, 411; Prater v. Whipple, 16 
S. C, 40; Rollins v. Whipper, 17 S. C, 32; Ex parte White, 33 S. C, 442; 12 
S. E., s; Ex parte Apeler, 35 S. C, 417; 14 S. E., 931. 

On appeal from order disallowing claim against estate appellant is not entitled 
as of right to trial by jury. — Hughes v. Kirkpatrick, 37 S. C, 161; 15 S. E., 912. 

nt|iecdng^?o ^^^- ^l- If the pcrson appealing from the proceedings of 
f u d %mintTi- the Probate Court, as provided in this Title, shall neglect to 
co^^*^ ^'^^^ enter his appeal, the Circuit Court to which such appeal shall 
~lb~~^i t»e taken, on motion, and producing attested copies of such 
appeal by the adverse party, shall affirm the proceedings ap- 
pealed from, and may allow costs against the appellant. 
Final decision gee. 62. The final dccision and iudgment in cases appealed, 

to be certified •' ° ^^ 

to Probate as hereinbefore provided, shall be certified to the Probate 

Court. _ ^ _ 

-— — Court bv the Circuit Court or Supreme Court, as the case may 

10., § 60. ' 

be, and the same proceedings shall be had in the Probate Court 

as though such decision had been made in such Probate Court. 

Probate Judge gee. 63. No Judgc of auv Probate Court shall be admitted 

not to have .. 

voice in deter- ^q havc any voicc ill judging or determining anv appeal from 

mining appeal. •' joo o..jrjr 

When may ^{5 dccision, or be permitted to act as attorney or counsel 

practice law. ' '^ _ -^ _ _ 

— - — ^-- thereon, or receive fees as counsel in any matter pending in 

10., S DO' . 

the Probate Court of which he is Judge : Provided, It shall 
be lawful for Judges of Probate to practice law in other 
Courts in such cases as are not cognizable in the Courts of 
Probate. 
Proceedings gee. 64. Procccdiugs in the Court of Probate may be com- 

may be com- ° ■' 

menced by pe- nicnccd by petition to the Judge of Probate for the County 

— g_ 1° which the jurisdiction of the subject matter belongs, or 

by complaint, 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 prac- 
tice in the Courts of Common Pleas as provided in this Code 
of Procedure, 
t^" make^ rui^f ^^^' ^^' ^^'^ Supreme Court may, from time to time, make 
m°iTsion*er*s To '^^'^^^^ regulating the practice and conducting the business in 
ture ''^Ic ^"Tor th^ Courts of Probatc, in all cases not expressly provided 

°^^^- for by law ; and the County Commissioners of each County 

lb., § 68. shall provide all books necessary for keeping the records of 



OF SOUTH CAROLINA. 37 

A. D. 1902. 



such Court ; also a seal and necessary office furniture : Pro- ^^-^v-"^-' 
vided, Said furniture shall not exceed in cost the sum of on? 
hundred dollars. 

Sec. 66. The Judge may keep order in Court, and punish fo^contempt^^ 
any contempt of his authority in like manner as such contempt j^ g gg " 
might be punished in the Circuit or Supreme Court. 

Sec. 67. Any party in whose favor an order or decree for d^rees"^"*^ °^ 
the payment of money may be made by a Court of Probate, ists xvi 
may cause such order of decree to be enrolled at any time'''^°- 
within one year after nlaking 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 ; also the date of the said order 
and the names of the parties bound thereby, together 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 operation 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 a'bstract 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 Common Pleas before the death 
of such deceased person ; except that the lien of decrees and 
orders for the payment of money made prior to December 



38 CODE OF CIVIL PROCEDURE 

A. D. 1902. — 

""^"^v^ twentieth, 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 enrolment of any or- 
der or decree for the payment of money shall not deprive any 
party thereto of the right to appeal therefrom; but when no- 
tice 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 re- 
versed, set aside, or modified on appeal, the enrolment thereof 
shall be amended or wholly vacated accordingly. 

Probate Judge cannot arrest and imprison an administrator for failure to comply 
with the terms of a money decree. — Gilliam v. Mcjunkin, 2 S. C, 442. 

dex°of'^decrees ^^^' ®^' Evcry Judgc of Probatc shall provide and keep in 
enrolled. j^jg QfQ^e an iudcx of moncy decrees, in which every enrolled 

^^1878, XVI., order or decree for the payment of money shall be entered, 
with the names of every party or estate bound thereby, alpha- 
betically 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 enrolment, 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. 
to^s^ure'Ilcu'^ Sec. 69. Judges of the Probate Court are authorized and 
^'°"^" empowered to issue executions against property, when such 

§ vif i872^xvi process is necessary to carry into effect any order, sentence, 
23| 1878, XVI., Qj. 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 
enrolment 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 Common Pleas of the 
County in which it is to issue. — But no execution shall be 
^^" ^^^' issued by any Judge of Probate to enforce the collection of 
money under any order or decree of a Court of Probate until 



OF SOUTH CAROLINA. 



39 



A. D. 1902. 



an abstract or brief has been prepared and filed according to ^"'"'^v ' 
the direction of Section 67, 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 cal- 
endar of judgments of the Court of Common Pleas kept in 
his office. And when any such execution has been duly re- 
turned 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 the 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. 

Sec. 70. The Judge of the Probate Court may commit toj^^f.^^^l 
the State Hospital for the Insane any idiot, lunatic, or person g^f^g Hospital 
non compos mentis, who, after due examination, may be found ^° '" ^"^^"^- 
to be so furiously mad as to render it manifestly dangerous 72^^™' ■^^^■' ^ 
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 cer- 
tificate shall be conclusive evidence of such residence. 



TITLE V. 



OF THE COURTS OF MAGISTRATES. 



Sec 




Sec. 


71. 


Jurisdiction. 


79. 


Answer of title. 


72. 


Qualification of bail. 


80. 


Undertaking. 


73. 


Justification of bail. 


81. 


Suit discontinued. 


74. 


Allowance of bail. 


82. 


If undertaking not given. 


75. 


Property, how taken when con- 


83. 


The same. 




cealed in building or en- 


84. 


New action. 




closure. 


85. 


Costs. 


76. 


Property, how kept. 


86. 


Answer of title as to one cause 


77. 


Claim of property by third per- 




of action. 




son. 


87. 


Docketing judgments. 


78. 


No jurisdiction in certain cases. 


88. 


Rules. 



40 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

'""'^^'''""^ Sec. 71. Magistrates shall have civil jurisdiction in the fol- 
jurisdiction. lowing actions : 

74;^Con^L,^'rt! ^- I" actions arising on contracts for the recovery of money 
5, §§ 20 and 21. Q^^iy^ jf ^-^g g^j^ claimed does not exceed one hundred dollars. 

It is no objection to the jurisdiction of a Magistrate that the plaintiff reduced 
his demand to bring it within the jurisdiction of the Magistrate; but where, in 
so reducing his claim, the plaintiff leaves out an item which he could have in- 
cluded in his cause of action, he cannot afterwards sue thereon. — Catawba Mills 
V. Hood, 42 S. C, 203; 20 S. E., 91. A Magistrate is deprived of jurisdiction 
by a counter claim for an amount exceeding $100. — Haygood v. Boney, 43 S. C, 
63; 20 S. E., 803. 

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. 

This gives concurrent jurisdiction with the Court of Common Pleas in such 
action for damages. — State v. Fillebrown, 2 S. C, 404; Rhodes v. 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 personal property. — Sullivan 
V. Ellison, 20 S. C, 481. 

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

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

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

Includes cases where defendant is a non-resident. — Burckhalter v. Jones, 59 
S. C, 89; 36 S. E., 496. 

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 ac- 
tually due. Where the payments are to be made by instal- 
ments, an action may be brought for each instalment as it 
becomes due. 

Trial Justice has jurisdiction of action on bond to recover the amount thereby 
secured and due, which is less than one hundred dollars, though the penalty 
exceed that amount. — Cavender v. Ward, 28 S. C, 470; 6 S. E., 302. 

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 inferior Court, where such action is not pro- 
hibited by Section 91. 



OF SOUTH CAROLINA. 



8. To take and enter judgment on the confession of a de- 
fendant, 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 LXIV., Code of 
1902. 

11. An action to recover the possession of personal prop- 
erty 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 sum- 
mons, but not afterwards, 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 affidavit, showing : 

(i.) That the plaintiff is the owner, or entitled to imme- 
diate possession, of the property claimed, particularly describ- 
ing 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 knowledge, information, and belief of the 
person making the affidavit. 

(4.) That said personal property has not been taken for 
any tax, fine, or assessment, 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. ■ 

Variance between affidavit and pleadings amended. — Ehrhardt v. Breeland, $7 
S. C, 142; 35 S. E., 537. 

Affidavit must state that value of the property does not exceed one hundred 
dollars. — Williams v. Irby, 10 S. C, 371. 

But whether such statement is necessary in Circuit Court, on appeal, not de- 
cided. — lb.. 

It is not necessary to allege in summons that plaintiff is entitled to the pos- 
session of the property; it is sufficient to allege that the defendant is in unlawful 
possession of property belonging to the plaintiff. — Dillard v. Samuels, 25 S. C, 318. 

This provision allowing such action for recovery of property less in value than 
one hundred dollars is not in conflict with Constitution, which limits jurisdiction 
in actions ex delicto, where damages do not exceed one hundred dollars.- — Dillard 
V. Samuels, 25 S. C, 318. 





CODE OF CIVIL PROCEDURE 



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 com- 
menced, 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 adjudged, and for the pay- 
ment to him of such sum as may, for any cause, be recovered 
against said plaintiff", the Magistrate shall endorse upon said 
affidavit a direction to any Constable of the County in which 
said Magistrate shall reside, requiring said Constable to take 
the property described therein from the defendant, and keep 
the same, to be disposed of according to law; and the said 

^isr9, ^ ., ]y[agistrate shall at the same time issue a summons, with a 
copy of the undertaking, directed to the defendant, and requir- 
ing him to appear before said Magistrate 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. 

Endorsement of approval on undertaking. — Cromer v. Watson, 59 S. C, 495 ; 
38 S. E., 126. 

Such undertaking not necessary unless the plaintiff claims the immediate de- 
livery of the property. — Dillard v. Samuels, 25 S. C, 318. 

The summons is fatally defective if it name a day for trial more than twenty 
days after its date. — Simmons v. Cochran, 29 S. C, 31; 6 S. E., 859. 

This case distinguished in State v. Smith, 38 S. C, 272; 16 S. E., 998; re- 
affirmed in Kelley v. Kennemore, 47 S. C, 258; 25 S. E., 134. 

Immaterial whether the summons is addressed to the defendant or officer. — Bell 
v. Pruitt, 51 S. C, 347; 29 S. E., 6. 

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 person- 
ally, 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 



OF SOUTH CAROLINA. 




serving the same, to the Magistrate who issued the said sum- 
mons. 

14. The defendant may at any time after such service, and 
at least two days before the return day of said summons, serve 
upon plaintiff, or upon the Constable 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 Magis- 
trate shall order said property delivered to defendant, and 
shall also render judgment for defendant's costs and disburse- 
ments. 

Waiver of any irregularity or defect in undertaking by not excepting. — Cromer 
V. Watson, 59 S. C, 495; 38 S. E., 126. 

15. At any time before the return day of said summons, the 
said defendant may, if he has not excepted to plaintiff's sure- 
ties, require the return of said property to him upon giving 
to the plaintiff", and filing same with the Magistrate, a writ- 
ten 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 plaintiff's affidavit, for the delivery 
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. Qualification 

Sec. 72. The qualification of bail must be as follows : °^ ^^'^- 

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

2. They must each be worth the amount specified in the 
order of arrest, exclusive of property exempt from execu- 
tion; but the Judge or a Magistrate, 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. justification 

Sec. 73. For the purpose of justification, each of the bail of bail. 
shall attend before the Judge or a Magistrate at the time and ^^is7o, xiv., § 
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 Magistrate, in his discretion, may 




CODE OF CIVIL PROCEDURE 



lb., § 



think proper. The examination shall be reduced to writing, 

and subscribed by the bail, if required by the plaintiff. 

^Allowance of gec. 74. If the Judge or Magistrate find the bail sufficient, 

~^ ~^ 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, thereupon, be exonerated from 

liability. 

t a™ e^n ^'when Scc. 75. If the property, or any part thereof, be concealed 

buiidinror en" in a building or enclosure, the Constable shall publicly demand 

i^^^ 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. 
howYept.^'^ ^' Sec. 76. When a Constable shall have taken property, as in 
lb., § 79. 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, 
erty by third Scc. 77. If the property taken be claimed by any other per- 
son than the defendant or his agent, and such person shall 
make affidavit of 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, accompanied by their affidavits, that 
they are each worth double the value of the property as spe- 
cified in the affidavit of the plaintiff, and are freeholders and 
householders of the County. And no claim 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 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 deten- 
tion. If the property have been delivered to the plaintiff, and 
the defendant claim a return thereof, judgment for the de- 
fendant may be for a return of the property, or the value there- 



OF SOUTH CAROLINA. 45 

— A. D. 1902. 

of, in case a return cannot be had, and damages for taking and "^-^v^ 
withholding the same. An execution shall be issued 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, particularly 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 to 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 defendant 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 Mag- 
istrate shall render judgment accordingly, with costs and dis- 
bursements. 

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

Such judgment may be given for value oT llie property, though the demand 
is only for its recovery and damages for its detention. — Joplin v. Carrier, ii 
S. C, 327. It cannot be given in case where party is entitled to general dam- 
ages. — lb. But where there are proper allegations, plaintiff may, on appeal, in 
Circuit Court, elect to treat the action as one for damages. — Williams v. Irby, 
16 S. C, 371. Where verdict is not in proper form, the Trial Justice cannot 
change it; new trial is the remedy.- — DuBose v. Armstrong, 29 S. C, 290; 6 
S. E., 934. 

Sec. 78. But no Magistrate shall have cognizance of a civil . No jurisdic- 

° ° tion m certain 

action— cases. 



1. In which the State is a party, excepting for penalties not g^isro^^xiv.^ § 
exceeding one hundred dollars ; 496. 

2. Nor where the title to real property shall come in ques- 
tion ; - 



46 • CODE OF CIVIL PROCEDURE 

A. D. 1902. ■ — — 

"^■^^N^^""-^ Does not include proceedings to eject tenant. — State v. Fickling, lo S. C, 30; 

State V. Marshall, 24 S. C, 507. 

3. Nor of a civil action for an assault, battery, false impris- 
onment, libel, slander, malicious prosecution, criminal conver- 
sation, or seduction, where the damages claimed exceed one 
hundred dollars, 
tit."^*^"^ °^ *'" Sec. 79. In every action brought in a Court of Magistrate 
"IsTo XIV. where the title to real property shall come in question, the 
§ ^^- defendant may, either with or without other matter of de- 

fence, set forth in his answer any matter showing 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 Magistrate shall thereupon countersign the 
same and deliver it to the plaintiff. 

See note to Sec. 78. 

Undertaking. gg^^ gQ ^^ ^^^ ^-^^^ ^f answering, the defendant shall de- 
§83.™' '^^^" liver 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 summons and com- 
plaint 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 hundred dollars. 
tin^u"ed '^'^'"^"' Sec. 81. Upon the delivery of the undertaking to the Mag- 
„ ~ „, istrate the action before him shall be discontinued, 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 the same cause in the Circuit Court. If 
no such action be brought within thirty days after the delivery 
of the undertaking the defendant's costs before the Magis- 
trate may be recovered of the plaintiff, 
ing^not^giw' S^^- ^^- If *e undertaking be not delivered to the Magis- 
~^ T"^^ trate he shall have jurisdiction of the cause, and shall pro- 
ceed therein ; and the defendant shall be precluded, in his de- 
fence, from drawing the title in question. 



OF SOUTH CAROLINA. 47 

A. D. 1902. 



Sec. 83. If, however, it appear on the trial, from the plain- ^^"""^^ ' 

tiff's own showing, that the title to real property is in ques- The same, 

tion, and such title shall be disputed by the defendant, the ib., § so. 
Magistrate shall dismiss the action and render judgment 
against the plaintiff for the costs. 

Sec- 84. When a suit before a Magistrate shall be dis'con- New action. 



tinned by the delivery of an answer and undertaking, as pro- i^., § 87. 
vided in Sections 79, 80 and 81, 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 defence only which he made before the Mag- 
istrate. 

Sec. 85. If the judgment in the Circuit Court be for the Costs. 



plaintiff, he shall recover costs ; if it be for the defendant, he ^^■' § ^s. 
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. 

Sec. 86. If, in an action before a Magistrate, the plaintiff ^Answer^of^ti^ 
have several causes of action, to one of which the defence of cause of action. 
title to real property shall be interposed, and, as to such cause, ^^•' § ^^■ 
the defendant shall deliver an answer and undertaking, as 
provided in Sections 79 and 80, the Magistrate shall discon- 
tinue 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. 

Sec. 87. A Magistrate, on the demand of a party in whose jyjg°gjj'^g^""s 
favor he shall have rendered a judgment, shall give a tran- jgyg^ xiv., 
script thereof, which may be filed and docketed in the office of y^*^' i8S7,xix, 
the Circuit Court of the County where the judgment was 
rendered. The time of the receipt of the transcript by the ^j-^^g^'^Jj^" ^ °^ 
Clerk shall be noted thereon and entered in the Abstract of j^^ operation. 
Judgments, and from that time the judgment shall be a judg- 
ment of the Circuit Court, but no sale shall be made tnider ^j^'° /^^^^^jj^p'^g*^} 
any execution issued upon such judgment in the Circuit Court ^^pi'""- 
until the time for appealing from the judgment in the Mag- 
istrate's Court has expired, nor pending such appeal. If the ^j^f ^"j^^^^'t^^ 
judgment is set aside in the Magistrate's Court, it shall 
have the effect of setting aside the judgment filed and dock- 
eted in the Circuit Court. The filing and docketing such j^'^f'^triai.^""* 
transcript in the Circuit Court shall not affect the right of the 




CODE OF CIVIL PROCEDURE 



Magistrate to grant a new trial. A certified transcript of such 
other "countys" judgment may be filed and docketed in the Clerk's office of 
any other County, and with like effect, in every respect, as in 
the County where the judgment was rendered. 

There is no limit of time within which the transcript must be filed. — Rhoad v. 
Patrick, 37 S. C, 517; 16 S. E., 536. 

Such transcript of a valid judgment only of the Trial Justice can be so filed; 
if judgment is null, the transcript is null. — Barron v. Dent, 17 S. C, 75. And 
the transcript must show everything necessary to give jurisdiction to the Trial 
Justice, to make the judgment valid. — Benson v. Carrier, 28 S. C, 119; 5 S. E., 272. 

Such transcript is properly signed by an authorized clerk of the Trial Justice. — 
Brown v. Buttz, 15 S. C, 490. Trial Justice has no power to vacate judgment 
after the transcript has been filed in the Circuit Court. — lb.; Lawrence v. Isear, 
27 S. E., 244; 3 S. E., 222. When transcript filed the judgment becomes the 
judgment of the Court of Common Pleas. — Rhoad v. Patrick, 37 S. C, 517; 16 
S. E., 536. 

And execution is to be issued thereon by the Clerk of the Circuit Court. — Amick 
V. Amick, 59 S. C, 70; 37 S. E., 39. 

^"^^^- Sec. 88. The following rules shall be observed in the Courts 

4ifIif9L' of Magistrates: 

1. The pleadings in the Courts are: i. 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 ref- 
erence to them shall be made in the docket. 

The defendant may plead orally to written complaint. — Williams v. Irby, 15 
S. C, 458. 

3. The complaint shall state, in a plain and direct manner, 
the facts constituting 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 man- 
ner, of any facts constituting a defence or counter-claim. 

Notice of counter must be given. — Williams v. Irby, 15 S. C, 458. Counter- 
claim cannot be interposed in action to recover a specific chattel. — lb. 

In action to recover balance due farm laborer for services, a counter-claim may 
be based on the allegation that he killed a horse while working it. — Haygood v. 
Boney, 43 S. C, 63; 20 S. E., 803. 

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

Billiard v. Samuels, 25 S. E., 318; Riggs v. Wilson, 30 S. C, 172; 8 S. E., 848. 

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 defence, 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. 



OF SOUTH CAROLINA. 49 

: A. D. 1902. 



Leave to amend; strictness in order not required. — Medicine Co. v. Hare, 
S. C, 462; 35 S. E., 130. 

8. In any action on contract where a defendant does not ap- se^ke^and of 
pear and answer, the plaintiff may file proof of the service of "° at^swer. 
the summons and complaint, or of the summons, on one or 333 ^ ^ ^' -^^^•' 
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 de- ^jg^^^^" ''^^^^'^ 
fault, if the demand be liquidated, and if unliquidated, and the unliquidated 
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 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 answer, the plain- 
tiff cannot recover without proving his case. 

The last clause applies to cases by default. — Barron v. Dent, 17 S. C, 75. 

And the fact of endorsements upon the summons that there was a hearing 
and examination of witnesses is not sufficient to show that defendant appeared 
and defended. — lb. 

Nor can such showing be made by parol testimony.- — lb. 

9. In an action or defence founded upon an account, or an 423,^/91. '^^^■' 
instrument for the payment of money only, it shall be 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 claims to recover or set off. 

Does not nullify last clause of preceding subdivision; does not apply to default 
cases. — Barron v. Dent, 17 S. C, 75. 

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

11. The pleadings may be amended at any time before the 
trial, or during the trial, or upon appeal, when, by such amend- 
ment, 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 
amendment, an adjournment shall be granted. The Court 
may also, in its discretion, require as a condition of an amend- 
ment, the payment of costs to the adverse party. 

Amendment allowed during trial. — Harby v. Wells, 52 S. C, 156; 29 S. £., 563. 
See also Medicine Co. v. Hare, 56 S. C, 462; 35 S. E., 130. 

4.— c. p. 




CODE OF CIVIL PROCEDURE 



832. 



12. Execution may be issued on a judgment heretofore or 
hereafter rendered in Magistrates' Courts at any time after the 

M^l^gTstrates^ rendering of such judgment, and within three years after the 
executions. rendition thereof, and shall be returnable sixty days from date 
undei^^ *^^''^"of the same, but no sale thereunder shall be made until after 
18 87, XIX., ^^^ t^^^^ ^or 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 prop- 
erly given by either party, the status of such property shall 
not be changed until after the expiration of the time for ap- 
pealing has expired, or until such appeal has terminated. 

When execution may issue; after transcript is filed in Circuit Court. — Rhoad v. 
Patrick, 37 S. C, 519; 16 S. E., 536; Amick v. Amick, 59 S. C, 70; 37 S. E., 39. 

In issuing execution Trial Justice acts judicially and is not liable in damages 
therefor unless it was done willfully and corruptly. — McCall v. Cohen, 16 S. C, 
445 ; Abrams v. Carlisle, 18 S. C, 242. 

Can Trial Justice issue execution within the five days allowed for motion for 
new trial? — Abrams v. Carlisle, 18 S. C, 242. 

13. If the judgment be docketed with the Clerk of the Cir- 
cuit Court, the execution shall be issued by him to the Sheriff 
of the County, and have the same effect, and be executed in 
the same manner, as other executions and judgments of the 
Circuit Court. 

Lawrence v. Isear, 27 S. C, 244; 3 S. E., 222; Amick v. Amick, 59 S. C, 70; 
37 S. E., 39; Bragg v. Thompson, 19 S. C, 572; Rhoad v. Patrick, 37 S. C, 
519; 16 S. E., 536. 

14. The Court may, at the joining of the issue, require either 
party, at the request of the other, at that or some other speci- 
fied 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. The provisions of this Code of Procedure, respecting 
forms of actions, parties to actions, the rules of evidence, the 
times of commencing 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 plaintiff fail to 



OF SOUTH CAROLINA. 




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 defendant his costs accruing subsequent to the 
offer. 

It is error in Trial Justice to refuse to allow defendant's counsel to cross- 
examine generally plaintiff's witness. — Dillard v. Samuels, 25 S. C, 318. 

Plaintiff is liable for all costs of the case, subsequent to defendant's offer, if 
he refuses to accept it, and recover less. — Williford v. Gadsden, 27 S. C, 87; 2 
S. E., 858. 

Provision as to forms of actions. — Kelly v. Kennemore, 47 S. C, 260; 25 
S. E., 134. 

16. When twenty-five or more dollars is demanded, the vingTon^pfafnt! 
complaint shall be served on the defendant not less than isoi, xx., 
twenty days; and where less than that sum is demanded, not'^'^^^' 

less than five days before the day therein fixed for trial : Pro- 
vided, That if the plaintiff shall make out that he is apprehen- 
sive of losing his debt by such delay, and the Magistrate con- how shor"ene'd. 
siders 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. 

Summons requiring appearance on twentieth day void. — Adkins v. Moore, 43 
S. C, 173; 20 S. E., 985; Paul V. So. Ry. Co., 50 S. C, 23; 27 S. E., 526. But 
summons to appear on twenty-first day was held sufficient in Wideman v. Pruitt, 
52 S. C, 86; 29 S. E., 405. 

Defendant may waive the twenty days' notice; and if he goes to trial on less 
notice, without objection, he is bound by the judgment. — Benson v. Carrier, 28 
S. C, 119; 5 S. E., 272. As to the proviso, applied. — Cavender v. Ward, 28 S. C, 
470; 6 S. E., 302. The summons under this proviso may be made returnable on 
the same day it is served. — Cothran v. Knight, 47 S. C, 243; 2$ S. E., 142. 

Defect in summons is waived by appearance and pleading to the merits. — Wil- 
liams v. Garvin, 51 S. C, 399; 29 S. E., i; Rosamond v. Earle, 46 S. C, 9; 24 
S. E., 44; Bird v. Sullivan, 58 S. C, 52; 36 S. E., 494. 

It may be waiver by appearing without objecting to jurisdiction of the Court. — 
Grant v. Clinton Mills, 56 S. C, 557; 35 S. E., 193. 

17. Any Magistrate Court of this State shall have power tOg^^^'^^' xvi., 
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 : Provided, however, The case tried shall 
only be heard and tried anew by the Magistrate before whom 
the case was first tried. 

A motion for a new trial is not required as a condition precedent to an appeal. — 
Minnick v. Fort, 13 S. C, 215. 

He cannot so relieve against his own judgments on grounds of mistake, in- 
advertence, surprise or neglect; that can only be done by appeal. — Ih. So as to 
judgments by default, that may be satisfactorily excused. — Lawrence v. Isear, 2y 
S. C, 244; 3 S. E., 322. New trial will not be granted where irrelevant testi- 
mony is received against objection, which could not have affected the verdict. — 
Riggs v. Wilson, 30 S. C, 172; 8 S. E., 848. Appeal lies to the Circuit Court 
from an order granting a new trial. — Redfearn v. Douglass, 35 S. C, 569; 15 
S. E., 244. 

18. No motion for a new trial shall be heard unless made ^^- 




CODE OF CIVIL PROCEDURE 



within five days from the rendering of the judgment: Pro- 
vided, That the right of appeal from the judgment shall exist 
for five days after the refusal of a motion for a new trial. 

Notice of motion must be given within five days. — Doty v. Duval, 19 S. C, 143. 
But need not be in writing. — Mitchell v. Bates, 57 S. C, 44; 35 S. E., 420. The 
hearing (Whetstone v. Livingston, 54 S. C, 539; 32 S. E., 561) and decision 
may be later. — Speer v. Meschine, 46 S. C, 505; 24 S. E., 331. And the motion 
may be made on a legal holiday. — Mitchell v. Bates, supra. 

in Majstr^tes^ 1 9. Magistrates shall have the power to change the venue 
— — '■ in all cases, civil and criminal, pending before them : Provided, 

1887 XIX it:' 

7 8 7;' 1896'! That in Counties where they have separate and exclusive terri- 

XXII 13 . 

" * torial 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 criminal 
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 obtain 
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. 

The party must make the affidavit himself. — Cromer v. Watson, 59 S. C, 488; 
37 S. E., 128. 



PART II. 

OF CIVIL ACTIONS. 

Title i . Of their Forms. 

Title II. Of the Time of Commencing Them. 

Title III. Of the Parties. 

Title IV. Of the Place of Trial. 

Title V. Of the Manner of Commencing Them. 

Title VI. Of the Pleadings. 

Title VII. Of the Provisional Remedies. 

Title VIII. Of the Trial and Judgment. 

Title IX. Of the Execution of the Judgment. 

Title X. Of the Costs. 

Title XL Of Appeals. 

Title XII. Of the Miscellaneous Proceedings. 

Title XIII. Actions in Particular Cases. 

Title XIV. Provisions Relating to Existing Suits. 

Title XV. General Provisions. 

This Part, as to appeals, does not apply in criminal cases; they are governed 
by the old practice before the Code.— State v. Pitts, 12 S. C, 180. It applies 
only to Courts of Common Pleas, except when express reference is made to in- 
ferior Courts. — Doty v. Duvall, 19 S. C, 143- Nor does it apply to proceedings 
by prohibition or mandamus. — S. C. Society v. Gerney, 3 S. C, 53. See note to 
Sec. 8. 



TITLE I. 

FORM OF CIVIL ACTIONS. 



Sec. 

89. One form of action established. 

90. Parties, how designated. 



A. D. 1902. 
Sec. --^^^^^.-.^ 

91. Actions on judgments. 

92. Feigned issues not allowed. 



Section 89. There shall be in this State but one form of One form of 

-, . . ..,.,j .action estab- 

action for the enforcement or protection of private rights and lished. 

the redress of private wrongs, which shall be denominated a isto, xiv., § 
civil action. 

No action lies unless a cause of action exists which would formerly have main- 
tained an action at law or a bill in equity. — Southern Man. Co. v. Tew, s S. C, 5. 

Whether legal or equitable, such rights must alilce be enforced or protected 
by the same form of action. — Parker v. Jacobs, 14 S. C, 112; Chapman v. Lip- 
scomb, 18 S. C, 222; Scaife v. Thompson, 15 S. C, 337- No change is made 




CODE OF CIVIL PROCEDURE 



between legal and equitable causes of action. — Chapman v. Lipscomb, i8 S. C, 
22.2\ Sullivan v. Sullivan, 20 S. C, 509. But while causes of action are distinct 
from remedies, they are enforcible by the one form of remedy. — Emory v. Hazard 
Powder Co., 22 S. C, 476. 

See note as to changes made by Code, Sec. i. 

designated. ''"'^ Scc. 90. In such action the party complaining shall be known 
72,.^ § 93. as the plaintiff, and the adverse party as the defendant. 
Actions on Scc. 91. No action shall be brought upon a judgment rend- 

judgments. ^^^^ -^^ ^^^ Court in this State, except a Court of Magistrate, 

ih., § 94. between the same parties, without leave of the Court, for good 
cause shovm, 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 in 
case of his 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. 

Does not apply to action by creditor of decedent to subject lands in possession 
of devisees to judgment. — Brock v. Kirkpatrick, 60 S. C, 322; 37 S. E., 779. 

si^s^iftTifow- Sec. 92. Feigned issues shall not be allowed, and, instead 

!£^ thereof, or when a question of fact, not put in issue by the 

^^1870, XIV., § 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. 



TITLE II. 

TIME OF COMMENCING CIVIL ACTIONS. 

Chapter i. Actions Generally. 
Chapter 2. For the Recovery of Real Property. 
Chapter 3. Other than for the Recovery of Real Property. 
Chapter 4. General Provisions. 



CHAPTER I. 

Actions Generally. 



Sec. 

93. Limitation not to apply where ac- 
tion commenced, or right of 
action accrued. 



Sec. 

94. Time for commencing actions, &c. 



OF SOUTH CAROLINA. 




Section 93. The provisions of this Title shall not extend to 
actions already commenced, or to cases where the right of ac- no"^ ^ ^ ' ^l^^°{^ 
tion has already accrued ; but the statutes then in force shall ^ommenced^^or 
be applicable to such cases, according to the subject of the "^^^^g*^^ ^'^''^'^ 
action and without regard to the form. ~ib~rm 

Shand v. Gage, 9 S. C, 188; Hayes v. Clinkscales, 9 S. C, 450; Bratton v. 
Guy, 12 S. C., 42; Bolt V. Dawkins, 16 S. C., 210; Nichols v. Briggs, 18 S. C, 
473; State V. Pinckney, 22 S. C., 484; Colvin v. Phillips, 25 S. C., 228; Rehkopf 
V. Kuhland, 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. 

There are only three exceptions to the operation of the limitations in this Title: 
I. Where the action was already commenced. 2. Where the right of action had 
already accrued. 3. Where a different limitation is prescribed by statute. — Stod- 
dard V. Owings, 42 S. C., 88; 20 S. E., 25. Right of action defined. — lb. 

Applies to bond and mortgage executed prior to adoption of Code, but maturing 
afterwards. 

Sec. 94. Civil actions can only be commenced within the Time for 

< c o m m encmg 

periods prescribed in this Title, after the cause of action shall actions, &c. 
have accrued, except where, in special cases, a different limi- J^b., § 97. 
tation is prescribed by Statute, and in the cases mentioned in 
Section 93. But the objection that the action was not com- 
menced within the time limited can only be taken by answer. 

The statute cannot avail unless so pleaded. — Coney v. Timmons, i6 S. C, 378; 
Cureton v. Westfield, 22 S. C, 583; Moore v. Smith, 29 S. C, 254; 7 S. E., 485; 
Foggette V. Gaffney, 33 S. C, 303; 12 S. E., 260. 

Defendant failing to so object by answer is barred from making that defense 
on trial. — Jones v. Massey, 9 S. C, 376. 

But such defense does not preclude other defenses, even though inconsist- 
ent. — Cohrs V. Eraser, 5 S. C, 355. 

Statement of reasons which actuated defendant to plead such limitation prop- 
erly stricken out of answer as irrelevant. — Nichols v. Briggs, 18 S. C, 473. 

When it need not be formally pleaded by defendants. — Jackson v. Plyer, 38 
S. C, 500; 17 S. E., 257; Sutton V. Clark, 59 S. C, 44a; 38 S. E., 154; Bank v. 
Gadsden, 56 S. C.,313; 33 S. E., 575. 




CODE OF CIVIL PROCEDURE 



Sec. 
95. 



97. 



98. 



99. 



100. 



101. 



CHAPTER II. 

For the Recovery of Real Property. 



When the State will not sue. 

When action cannot be brought 
by grantee from the State. 

When action by the State 
or their grantees to be 
brought within ten years. 

Seizin within ten years, when 
necessary. Plaintiff limited 
to two actions. 

Seizin within ten years, when 
necessary in action or de- 
fence founded on title, &c. 

Action after entry or right of 
entry. 

Possession, when presumed. Oc- 
cupation when deemed under 
legal title. 



Sec 
102 



103. 



104. 



105. 



written in- 



occupation under 
strument, &c. 

Adverse possession under writ- 
ten instrument, &c. 

Premises actually occupied, held 
adversely. 

Adverse possession under claim 
of title not written. 

106. Relation of landlord and tenant, 

as affecting adverse posses- 
sion. 

107. Descent cast — effect of. 

108. Persons under disability. 

109. After forty years, no 

whatever allowed. 



action 



When the 
State will not 
sue. 

1870, XIV., 



18 7 3, XV. 
496. 



lb. 



Section 95. 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 an)^ action or other proceeding for the same shall be 
commenced ; or unless 

2. The State, or those from whom it claims, shall have re- 
ceived the rents and profits of such real property, or of some 
part thereof, within the space of twenty years. 

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 remains to be construed. — State v. 
Pinckney, 22 S. C, 484. 

When action Scc. 96. No actiou shall be brought for or in respect to real 

cannotbe ,.., . -, 

b r o u g h t by property by any person claiming by virtue of letters patent or 

grantee from . lo -11 1 

the State. grants from the State, unless the same might have been com- 

1870, X I v., menced by the State as herein specified, in case such patent or 

grant had not been issued or made. 

byThe^state or Scc. 97. When letters patent or grants of real property shall 

to^ be 1)ro"ugiu have been issued or made by the State, and the same shall be 

years!" " " ^^" declared void by the determination of a competent Court, ren- 

/&., § 100; dered upon an allegation of a fraudulent suggestion, or con- 

1873, XV., 496. cealment, or forfeiture, or mistake, or ignorance of a material 

fact, or wrongful detaining, or defective title, in such case an 

action for the recovery of the premises so conveyed may be 

brought either by the State, or by any subsequent patentee or 



OF SOUTH CAROLINA. 




grantee of the premises, his heirs or assigns, within ten years 
after such determination was made, but not after that period, tenyearsrwhen 
Sec. 98. I. No action for the recovery of real property, or piIintiff^iYm- 
for the recovery of the possession thereof, shall be maintained, tions. 
unless it appear that the plaintiff, his ancestor, predecessor, or isto, xiv., 
grantor, was seized or possessed of the premises in question xv., 496. 
within ten years before the commencement of such action. 

Adverse possession for ten years confers good title which may be asserted 
affirmatively.^ — Duren v. Kee, 50 S. C, 457; 27 S. E., 875; Harrelson v. Sarvis, 
39 S. C, 14; 17 S. E., 368; Busby v. R. R. Co., 45 S. C, 317; 23 S. E., 50; Cave 
v. Anderson, 50 S. C, 293; 27 S. E., 693. 

2. The plaintiff in all actions far recovery of real property yg.'^^^^' ■^^^^•' 
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 action 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. 

See Geiger v. Kaigler, 15 S. C, 271. 

If action is not renewed or recommenced within two years after discontinuance 
©r verdict in first action, the title is determined to be in the defendant. — Dyson 
V. Leek, s Strob., 141; Binda v. Benbow, 11 Rich., 24. The two actions are al- 
lowed subsequent to Act. — Duren v. Kee, 41 S. C, 171; 19 S. E., 492. As to 
payment of costs of first action. — Columbia W. P. Co. v. Columbia L. and I. Co., 
42 S. C, 488; 20 S. E., 378. Dismissal of second action for failure to pay costs 
of first action, precludes plaintiff from bringing another. — Ih.; 47 S. C, 117; 25 
S. E., 48. This subdivision does not apply to actions for partition. — Elmore v. 
Davis, 49 S. C, i; 26 S. E., 898. Nor to action for damages and injunction 
against trespasses. — Tompkins v. R. R. Co., 30 S. C, 479; 9 S. E., 521. 

Sec. 99. No cause of action, or defence to an action, , Seizin within 

' ten years, when 

founded upon a title to real property, or to rents or services "ction^^o7 If- 
out of the same, shall be effectual, unless it appear that the f^"ce^gf°^nded 
person prosecuting the action or making the defence, or under ^g^^ — xrv" 
whose title the action is prosecuted or the defence is made, or|^^2; i873, xv. 
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 defence made. 

Sec. 100. No entry upon real estate shall be deemed sufficient entry,'°or right 

or valid as a claim, unless an action be commenced thereupon ° ^"^'^^' 

within one year after the making of such entry, and within § ^Iq'z -, \m, 
ten years from the time when the right to make such entry de- 
scended or accrued. 

Sec. 101. 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 



58 CODE OF CIVIL PROCEDURE 

A. D. 1902. — ' 



^ thereof within the time required by law ; and the occupation of 

wh^en'presum^swch premises by any other person shall be deemed to have 

when "deemed ^ceu Under and in subordination to the legal title, unless it ap- 

un^der legal pg^j. ^j^^^ g^^^^ premises have been held and possessed ad- 

1S70, _xiv.,_§ versely to such legal title for ten years before the commence- 

104; 1S73, XV., ^^^^^ q£ g^^^j^ actioU. 

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, 16 S. C, 132. 

There can be no adverse possession by purchaser under contract to purchase 
the land against vendor until he has paid the purchase money. — Blackwell v. 
Ryon, 21 S. C, 112. Nor by purchaser from mortgagor, with notice of the 
mortgage, against the mortgagee. — Norton v. Lewis, 3 S. C, 25; Clark v. Smith, 
13 S. S., 585; Lynch v. Hancock, 14 S. C, 66. But there can be by purchaser 
against a judgment. — Goldsmith v. Jacobs, 14 S. C, 624. There can be no ad- 
verse possession against any of the co-tenants, unless it is against all. — Scaife v. 
Thompson, 15 S. C, 337. Before there can be adverse possession as to co-tenants 
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 co-tenant to convey all 
the land amounts to ouster. — Garrett v. Weinberg, 48 S. C, 29; 26 S. E., 3. 

But successive purchasers cannot tack possession so as to give such title. — 
Pegues V. Warley, 14 S. C, 180; Ellen v. Ellen, 16 S. C, 132; Garrett v. Wein- 
berg, 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 
V. Clark, 59 S. C, 440; 38 S. E., 154. 

Hence, where a woman married before the Constitution of 1868 did not have 
the right to the possession of her land acquired before that time, until the death 
of her husband, the statute did not commence to run against her until her hus- 
band's death. — Garrett v. Weinberg, 48 S. C, 29; 26 S. E., 3. See also Boykin v. 
Ancrum, 28 S. C, 486; 6 S. E., 305; Rawls 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 limited to ten years' duration, as fixed in this Section by 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, begun in 1883, is controlled by this 
Section, then in force. — Johnson v. Cobb, 29 S. C, 372; 7 S. E., 601. 

un^e'^r'' written ^^^' ^^^- Whenever it shall appear that the occupant, or 
instrument, &c. ^hosc Under whom he claims, entered into the possession of 
iosTistI.^xv.! P^'^'^^s^s under claim of title, exclusive of any other right, 
496. 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 con- 
tinued 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 in- 
cluded 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 pos- 
session of any other lot of the same tract. 



OF SOUTH CAROLINA. 59 

A. D. 1902. 



Occupancy of one of two adjoining parcels of land included within lines of ^ -■ v ~^ ' 
plat held as color of title does not confer title by adverse possession 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. 

Sec. 103. For the purpose of constituting an adverse pos- sessfon^under 
session, by any person claiming a title founded upon a written ment^\a^''^'^" 
instrument or a judgment or decree, land shall be deemed to isto, xiv., § 
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. \Miere, although not enclosed, it has been used for the 
supply of fuel or of fencing timber, for the purposes of lius- 
bandr}-, or the ordinary use of the occupant. 

4. Where a known farm or a single lot has been partly im- 
proved, 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. 

Sec. 104. ^^'here it shall appear that there has been an actual Premises ac- 

. . - . , . . .- .-.1 tually occupied 

continued occupation of premises, under a claim oi title, ex- held adversely. 
elusive of any other right, but not founded upon a written isro, xiv., § 
instrument or a judgment or decree, the premises so actually 
occupied, and no other, shall be deemed to have been held ad- 
versely. 

Sec. 105. For the purpose of constituting an adverse pos- Adverse pos- 

, , . . . , - , , . session under 

session by a person claiming title not founded upon a written claim of title 

instrument or a judgment or decree, land shall be deemed to '■ — 

have been possessed in the following cases only : 

1. Where it has been protected by a substantial enclosure. 

2. Where it has been usually cultivated or improved. 

Sec. 106. Whenever the relation of landlord and tenant r e i ation of 

• 1 1 • r 1 landlord and 

shall have existed between any persons, the possession oi the tenant, as af- 

r 1 1 11 1 -11 fecting adverse 

tenant shall be deemed the possession of the landlord until the possession, 
expiration of ten years from the termination of the tenancy; ib., § i09; 

, , , , . •, -11 • • 1873, XV., 496. 

or, where there has been no written lease, until the expiration 
of ten years from the time of refusal to pay rent, notwith- 
standing 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. 

Sec. 107. The right of a person to the possession of any Descent cast, 



real property shall not be impaired or affected by a descent 



1S70, XIV., § 

110. 



6o CODE OF CIVIL PROCEDURE 

A. D. 1902. 

'"^"^-^^-"^ being cast in consequence of the death of a person in possession 
of such property. 

This changes common law doctrine as to transmission of possession from an- 
cestor to heir, which presumed that the possession was rightful. — Geiger v. Kaigler, 
IS S. C, 262; Duren v. Kee, 26 S. C, 219; 2 S. E., 4. When the heir is in of 
his ancestor's possession and there is no new entry, the possession of the heir is 
that of the ancestor. — Duren v. Kee, 26 S. C, 219. And their possession may 
be tacked. — Burnett v. Crawford, 50 S. C, 161; 22 S. E., 645; Turpin v. Suddath, 
53 S. C, 311; 31 S. E., 245. But where the possession of the ancestor has been 
interrupted or put an end to, the entry of the heir is a new trespass, and the 
possessions do not unite to make title in heir. — Congdon v. Morgan, 14 S. C, 
587; Johnson v. Cobb, 29 S. C, 372; 7 S. E., 601. 

de'^^disabiiit'y"' Scc. 108. If a person entitled to commence any action for 

7i,.^ § 111. the recovery of real property, or to make an entry or defence 

founded 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 3'ears ; or, 

2. Insane; or, 

3. Imprisoned on a criminal or civil charge, or in execution 
upon conviction of a criminal offence for a term less than for 
life— 

496^"^' ^^" ^^^ ^^'^^ 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 defence ; but such action may be commenced, or entry 
or defence 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 defence made, after 
that period. 

The disability must exist when the cause of action first accrues. — Satcher v. 
Grice, 31 S. E., 3; 53 S. C, 126; Maccan v. Crowley, 59 S. C, 342; 37 S. E., 934. 
Effect of minority of one cotenant. — Garrett v. Weinberg, 48 S. C, 28; 26 S. E., 18. 

The statute does not run during the continuance of the disability. — Rice v. 
Bamberg, 59 S. C, 507; 38 S. E., 209. 

After forty Sec. 109. No actiou shall be commenced in anv case for the 

years, no ac- 
tion whatever recovery of real property, or for any interest therein, against 

a person in possession under claim of title by virtue of a writ- 
ten 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. 

Does this apply to cases of adverse possession begun before its adoption? — Sut- 
ton V. Clark, 38 S. E., 154; 59 S. C, 440. 



OF SOUTH CAROLINA. 



CHAPTER III. 

Time of Commencing Action Other Than for the Recovery 
of Real Property. 




Sec. 

110. Limitation prescribed 

111. Twenty years. 

112. Six years. 

113. Three years. 

114. Two years. 



Sec. 

115. One year. 

116. Actions upon current account. 

117. Actions for penalties. 

118. Actions for other relief. 

119. Actions by the State. 

L i m itation 

prescribed. 

Section 110. The periods prescribed in Section 94 for the 1370, xiv., 
commencement of actions other than for the recovery of real ^ ^^^' 

property shall be as follows : Twenty years. 

Sec. 111. 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. 

Action on judgment distinguished from proceeding under Sec. 310. — Roland v. 
Shockley, 43 S. C, 246; 21 S. E., 21. Applies to actions on decrees for equality 
of partition. — McKibben v. Salinas, 41 S. C, 105; 19 S. E., 302: Simms v. Kearse, 
., Q r .,. ,^ Q T- ,„ . 0, y , ^ , XVII., 

42 3. C, 43; 20 is. £.., 19. ,,- ' ' 

2. An action upon a bond, or other contract in writing, se- 
cured by a mortgage of 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. 

Subdivision 2 does not apply to action for breach of warranty in deeds made 
before 1870. — Bratton v. Guy, 12 S. C, 42. Nor to seal note which matured 
before that time. — Nichols v. Briggs, 18 S. C, 473. But mortgage given to secure 
it might be foreclosed at any time within twenty years. — lb. Nor to bond executed 
before that time. — Neely v. Yorkville, 10 S. C, 141; State v. Lake, 30 S. C, 43; 
8 S. E., 322. But it does apply to official bond executed since that time. — Strain 
V. Babb, 30 S. C, 342; 9 S. E., 271. 

Applies to actions to foreclose mortgages maturing after enactment of statute. — 
Jennings v. Peay, 51 S. C, 327; 28 S. E., 949. Execution purchaser of mortgagor 
may plead the statute, although the mortgagor is out of the State. — Arthur v. 
Screven, 39 S. C, 84; 17 S. E., 641. Six years. 

Sec. 112. Within six years : ~im xiv 

1. An action upon a contract, obligation, or liability, express § ^^*- 
or implied, excepting those provided for in Section iii. 

Applies to actions on warranty in deed. — Bratton v. Guy, 12 S. C., 42. 

In actions against heirs or devisees to subject real estate in their possession 
to payment of debts of ancestor or devisor, nine months must be added to the 
six years. — Cleveland v. Mills, 9 S. C, 430. 

Applies to note executed prior to but maturing after the enactment of the 
statute. — Stoddard v. Owings, 42 S. C., 88; 20 S. E., 25; Jennings v. Peay, 51 
S. C, 327; 28 S. E., 949. When cause of accrues to endorser on note. — McCrady 
V. Jones, 44 S. C., 406; 22 S. E., 412. 

2. An Action upon a liability created by Statute, other than 
a penalty or forfeiture. 



&^ CODE OF CIVIL PROCEDURE 

A. D. 1902. — 

■^ Action on decree for equality of partition is not. — Artliur v. Screven, 39 S. C, 

84; 17 S. E., 641. 

3. An action for trespass upon or damage to real property. 

4. An action for taking-, detaining, or injuring any goods or 
chattels, including actions for the specific recovery of personal 
property. 

Applies to action to recover houses on land sold to plaintiff by party in pos- 
session. — Dominick v. Farr, 22 S. C, 585. To action to recover amount of mis- 
take in compromise settlement of note. — McMakin v. Gowan, 18 S. C, 502. 

5. An action for criminal conversation, or for any other 
injury to the person or rights of another, not arising on con- 
tract, and not hereinafter enumerated. 

Where goods held for safekeeping are destroyed, this limitation begins to run 
from date of loss or of owner's notice thereof, and not from time of demand. — • 
Cohrs v. Fraser, 5 S. C, 356. 

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. 

Subdivision 6 applied.- — Means v. Feaster, 4 S. C, 257; Beattie v. Pool, 13 S. 
C, 379; Kibler v. Mcllwain, 16 S. C, 550; Suber v. Chandler, 18 S. C, 526; Rich- 
ardson V. Mounce, 19 S. C, 477; McSvi^een v. McCown, 23 S. C, 342; City Coun- 
cil V. Bank, 23 S. C 410; Amicker v. New, 33 S. C, 28; 11 S. E., 386; Harrell 
v. Key, 37 S. C, 375; 16 S. E., 42; Jackson v. Plyer,' 38 S. C, 500; 17 S. E., 257; 
Brown v. Brown, 44 S. C, 378; 22 S. E., 412; Lenhardt v. French, 57 S. C, 493; 
37 S. E., 761; Toole v. Johnson, 61 S. C, 34; 39 S. E., 254 

1042^^^'^' ^■^" 7- Actions may be brought in any of the Courts of this State 
properly having jurisdiction thereof on any policies of insur- 
ance, either fire or life, whereby any person or property, resi- 
dent 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 contained to the contrary 
notwithstanding. 

Does not apply to contracts entered into prior to its enactment. — Sample v. Ins. 

Co., 46 S. C, 498; 24 S. E., 334. 
Three years. 

~~^Q — XTv" ^®^" ^^^* Within three years : 

§ ^'"^- I. 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 execu- 
tion. 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 



OF SOUTH CAROLINA. 63 

A. D. 1902. 



party and the State, except where the Statute imposing it pre- ^"""^v^"^ 
scribes a different Hmitation. 

Sec. 114. Within two years : '^'^•° y^^"- 

1. An action for Hbel, slander, assault, battery, or false im- ^'^■' § ^^''• 
prisonment. 

2. An action upon a Statute, for a forfeiture or penalty to 
the State. 

An agreed forfeit of a certain amount to State for breach of contract is stipu- 
lated damages and not a technical penalty; and action therefor is not hereby 
barred in two years. — Lipscomb v. Seegers, 19 S. C, 425. 

Sec. 115. Within one year : _°i!i_^:!!!__ 

I. An action against a Sheriff or other officer for the escape ■^^•' ^ ■^^'■ 
of a prisoner arrested or imprisoned on civil process. 

Sec. 116. In an action brought to recover a balance due upon ^ ^^^f ^°^^jj^"p°^ 

a mutual, open, and current account, where there have been g°""t. 

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. 

A sealed note on one side and open account on the other do not constitute 
such open mutual account. — Chapman v. Chapman, 31 S. C, 405; 10 S. E., 106. 

Sec. 117. An action upon a Statute, for a penalty or f or- pg^^f^fg"^ ^""^ 
feiture given, in whole or in part, to any person who will prose- ~Y^^^. 
cute for the same, must be commenced within one year after 
the commission of the offence; and, if the action be not com- 
menced within the year by a private party, ' it may be com- 
menced within two years thereafter, in behalf of the State, by 
the Attorney General, or the Solicitor of the Circuit where the 
oft'ence was committed, unless a different limitation be pre- 
scribed in the Statute under which the action is brought. 



Sec. 118. An action for relief not hereinbefore provided for, Actions 

^ ' other relief. 



for 

other relie 

must be commenced within ten vears after the cause of action ^^ , ,,„ 

lb., § 120. 

shall have accrued. 

McMakin v. Gowan, 18 S. C, 502; Bank v. Gadsden, 56 S. C, 313; 33 S. E., 575. 

Sec. 119. The limitations prescribed by this Chapter shall ^^^^ |t^'jo"s ^y 
apply to actions brought in the name of the State, or for its ^^ , ^^i 
benefit, in the same manner as to actions by private parties. 




CODE OF CIVIL PROCEDURE 



CHAPTER IV. 

General Provisions as to the Time of Commencing Actions. 



Sec. 

120. When action deemed commenced. 

121. Exception — defendant out of 

State. 

122. Exception as to persons under 

disabilities. 

123. Deatli of person entitled before 

limitation expires. 

124. Suits by aliens. 

125. Where judgment reversed. 

126. Stay of action by injunction, &c. 



Sec. 

127. Disability must exist when right 

accrued. 

128. Two or more disabilities. 

129. This Title, when not to apply. 

130. The like. 

131. New promise must be in writing. 
131a. Effect of partner's act after 

dissolution of firm. 
1315. Practice in suits saved from 
bar of statute. 



Section 120. An action is commenced as to each defendant 
deemeTc^o*m" whcn the summons is served on him, or on a co-defendant, who 
"'^"'^^^- is a joint contractor, or otherwise united in interest with him. 

§ 122.°' ^^^'' ^^^ 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 intent that it shall be ac- 
tually 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 corporation was established by law, 
or where its general business was transacted, or where it kept 
an office for the transaction of business. 

Cureton v. Dargan, 12 S. C, 122; State v. Cohen. 13 S. C.. ig8; Montague v. 
Stelts, 37 S. C, 212; 15 S. E., 968; Morgan v. Morgan, 45 S. C 323; 23 S. E., 
64; Norris v. Ins. Co., 55 S. C, 450; 33 S. E, 566 

Sec. 121. If, when the cause of action shall accrue against 
def?ndant*°oi^ ^"y pcrsou, he shall be out of the State, such action may be 
°^ State. 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 ab- 
sent therefrom for the space of one year or more, the time of 
his absence shall not be deemed or taken as any part of the 
time limited for the commencement of such action. 

Subsequent purchaser of mortgaged premises may plead statute. Where the 
mortgagor is out of the State. — Arthur v. Screven, 39 S. C, 85; 17 S. E., 741, § 
121, applies to one who was a party to a suit, and absent from the State over one 
year prior to a proceeding to revive the decree therein. — Morgan v. Morgan, 45 
S. C, 323; 23 S. E., 64. It embraces persons who come into the State without a 
previous residence here.^ — Burrows v. French, 14 S. C, 165. Where the statute 
has once commenced to run against a resident of this State his voluntary re- 
moval therefrom will not arrest its currency. — Maccaw v. Crawley, 59 S. C, 342; 
37 S. E., 934. 



lb., § 123. 



OF SOUTH CAROLINA. 




Sec. 122. If a person entitled to bring an action mentioned 
in the last Chapter except for a penalty or forfeiture, or against to^'^efsons^n- 
a Sheriff or other officer for an escape, be, at the time the '^^^ disabilities. 
cause of action accrued, either — ^^■' § ^^4. 

1. Within the age of twenty-one years ; or, 

2. Insane; or, 

3. Imprisoned on a criminal or civil charge, or in execution 
under the sentence of a criminal Court for a less term than his 
natural life — 

The time of such disability is not a part of the time limited 
for the commencement 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. 

An infant has as much time within which to bring his action as persons not 
under disability, and under this Section he has one additional year after his 
majority, but no longer, to do so, if the time limited expire before or within 
that additional year. — Fricks v. Lewis, 26 S. C, 237; i S. E., 884; Anderson v. 
Simms, 29 S. C, 247; 7 S. E., 289. 

Sec. 123. If a person entitled to bring an action die before ^''^^^■°JP?''- 

^ ° son entitled be- 

the expiration of the time limited for the commencement ^o'"'? limitation 

^ expires. 

thereof, and the cause of action survive, an action may be com- ^g.^ ^^^ — r 
menced by his representatives, after the expiration of that 125. 
time and within one year from his death. If a person against 
whom an action may be brought die before 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. 

Only applies to cases where the Statute commenced to run in lifetime of dece- 
dent, and statutory period expired before administration. — Strain v. Babb, 30 S. C, 
342; 9 S. E., 271. It must be shown that the action was commenced within one 
year after letters testamentary or of administration were granted, or the plea of 
Statute of Limitations will not avail. — Foggette v. Gaffney, 33 S. C, 303; 12 S. 
E., 260. Where statutory period has not expired before administration, the exe- 
cutor or administrator, under the law protecting administrator or executor from 
suit for nine months, that time must be added to the statutory period. — Cleveland 
V. Mills, 9 S. C, 435; Hayes v. Clinkscales, 9 S. C, 450; Moore v. Smith, 29 S. C, 
254; 7 S. E., 485. 

Where action is in form ex delicto, and defendant die, it cannot be revived 
against his personal representatives. — Huff v. Watkins, 20 S. C, 477; except as to 
actions for injury to real property under Sec. 2859, Civil Code; Allen v. Union Oil 
Co., 59 S. C, 571; 38 S. E., 274. 

Sec. 124. When a person shall be an alien subject, or citizen Suits by aliens. 
of a country at war with the United States, the time of the ^^■' § ^^e. 



5.-C. P. 



66 CODE OF CIVIL PROCEDURE 

A. D. 1902. ■ 

^""■^^^^^^ continuance of the war shall not be part of the period limited 

for the commencement of the action. 
Where judg- ggp jgS. If an action shall be commenced within the time 

ment reversed. 

~^ 7~:^ 'prescribed therefor, and a judgment therein be reversed on 
appeal, the plaintiff, or, if he die and the cause of action sur- 
vive, his heirs or representatives may commence a new action 
within one year after the reversal. 

tion*by injunc- ^^^' ^^^' ^"^^^en the Commencement of an action shall be 

tion, &c. stayed by injunction or statutory prohibition, the time of the 

lb., § 128. continuance of the injunction or prohibition shall not be part 
of the time limited for the commencement of the action. 

?x'f s't'^Th'en Sec. 127. Xo person shall avail himself of a disability, unless 

right accrued. -^ existcd whcu his right of action accrued. 

10. J § -1^9. Maccaw v. Crawley, 59 S. C, 342; 37 S. E., 934; Shubrick v. Adams, 20 S. C, 

52; Fewell V. Collins, 3 Brev., 286; Adamson v. Smith, 2 Mills Const. Reports, 269; 
Faysoux v. Prather, i X. & McC, 296. 

dilaMitTes™"'^^ Scc. 128. When two or more disabilities shall co-exist at the 
jj, § 30 time the right of action accrues, the limitation shall not attach 
until they all be removed. 
wii^n^noV^^o Sec. 129. This Title shall not affect actions to enforce the 

^PP'^^" .payment of bills, notes, or other evidences of debt, issued by 

moneyed corporations, or issued or put in circulation as money. 
Sec. 130. This Title shall not affect actions against directors 
lb., § 132. Qj. stockholders of a moneyed corporation, or banking associa- 
tions, 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 created, unless otherwise provided in the law 
under which such corporation is organized. 

Applied in Parker v. Savings Bank, 53 S. C, 583; 31 S. E., 673. 

^uTt^be^fn Sec. 131. No acknowledgement or promisc sliall bc sufficicut 
evidence of a new or continuing contract, whereby to take the 
case out of the operation of this Title, unless the same be con- 
tained 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. 

This Section has reference only to the evidence necessary to establish an ac- 
knowledgement or new promise, but does not change the pre-existing law as to 
what acknowledgements will continue a debt not barred or what new promises will 
create a new contract. Ester v. Wood, 21 S. C, 600; Hill v. Hill, 51 S. C, 141; 
28 S. E., 309; Park v. Brooks, 38 S. C, 306; 17 S. E., 24. 

Parol promise not to plead the statute cannot operate as a waiver or as an agree- 
ment, or by way of estoppel to subvert this Section. — Hill v. Perrin, 21 S. C, 356. 

A verbal promise to pay a debt after discharge in bankruptcy is not affected by 
this Section, but is valid. — Lanier v. Tolleson, 20 S. C, 57. 



lb., § 131. 
The like. 



must be in 
writing. 

lb., § 133. 



OF SOUTH CAROLINA. 



67 



A. D. 1902. 



Administrator putting due bill made by him upon his inventory is not such new ^'■-"■^v^^-^ 
promise. — Black v. White, 13 S. C, 37. 

Endorsement of payment by payor on sealed note sufficient to toll statute. — 
Cook V. Jennings, 40 S. C, 204; 18 S. E., 640. A partial payment sufficient to 
toll statute. — Park v. Brooks, 38 S. C, 300; 17 S. E., 24. But is not equivalent 
to a promise under the Statute of Frauds. — Millwee v. Jay, 47 S. C, 430; 25 S. E., 
299. 

Sec. 131a. No acknowledgement, payment or part pay- nfbig "0^%°,"^^. 
ment or renewal of any debt or obligation of a firm, made after d]^soiufion^^*of 
notice of the dissolution of the copartnership, shall have any partnership. 
force or efifect to bind any member of the firm, or continue his 349^'''^' ^^^^i- 
liability to pay said copartnership debt, other than the person 
by whom such acknowledgement, payment or part payment or 
renewal shall be made, or in any wise affect their right to plead 
the Statute of Limitation or the presumption of payment 
from lapse of time. 

Payments by one of the joint contractors do not bind the others and deprive them 
of the protection herein provided. — Smith v. Townsend, 9 Rich., 44; Smith v. 
Caldwell, 15 Rich., 374; Shubrick v. Adams, 20 S. C, 49; Walter v. Kraft, 23 
S. C, 578. 

Sec. 131b. All actions upon causes of action which would g h^°^il"Ve 
be barred by the Statute of Limitations but for part payment ^ ^ ° "el which 
or a written acknowledgement, shall be brought on the original ^ar ^orstfture 
cause of action, and the part payment or written acknowledge- m^entr&c. ^^^' 
ment shall be evidence, to prevent the bar of the Statute of 1900, xxiii.. 
Limitations. 

Prior to this Act, if payments had been made by debtor, the action, after ex- 
piration of six years, must have been on new promise implied from payment, and 
not on note. — Fleming v. Fleming, 33 S. C, 505; 12 S. E., 257. 

Does not apply to judgment obtained before adoption of Code, under Sec. 93. — 
Colvin v. Phillips, 25 S. C, 228. 



TITLE III. 

PARTIES TO CIVIL ACTIONS. 



Sec. 

132. Party in interest to sue. Action 

by grantee of land held ad- 
versely. 

133. Assignment of thing in action. 

134. Actions by executor, trustee, &c. 

135. Actions by and against married 

women. 

136. Infants, action by and against. 

137. Guardian, how appointed. 



Sec. 

138. Who may be plaintiffs. 

139. Who may be defendants. 

140. One or more may sue or defend 

for all. 

141. One action against the different 

parties to bills and notes. 

142. Action, when not to abate. 

143. Court to decide controversy, &c. 

Inter-pleading. 



Party in in- 

Section 132. Every action must be prosecuted in the name of ^''^^^^^^'^ ^^y 
the real party in interest, except as otherwise provided in Sec- ge?d^adv°eKery'! 
tion 134; but this Section shall not be deemed to authorize the ^g^^^ ^iv., § 



134. 



68 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^^"■^^^^"^ assig-nment 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 plain- 
tiff shall be allowed to prove the facts to bring the case within 
this provision. 

This Section does no more than express a long established principle, that all 
parties at interest should be made parties. — Cathcart v. Sugenheimer, i8 S. C, 123. 

Only the real party in interest can sue. — Sullivan v. Hellams, 6 S. C, 184. 

A County, as real party in interest, may sue on official bond of County Treas- 
urer. — Greenville Co. v. Runion, 9 S. C, i. 

Distributees may sue in their own names upon the bond of administrator of 
their intestate. — Kaminer v. Hope, 9 S. C, 253, or they may join as co-plaintiffs 
with the Probate Judge. — McCorkle v. Williams, 20 S. E., 744; 43 S. C, 60. 

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 Charleston to secure certain bonds issued 
by them to mortgagor is properly sued iu name of City Council.— City Council v. 
Caulfield, 19 S. C, 201. 

Probate Judge, as successor of the Ordinary, cannot, as real party in interest, 
sue on administration 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, 26 S. E., 894; 48 S. C, 588. 

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. Sugenheimer, 18 
S. C, 123. 

of thing^n ac- Scc. 133. 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 defence existing at the time of, or before notice 
of, the assignment ; but this Section shall not apply to a nego- 
tiable promissory note or bill of exchange, transferred in good 
faith, and upon good consideration, before due. 

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 counter-claim, without demand for judgment thereon. — Sullivan v. 
Blythe, 14 S. C, 621. 

So assignee of share of distributee, who is surety on administration bond, takes 
subject to his liability on such bond. — Bobo v. Vaiden, 20 S. C, 271. And as- 
signee 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, 
148; 17 S. E., 462. So assignee of insurance policy. — Westbury v. Simmons, 57 
S. C, 467; 35 S. E., 765. The burden of proof to show cause of counter-claim or 
defense accrued since the assignment is on the plaintiff assignee. — Bank v. Gads- 
den, 56 S. C, 313; 33 S. E., 75. 

This Section does not apply where party moves to set off judgment against 
him by a judgment he holds against the other party, when the judgment 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 v. Western R. Co., 7 How. 
Pr., 492. 



OF SOUTH CAROLINA. 69 

— A. D. 1902. 



Sec. 134. An executor or administrator, a trustee of an ex- ^^-^v^^ 
press trust, or a person expressly authorized by Statute, may ^^^^^ *Q^j°"^^^y 
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 per- 
son with whom, or in whose name, a contract is made for the 
benefit of another. 

Commissioner in Equity could sue in his own name on bond given to him for 
benefit 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 payable to him as such, though 
it had been transferred, and suit is for benefit of assignee. — Carroll v. Still, 13 S. 
C, 430, and any time before final discharge. — Hill v. Hill, 51 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 v. Moses, 12 S. C, 130; Clark v. Smith, 13 S. C, 

S8S. 

Succeeding committee may bring action against executors of deceased committee for 
an account, without joining the lunatic as a party.- — Ashley v. Holman, 15 S. C, 97. 

Where equitable relief as to estate of lunatics is sought, it seems that the com- 
mittee may sue alone. — Cathcart v. Sugenheimer, :8 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 convicts for their escape. — Lipscomb v. Seegers, 19 S. C, 425. 

Probate Judge, as successor of Ordinary, may sue in his own name upon admin- 
istration bond given to his predecessor. — Johnson v. Dawkins, 20 S. C, 528. See 
also McCorkle v. Williams, 20 S. E., 744; 43 S. C, 66. Guardian may sue without 
joining ward. — 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., 416. 

Sec. 135. When a married woman is a party, her husband g^d Ig'aTn'^s^ 
must be joined with her, except that — Sen!" "^ '^'^ ^°' 

1. When the action concerns her separate property, she may 7^,^ § 137, 
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. 

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. 

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 againt a married woman does not concern her separate prop- 
erty, her husband is a necessary party; where it does, he is only a proper party. — 
Lowry v. Jackson, 27 S. C, 318; 3 S. E., 473. 

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. 

Sec. 136. When an infant is a party, he must appear by ^Jj^^^^^^y^'^^d 
guardian, who may be appointed by the Court in which the ^gamst. 



action is prosecuted, or by a Judge thereof, or a Judge of Pro-^^g^g^-'jly j i; 

32; is98, XXII,' 




CODE OF CIVIL PROCEDURE 



bate, Clerk of Court, or by a Master in those Counties where 
the office of Master now or may hereafter exist. 

Probate Judge may appoint guardian ad litem for infants parties to actions in 
the Court of Common Pleas. — Trapier v. Waldo, i6 S. C, 276; Lyles v. Haskell, 
35 S. C, 391- 

appo'inted'. ^ Scc. 137. The guardian shall be appointed as follows : 
1870, XIV., I. When the infant is "plaintifif, 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 general or testamentary guar- 
dian, 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. 
^^' 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 summons. If he be under 
the age of fourteen, or neglect so to apply, then upon the appli- 
cation 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. Arid 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 guardian of the infant defend- 
ant, 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 guar- 
dian 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 appoint 
a guardian ad litem for such absent infant party, for the pur- 
pose of protecting the right of such infant in said action, and on 



OF SOUTH CAROLINA. 




such guardian ad litem, process, pleadings, and notices in the 
action may be served in the hke manner as upon a party re- 
siding in this State. 

What is sufficient notice of application for appointment of guardian ad litem. — ■ 
Lyles V. Haskell, 35 S. C, 391; 14 S. E., 829. 

No jurisdiction of the persons of infants can be obtained except by exact com- 
pliance with the requirements of this Section. — Finley v. Robertson, 17 S. C, 435; 
Riker v. Vaughn, 23 S. C, 187; Tederall v. Bouknight, 25 S. C, 275. 

Jurisdiction of a minor under fourteen is obtained by service on her of summons 
and complaint, and acceptance by her father, who is her general guardian, of 
service of the summons and complaint, and notice of appointment of guardian 
ad litem, although she resides with another, and appointment of guardian ad litem 
upon petition of her father. — Barrett v. Moise, 61 S. C, 569; 39 S. E., 755. Ir- 
regularity in service and appointment of guardian ad litem for infant may be 
cured by subsequent proceedings. — Easterby v. Mcintosh, 51 S. C, 397; 29 S. E., 87. 

Sec. 138. All persons having an interest in the subject of the la^^j^jj^^^ ^^ 
action, and in obtaining the relief demanded, may be joined as ~^^ xiv~ 
plaintiffs, except as otherwise provided in this Title. § ^■*°- 

The joinder here is permissive. — Bliss Code Pleading, 61; Roberts v. Johns, 
10 S. C, loi; Hellams v. Switzer, 24 S. C, 39; Stallings v. Barrett, 26 S. C, 
474; 2 S. E., 483; McCorkle v. Williams, 43 S. C, 66; 20 S. E., 744. 

Sec. 139. Any person may be made a defendant who has or ^ J'^'^°^™^y be 
claims an interest in the controversy adverse to the plaintiff, ~^^ xiv~ 
or who is a necessary party to a complete determination or set- § ^'*^- 
tlement of the questions 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. 

A joint action upon a joint and several bond, by two obligors, may be brought 
against the survivor of them and the executor of the deceased one. — Trimmier 
v. Thompson, 10 S. C, 164; Susong v. Vaiden, lb., 247; W^eisenfield v. Byrd, 17 
S. C, 106. 

In action for tort, one cause of action against two defendants cannot be joined 
with a cause of action against one of them. — Ilines v. Jarrett, 26 S. C, 480; 2 
S. E., 393. 

In actions for foreclosure, a party in possession, claiming title to land, was 
properly made a party defendant. — Sale v. Meggett, 25 S. C, 72. 

Personal representatives and grantees of a decedent are proper parties to action 
to marshall his assets and set aside conveyances as fraudulent. — Sheppard v. 
Green, 48 S. C, 165; 26 S. E., 224. 

Sec. 140. Of the parties to the action, those who are united One or more 

■t^ ' may sue or de- 

in interest must be joined as plaintiffs or defendants; but if ^^"'^ ^°'" ^"- 
the consent of any one who should have been joined as plain- ^^■' § i^^. 
tiff cannot 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. * 




CODE OF CIVIL PROCEDURE 



Action by a few members on behalf of an unincorporated association. — Stemmer- 
man v. Lilienthal, S4 S. C, 440; 33 S. E., 535. 

This provision applies to legal as well as equitable actions; but does not abolish 
entirely the common law requirements in legal actions for torts. — Hellams v. 
Switzer, 24 S. C, 39; Hines v. Jarrett, 26 S. C, 430; 2 S. E., 393. 

Two tenants in common can join in action to recover possession of their shares 
in land from a stranger without making other co-tenants parties. — Bannister v. 
Bull, 16 S. C, 220. 

An action by single creditor against receiver and stockholders of an insolvent 
bank for his debt is defective for want of parties; it should be brought by plaintiff 
on behalf of himself and other creditors.^ — Terry v. Calnan, 4 S. C, 514. And it 
should be against all the stockholders, and not one alone. — Terry v." Martin, 10 
S. C, 263. 

One who asserts distinct claim, peculiar to himself, cannot join other creditors 
or claimants with him. — Warren v. Raymond, 17 S. C, 163. 

Where plaintiffs sue for benefit of whole class the judgment is binding and 
conclusive upon all parties of the class who stand out. — State v. C. & L. R. R. 
Co., 13 S. C, 290. 

It is only where one or more may sue or defend for the benefit of the whole 
class that counsel fee can be allowed out of the common fund. — Wilson v. Kelly, 
30 S. C, 483; 9 S. E., 523. 

against the di'f'^ ^®^- ^^^- Persons severally liable upon the same obligation 
/o'^Ti 1 /'s^Tnd °^ instrument, including the parties to bills of exchange and 

"°'^'^^- .promissory notes, may all, or any of them, be included in the 

lb., § 143. same action, at the option of the plaintiff. 

Trimmier v. Thompson, 10 S. C, 164; Susong v. Vaiden, lb., 247; Weissenfield 
V. Byrd, 17 S. C, 106. 

n^1i°aiDaTe.^'' Scc. 142. -No action shall abate by the death, marriage, or 
lb., § 144. 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 or party, the Court, on 
motion, at any time within one year thereafter, or afterwards, 
on a supplemental complaint, may allow the action to be con- 
tinued 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 substi- 
tuted in the action. 

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 disability of 
the party plaintiff, the Court in which action is pending, upon 
notice to such person as it may direct, and upon application 
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. , - 



OF SOUTH CAROLINA. 73 

A. D. 1902. 



Does not authorize continuance of action in name of the pledgee of notes, as ^"-*'^v^""-^ 
securities, after the extinguishment of his interest. — Matthews v. Cantey, 48 S. C, ' 
588; 26 S. E., 894. 

Proceedings by rule to show cause why the action should not be continued 
against the new parties in interest; practice thereon. — Dunham v. Carson, 42 S. C. 
388; 20 S. E., 197; DeLoach v. Sarratt, 55 S. C, 254; 33 S. E., 2; Pickett v. 
Fidelity and Casualty Co., 60 S. C, 477; 38 S. E., 160; Shull v. Bradford, 59 S. C, 
573! Zl 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 ap- 
pointment of the arbitrators, does not discontinue action after death of plaintiff, 
revived by administratrix. — Lynch v. 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. — Huff 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 
necessary. — Arthur v. Allen, 22 S. C, 432. 

Sec. 143. The Court may determine any controversy between ci(k°controver"- 
the parties before it, when it can be done without prejudice to ?^^^^|?- i'^*"" 
the rights of others, or by saving their rights ; but when a ~^ 7^^^ 
complete determination of the controversy cannot be had with- 
out 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 application 
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 con- 
tract, 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 dis- 
cretion make the order. 

Where plaintiff thinks a third person is a necessary party to the complete de- 
termination of the action, he should take proper steps to have him made defendant. — 
Eakin v. Knox, 6 S. C, 14. 

In action by single creditor against receiver of insolvent corporation and num- 
ber 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. Pagan, 18 S. C, 584. 



74 CODE OF CI\'IL PROCEDURE 

A. D. 1902. 

^"■""^v Where land is sold under execution after actions commenced to foreclose mort- 

gages on it and notices of lis pendens filed, the purchaser at such sale may inter- 
vene by petition as a proper party, charging the mortgages to be fraudulent. — Ex 
Parte Moblej-, 19 S. C, 337. 

The provision for interpleader applies only where the claimant is not a party 
to the action. — Brock v. So. Ry. Co., 44 S. C, 444; 22 S. E., 602. 



TITLE IV. 

OF THE PLACE OF TRIAL OF CIVIL ACTIONS. 

Sec. Sec. 

144. Actions to be tried where sub- 146. Actions to be tried where the 

ject-matter situated. [ defendants reside. 

145. Actions to be tried where cause 147. Changing place of trial. 

of action arose. 

The regulations of this Title are intended solely for the benefit of the parties 
to the action, and parties outside have no rights in the matter. — Trapier v. \\'aldo, 
16 S. C, 2'/6. 

triefT hl°r^e Scctioii 144. Actions fcr the following causes must be tried 
lituaTed.™^"*^^ ii^ the County in which the subject of the action, or some part 
1S70, XIV., thereof, is situated, subject to the power of the Court to change 
xix^'sssfilgi! the place of trial, in the cases as hereinafter provided : 
XXL, (93. j^ Yq^ the recovery of real property, or of an estate or inter- 

est 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 propert}'. 

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. 

The words "must be tried" are imperative and cannot be disregarded. Judgment 
in any other County is a nullity. — Trapier v. Waldo, 16 S. C, 276; Steele v. 
Exum, 22 S. C, 2y6; Bacot v. Lowndes, 24 S. C, 392; Ware v. Henderson, 25 
S. C, 385- 

This Section does not embrace an action by creditors of estate for account 
and marshaling of assets in County where executor resides. — Jordon v. Moses, 
10 S. C, 431. 

In such action in one County, a part of the lands lying in that County and a 
tract in another County, the title to that tract may be tried in County where 
action is brought. — Barret v. Watts, 13 S. C, 441. But where the land devised 
has been transferred by devisees, and such action seeks first to set aside the deeds, 
it comes within this Section and must be tried in County where land is situate. — 
Bacot v. Lowndes, 24 S. C, 392. Where action is against one defendant residing 
in County of F and another defendant residing in another County, and to fore- 



OF SOUTH CAROLINA. 75 

A. D. 1002. 



close their mortgage on their respective lands situate in both Counties, the Court ^ -^ v "^ ^ 
in County F has jurisdiction. — Wagener v. Swygert, 30 S. C, 296; 9 S. E., 107. 

Action against trustee for an accounting for value of real estate bought with 
trust funds in her own name, is not embraced \p. actions under subdivision i. — Bell 
V. flood, 28 S. C, 313; 5 S. E., 510. 

Circuit Judge has power at chambers to hear an action for partition, while 
in the County in which land is situate. — Woodward v. Elliott, 27 S. C, 368; 3 
S. E., 477. 

Sec. 2736 of the Civil Code prior to amendment of 1899 construed in connec- 
tion with this. — Woodward v. Elliott, 2-j S. C, 368; 3 S. E., 477; Kaminsky v. 
Trantham, 45 S. C, 8; 22 S. E., 746. 

This Section governs in action quare clausuin f regit. — Henderson v. Bennett, 
58 S. C, 30; 36 S. E., 2. 

Sec. 145. Actions for the followino' causes must be tried in Actions to be 

'^ tried where 

the County where the cause, or some part thereof, arose, sub- cause of action 

'- _ arose. 

ject to the hke power of the Court to change the place of trial : —— — xrv" 

1. For the recovery of a penalty or forfeiture imposed by ^23, § U7. 
Statute, except that, when it is imposed for an offence com- 
mitted 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 offence was committed. 

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. 

The words "must be tried" are imperative. — ^Judgment in any other County 
is a nullity. — Trapier v. Waldo, i6 S. C, 276; Steele v. Exum, 22 S. C, 276; 
Bacot v. Lowndes, 24 S. C, 392; Ware v. Henderson, 25 S. C, 385. 

Applies to proceedings in mandamus. — State ex parte LaMotte v. Smith, 50 S. C, 
558; 27 S. E., 933. 

Sec. 146. In all other cases the action shall be tried ^ ;Yed"ln°thl 
in the County in which the defendant resides at the time of the def^ndanr'^ ^^ 
commencement of the action; and if there be more than one ^"^"- . 



defendant, then the action may be tried in any County in which § \4S;%'8 7^5"! 

one or more of the defendants to such action resides at the xxiL^^ek?!^^^' 

time of the commencement of the action; or if none of the 

parties shall reside in the State, the same may be tried in any 

County which the plaintiff shall designate in his complaint, 

subject, however, to the power of the Court to change the 

place of trial in the cases as provided by law : Provided, That Proviso. 

any administrator or administratrix, 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 testator'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. 



76 CODE OF CIVIL PROCEDURE 

A. D. 1902. 



^— ^v^~-' The language as to trial of action in County where defendant resides is im- 

perative, and places the exclusive jurisdiction there. — Blakely v. Frazier, ii S. C, 
122; Trapier v. Waldo, 16 S. C, 276; Steele v. Exum, 22, S. C, 276; Bacot v. 
Lowndes, 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. 

The action against more than one defendant may be tried in County where one 
resides. — Wagener v. Swygert, 30 S. C, 296; 9 S. E., 107. 

Where none of parties to action reside in State, the County designated in com- 
plaint is proper County for trial. — Steele v. Exum, 22 S. C, 276. 

Applies to confessions of judgment. — Ex Parte Ware Furniture Co., 49 S. C, 20; 
2.7- S. E., 9. 

Actions against railroads must be tried in a County through which their road 
runs.— Tobin v. R. R. Co., 47 S. C, 387; 25 S. E., 283. 

pia^e''o^f'\fiaL° Scc. 147. The Couit may change the place of trial in the 

18 7 0, XIV., following cases: 
xviL, 14^ ' ^' I- ^^'hen the County designated for that purpose in the com- 
plaint is not the proper County. 

2. "\Mien there is reason to believe that an impartial trial 
cannot be had therein. 

3. When the convenience of witnesses and the ends of jus- 
tice would be promoted 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. 

This Section controls the preceding Section of this Title, so far as applicable. — ■ 
Steele v. Exum, 22 S. C, zyS. And under it the Court has jurisdiction to order 
place of trial to be changed to proper Count)-. — 7b.; Bell v. Fludd, 28 S. C, 313; 
Geiser Co. v. Sanders, 2(1 S. C, 70. 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 trj' case on merits, even when no demand is made for change to proper County. — 
Ware v. Henderson, 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. R. R. Co., 38 S. C, 399; 17 S. E., 141. 

This Section must be construed in connection with Section 2735 of the Civil 
Code and the ten days' notice of motion there required given. — Willoughby v. 
N. E. R. R. Co., 46 S. C, 317; 24 S. E., 308. The power to grant change is 
discretionary. — McFail v. Barnwell Co., 54 S. C, 368; z^ S. E., 417; McCown v. 
N. E. R. R. Co., 55 S. C, 384; 33 S. E., 506, and other cases cited under note 
to Civil Code, Sec. 2735. 



OF SOUTH CAROLINA. 



TITLE V. 

MANNER OF COMMENCING CIVIL ACTIONS. 




Sec. 

148. Actions, how commenced. 

149. Summons, requisites of. 

150. Notice to be inserted in sum- 

mons. 

151. Complaint need not be served 

with summons. 

152. Defendant unreasonably defend- 

ing. 

153. Notice of lis pendens. 

154. Summons, by whom served, fees 

for service. 



Sec. 

155. Summons, how served. 

156. Publication of summons. 

157. Proceedings when part only of 

defendants served — partners. 

158. When service by publication 

complete. 

159. Proof of service. 

160. When jui-isdiction of action ac- 

quired. 



Section 148. Civil actions in the Courts of record of this Actions, how 
State shall be commenced by service of a summons. ■ '■ — 

lb., § 150. 
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, 492; 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. 

Sec. 149. The summons shall be subscribed by the plaintiff Summons, re- 

-' t' quisites of. 

or his attorney, and directed to the defendant, and shall re- -^g-^ j,jy g 
quire him to answer the complaint, and serve a copy of his ^^^• 
answer on the person whose name is subscribed to the sum- 
mons, 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. 

Form of summons. — Bell v. Pruitt, 518. C, 344; 29 S. E., 5. 

The date is not one of the requisites of a summons. — Smith v. Walker, 6 S. 
C, 169. 

In action against a corporation, judgment by default will not be set aside be- 
cause the summons, properly entitled, was served upon the President and General 
Agent, and notified "judgment will be taken against you" upon failure to answer. — ■ 
Clark V. Porcelain Co., 8 S. C, 45. 

Sufficiency of summons cannot be considered on appeal in the absence of ex- 
ceptions thereto. — Beattie v. Latimer, 42 S. C, 313; 20 S. E., 53. 

Sec. 150. The plaintiff shall also insert in the summons a . Notice to be 

'■ ^ 1 n s e r t ed in 

notice, in substance: That if the defendant shall fail to answer summons. 
the complaint within twenty days after the service of the sum- ^^- § ^^'^■ 
mons, the plaintiff will apply to the Court for the relief de- 
manded in the complaint. 

Sec. 151. -A copy of the complaint need not be served with ^ gC^°^">J'J^™* 
the summons. In such case, the summons must state where ^ ^ "■ "^ ^ "^ ^^*^'^ 

' summons. 

the complaint is or will be filed; and if the defendant, within ~y^ — 7-^ — 
twenty days thereafter, causes notice of appearance to be given, 
and, in person or by attorney, demands, in writing, a copy of 



78 CODE OF CIVIL PROCEDURE 

A. D. 1902. ■ -^— 

^""■"-^''^"■^ the complaint, specifying the place within the State where it 
may be served, a copy thereof must, within twenty days there- 
after, be served accordingly ; and, after such service, the de- 
fendant has twenty days to answer ; but only one copy need be 
served on the same attorney. 

Defendant Scc. 152. In the casc of a defendant against whom no per- 

u n r easonably _ _ '-' ^ 

defending. sonal claim is made, the plaintiff may deliver to such defendant, 
lb., § 154. 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 property 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 
answering, he shall, in writing, demand the same. If a de- 
fendant, on whom such notice is served, unreasonably defend 
the action, he shall pay costs to the plaintiff. 

Defendant., answering after such notice must be regarded as a volunteer. — Wylie 
V. Lyle, 7 S. C, 206. 

pIlTens °^ '" ^^^' ^^^' ^^ ^" action affecting the title to real property, 
~~7b §"l55 ^^^ plaintiff, at the time of filing the complaint, or at any time 
afterwards, or whenever a warrant of attachment, under Chap- 
ter 4 of Title 7, Part 2, of this Code of Procedure, shall be 
issued, or at any time afterwards, the plaintiff, or a defend- 
ant, 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 description of the property in that County af- 
fected thereby; and if the action be for the foreclosure of a 
mortgage, such notice must be filed twenty days before judg- 
ment, 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 con- 
structive notice to a purchaser or encumbrancer of the prop- 
erty affected thereby ; and every person whose conveyance or 
encumbrance is subsequently executed or subsequently recorded 
shall be deemed a subsequent 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 



OF SOUTH CAROLINA. 79 

A. D. 1902. 



deemed to be pending from the time of filing such notice : ^"■"^■^^^ 
Provided, heivever, That such notice shall be of no avail, unless 
it shall be followed by the first publication of the summons, 
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 142, on application of any 
person aggrieved, and on good cause shown, and on such notice 
as shall be directed 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 en- 
titled to a fee of twenty-five cents. 

Sale of land under execution levied, before lis pendens was filed in action to 
foreclose mortgage on it, gave good title to purchaser; and he had right as a 
proper party, by petition in the action, to contest the mortgage. — Ex Parte Mobley, 
19 S. C, 337. 

Filing lis pendens has no effect except in the cases here specifically provided 
for. — Armstrong v. Carwile, 56 S. C, 544; 35 S. E., 196. 

Sec. 154. The summons may be served by the Sheriff of the whom served; 
County where the defendant may be found, or by any other vice, 
person not a party to the action. The service shall be made, i87o, xiv., § 

,, ,., rri ■ . .^ 156; 1874, XV., 

and the summons returned, with prooi of the service, to the 640. 
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, complaint, answer, demurrer, sub- « 
poena, or other legal process issuing out of the Courts of Com- 
mon Pleas and Courts of Probate, not made by the Sheriff of 
the County where such process is served, or his legally con- 
stituted deputies. 

Smith V. Walker, 6 S. C, 169; Cureton v. Dargan, 12 S. C, 122. Gives juris- 
diction of non resident served within the State, though he has no property here. — • 
Ford V. Calhoun, 53 S. C, 106; 30 S. E., 831. 

Sec. 155. .The summons shall be served by delivering a copy how "sl?v"d°"^' 



thereof as follows : i87o, xiv., § 

I. If the suit be against a corporation, to the President or 
other head of the corporation, Secretary, Cashier, Treasurer, 
a Director or agent thereof. Service upon any person occu- 



42. 



8o CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^ ' pying an office or room in any railway station, and attending 
xvni., ^4 3 7;' to ^"d transacting therein any business of any railroad, shall 
l^gj -^xx'ni.; be deemed service 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 notwithstanding 
he may claim to be the agent of any other person or corpora- 
tion claiming to operate said railroad by virtue of any lease, 
contract or agreement. 

Foreign corporation may appear solely to test service upon a party "as resident 
agent thereof" and have service set aside. — Hester v. Rasin Fert. Co., 33 S. C, 609; 
12 S. E., 563. It may waive service and submit itself to jurisdiction of Court by 
appearing generally and answering on the merits. — Chafee v. Postal Tel. Co., 35 
S. C, 372; 14 S. E., 764. Service may be made on traveling salesman of foreign 
corporation temporarily in the State as its agent. — Abbeville, &c., Co. v.' Western 
Electrical Supply Co., 61 S. C, 361; 39 S. E., 559. Prior to amendment service 
could only be made on a resident agent, and might be made on such agent without 
attachment. — Pollock v. B. & L. Ass'n., 48 S. C, 65; 25 S. E., 977. In order 
that jurisdiction be acquired the corporation must have either property or agent in 
the State. — Tillinghast v. Lumber Co., 37 S. C, 491; 17 S. E., 31; 38 S. C, 819; 18 
S. E., 120. But service cannot be made on an officer who is the plaintiff, or at- 
torney in fact for the plaintiff, in the action. The appointment of a foreign re- 
ceiver for the corporation cannot affect the service or the agent of the corpora- 
tion here. — Pollock v. B. & L. Ass'n., supra. 

Such service can be made in respect to a foreign corporation 
only when it has property within the State, or the cause of ac- 
tion arose therein, or where such service shall be made in this 
State personally upon the President, Cashier, Treasurer, At- 
torney or Secretary, or any agent thereof. 

2. If against a minor under the age of fourteen years, to 
such minor personally, 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 em- 

, ployed. 

t These requirements are positive, and the jurisdiction of an infant can only be 

obtained by pursuing this mode of service prescribed. — Finley v. Robertson, 
17 S. C, 435; Genobles v. West, 23 S. C, 154; Riker v. Vaughan, 23 S. C, 
187; Whitesides v. Barber, 24 S. C, 373; Tederall v. Bouknight, 25 S. C, 275; 
Faust v. Faust, 31 S. C, 576; 10 S. E., 262'. Service, without appointment of 
guardian ad litem, held sufficient to give jurisdiction of infant. — Robertson v. 
Blair, 56 S. C, 96; 34 S. E., 11. Sufficiency of recitals in record as to service on 
infant. — ^Allen v. Allen, 48 S. C, 566; 26 S. E., 786. Where parent is a party, and 
thus has knowledge of the action, service need not be made on him as well as his 
child under fourteen, in order to give jurisdiction over the latter. — Kennedy v. 
Williams, 59 S. C, 378; 38 S. E., 8. As to service on infants, see also Barrett v. 
Moise, 61 S. C, 569; 39 S. E., 755. Guardian as plaintiff in action having ad- 
verse interests to those of his ward cannot accept service for the latter as a de- 
fendant. — Morgan v. Morgan, 45 S. C, 323; 23 S. E., 64. 

3. If against a person judicially declared to be of unsound 
mind, or incapable of conducting his own affairs in conse- 
quence of habitual drunkenness, and for whom a committee 



OF SOUTH CAROLINA. 8i 

A. D. 1002. 

or guardian has been appointed, to such committee or guard- ^^"""v-^-^ 
ian, and to the defendant personally. 

4. In all other cases to the defendant personally, or to any ^873, xv., 

. . ,, '^ ■" -'497;18S2, 

person of discretion residing at the residence or employed at^viii. 256; 
the place of business of said defendant. iw- 

This subdivision 4 applies only to service within this State. — Armstrong v. Brant, 
44 S. C, 177; 21 S. E., 634. 

Sec. 156. Where the person on whom the service of the of^s"^]i^n*^°° 
summons is to be made cannot, after due diligence, be found^gyo^ xiv ., 
within the State, and that fact appears by affidavit to the satis- l^vT.'i'jofiloii 
faction of the Court, or a Judge thereof, the Clerk of the Court ^-"^m-- ^^s. 
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 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: i. Where the defendant is a foreign 
corporation, has property within the State, or the cause of ac- 
tion 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 property 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 defendant 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 newspaper, 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 pub- 
lication is ordered, personal service of the summons out of the 

6.— C. P. 



82 CODE OF CIVIL PROCEDURE 

A. D. 1902. — ~ 

^""■^^-"^"^ 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 155 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 complaint 
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 the like proof of ser- 
vice 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 ca-se shall proceed as in other cases of persons not 
under disabilities : Provided, That in cases of persons im- 
prisoned or confined as herein stated outside of this State, ser- 
vice 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 judg- 
ment 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 defence be successful, 
and the judgment, or any part thereof, has been collected or 
otherwise enforced, such restitution may thereupon be com- 
pelled 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 com- 
plaint 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 parti- 
tions of real estate or for the foreclosure of mortgage on real 



OF SOUTH CAROLINA. 




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- 
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. 

The Magistrates of this State are hereby invested, in ,„^y granV^or- 
actions brought in their courts, within their jurisdiction, tofion°^of"''sum- 
grant orders of publication against absent defendants, in the^°ent^ parses 
same manner and to the same extent as authorized in this ^!L^^!!!Lf?.l^ 
Section to be done by the Circuit Court or a Judge thereof, oregsf^^' •^'^^-^■' 
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 
Common Pleas. 

Prior to amendment inserting the last sub-division Magistrates had no authority 
to grant order of publication. — Ferguson v. Gilbert, 17 S. C, 26; Note, p. 29. 

In the absence of fraud or collusion, if the affidavit satisfies the officer grant- 
ing order of publication, 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 betvireen member and foreign life insurance association pro- 
vided that death claims should be made and paid at home office, the claims of bene- 
ficiaries thereunder was not a cause of action that arose in this State, and the for- 
eign 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 ac- 
tion arises at place of performance, presumably the place of making. — Tillinghast 
V. Boston Lumber Co., 39 S. C, 491; 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 residents of this State, they can be made parties, as non-residents, 
by publication. — Shumate v. Harbin, 35 S. C, 521; 15 S. E., 270. So, where all 
parties in interest are non-residents, 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 absolutely 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 deposit in postoffice. — Darby v. Shannon, ig S. C, 
526. Only defendant can take advantage of alleged insufficiency in service of sum- 
mons. — Ih. But service by leaving copies at the place of residence is not equiva- 
lent to personal service. — Armstrong v. Brant, 44 S. C, 177; 21 S. E., 634. The 
affidavit may refer to the complaint, and the statement of the venue is unneces- 
sary. — Clemson College v. Pickens, 42 S. C, sn; 20 S. E., 401. The order of 
publication may be neither sealed or dated. — lb. Where the defendant is furn- 



84 CODE OF CIVIL PROCEDURE 

A. D. 1902. '■ 

^ -^ V '^ ^ ished 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 judg- 
ment, as to declare a marriage void, cannot be acquired by publication of sum- 
mons. — Pepper v. Shearer, 26 S. E., 797; 48 S. C, 492. A successful defence 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, is; 23 S. E., 984; Ex Parte Keeler, 45 S. C, 537; 23 S. E., 865; Martin v. 
Bowie, 37 S. C, 102; IS S. E., 740. 

when°'S'^lnfy ^^^' ^^^ ' Where the action is against two or more defend- 
served^— part^ ^^^^' ^^^ ^^^ summons is served on one or more of them, but 

^"^- , not on all of them, the plaintiff may proceed as follows : 

159^^°' ■^^^" ^ I. If the action be against defendants jointly indebted upon 
contract, he may proceed against the defendant served, unless 
the Court otherwise direct; and, 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 de- 
fendants served ; or. 

This does not apply where all the parties were served. — Dulany v. Elford, 22 
S. C, 304. Applies to partnership contracts, where only one of the partners has 
been served with the summons. — Whitfield v. Hovey, 30 S. C, 117; 8 S. E., 840; 
Pope Mfg. Co. V. Welch, ss S. C, 528; 33 S. E., 789. This does not authorize a 
general judgment against the one not served. — Roberts v. Pawley, 50 S. C, 491; 
27 S. E., 913. 

2. If the action be against defendants severally liable, he 
may proceed against the defendants served, in the same man- 
ner as if they were the only defendants. 

3. If all the defendants have been served, judgment may be 
taken against any or either of them severally, where the plain- 
tiff would be entitled to judgment against such defendant or de- 
fendants, if the action had been against them, or any of them, 
alone. 

Discontinuance as to certain stockholders. — Sadler v. Nicholson, 49 S. C, 7; 26 
S. E., 893- 

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 plain- 
tiff, in case of judgment therein shall remain unsatisfied, may, 
by action, recover of such partner separately, upon proving 
his joint liability, notwithstanding 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. 

by^pubSon Sec. 158. In the cases mentioned in Section 156, the service 
complete. q£ ^j^g summous shall be deemed complete at the expiration of 
i90i'.'' xxiii.i the time prescribed by the order for publication, except in the 

635.' 



OF SOUTH CAROLINA. 




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 156, 

Sec. 159. Proof of the service of the summons, and of the^j^^""^ °^ ^^^' 
complaint or notice, if any, accompanying the same must be as~^^ TTeT^ 
follows- iss*-' xviii.; 

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 principal clerk, showing the same, and an affidavit 
of a deposit of a copy of the summons in the postoffice, as re- 
quired by law, if the same shall have been deposited. 

When the service is made out of the State after order for 
publication, the proof of such service may be made, if within 
the United States, by affidavit before any person in this State 
authorized to take an affidavit, or before a Commissioner of 
deeds for this State, or a Notary Public who shall use his of- 
ficial seal or before a Clerk of a Court of record who shall cer- 
tify the same by his official seal ; or if made without the limits 
of the United States, before a Consul or Vice-Consul or Consu- 
lar 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 certi- 
ficate, affidavit, or admission must state the time and place of 
the service. 

Sufficiency of certificate: Sheriff's deputy may act in serving papers. — Prince v. 
Dickson, 39 S. C, 481; 18 S. E., 33. 

Sheriff's return of service may be rebutted by entry in his book and testimony 
of his deputy and party to be served. — Genobles v. West, 23 S. C, 154. But under 
his return of service on defendant "at her residence," it will be presumed 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 Sheriff must be by affidavit. — State v. Cohen, 
13 S. C, 198. It is not required that such certificate of Clerk of Court as to au- 
thority 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., 278. 

Acceptance' of service by an attorney having no authority so to do does not con- 
stitute a legal service. — Reed v. Reed, 19 S. C, 548. 

Nor can infant bind himself by acceptance of service. — Finley v. Robertson, 17 
S. C, 43S; Riker 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 sum- 
mons, by an adult without objection to proceedings thereunder estop him from 
denying jurisdiction.-^Finley v. Robertson, 17 S. C, 435. Affidavit sufficient made 
before vice consul prior to the amendments of 1884. — Marine Co. v. Parsons, 49 
S. C, 136; 26 S. E., 966. 



86 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

"^—"^v"""^ Proof of service on foreign corporation. — Tillinghast v. Boston Lumber Co., 39 

S. C, 491; 18 S. E., 120. 

Jurisdiction of a living person once acquired by service of the summons attaches 

always, although he may be beyond the court's jurisdiction. — Peoples' B. & L. 

Ass'n. V. Mayfield, 42 S. C, 424; 20 S. E., 290. 

When juris- Scc. 160. From the time of the service of the summons in a 

diction 01 ac- 

tion acquired, civil action, or the allowance of a provisional remedy, the Court 

§ 16™' ^^^" ^^ deemed to have acquired jurisdiction, and to have control 

of all the subsequent proceedings. A voluntary appearance of 

a defendant is equivalent to personal service of the summons 

upon him. 

Even where no summons has been served, but attachment has been issued, the 
Court has jurisdiction for certain purposes. — Darby v. Shannon, 19 S. C, 526. Ac 
tion must be regularly commenced by attachment to have effect. — Tillinghast 
Boston Lumber Co., 39 S. C, 484; 18 S. E., 120. Voluntary appearance is equiva- 
lent to personal service. — State v. Cohen, 13 S. C, 198; 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.„ 114; 15 S. E., 741; Townes v. City Council, 46 S. C, 
is; 23 S. E., 984; Ex Parte Keeler, 45 S. C, 537. 

The voluntary appearance of an infant is binding upon judgment where the face 
of the proceedings 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. 



TITLE VI. 

OF THE PLEADINGS IN CIVIL ACTIONS. 

Chapter I. The Complaint. 

Chapter II. The Demurrer. 

Chapter III. The Answer. 

Chapter IV. The Reply. 

Chapter V. General Rules of Pleading. 

Chapter VI. Mistakes and Amendments. 



F o r m s o f 
pleading. Sbc. 

J^ g jg3 161. Forms of pleading. 
162. Complaint. 



CHAPTER I. 

The Complaint. 



Sec. 

163. Complaint ; what to contain. 



Section 161. 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. 



OF SOUTH CAROLINA. g; 

A. D. 1902. 



It was intended by this Section to change materially the nature and effect of "^^•^^v "^ ' 
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. — Mob- 
ley V. Cureton, 6 S. C, 49; cited in Warren v. Lagrone, 12 S. C, 45; see also 
note as to object of Code before Sec. i. 

Sec. 162. The first pleading on the part of the plaintiff is the Complaint. 
complaint. ^^■' § ^^*- 

Sec. 163. The complaint shall contain : ^£° "^tf^^n- 

I. 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. 

The names of the individuals constituting the copartnership suing must appear 
in the title. — Smith v. Walker, 6 S. C, 169. 

Subdivision 2 : A cause of action exists where the legal rights of one party have 
been invaded by another. — Chalmers v. Glenn, 18 S. C, 469; Nance v. R. R., 35 
S. C, 309. If the facts alleged do not show the existence and invasion of such 
rights, the complaint is defective, and will be held bad on demurrer.- — Southern Por- 
celain Co. V. Thew, 5 S. C, 5; Chalmers v. Glenn, 18 S. C, 469; Nance v. R. R. 
Co., 35 S. C, 309; 14 S. E., 629. 

But it is enough if the allegations show distinctly 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. Carter, 8 S. C, 103; Dowie & Moise v. Joyner, 25 S. C, 123; 
Warren v. Lagrone, 12 S. C, 45. Complaint sufficient if it states any cause of action, 
either legal or equitable. — Mordecai v. Seignious, 53 S. C, 95; 30 S. E., 721; Latham 
V. Harby, 50 S. C, 428; 27 S. E., 862. Plaintiff may obtain any relief appropriate 
to the pleadings without regard to the form of prayer for relief. — Sheppard v. 
Green, 48 S. C, 165; 26 S. E., 224. Failure to file complaint not fatal on motion 
to set aside judgment. — Clemson College v. Pickens, 42 S. C, 511; 20 S. E., 401. 

The complaint is so defective if it merely allege conclusions of law and not 
facts.— Tutt v. R. R. Co., 28 S. E., 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; i4 S. E., 629. 

In action for specific performance of contract for sale of land, it is not neces- 
sary to allege that contract was in writing. — Hubbell v. Courtney, 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 v. 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 suf- 
ficient to constitute 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. Particular complaints considered. On written instrument for payment 
of money. — Watson v. Barr, 37 S. C, 466; 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., S4 S. C, 242; 32 S. C, 358. Conversion. — Michal- 
son V. All, 43 S. C, 459; 21 S. E., 323. Recovery of real property. — Huggins v. 
Watson, 38 S. C, 506; 17 S. E., 363. On note of officer against the State. — Caro- 
lina Nat'l Bank v. State, 60 S. C, 465; 38 S. E., 629. 



!8 CODE OF CIVIL PROCEDURE 

A. D. 1902. 



CHAPTER II. 

The Demurrer. 



Sec. 

164. Defendant to demur or answer. 

165. When the defendant may demur. 

166. Demurrer, what to specify. 

167. How to proceed, if complaint be 

amended. 



Sec. 

168. Objection not appearing on com- 

plaint. 

169. Objection, when waived. 



Defendant to Scctioii 164. The Only pleadinsf on the part of the defendant 

demur or an- -^ ^ •=> ^ 

swer. ^is either a demurrer or an answer. It must be served within 

1870, XIV., § twenty days after the service of the copy of the complaint. 
When the de- ^^^' ^^^' '^^^ defendant may demur to the complaint when 
deniu"' "1^7 it shall appear upon the face thereof, either, — 
— ~ — TT-i — • I. 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, 

This ground of objection is waived unless taken by demurrer. — Daniels v. Moses, 
12 S. C, 130. Under this subdivision. Smith v. Smith, 27 S. E., 549; 50 S. C; 
54; Dawkins v. Mathis, 47 S. C, 66; 24 S. E., 991; Mickle v. Construction Co., 41 
S. C, 394; 19 S. E., 725; Willis V. Tozer, 44 S. C, i; 21 S. E., 617. 

Where complaint alleges corporate existence in plaintiff and nothing appears on 
its face to show his want of corporate authority, it is not demurrable 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 appears in the complaint. — Cone 
Export &c., Co. V. Poole, 41 S. C, 70; 19 S. E., 203. Where sealed note payable 
to an administrator has been transferred 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, no; Palmetto v. 
Risley, 25 S. C, 309; Steamship Co. v. Rodgers, 21 S. C, 27. 

3. That there is another action pending between the same 
parties, for the same cause ; or, 

Subdivision 3 does not apply to actions pending 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 plain- 
tiff for the recovery of personal property, and the other with additional plaintiffs 
includes claim for punitive damages. — Walters v. Laurens Cotton Mill, 53 S. C, 
155; 31 S. E., I. 

4. That there is a defect of parties, plaintiff or defendant ; or. 

This ground cannot apply in case misjoinder of parties. — Lowry v. Jackson, 27 
S. C, 318; 3 S. E., 473. 

This objection must be made by demurrer, and is waived upon failure to demur. — ■ 
Featherston v. Norris, 7 S. C, 472; Evans v. McLucas, 12 S. C, 56; Daniels v. 
Moses, 12 S. C, 13; Ross v. Linder, 12 S. C, 592; Shull v. Caughman, 54 S. C, 
203; 32 S. C, 301; Allen v. Cooley, 53 S. C, 77; 30 S. E., 721. 

5. That several causes of action have been improperly 
united ; or. 

Joint demurrer bad as to all, must fail though good as to one who joins. — Lowry 
V. Jackson, 27 S. C, 318; 3 S. E., 473. Guy v. McDaniel, 51 S. C, 436; 29 S. E., 
196. 

Complaint not demurrable for multifariousness where it alleges breach of trust, 
because it makes a party in possession of the assets under the breach, with notice, 
a defendant. — Ragsdale v. Holmes, i S. C, 91; Melton v. Withers, 2 S. C, 561. 



OF SOUTH CAROLINA. 89 

A. D. 1902. 



Objection to complaint on this ground can only be taken by demurrer. — Field v. ^ -^ v ~' 
Hurst, 9 S. C, 2TJ. It may be taken by any defendant. — Suber v. Allen, 13 S. C, 
317- 

Where there is improper joinder of causes of action, and a demurrer to the com- 
plaint therefor, the plaintiff may cure the defect by voluntary amendment of the 
complaint. — Sullivan v. Sullivan, 24 S. C, 474. 

'• Demurrer on this ground will not lie where several plaintiffs, severally owning 
adjoining tracts of land, join in action for damages in solido for 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 distinct. — Ih. 

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 S. 
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. — Lowry v. Jackson, 27 S. C, 318; 3 S. 
E., 473- 

Proper joinder of several causes of action. — Long v. Hunter, 58 S. C, 152; 36 
S. E., 581. Where the defendant fails to raise the question of misjoinder by de- 
murrer, 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 
such motion may be made. — Ross v. Jones, 47 S. C, 211; 25 S. E., 59. 

6. That the complaint does not state facts sufficient to consti- 
tute a cause of action. 

Until it does appear that some fact is omitted which is necessary to constitute 
the cause of action, no demurrer can be sustained. — Balle v. Mosely, 13 S. C, 439. 

The defect must be substantial, and such as cannot be cured except by allegations 
of answer. — Childers v. Verner, 12 S. C, i. 

Where administrator of a distributee of an intestate brings action against the 
administrator of the intestate and joins with him as plaintiff a distributee of such 
distributee, the complaint is demurrable as to such plaintiff distributee on this 
ground. — Robert v. Johns, 10 S. C, loi. 

Complaint alleged subscription by defendant to stock of plaintiff of fifty acres of 
land, and a refusal to convey, and demanded payment in money for the land, with- 
out alleging promise to pay money or previous demand, and was held not demur- 
rable on this ground. — Cheraw and Chester R. R. Co. v. Garland, 14 S. C, 63. In 
action to recover 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 S. C, 305. 

Omission of allegation relating to capacity to sue is no ground for demurrer 
under this subdivision. — Cone Export, &c., Co. v. Poole, 41 S. 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 par- 
tition. ■ S. C. ; Griffith v. Cromley, 36 S. E., 741. 

Sec. 166. The demurrer shall distinctly specify the grounds what^ ™ "sped- 

of objection to the complaint. Unless it do so, it may be dis-Z: . 

regarded. It may be taken to the whole complaint, or to any of 
the alleged causes of action stated therein. 

The demurrer must be to the entire cause of action, and not to a part of a 
cause of action or defence. — 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, 
31 S. E., 498; S3 S. C, 519. A demurrer must distinctly specify the grounds of 
objection. — Carroll v. Still, 13 S. C, 430. 

Sec. 167. If the complaint be amended, a copy thereof must gg^°^jf ° ^p^; 
be served on the defendant, who must answer it within twenty ^^eVded*. "^ ^ 
days, or the plaintiff, upon filing with the Clerk due proof of j^^ § ym. 



go CODE OF CIVIL PROCEDURE 

A. D. 1902. — 

'^ ' the service and of the defendant's omission, may proceed to 
obtain judgment, as provided by Section 267. 

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. 

ap°eiring"on Scc. 168. When any of the matters enumerated in Section' 
complaint. j^g do uot appear upon the face of the complaint, the objection 
lb., § 170. j^g^y i^g taken by answer. 

If the defects do not appear on the fact of the complaint, the objection should 
be made by answer. — Patterson v. Pagan, 18 S. C, 584. 

wi°n waived."' ^60. 169. If no such objcctiou be taken, either by demurrer 

lb., § 171. Of answer, the defendant shall be deemed to have waived the 

same, excepting only the objection to the jurisdiction of tlie 

Court, and the objection that the complaint does not state facts 

sufficient to constitute a cause of action. 

The clear intention of this and foregoing Sections of this Chapter is that defend- 
ant 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 available. A 
general denial of all the facts alleged in the complaint is not a compliance with 
these requirements.— The object of them is to relieve the plaintiff from the neces- 
sity 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 de- 
murrer or answer. — Featherston v. Norris, 7 S. C, 472; Evans v. McLucas, 12 S. 
C, 56; Daniels v. Moses, 12 S. C, 137; Ross v. Linder, 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. — Bowden v. Win- 
smith, II S. C, 409; Daniels v. Moses, 12 S. C, 130; Jackins v. Dickinson, 39 S. C, 
439; 17 S. E., 996; Ross v. Jones, 47 S. C, 211; 25 S. E., 59; Dawkins v. Matthis, 
47 S. C, 64; 24 S. E., 990; Smith v. Smith, 52 S. C, 205; 25 S. E. 549. 

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; Bowden v. Winsmith, 11 S. C, 409; Childers v. Verner, 
12 S. C, i; Balle v. Mosely, 13 S. C, 439; Kennerty v. Etiwan Co., 17 S. C, 411; 
Davis v. McDufifie, 18 S. C, 495; Hellams v. Switzer, 24 S. C, 39; Hull 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 Supreme 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 over- 
ruled, such ruling is binding when motion is rendered on a subsequent trial.- — Long 
v. Hunter, 58 S. C, 152; 36 S. E., 579. 

So oral demurrer to answer setting up counter-claims may be made on the ground 
of want of cause of action, though not objected by formal demurrer or answer. — 
State V. Corbin, i6 S. C, 533. 



CHAPTER III. 

The Answer. 



Sec. 

170. Answer, what to contain. 

171. Counter-claim. Several defences. 

172. Demurrer and answer, when al- 

lowed. 



Sec. 

173. Sham and Irrelevant defences to 
be stricken out. 



OF SOUTH CAROLINA. 91 

~~~ ■ A. D. 1902. 



Section 170. The answer of the defendant must contain : ^— '■v^-^ 

1. A general or specific denial of each material allegation of to confai'n.^ ^ 
the complaint controverted by the defendant, or of any knowl- is7o, xiv., 
edge or information thereof sufficient to form a belief. 

2. A statement of any new matter constituting a defence or 
counter-claim, in ordinary and concise language, without 
repetition. 

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, Sec. 332. A denial that plaintiff has "knowledge or information suffi- 
cient to form a belief, etc.," is sufficient. — Gilreath v. Furman, 57 S. C, 289; 35 
S. E., 516. The admission of the allegations of a paragraph in complaint by the 
answer, is an admission only of the facts alleged, and not of the conclusions of 
law. — Green v. Latimer, 47 S. C, 176; 25 S. E., 136. A denial of title in claim 
and delivery does not dispense with the necessity to prove a demand and refusal. — 
Ludden & Bates 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 admitted. — Addison v. Duncan, 35 
S. C, 165; 14 S. E., 305. Answer admitting the simple delivery of note, as al- 
leged in complaint, and then asserting that the delivery was conditional, the de- 
livery 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 error to grant nonsuit upon proof that note was under seal. — Moore v. 
Christian, 31 S. C, 337; 9 S. E., 981. 

The Code has enlarged the defendant's opportunity for making various defenses 
to the action by his answer.— Cohrs v. Eraser, s S. C, 351. Inconsistent defences 
may be set up in the answer. — Millan v. So. Ry. 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. Courtney, 5 S. C, 87. 

The defendant must plead in answer all his defenses, legal or equitable; he can- 
not bring a separate action on any matter that could have been so pleaded. — -Mc- 
Alily 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, con- 
stituting a defense or counter-claim. — 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, 24; 3 S. E., 225. Yet general denial raises no issue of 
failure of consideration, which is an affirmative defense. — Derry v. Holman, 21 
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, iii; 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. But where the complaint 
against a corporation alleges it to be incorporated, and its answer makes only 
general denial, and it regularly appears by attorney and defends on the merits, 
that is admission of its corporate charter. — Rembert v. R. R., 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 plaintiff's claim and 
allow defendant to controvert his proof thereon. — Lyles v. Bolles, 8 S. C, 258. 
And upon plaintiff's failure to prove his case, the defendant may have a nonsuit. 
— Ih. The simple answer 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 justification, which cannot be shown under a general denial. — Hen- 
derson v. Bennett, 58 S. C, 30; 36 S. E., 2. 

But where certain credits are allowed by complaint, and judgment claimed for 
special balance, the defendant, under general denial, can prove other payments to 
show true balance. — Ih. 

Where answer in action for assault and battery admitted the complaint, but 



92 CODE OF CIVIL PROCEDURE 

A. D. 1902. — ■ 

^^— "^v^^-^ pleaded that the defendant committed the assault in self-defense, it was sufficient. — 
Hughes V. Kellar, 34 S. C, 268; 13 S. E., 475. Plea of confession and avoid- 
ance does not establish issues raised by general denial. — Stanley v. Shoolbred, 25 
S. C, 181. 

Where matter of counter-claim is not so pleaded, and judgment thereon de- 
manded, it can only serve as a defense, and not as a counter-claim. — Trimmier 
V. Thompson, 10 S. C, 185; Humbert v. Brisbane, 25 S. C, 506; McGee v. Wells, 
37 S. C, 367; 16 S. E., 29. And as a counter-claim, cannot 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 counter-claim. — Cooperative 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. 

sTvTrai^'Te. Sec. 171. The counter-claim mentioned in the last Section 

!!!!!!!: ^must be one existing in favor of a defendant, and against a 

lb., § 173. plaintiff, between whom a several judgment might be had in 

the action, and arising out of one of the following causes of 

action : 

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 subject 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 defences 
and counter claims 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. 

In action by executor to recover from defendant several notes due testator, he 
cannot set up as counter-claims legacies given him, but unassented to by executor. — 
Latimer v. Sullivan, 30 S. C, iii; 8 S. E., 639. 

A defendant cannot set up as a counter-claim a debt purchased by him after 
commencement of the action.- — Enter v. Queese, 30 S. C, 126; 8 S. E., 796. 

A counter-claim for damages from tort cannot be set up against an action for 
damages from tort. — Simkins v. R. R., 20 S. C, 258. 

A tort arising out of contract may be waived, and the same cause of action 
treated as a contract and set up as such, by way of counter-claim to action on 
another contract. — Boyce v. Parker, 11 S. C, 337. Unascertained damages arising 
e.v contractu are admissible as a counter-claim. — lb. 

In action for damages by trespass, the defendant cannot set up a debt due by 
plaintiff, as counter-claim. — Sharp v. Kinsman, 18 S. C, 108. A cause of action 
for conversion of property cannot plead as counter-claim in an action on a 
note. — Lenhardt v. French, 57 S. C, 493; 35 S. E., 761. 

A claim that does not fall under either of the above subdivisions cannot be 
set up as a counter-claim. — Ex Parte Bank, 18 S. C, 289; Copeland v. Young, 21 
S. C, 276; Humbert v. Brisbane, 25 S. C, 506. 

A counter-claim cannot be interposed in an action for recovery of personal 
property, unless, perhaps, under some exceptional circumstances, equitable relief 
may be demanded. — Williams v. Irby, 15 S. C, 561; Talbot v. Padgett, 30 S. C, 
167; 8 S. E., 845; Badham v. Brabham, 54 S. C, 404; 32 S. E., 444; Ludden & 
Bates v. Hornsby, 45 S. C, iii; 22 S. E., 781. 



OF SOUTH CAROLINA. 



93 



A. D. 1902. 



Partnership account in favor of defendant may be set up as counter-claim to ^ ■■^ v ^ ' 
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 
counter-claim, showing a separate cause of action in his favor. — Plyer v. Parker, 
10 S. C, 465. 

Defendant cannot set up against plaintiff, as counter-claim, 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 inconsistent defenses, either legal or 
equitable. — Cohrs v. Fraser, s 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 v. 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, 593; 17 S. E., 684. 

An individual claim of partner against plaintiff cannot be set up as counter- 
claim by partnership. — Pope Mfg. Co. v. Welch, 33 S. E., 787; 55 S. C, 528; 37 
S. E., 20; 59 S. E., 29. 

Parol contract as foundation for counter-claim in action on written contract. — 
V.-C. Chemical Co. v. Moore, 61 S. C, 166; 39 S. E., 346. 

Sec. 172. The defendant may demur to one or more of sev- ^ ^^ "Insw^-*^ 
eral causes of action stated in the complaint, and answer the ^*^*^" allowed. 
residue. ^''■' § i^*- 

Sec. 173. Sham and irrelevant answers and defences may be j. f ^ g™ ^^"'^ j^; 
stricken out on motion, and upon such terms as the Court may, ft^rlckln o°ut.^^ 
in its discretion, impose. 

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 sustained on Circuit. — Hall v. Wood- 
ward, 30 S. C, 564; 9 S. E., 684. 



lb., § 175. 



CHAPTER IV. 



The Reply. 



Sec. 

174. Reply. Demurrer to answer. 

175. Motion for judgment upon an- 

swer. 



Sec. 

176. Demurrer to reply. 



Section 174. When the answer contains new matter consti- 
tuting a counter-claim, the plaintiff may, within twenty days, 
reply to such new matter, denying generally or specifically each 
allegation controverted by him, or any knowledge or informa- 



Reply. De- 
murrer to an- 
swer. 

lb., § 176. 



94 CODE OF CIVIL PROCEDURE 

A. D. 1902. — — 

tion thereof sufficient to form a belief ; and he may allege, in or- 
dinary and concise language, without repetition, any new matter 
not inconsistent with the complaint, constituting a defence 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 counter-claim or defence; and 
the plaintiff may demur to one or more of such defences or 
counter claims, and reply to the residue of the counter claims. 
And in other cases, where an answer contains new matter 
constituting a defence 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 counter-claim. 

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 counter-claim. — Hubbell 
V. Courtney, s S. C, 89; Latimer v. Sullivan, 30 S. C, iii; 8 S. E., 639. 

A general denial of a counter-claim puts in issue all the allegations upon which 
it rested. — Atlantic Co. v. Sullivan, 34 S. C, 301; 13 S. E., 539. 

When answer upon its face does not show matter constituting a counter- 
claim or defense it is demurrable. — 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 determined at same time. — Latimer v. Sullivan, 30 S. C, iii; 8 S. E., 639; 
Talbert v. Padgett, 30 S. C, 167; 8 S. E., 845. 

A reply without an order of Court where the answer contains no counter-claim 
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. E., i; Price v. Ry. Co., 38 S. C, 210; 
17 S. E., 736; Bank v. Gadsden, 56 S. C, 313; 33 S. E., 575. 

Counter-claim set up in answer, served with motion for leave to file, is admitted, 
if not replied 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 objection that the answer is not responsive to 
the complaint cannot be taken under the Code. — Zimmerman v. Amaker, 10 S. C, 98. 

An oral demurrer will lie to a counter-claim, which shows on its face that it is 
based on a contract void under the Statute of Frauds. — Civil Code, Sec. 2652; 
Mendelsohn v. Banov, 57 S. C, 148; 35 S. E., 499. 

judlmen" upon ^^c. 175. If the auswcr contain a statement of new matter 

^"^"'^''" constituting a counter-claim, and the plaintiff fail to reply or 

^^1870, XIV., § dgn-iui- thereto within the time prescribed by law, the defendant 
may move, on a notice of not less than ten days, for such judg- 
ment as he is entitled to upon such statement ; and, if the case 
require it, a writ of inquiry of damages may be issued, 
re^iy""""^"" *° ^^^' ^^^- ^^ ^ ^^P^Y ^f the plaintiff to any defence set up by 
j^ g j^g — the answer of the defendant be insufficient, the defendant may 
demur thereto, and shall state the grounds thereof. 



OF" SOUTH CAROLINA. 



CHAPTER V. 

General Rules of Pleading. 




Sec. 

177. Pleadings to be subscribed and 

verified. 

178. Pleadings, bow verified. 

179. How to state an account in 

pleading. 

180. Pleadings to be liberally con- 

strued. 

181. Irrelevant or redundant matter 

to be stricken out, and in- 
definite matter made more 
definite. 

182. Judgment, bow to be pleaded. 

183. Conditions precedent, bow to be 

pleaded. 



Sec. 

184. Private statutes, how to be 

pleaded. 

185. Libel and slander, how stated in 

complaint. 

186. Answer in such cases. 

I860. Pleading in action ex delicto. 

187. Answer in action to recover 

property distrained for dam- 
age. 

188. What causes of action may be 

joined. 

189. Allegation not denied, when to 

be deemed true. 



Section 177. Every pleading in a Court of record must be ^, J^^g^'^^'g^^f^,*^ 
subscribed by the party or his attorney ; and when any pleading a"d verified. 
is verified, every subsequent pleading, except a demurrer, must ^^■' ^ ■^^'^■ 
be verified also. 

Cited in Reader v. Workman, 37 S. C, 416; 16 S. E., 18. 

Sec. 178. The verification must be to the effect that the same how^^e^rlffed!^ 
is true to the knowledge of the person making it, except as to j^^ g ^so. 
those matters stated on information and belief, and, as to those 
matters, he believes it to be true ; and must be by the affidavit 
of the party, or, if there be several parties united in interest, 
and pleading together, by one at least of such parties ac- 
quainted 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 defence be founded upon a 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 alle- 
gations 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 person acquainted 
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 



96 CODE OF CIVIL PROCt:DURE 

A. D. 1002. 

~"^^^^^ criminal prosecution against the party as a proof of a fact ad- 
mitted or alleged in such pleading: Provided, That the veri- 
fication 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 pleading. 

When matters are pleaded upon knowledge, it is unnecessary to add the words 
"on information and belief." — Smalls v. Wilder, 6 S. C, 402. So, where it is 
upon information and belief, it is unnecessary to state that it is upon knowledge. 
—lb. 

Where the answer is negative merely of the complaint, the same form of veri- 
fication is necessary. — lb. 

Where the complaint does not state which of its allegations are made on knowl- 
edge and which on information and belief, the verification is insufficient in form 
if it say that "the complaint is true of his own knowledge, except as to matters 
therein stated on information and belief, and as to those matters he believes it to 
be true." — Hecht v. Friesleben, 28 S. C, 181; 5 S. E., 475; Burmester v. Mosely, 
33 S. C, 251; II S. E., 786; Addison v. Sujette, 50 S C, 201; 28 S. E., 948. 

Where the verification is made by another than the party, it must set forth his 
knowledge or the grounds of his belief with sufficient clearness. — lb. 

An attorney may verify a complaint only in two cases: i. Where the action 
is founded upon a written instrument and for payment of money only, and that 
instrument is in his possession; and, 2. Where all the material allegations are within 
his personal knowledge. — Hecht v. Friesleben, 28 S. C, 181; 5 S. E., 475. 

Hence, attorney cannot verify complaint on an open account, verified by affidavit 
of plaintiff. — Bray Clothing Co. v. Shealy, 53 S. C, 12; 30 S. E., 620. Verifica- 
tion of statement in controversy without action must be made by the parties. — 
Reeder v. \\'orkman, 37 S. C, 413; 16 S. E., 187. 

an^accoCnf ''in Scc. 179. It shall not be necessary for a party to set forth in 



pleading. ^ pleading the items of an account therein alleged ; but he shall 

isi^'^' ^^^" ^ deliver to the adverse party, within ten days after a demand 
therefor in writing, a copy of the account, which, if the plead- 
ing is verified, must be verified by 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 de- 
livered is defective, and the Court may, in all cases, order a 
bill of particulars of the claim of either party to be furnished. 

Defendant having failed to demand an itemized account, he cannot complain 
of the judgment upon the ground that the account was not itemized. — Sloan v. 
Westfield, 17 S. C, 589. 

be^iTb'rfaii° ^^^- ^^^' ^^ ^^^ construction of a pleading for the purpose 

construed . Qf determining its effect, its allegations shall be liberally con- 

ib., § 182. strued, with a view of substantial justice between the parties. 

Pleading must not be construed strongly against pleader. — Childers v. Verner, 
12 S. C, i; Wallace v. Lark, 12 S. C, 576; Dowie v. Joyner, 25 S. C, 123; Parks 
V. Brooks, 38 S. C, 300; 17 S. E., 23; Jerkowski v. Marco, 56 S. C, 241; 34 
S. E., 388; Mason v. Carter, 8 S. C, 104; Harle v Morgan, 29 S. C, 25S; 7 S. E., 
487. But this Section does not permit allegations of fact in the alternative. — Iseman 
V. McMillan, 36 S. C, 28; 15 S. E., 336. 



OF SOUTH CAROLINA. 97 

~ A. D. 1902. 



Sec. 181. If irrelevant or redundant matter be inserted in a '"-^^v- 

pleading, it may be stricken out, on motion of any person ag- ^.g^^Jj^^^'^^^^^^^"'' 
grieved thereby. And when the allegations of a pleading are^^''^^j''^^'|^?^- 
so indefinite or uncertain that the precise nature of the charge "^^fip^te matter 

^ c made more de- 

or defence is not apparent, the Court may require the pleading fi"^^'=- 

to be made definite and certain by amendment. '^^■' ^ ^s^- 

"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., Sec. 551; 
Smith V. Smith, 50 S. C, 54; 27 S. E., 612; Ragsdale v. Ry. Co., 60 S. C, 381; 
38 S. E., 612; Nichols V. Briggs, 18 S. C, 473. The remedy is by motion to strike 
out. — lb. The motion 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, 582; 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 irrele- 
vant allegations are permitted to remain in the pleading, they may be supported 
by proof. — Dent v. R. 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 certain and not by demurrer. — Flenniken v. Buchanan, 21 S. C, 
434;Sandel v. Ins. Co., 53 S. C, 245; 31 S. E., 230; State ex rel. Elliott v. Jeter, 
59 S. C, 483; 38 S. E., 124; Buist v. Melchers, 44 S. C, 46; 21 S. E., 449; Gar- 
rett V. Weinberg, 50 S. C, 310; 27 S. E., 770; Savage v. Sanders, 51 S. C, 495; 
29 S. E., 248; Long v. Hunter, 48 S. C, 179; 26 S. E., 228. And such motion 
should be made before trial. — Zimmerman v. McMakin, 22 S. C, 375. 

If averments of answer are somewhat indefinite and uncertain, the remedy is 
under this Section by motion, and not by demurrer. — Mobley v. Cureton, 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, i. 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 several 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 counter-claim are improperly united, motion to make more dis- 
tinct, and not demurrer, 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 im- 
perfect or informal, 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, 28 S. C, 373; 16 S. E., 158. 

Where plaintiff desires to demur to certain defences, 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 in- 
dicated in Long v. Hunter, 48 S. C, 179; 26 S. E., 228; Savage v. Sanders, 51 
S. C, 495; 29 S. E., 248. 

Sec. 182. In pleading a judgment, or other determination of Judgment. 

^ .... . howtobe 

a Court or officer of special jurisdiction, it shall not be neces- ple aded. 

sary to state the facts conferring jurisdiction, but such judg- ib., § i84. 
ment or determination may be stated to have been duly given 
or made. If such allegation be controverted, the party plead- 



7.—C. P. 




CODE OF CIVIL PROCEDURE 



ing shall be bound to establish on the trial the facts conferring 

jurisdiction. 
c °j"jft'*Jj°J^ Sec. 183. In pleading the performance of conditions prece- 
to be pleaded, (^q^^i j^ a coutract, it shall not be necessary to state the facts 
§ 1^^' '^^^'' 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 per- 
formance. In an action or defence 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. 

Complaint against makers of a note held sufficient under this Section. — Watson 
V. Barr, 37 S. C, 466; 16 S. E., 188. 

utS"^how^*^o Sec. 184. In pleading a private statute, or a right derived 

^^^^'!!f!^:__ therefrom, it shall be sufficient to refer to such statute by its 

lb., § 186. ^-^jg ^^^ ^j^g ^^y q£ j^g passage, and the Court shall thereupon 

take judicial notice thereof. 

Referred to in White v. R. R. Co., 14 S. C, 51- 

Libel and ^qq jgS. In an action for libel or slander, it shall not be 

slander, how ' 

^Mnt ''^ *^°'^" necessary to state, in the complaint, any extrinsic facts, for the 
~^ — r^ purpose of showing the application to the plaintiff of the de- 
famatory matter out of which the cause of action arose; but it 
shall be sufficient 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. 

An allegation that defendant, at a certain time and place, slandered plaintiff, 
by saying that he had sworn lies at a certain time and place, and in a named cause, 
. states facts sufficient. — Zimmerman v. Mc^Makin, 22 S. C-, 376. And where the. 
words of slander proved at trial are not the same as but similar to those alleged, 
it is for the jury to say whether they meant the same. — lb. 

Answer in gec. 186. In the actions mentioned in the last Section, the 

such cases. 

—7 — — - — defendant may, in his answer, allege both the truth of the mat- 
ter 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 evidence, the mitigating 
circumstances. 

It may be that defendant can introduce evidence to show his belief in the truth 
of the charge made, m mitigation of damages. — Finch v. Finch, 21 S. C, 342. 
Whether defendant sustain his plea of justification, the jury may consider the 
Pleading i n evidence of mitigating circumstances. — Burckhalter v. Coward, 16 S. C, 439. 

licto for dam- Sec. 186a. In all actions ex delicto in which vindicitive, pun- 

3.tics rc2rula.tcci. . . , , . . 

itive or exemplary damages are claimed in the complaint, it 

1898, XXII., r . o r J 

693. 



OF SOUTH CAROLINA. 




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 part}^ 
be required to elect 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. 

In all cases where two or more acts of negligence or other How two or 

° ° _ more causes of 

wrongs are set forth in the complaint, as causing or contribut- action for dam- 

'-' _ _ -^ _ _ " ages may be 

ing to the injury, for which such suit is brought, the party pleaded. 
plaintiff in such suit shall not be required to state such several 
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 dam- 
ages arose from one or another or all of such acts or wrongs 
alleged in the complaint. 

Glover V. Ry. Co., 57 S. C, 234; 35 S. E., 510; Mew v. Ry. Co., 55 S. C, 96; 
32 S. E., 828; Bowen v. Ry. Co., 58 S .C, 226; 36 S. E., 590; Proctor v. So. 
Ry. Co., 61 S. C, 184; 39 S. E., 351; Appleby v. So. Ry. Co., 60 S. C, 48; 38 
S. E., 240. 

Sec. 187. In action to recover the possession of property ^^^A^^^^^^^ ^" 
distrained doing damage, an answer that the defendant, or per- d°Jtrained^"^for 

son by whose command he acted, was lawfully possessed of the damage. 

real property upon which the distress was made, and that the ■^^■' ^ ^^^• 
property distrained was at the time doing dama^^e thereon, 
shall be good, without setting forth the title to such real prop- 
erty. 

Sec. 188. The plaintiff may unite, in the same complaint, of^ct^on^may 
several causes of action, whether they be such as have been ^^ jomed. 
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 dam- 
ages for the withholding thereof, and the rents and profits of 
the same; or, 

6. Qaims 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. 



100 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^~"''^~^'' But the causes of action, so united, must all belong to one of 

these classes, and, except in actions for the foreclosure of mort- 
gages, must affect all the parties to the action, and not require 
different places of trial, and must be separately stated. In 
actions to foreclose mortgages, the Court shall have power to 
adjudge and direct the payment by the mortgagor of any resi- 
due of the mortgage debt that may remain unsatisfied after a 
sale of the mortgaged premises, in cases in which the mort- 
gagor 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 re- 
maining unsatisfied after a sale of the mortgaged premises 
against such other person, and may enforce such judgment as 
in other cases. 
rencfeT^" u^cfg^ The Court shall also have the power to render judgment 
dtfr" s a1 e °at against the parties liable for the payment of the debt secured 



same time. 



by the mortgage and to direct at the same time the sale of 
XXI.', 'sie! 1^2.' the mortgaged premises. The said judgment so rendered may 
be entered and docketed in the Clerk's office in the same man- 
ner as other judgments. Upon sale of the mortgaged premises, 
be cre^dTted! *° the ofBccr making the sale under the order of the Court shall 
credit upon the judgment so rendered for the debt the amount 
or amounts paid to the plaintiff from the proceeds of the sale. 
ti^ns'^'for slrfct ^^^ it shall not bc necessary to make the personal represen- 
g°fg^'^'°^"'"^^"*^tative of a deceased mortgagor a party to any foreclosure pro- 
1900, xxiifT needing ; nor in any foreclosure proceeding (if the mortgagor 
^*^- 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 foreclosure and sale; nor shall it be neces- 
sary to make the mortgagor who may have conveyed the mort- 
gaged premises a party to any action for foreclosure where no 
judgment for any deficiency is demanded. 

There is a limit to this union of causes of action. — Hellams 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.; Hammond v. R. R., 15 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 settlement 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. 

\ bill seeking settlement of all matters growing out of an estate is not multi- 



OF SOUTH CAROLINA. loi 

A. D. 1902. 



farious.- — Tucker v. Tucker, 13 S. C, 318. There is no misjoinder where, under ^— ^v—— ^ 
a bill to marshal assets, two of the defendants claim different tracts of land. — 
Barret v. Watts, 13 S. C, 441. Nor where a single action is brought upon a 
note and account against a corporation and its directors, who are jointly and 
severally liable therefor. — Sullivan v. Sullivan, 14 S. C, 494. 

Survivor and representative of surviving partner 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 misjoinder. — Emory v. Hazard Co., 
22 S. C, 476. 

Action for partition among remaindermen and for account of estate of life 
tenant is a misjoinder. — Shanks v. Mills, 25 S. C, 358. 

A joint trespass by two and continued by one cannot be sued together. — Hines 
v. Jarrett, zd S. C, 480; 2 S. E., 393. 

Joint action by four wards against their guardian is not multifarious. — Stellings 
v. Barrett, 26 S. C, 474; 2 S. E., 483. 

Claim of heirs to land descended, and as distributees, to an accounting, can- 
not be joined. — Rush v. Warren, 26 S. C, 72; i S. E., 363. But complaint being 
dismissed as to land, it was properly retained as to accounting. — -Ih. 

Demurrer for misjoinder is bad if one cause is imperfectly pleaded. — Machine 
Co. V. 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. — McGruder 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. g S. E., 107. 

Doubted whether two causes of action, one for partition and the other for 
recovery of real estate, can be joined. — 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 actions. — Scoggins 
V. Smith, 31 S. C, 60s; 9 S. E., 971. 

Action of partner against devisee of copartner in possession of the land alleging 
that it was partnership property and demanding reconveyance 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. B. & L. 
Ass'n, 48 S. C, 6s; 2s 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 sep- 
arately tried. — Ross v. Jones, 47 S. C, 211; 2s S. E., 60. 

An action for damages from a tort and for an injunction against the continuance 
of the tort, seeking two different modes of relief, states but one cause of action. — ■ 
Threatt v. Mining Co., 49 S. C, 95; 26 S. E., 983. So also a complaint for dower 
against more than one defendant in posses.sion 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. 

Sec. 189. Every material allegation of the complaint, not dtikdf °when 
controverted by the answer, as prescribed in Section 170, andt°ue^^ deemed 
every material allegation of new matter in the answer, consti- jsto, xiv., 
tuting a counter-claim, not controverted by the reply, as pre-^ ^^^' 
scribed, in Section 174, shall, for the purposes of the action, be 
taken as true. But the allegation of new matter in the answer, 
not relating to a counter-claim*, 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. 



T02 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^ -"^ V **■ ' 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. — Lupo v 
True, 16 S. C, 579. The only effect of an answer that is not responsive 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 v. Gravely, 
20 S. C, 93. So are new matters stated in answ-er. — 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, 317; 33 S. E., 575. But that of counter- 
claim is not deemed controverted without reply. — Hubbell v. Courtney, 5 S. C, 87. 

An answer setting up defenses, other than counter-claim, not set aside on 
demurrer is left still as controverting the complaint by direct denial or avoidance. — 
Mobley V. Cureton, 6 S. C, 49. Answer admitting complaint but stating sufEcient 
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, iii; 
Steamship Co. v. Rodgers, 21 S. C, 33; Palmetto Co. v. Risley, 25 S. C. 309;' 
American Co. v. Hill, z-j S. C, 164; Rembert v. R. R., 31 S. C, 309; 9 S. E., 968; 
Land Co. v. WilUams, 35 S. C, 367; 14 S. E., 821. 

Failure to deny is such admission of plaintiff's case as to allow defendant to 
open and reply. — Addison v. Duncan, 35 S. C, 165; 14 S. E., 305. 



CHAPTER VI. 

Mistakes in Pleadings and Amendments. 

Sec. , Sec. 

190. Material variances, how pro- , 195. Court may give relief in case of 

vided for. j mistake. 

191. Immaterial variances, how pro- \ 196. Suing a party by a fictitious 

vided for. t name. 

192. "What not to be deemed a vari- i 197. Xo error or defect to be regard- 

ance. ! ed unless it affect substan- 

193. Amendments of course, and af- tial rights. 

ter demurrer. j 198. Supplemental complaint, answer 

194. Amendments by the Court. and reply. 

The provisions of this Chapter do not seem to give a Circuit Judge greater 
power than that which was formerly exercised by the Chancellors in this State. — 
Coleman v. Heller, 13 S. C, 491. 

_ Material va- Sectloii 190. No Variance between the allesfation in a pleadinsf 

nances, how 010 

provided for, and the proof shall be deemed material unless it have actually 
ih., § 192. misled the adverse party, to his prejudice, in maintaining his 
action or defence, upon the merits. Whenever it shall be al- 
leged that a party has been so misled, that fact shall be proved 
to the satisfaction of the Court, and in W'hat respect he has 
been misled ; and thereupon the Court may order the pleading 
to be amended, upon such terms as shall be just. 

This Section applies to trials in actions pending when the Code was adopted. — 
Ahrens v. Bank, 3 S. C, 401. Nonsuit cannot be granted for variance between 
the allegations and the proof; the only remedy is by amendment upon such terms 
as shall be just, and for this the party must satisfy the Court, by affidavit, that 
he has been misled, and in what respect. — Ih.; State v. Scheper, 33 S. C, 562; 11 



OF SOUTH CAROLINA. 103 

A. D. 1902. 



S. E., 623. Unless the party prejudiced has actually been misled, he has no rights "'^■"'■^v^""'^ 
under this Section. — Hammond v. R. R. Co., 6 S. C, 130; Mew v. C. & S. Ry. 
Co., 55 S. C, 99; 32 S. E., 829. Judgment may be rendered on account stated, 
although no allegation of account stated was made. — Sloan v. Westfield, 17 
S. C, 589- 

Sec. 191. Where the variance is not material, as provided in variances!* how 
the last Section, the Court may direct the fact to be found ac- p'""^'^^'^ ^°^- 
cording to the evidence, or may order an immediate amendment § 193°' ^^^•> 
without costs. 

In all immaterial variances the Court may disregard them and direct a verdict 
according to the evidence or order immediate amendment. — Ahrens v. Bank, 3 
S. C, 401. 

Such amendment is to conform the pleadings to the facts proven, and may be 
made informally, sometimes orally, or by the Court of its own motion. — Chichester 
v. Hastie, 9 S. C, 330. 

Sec. 192. Where, however, the allegation of the causes of ^ What ^^o^ to 
action or defence to which the proof is directed is not proved, variance. 
not in some particular or particulars only, but in its entire -^^•' § i^*- 
scope and meaning, it shall not be deemed a case of variance 
within the last two Sections, but a failure of proof. 

This failure of proof warrants a nonsuit. — Ahrens v. Bank, 3 S. C, 401. 

Sec. 193. Any pleading may be once amended by the party ^f^^'^^^g'^J^^a"*! 
of course, without costs, and without prejudice to the proceed- ^l*^"" ^iemur- 
ings already had, at any time within twenty days after it is~^^ 7^ 
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 plead- 
ing, unless it be made to appear to the Court that it v\^as 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 
just. In such case a copy of the amended pleading must be 
served on the adverse party. After the decision of a demurrer, 
the Court shall, unless it appear that the demurrer was inter- 
posed 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 165, 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. 

The allowance of voluntary amendment, it seems, does not allow a wholly 
different cause of action to be substituted in place of original one. — Sullivan v. 
Sullivan, 24 S. C, 474. 

Facts occurring since commencement of action cannot be alleged as amendments 



104 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^^-•■"N,/^^-^ in the original complaint; they can only be brought before the Court by supple- 
mental complaint. — McCaslan v. Latimer, 17 S. C, 123. 

Permission to answer over cannot be claimed as a right; it rests in the dis- 
cretion of the Judge, and he may grant such relief upon payment 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. Barrett, 26 S. C, 474; 2 S. E., 483. 

When Judge properly overruled demurrer made for several causes, and required 
defendant to answer over by a given time, he acted within authority herein con- 
ferred. — Cureton v. Stokes, 20 S. C, 582. When demurrer is taken in good faith, 
the Court in overruling it should allow defendant 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 motion for leave to amend; the granting of which is discretion- 
ary. — 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. 

by^thl"crrt' Sec. 194. The Court may, before or after judgment, in fur- 
therance 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 defence, by conform- 
ing the pleading or proceeding to the facts proved. 

The power of amendment herein is limited to the amendments 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. Woodward, 30 S. C, 564; 9 S. E., 684; Clayton v. Mitchell, 31 S. 
C, 199; 9 S. E., 814. This limitation, however, applies only during or after trial. — ■ 
Mason 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; Nesbett v. Cavender, 27 
S. C, i; 2 S. E., 702; Hall v. Woodward, 30 S. C, 564; 9 S. E., 684; Edwards 
V. R. R. Co., 32 S. C, 117; 10 S. E., 822; Lilly v. R. R. Co., 32 S. C, 142; 10 
S. E., 932. 

But judgment will not be arrested because of defects in complaint which might 
have been cured by amendments before or after judgment. — Brickman v. R. R. 
Co., 8 S. C, 173- 

A petition to enforce mechanic's lien is subject to the liberal rules of amend- 
ment 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 discretion of the Court. — Chichester v. 
Hastie, 9 S. C, 334. So motion for leave to amend answer to plead Statute of 
Limitations. — Seegers v. McCreery, 41 S. C, 548; 19 S. E., 696. And such dis- 
cretion is not to be disturbed unless it deprives 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; i 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 amendment 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 making 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 substituted without giving defendant time to answer. — Cleveland v. 



OF SOUTH CAROLINA. 105 

A. D. 1902. . 



Cohrs, 13 S. C, 397; Coleman v. Heller, 13 S. C, 491. But if time to answer is 
not asked, the Court may, in its discretion, proceed to trial upon the amended 
complaint. — 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 manifest errors and mere clerical mis- 
takes. — Carroll v. Tompkins, 14 S. C, 223; Hey ward v. Williams, 48 S. C, 564; 
26 S. E., 797. 

Where complaint alleged quantum meruit for work done, it was permissible to 
allow amendment, showing special contract, in order to allow proof of it. — Tarrant 
V. Gittelson, 16 S. C, 231. 

Or where the complaint is for assault, it may be amended so as to be for assault 
and battery. — Sullivan v. Sullivan, 24 S. C, 474. 

Plaintiff may be permitted to amend the complaint 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 stating 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, 305; Sullivan v. Sullivan, 24 S. C, 474. 

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 cancellation of an instrument instead of reformation thereof. — 
Kennerty v. Etiwan 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 
account for which the notes were given does not substantially change the claim 
and should 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; g 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, iS S. C, 148. 

An amendment to answer setting up a separate defence, 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 plaintiff was estopped 
to claim title did not materially change the defence. — 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? — Hunter 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 plaintiff will not, after an action for common law negligence 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. Spartan- 
burg &c., Ry. Co., 43 S. C, 22s; 20 S. E., 10. 

It is within the discretion of the Court to allow an amendment to a complaint 
converting it from an action against a copartnership to one against, the individual 
members thereof. — Baker v. Herrick, 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. 
Langley M'f'g Co., 51 S. C, 412; 29 S. E., 204. 

Error to allow amendment during trial after plaintiff had rested, and the de- 
fendant had 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; Ruberg v. Brown, 50 S. C, 397; 27 S. E., 873. Or to change 



io6 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

'~-^'^v' '~— ' the alleged date of the transaction in question where the other party is not misled 
thereby. — Dent v. S. B. R. R., 6i S. C, 329; 39 S. E., 527. A complaint in fore- 
closure 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 may 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.— Zb.; Jennings v. Parr, 54 S. C, 109; 32 S. E., 73; Lawton 
V. S. B. R. R. Co., 61 S. C, 548; 39 S. E., 732. But when a litigant waits umil 
after he has been successful in his appeal his motion to amend comes too late. — 
Cothran v. Knight, 47 S. C, 243; 25 S. E., 146. 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. Amendment not to set up usury after 
testimony had been taken and reported. 

give°"reiief ^n ^®^' ^^^- The Couft may likewise, in its discretion, and upon 
take. °^ "'^ s^ch terms as may be just, allow an answer or reply to be made, 
j^^ g 19^ 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 wuthin one year after notice 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. 

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. Beacham, 25 S. E., 285; 47 S. C, 
393. 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 surprise 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. Friesleben, 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. Grifiin, 1 1 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 neglect, 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 oppor- 
tunity to be present at the trial or to be represented there; and not for parties 
who, represented at the trial, are only entitled to relief by application for new 
trial under the provisions of the law therefor. — Williams v. Charleston, 7 S. C, 
71; Gibbes v. Elliott, 8 S. C, 60; Steele v. R. R., 14 S. C, 3^4; Hand v. R. R. 
Co., 17 S. C, 219; Clark v. Wimberly, 24 S. C, 138; Kamintsky v. R. R. Co., 
25 S. C, 53; Hubbard v. Camperdown Mills, 26 S. C, 581; 2 S. E., 576; Wood- 
ward V. Elliott, 27 S. C, 368; 3 S. E., 477. 

And extends to cases of such mistake or excusable neglect on the part of the 
party's attorney. — Vaughn v. Hewitt, 17 S. C, 442. 

One Circuit Judge may allow absent party to file security for costs after the 



OF SOUTH CAROLINA. 107 

A. D. 1902. 



time to do so, fixed by another has expired. — McMillan v. McCall, 2 S. C, 393; ~^ '" 

Williams v. Connor, 14 S. C, 621. 

Upon application for such relief by defendant, upon grounds of failure to 
answer because of illness, refused by the Judge, it must be assumed that the Judge's 
order was the result of his conclusion 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 judgment by default. — Buttz v. Campbell, 
IS 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 limitation in the State to time for motion 
to set aside judgment. — Thew v. 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 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. Johnson, 
32 S. C, 86; II S. E., 209. 

Nor can party find such relief from a judgment by default when he entrusted 
a friend to hand the copy summons to an attorney, with directions to plead pay- 
ment, but the friend failed to do so. — Sullivan v. Shell, 36 S. C, 578; 15 S. E., 377. 

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. Thomson, 19 S. C, 247. Nor to amend 
decree rendered 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 Magistrates. — Doty v. Duvall, 19 
S. C.,*i43. 

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. 
R. R. 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 evidence 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, taking the 
place of a bill for rehearing or review. — Carolina Nal'l 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. E., 28; 33 S. E., 787. 

Sec. 196. When the plaintiff shall be ignorant of the name Suing a par- 
of the defendant, such defendant may be designated in any tious name. 
pleading or proceeding by any name ; and when his true name i87o, xiv., 
shall be discovered, the pleading or proceeding may be amend- 
ed accordingly. 

Sec. 197. The Court shall, in every stage of action, disre- No error or 

• 1 1 1- 1- 1-1 defecttobe 

gard any error or defect m the pleadings or proceedings, which r e g arded un- 
shall not affect the substantial rights of the adverse party ; and s u b s t a n tiai 
no judgment shall be reversed or affected by reason of such '- 

^ ^ , , lb., § 199. 

error or defect. 

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. Eraser, 
II S. C, 122. 

Judgment may be rendered on account stated, although no allegation of account 
stated was made. — Sloan v. Westfield, 17 S. C, 589. 

This Section precludes the allowance of a nonsuit on the ground of informality 
alone. — Bowden v. Winsrhith, 11 S. C, 409. 



io8 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^— '~-v^~-^ 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 properly disregarded 
by the Circuit Judge. — R. R. 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. — Henlein 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. R. R. Co., 
30 S. C, 450; 9 S. E., 512; Cummings v. Wingo, 31 S. C, 427; 10 S. E., 107. 

Immaterial defects in allegation to the qualification of executors. — Jerkowski v. 
Marco, 34 S. E., 389; 56 S. C, 241. 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. E., 894. 

compklnr^'an^ ^cc. 198. The plaintiff and defendant, respectively, may be 
swer, and re- g^jj^^^g^^^ ^j^ motion, to make a supplemental complaint, an- 
j^., § 200. swer, 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 commencement 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. 

The Court may examine into the merits of the proposed supplemental defence, 
or other matter, and exercise its discretion in passing on motion. — 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 supplemental pleadings and not by amendment of original pleadings. — 
McCaslan v. Latimer, 17 S. C, 123. 

But plaintiff cannot in action to recover real estate set up a legal title acquired 
after action brought. — Moore v. Johnson, 14 S. C, 434. 

Such motion to make supplemental pleadings may be made at chambers. — Ed- 
wards 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 defendafit 
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 by 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. 



OF SOUTH CAROLINA. 



TITLE VII. 

OF THE PROVISIONAL REMEDIES IN CIVIL AC- 
TIONS. 

Chapter I. Arrest and Bail. 

Chapter II. Claim and Delivery of Personal Property. 

Chapter III. Injunction. 

Chapter IV. Attachment. 

Chapter V. Provisional Remedies. 




CHAPTER I. 

Arrest and Bail. 



Sec. 




Sec 


199. 


No one to be arrested in a civil 


211 




action, except as prescribed. 


212. 


200. 


Arrest in civil actions, in what 
cases. 


213. 


201. 


Order for arrest, by whom to be 






made. 


214. 


202. 


Affidavit to obtain order for ar- 


215 




rest. To what actions this 


216 




Chapter applies. 


217 


203. 


Security by plaintiff before ob- 


218 




taining order for ai-rest. 


219 


204. 


Order for arrest, when it may be 


220 




made, and its form. 


221 


205. 


Original affidavit and order to 






be delivered to Sheriff, and 


222 




copy to be delivered to de- 


223 




fendant. 




206. 


Arrest, how made. 


224 


207. 


Defendant to be discharged on 
giving bail or making a de- 


225 




posit. 


226 


208. 


Bail, how given. 




209. 


Surrender of defendant. 




210. 


The like. 





Bail, how proceeded against. 

Bail, how exonerated. 

Delivery of undertaking of bail 
to plaintiff, and its accept- 
ance or rejection by him. 

Notice of justification. New bail. 

Qualification of bail. 

Justification of bail. 

Allowance of bail. 

Deposit in lieu of bail. 

Payment of deposit into Court. 

Substituting bail for deposit. 

Deposit, how disposed of after 
judgment in the action. 

Sheriff, when liable as bail. 

Proceedings on judgment against 
Sheriff. 

Bail liable to Sheriff. 

Vacating order of arrest or re- 
ducing bail. 

Affidavits on motion to vacate 
order of arrest or reduce 
bail. 



Section 199. No person shall be arrested in a civil action, ex- , No person to 

^ be arrested in 

cept as prescribed by this Code of Procedure : but the same shall a dvii action, 

^ ^ •' _ except as pre- 

not apply to proceedings for contempt. scribed. 

Sec. 200. The defendant may be arrested, as hereinafter i87o, xiv., § 
prescribed, in the followins' cases : ... 

•^ . '^ , Arrest in civ- 

I. In an action for money received, or property embezzled n actions, in 

•^ '-'■■' what cases. 

or fraudulently misapplied, by a public officer, or by an attor- — - — -— — 

It?. J s ^w^. 

ney, solicitor, or counsellor, or by an officer or agent of a cor- 
poration or banking association, in the course of his employ- 
ment as such, or by any factor, agent, broker, or other person 



TTo CODE OF CIVIL PROCEDURE 

A. D. 1902. — 

"■"^■' in a fiduciary capacity, or for any misconduct or neglect in of- 

fice, or in a professional employment. 

Sufiiciencj- of complaint and afEdavits in action against agent for monies collected 
in a fiduciary capacity. — National Bank of Greenville v. Jennings, 38 S. C, 372; 
17 S. E., 16. 

2. In an action to recover the possession of personal prop- 
erty fraudulently detained, or where the property, or any part 
thereof, has been fraudulently concealed, removed, or disposed 
of so that it cannot be found or taken by the Sheriff or Con- 
stable, and with intent that it should not be so found or taken, 
or with the intent to deprive the plaintilt of the benefit thereof. 

3. AMien the defendant has been guilty of a fraud in con- 
tracting the debt, or incurring the obligation for which the 
action is brought, or in concealing or disposing of the prop- 
erty 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. 

What are insufficient grounds for arrest under this subdivision. — Davis v. Cardue, 
38 S. C, 471; 17 S. E., 247. 

4. When the defendant has removed or disposed of his prop- 
erty, or is about to do so, with intent to defraud his creditors. 

But no female shall be arrested in any action. 

5. AA'henever a person domiciled in this State, indebted by 
bond, note, or otherwise, is about 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 any 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 is about to abscond or remove 
without the limits 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 issuing a summons and com- 
plaint and shall have power to arrest and hold to bail in such 
manner as is now prescribed in this Chapter in cases of debts 
actually 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 non- 
resident 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. 



OF SOUTH CAROLINA. iii 

A. D. 1902. 



Arrest by execution under Section 308 is authorized by this Section and Section ^^■^"^y^""^ 
202. — Hurst, Purnell & Co. v. Samuels, 29 S. C, 476; 7 S. E., 822. 

Sec. 201. An order for the arrest of the defendant must be ^.^^''^^/y ^ °^jj^^ 
obtained from a Judge, Magistrate, or Clerk of the Court, in tojjejriaae^^^ 
which or before whom the action is brought. „ 20^' •^^^•' 

Sec. 202. The order may be made where it shall appear to j^^ffi^^yn t o 
the proper officer by the affidavit of the plaintiff, or of any °^j3^^^.°g[ ^ :|,^ 
other person, that a sufficient cause of action exists, and i^'^^^i'^i%^c'^°^^l 

the case, from the facts stated, is one of those mentioned in applies. 

Section 200. ^^- § ^o*. 

Affidavit held sufficient in National Bank of Greenville v. Jennings, 38 S. C, 
372; 17 S. E., 16. 

Sec. 203. Before making the order, the Judge or other of- pjj^^[^f^'*y ^^'^^y 
ficer, shall require a written undertaking on the part of the ^^^^'"^"^^."gg^' 
plaintiff, with or without sureties, to the effect that, if the de-"~y^ 7~^ 
fendant 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 hun- 
dred 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. 

Sec. 204. The order may be made to accompany the sum- ^^l'^lyh°^ Y't 
mons, or at any time afterwards before judgment. It shall re-^^-^g'^f q™^*^^' 
quire the Sheriff or Constable of the County where the de- ^g^g^ xivT^ 
fendant 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 an- 
swer the complaint. da?"^a"nd ""or- 

Sec. 205. The affidavit and order of arrest shall be delivered ilvered to Shtr- 
to the Sheriff or Constable, who, upon arresting the defendant, b^' ieiwlrel to 
shall deliver to him a copy thereof. ^"^^"'^^"'- 

Sec. 206. The Sheriff or Constable shall execute the order ^^- § 2°^- 
by "arresting the defendant and keeping him in custody until mad""*' ^°^' 

lb., § 208. 



112 CODE OF CIVIL PROCEDURE 

A. D. 1902. ■ 

■"^^^z — ' 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. 
Defendant to gee. 207. The defendant, at anv time before execution, shall 

be discharged 

on ^^^'^^ ^^^] be discharged from the arrest, either upon giving bail or upon 

deposit. depositing the amount mentioned in the order of arrest, as 

ih., % 209. provided in this Chapter, or he may be discharged under the 
provisions of Sections 2405 to 2423, inclusive, of the first vol- 
ume of the Code of 1902. 

This Section does not affect Chapter C. of the General Statutes, and under that 
Chapter the defendant may be discharged under final process. — Hurst, Purnell & 
Co. V. Samuels, 29 S. C, 476; 7 S. E., 822. 

Bail, how ggg^ gQS. The defendant may give bail by causing a written 
^Yi, — r2io — undertaking to be executed by two or more ^sufficient bail, stat- 
ing 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 pendency 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 sub- 
division of Section 2(X), by an undertaking to the same effect as 
that provided by Section 232. 
defendlnt^'' °^ ^^^* ^^^* -'^^ ^^3' 'VirviZ bcfotc a failure to comply with the 
^Y^ Tsn undertaking, the bail may surrender the defendant in their ex- 
oneration, or he may surrender himself to the Sheriff of the 
County where he was arrested, in the following manner : 

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 surrender. 

2. Upon the production of a copy of the undertaking and 
Sheriff's or Constable's certificate, a Judge or Clerk of the 
Court may, upon notice to the plaintiff 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 exonerated accordingly. But this Section shall not 
apply to an arrest for cause mentioned in sub-division two of 
Section 200, so as to discharge the bail from an undertaking 
given to the effect provided by Section 232. 

The like. Scc. 210. For the purpose of surrendering the defendant, 

1870, XIV., 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 per- 
son of suitable age and discretion to do so. 

Sec. 211. In case of failure to comply with the undertaking, 
proceeded the bail may be proceeded against by action only. 

against. 
Ih., § 213. 



OF SOUTH CAROLINA. 




Sec. 212. The bail may be exonerated, either by the death 
of the defendant, or his imprisonment in a state prison, or by o^jfli^°^ ^^' 
his legal discharge from the obligation to render himself ~^^ — 7~^^ — 
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. 

Sec. 213. Within the time limited for that purpose, the Delivery o f 

^ undertaking of 

Sheriff or Constable shall deliver the order of arrest to the bail to plain- 
tiff, and Its ac- 
plaintiff, or attorney by whom it is subscribed, with his return ceptance orre- 

•^ . , jection by him. 

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 Con- 
stable shall be exonerated from liability. 

Sec. 214. On the receipt of such notice, the Sheriff or Con- Notice of jus- 

■^ _ _ _ tification. New 

stable, or defendant, may, within ten days thereafter, give to^aiL 

the plaintiff or attorney by whom the order of arrest is sub- it>-> § 216. 
scribed, notice of the justification of the same or other bail 
(specifying the places of residence and occupation of the lat- 
ter) 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 208. 

Sec. 215. The qualification of bail must be as follows : of ^an'^"^*'""* 

1. Each of them must be a resident and householder, or free-"yj^ — 7-^ — 
holder, within the State. 

2. They must each be worth the amount specified in the order 
of arrest, exclusive 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 equiva- 
lent to that of two sufficient bail. 

Sec. 216. For the purpose of justification, each of the bail ^^ {^['^'=^*'°" 
shall attend before the Judge or Clerk of the Court at the time ^g^^ xiv^ 
and place mentioned in the notice, and may be examined, on§ ^is. 
oath, on the part of the plaintiff, touching his sufficiency, in 
such manner as the Judge, or Clerk of the Court, in his dis- 
cretion, may think proper. The examination shall be reduced 
to writing, and subscribed by the bail, if required by the plain- 
tiff. 

8.— C. P. 




CODE OF CIVIL PROCEDURE 



Sec. 217. 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; an 
onerated from liability. 



lb., § 219. 

office of the Clerk; and the Sheriff shall, thereupon, be ex 



lb., § 220. 



Deposit i n gg^ 218. The defendant may, at the time of his arrest, in- 

lieu of bail. -' 

stead of giving bail, deposit with the Sheriff or Constable the 
amount mentioned in the order. The Sheriff' shall thereupon 
give the defendant a certificate of the deposit, and the defendant 
shall be discharged out of custody. 
Payment of ggg^ 219. The Sheriff' or Constable shall, within four davs 

deposit into _ ' 

Court. ^fi-gj. ^]^g deposit, pay the same into Court, and shall take from 

lb., § 221. |-j-jg officer receiving the same two certificates of such payment, 
the one of which 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. 
baif"''fo?''^dK Sec, 220. If money be deposited, as provided in the last two 

P°^'^- Sections, bail may be given and justified upon notice, as pre- 

ib., § 222. scribed in Seq^ion 214, any time before judgment; and there- 
upon 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 defendant, and it 
shall be refunded accordingly. 
Deposit how Sec. 221. Where monev shall have been so deposited, if it 

disposed of af- ' . , . , 

ter judgment j-emain ou dcDOsit at the time of an order or judgment for the 

in the action. ^ , , 

— payment of money to the plaintiff, the Clerk shall, under the 
direction of the Court, apply the same to the satisfaction there- 
of, and, after satisfying the judgment, shall refund the surplus, 
if any, to the defendant. If the judgment be in favor of the 
defendant, the Clerk shall refund to him the whole sum de- 
posited and remaining unapplied. 
Sheriff, when gec. 222. If, after being arrested, the defendant escape or 

liable as bail. ' o ' j- 

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 214, 215, 216 and 217, at any time before process 
against the person of the defendant to enforce an order or 
judgment in the action. 



lb., § 224. 



OF SOUTH CAROLINA. 




Sec. 223. If a judgment be recovered against the Sheriff or 
Constable, upon his HabiHty as bail, and an execution thereon ^ /^9cee^<^ngs 
be returned unsatisfied, in whole or in part, the same proceed- ^ga'^st Sheriff. 
ings ma}^ be had on the official bond of the Sheriff or Constable, g If^^' ^^^■' 
to collect the deficiency, as in other cases of delinquency. 

Sec. 224. The bail taken upon the arrest shall, unless they gj^^^y'^^'^ *° 
justify, or other bail be given or justified, be liable to the— ^^— — ^ — 
Sheriff or Constable by action for damages which he may sus- 
tain by reason of such omission. 

Sec. 225. A defendant arrested may, at any time before , Vacating or- 
der of arrest or 

judgment, apply, on motion, to vacate the order of arrest, or to reducing bail. 
reduce the amount of bail. i^-' § 227. 

Sec. 226. If the motion be made upon affidavits on the part Affidavits on 

motion to va- 

of the defendant, but not otherwise, the plaintiff may oppose cate order of 

' . , arrest or ra- 

the same by affidavits, or other proofs, in addition to those on duce bail. 

which the order of arrest was made. ib., § 228. 



CHAPTER II. 

Claim and Delivery of Personal Property. 



Sec. 

227. Claim and delivery of personal 

property. 

228. Affidavit and its requisites. 

229. Requisition to Sheriff to take 

and deliver the property. 

230. Security by plaintiff. 

231. Exception to sureties. 

232. Defendant, when entitled to re- 

delivery. 

233. Justification of defendant's 

sureties. 



Sec. 

234. Qualification and justification of 

sureties. 

235. Property, how taken when con- 

cealed in building or inclos- 
ure. 

236. Property, how kept. 

237. Claim of property by third per- 

son. 

238. Notice and affidavit, when and 

where to be filed. 



Section 227. The plaintiff, in an action to recover the posses- ^^^.^ ^^^ ^^_ 
sion of personal property, may, at the time of issuing the sum- ^'J^f^f property,' 
mons, or at any time before answ'er, claim the immediate de- ^^ ^ g^g. ' 
livery of such property, as provided in this Chapter. 

Claim and delivery is a civil action, subject to the same rules as other civil 
actions. — Jones v. Brown, 57 S. C, 14; 35 S. E., 397. 

Sec. 228. Where a delivery is claimed, an affidavit must be Affidavit and 
made by the plaintiff, or by some one in his behalf, showing — !'^ requisites. 

I. That the plaintiff is the owner of the property claimed, 
(particularly describing it,) or is lawfully entitled to the pos- 
session thereof, by virtue of a special property therein, the facts 
in respect to which shall be set forth. 



Ib., § 230. 



ii6 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^'■"^-•^'^'^ 2. That the property is wrongfully detained by the defend- 
ant. 

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. 

t o^ Sheriff ''°o ^®^- ^^^- ^hc plaintiff may, thereupon, by an indorsement, 
\iv&T the'^proD- ^^ Writing, upon the affidavit, require the Sheriff of the County 

^'^^y- where the property claimed may be, to take the same from the 

F22L '^^^" defendant and deliver it to the plaintiff'. 

Bardin v. Drafts, 10 S. C, 493. 

pifintfff"'^' ^y Sec. 230. Upon the receipt of the affidavit and notice, with 
~y^ „ 232 • ^ written undertaking executed by one or more sufficient sure- 
1S73, XV., 498. -j-igg^ 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 recov- 
ered against the plaintiff, the Sheriff shall forthwith take the 
property described in the affidavit, 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 pos- 
session of the property shall retain the same until the determi- 
nation of the suit. 
Exception to Scc. 231. The defendant may, within three days after the 

sureties. 

———-7—— service of a copy of the affidavit and undertaking, give notice 
233. 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 ob- 
jections to them. When the defendant excepts, the sureties shall 
justify, on notice, in like manner as upon bail on arrest. And 
the Sheriff shall be responsible for the sufficiency of the sure- 
ties, until the objection to them is either waived, as above pro- 
vided, or until they shall justify, or new sureties shall be sub- 



OF SOUTH CAROLINA. 




stituted and justify. If the defendant except to the sureties, 
he cannot reclaim the property, as provided in the next Section. 

Sec. 232. At any time before the delivery of the property to ^^^^ ^ ^Jjfj^j'^^ji 
the plaintiff, the defendant may, if he do not except to the ^° re-dehvery. 
sureties of the plaintiff, require the return thereof, upon giving ^^•' ^ ^*- 
to the Sheriff a written undertaking, executed by two or more 
sufificient sureties, to the effect that they are bound in double 
the value of the property, as stated in the affidavit of the plain- 
tiff, 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 defendant, it shall be de- 
livered to the plaintiff, except as provided in Section 237. 

Judgment having been rendered in the action in favor of plaintiff for damages, 
and not for delivery of the property, it was sufficient proof of breach of the bond 
given by the defendant under this Section in suit thereon. — Thompson v. Joplin, 
12 S. C, 580. 

The words "if such delivery be adjudged" mean adjudged by any competent 
authority. — Elder v. Green, 34 S. C, 154; 13 S. E., 323. 

As to damages recoverable in claim and delivery. — Vance v. Vandercock Co., No. 
2, 170 U. S., 481; Miami Powder Co. v. R. R. Co., 47 S. C, 324; 25 S. E., 153; 
Loeb v. Mann, 39 S. C, 465; 18 S. E., i; Lipscomb v. Tanner, 9 S. E., 733; 31 
S. C, 49; Brock V. Bolton, 37 S. C, 41; 16 S. E., 370. 

Sec. 233. The defendant's sureties, upon a notice to the plain- ^^ -defendant's 

tiff of not less than two nor more than six days, shall justify f^^^f^^ff__ 

before a Judge, Clerk of the Court, or Magistrate, in the. 23^°' ^^^^•' 
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 defendant's sureties 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. 

Sec. 234. The qualifications of sureties and their justifica- Qualification 

. ,f-,. j\^- and justifica- 

tion shall be as are prescribed by Sections 215 and 216 m re-tjon of sure- 

spect to bail upon an order of arrest. -— 

^ ^ lb., § 236. 

Sec. 235. If the property, or any part thereof, be concealed 
in a building or enclosure, the Sheriff shall publicly demand taken when 

111 iiMi>*^°"*^ ealed m 

its delivery. If it be not delivered, he shall cause the building building or en- 

... closure. 

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. 

Sec. 236. When the Sheriff shall have taken property, as inhow^'kept!''*^' 
this Chapter provided, he shall keep it in a secure place, and j^_ g 238. 



ii8 



CODE OF CIVIL PROCEDURE 



A. D. 1902. 



^""^v^-^ deliver it to the party entitled thereto, upon receiving his law- 
ful fees for taking, and his necessary expenses for keeping, the 
same, 
p r^o'piny by ^®^' ^^^ ' ^^ ^^^ property taken be claimed by any other per- 
t hird person. gQ^ thsLti the defendant or his agent, and such person shall 
lb., § 239. make affidavit of his title thereto, and right to the possession 
thereof, stating 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 plaintiff, unless the plain- 
tiff, on demand of him or his agent, shall indemnify the Sheriff 
against such claim, by an undertaking, executed by two suffi- 
cient sureties, accompanied by their affidavit that they are each 
worth double the value of the property, as specified in the affi- 
davit 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. 
Notice an d gcc. 238. The Sheriff shall file the notice and affidavit, with 

affidavit, when 

and^jWhere to ^jg procccdiugs thcrcou, with the Clerk of the Court in which 
the action is pendin.sf, within twenty days after taking the 



be filed. 



lb., § 240* 



action is pending, 
property mentioned therein. 

No penalty for failure to comply with this Section.- 
S. C, 409; 34 S. E., 695. 



-Alexander v. Jamison, 56 



CHAPTER III. 



Injunction. 



Sec. 

239. Writ of injunction abolished, 

and order substituted 

240. Temporary injunction, in wliat 

cases granted. 

241. At what time it may be granted. 

Copy affidavit to be served. 

242. Injunction after answer. 

242a. Injunctions to stay execution 
or judicial sales. 



Sec. 

243. Security upon injunction. Dam- 

ages, how ascertained. 

244. Order to show cause why in- 

junction should not be 
granted. 

245. Security upon injunction to sus- 

pend business of corporation. 

246. Motion to vacate or modify in- 

junction. 

247. Affidavits on motion. 



Writ of in- Section 239. An order of injunction may be made by the 

junction abol- . , . , , . . . , ^ " , 

ished, and or- Court of Common Pleas m which the action is brought, or by a 
' Judge thereof, and in the absence from the circuit, or inability, 



1870, XIV., § 



241. 



from any cause, of a Judge thereof, by a Judge of any other cir- 



OF SOUTH CAROLINA. 119 

A. D. 1902. 



cuit, or a Justice of the Supreme Court. And by any Probate ^""^^ ' 
Judges in the cases provided in Section 41 of this Code of Pro- 
cedure. 

Sec. 240. I. Where it shall appear by the complaint that the ; J^^,™iP„°/^i'^ 
plaintiff is entitled to the relief demanded, and such relief, or gj.^^jj^g^j^ ^ ^ '^ ^ 
any part thereof, consists in restraining the commission or j^,^ § 242. 
continuance of some act, the commission or continuance of 
which, during the litigation, would produce injury to the plain- 
tiff ; or, 2. When, during the litigation, it shall appear that the 
defendant is doing, or threatens, or is about to do, or procuring 
or suffering some act to be done, in violation of the plaintiff's 
rights respecting the subject of the action, and tending to ren- 
der the judgment ineffectual, a temporary injunction may be 
granted to restrain such act. 3. And where, during the pend- 
ency of an action, it shall appear by afifidavit 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. 

A perpetual injunction should not be granted at chambers.- — Hornesby v. Burdell, 
9 S. C, 303. When temporary injunction should not be dissolved on affidavits. — 
Cudd V. Calvert, 54 S. C, 457; 32 S. E., 503. As to granting injunction against 
continuous trespasses. — McClellan v. Taylor, 32 S. E., 527; 54 S. C, 430; Ragsdale 
V. Ry. 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, 2^ 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 notice to the defendant. — Watson 
V. Bank, 5 S. C, 159. And is not void because an undertaking was not required 
of the plaintiff. — Ih. 

Sec. 241. The injunction may be granted at the time of com-.^^t ^i^^^ t™^ 

■' J a it may be gran- 

mencing the action, or at any time afterwards, before Judg-t.ed-^.^Copy a^f^ 

ment, upon its appearing satisfactorily to the Court or Judge, served. 

by the affidavit of the plaintiff, or to any other person, that ^^•■> § 243. 
sufficient grounds exist therefor. A copy of the affidavit must 
be served with the injunction. 

Upon such application for injunction the Judge may consider the merits of 
the case in order to determine whether it should be granted, and his refusal is 
not a decision upon the merits. — Sease v. Dobson, 34 S. C, 345; 13 S. E., 530. 

The temporary injunction, except as provided in Sec. 242a, may be granted on 
an ex parte application to preserve the status quo. — Meinhard v. Youngblood, 37 
S. C, 227; 15 S. E., 947. Where the affidavits are sufficient the complaint need 
not be verified. — lb. 

Sec. 242. An injunction shall not be allowed after the de-^^r^ answer.'' 
fendant shall have answered, unless upon notice or upon a-n~^ '^'^^ 
order to show cause ; but in such case the defendant may be re- 



I20 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

""■^^^^^ Strained until the decision of the Court or Judge granting or 
refusing the injunction, 
fo^r^ gfa^nting ^®^' 242a. An injunction to stay an execution or judicial 
injunctions^ Jo g^jg shall not be allowed unless upon notice of at least four 

ffjfi days to the adverse party or to his attorney, unless the Court 

^^1899, XXIII, Qj. 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 time 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 be- 
fore or after the passage of this Section. 

As to effect of injunction on leave to issue execution. — Ex parte Graham, in re. 
Flyler v. Robertson, 54 S. C, 163; 32 S. E., d^. 

i n'^j^ u'^n^c tion" Scc. 243. Whcu no provision is made by Statute as to se- 
ascertafned. °^^ curity upou an iujunctiou, the Court or Judge shall require a 
1870, xivT^ written undertaking on the part of the plaintiff, with or with- 
423. § 2-15. ^^^ sureties, to the effect that the plaintifif will pay to the party 
enjoined such damages, not exceeding an amount to be speci- 
fied, as he 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. 

The Judge may, in his discretion, dispense with sureties on the undertaking. — 
Meinhard v. Strickland, 29 S. C, 491; 7 S. E., 838. The undertaking may be 
filed after the granting of the injunction. — Meinhard v. Youngblood, 37 S. C, 223; 
18 S. E., 947. The words requiring an undertaking are plain and mandatory, 
and the Court should require one.- — Smith v. Smith, 51 S. C, 379; 29 S. E., 227. 
But the failure to require the undertaking is not a jurisdictional defect. — Watson 
V. Bank, 5 S. C, 177. 

Such damages may be ascertained by a reference. — Hill v. Thomas, 19 S. C, 
230. Counsel fee for single act of dissolving injunction is allowable as part of 
damages; but a fee for general services in defending case is not. — Livingston v. 
Exum, :9 S. C, 223; Hill v. Thomas, 19 S. C, 230. Not determined whether 
costs are a part of the damages. — Hill v. Thomas, 19 S. C, 230. But creditor is 
allowed interest on debt enjoined, as part of his damages. — Ih. 

In an action by the owner of land for rents and profits received b)^ the defendant, 
the plaintiff is not precluded from recovering by her failure to assert her claim in 
a previous action to restrain her from taking possession of the land. — Rabb v. 
Patterson, 42 S. C, 528; 20 S. E., 540. 



OF SOUTH CAROLINA. 121 

• A. D. 1902. 



Sec. 244. If the Court or Judge deem it proper that the de- ^~-"^'^~'' 
fendant, or any of several defendants, should be heard beforCgj^^^^^^^^^J^^^jj" 
granting the injunction, an order may be made, requiring cause ^"^1^]'^'^^'^^^'^" 
to be shown, at a specified time and place, why the injunction g^^"^^'^- 
should not be granted ; and the defendant may, in the mean- g Ifl^' ^'^^■' 
time, be restrained. 

Sec. 245. An injunction to suspend the general and ordinary j^j^^^^^jy^^P"^ 
business of a corporation shall not be granted except by the^"|P^^j^^^j^^^^^^; 

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 proceed- 
ing, and except in proceedings to enforce the liability of stock- 
holders in corporations and associations for banking purposes, 
as such proceedings are or shall be provided 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 eft"ect that the plaintiff will pay all damages, not exceeding 
the sum to be mentioned in the undertaking, which such corpo- 
ration 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. 

Sec. 246. If the injunction be granted by the Court, or a ^a'^at'eVrm^dT 
Judge thereof, without notice, the defendant, at any time before ^^ injunction. 
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. 

Sec. 247. If the application be made upon affidavits on the^^gj^^it^ on 
part of the defendant, but not otherwise, the plaintiff may~~j:^ 7~^ 
oppose the same by affidavits or other proofs, in addition to 
those on which the injunction was granted. 

A Circuit Judge can dissolve a temporary injunction granted by his predecessor 
until the further order of the Court.— Bouknight v. Davis, 33 S. C, 410; :2 S. E., 
96. When it should not be dissolved. — Cudd v. Calvert, 54 S. C, 457; 32 
S. E., 503. 




CODE OF CIVIL PROCEDURE 



CHAPTER IV. 

Attachment. 



Sec. 

248. Property of foreign corporations, 

and of non-resident, or ab- 
sconding, or concealed de- 
fendants, may be attached. 

249. Attachment, by whom granted. 

250. In what cases attachments may 

be issued ; affidavits to be 
filed. 

251. Security on obtaining attach- 

ment. 

252. Attacliment, to whom directed, 

and what to require. 

253. Property to be attached. 

254. Sheriff's duties in case of seiz- 

ure. 

255. Proceedings in case of perishable 

property or vessels ; issue as 
to ownership. 

256. Interest in corporations or as- 

sociations liable to attach- 
ment. 

257. Attachment, how executed on 

property incapable of man- 
ual delivery. 



Sec. 

258. Certificate of defendant's inter- 

est to be furnished. 

259. Judgment, how satisfied. 

260. When action to recover notes, 

&c., of defendant may be 
prosecuted by the plaintiff 
in the action in which the 
attachment issued. 

261. Bond to Sheriff on attachment, 

how disposed of on judg- 
ment for defendant. 

262. Discharge of attachment, and 

return of property or its 
proceeds to defendant, on 
his appearance in the action. 

263. Undertaking on the part of the 

defendant. 

264. When Sheriff to return attach- 

ment, with his proceedings 
thereon. 



Property ol 
foreign corpor- 
ations, and of 
n o n -resident, 
or absconding, 
or c o n c ealed 
d e f e n dants, 
may be attach- 
ed. 

1870, XIV., 
§ 250; 1879, 
X VII ., 23 ; 
189 7, XXII., 
450. 



Section 248. 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 resident of this 
State, or against the master, captain or agent of any sailing 
vessel entering any of the ports of this State for pilotage ser- 
vices rendered such vessel, or against a defendant who has ab- 
sconded or concealed himself, or whenever any person or cor- 
poration 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, dispose 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 after- 
wards, may have the property of such defendant or corpora- 
tion attached, in the manner hereinafter prescribed, as a se- 
curity 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, 



OF SOUTH CAROLINA. 123 

—— " A. D. 1902. 



however y That personal service of such summons shall be made ^"-^^^"^ 
or publication thereof commenced within thirty days. 

An action commenced by attachment of property against a non-resident in 
which the defendant is not personally served, and does not appear, is a proceeding 
in rem. — Stanley v. Stanley, 35 S. C, 94; 14 S. E., 675; Gibson v. Everett, 41 
S. C, 23; 19 S. E., 286. 

The right to attachment in an action on contract is governed by the lex fori, 
and not by the lex loci contractus. — Pegram v. Williams, 4 Rich. L., 219. A non 
resident creditor may proceed by attachment on a cause of action arising out of 
this State. — Sheldon v. Blauvelt, 29 S. C, 453; 7 S. E., 593. So in causes of 
action between non-residents arising out of the State. — Ex parte Perry Store Co., 
43 S. C, 176; 20 S. E., 980; Gibson v. Everett, 41 S. C, 23; 19 S. E., 286. At- 
tachment will not be granted in an action for slander. — Addison v. Sujette, 50 
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 fraudulent conveyance 
of the debtor's property. — Bank v. Stelling, 31 S. C, 360; 9 S. E., 1028; Fersts 
V. Powers, 58 S. C, 406; 36 S. E., 748. As to grounds of attachment; non resi- 
dence, what is. — -Munroe v. Williams, 37 S. C., 81; 16 S. E., 533. 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 Phos- 
phate Co. v. Rosenberg, 31 S. C, 301; 9 S. E., 969; Guckenheimer v. Libby, 42 
S. C, 162; 19 S. E., 999; Kerchner v. McCormac, 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; Fersts v. Powers, 58 S. C, 406; 36 S. E., 744; Bray Clothing Co. v. 
Shealy, 53 S. C, 12; 30 S. E., 620; ex parte Chase, 38 S. E., 718. Effect of 
Bankruptcy Law. — lb. 

\\'here action fails for want of jurisdiction, attachment therein falls with it, 
being a provisional remedy in aid of an action. — Central R. R. Co. v. Georgia 
Co., 32 S. C, 319; II S. E., 192. 

The attachment is not void because it bears date before the date of the summons; 
the existence of the summons at date of attachment may be shown aliunde. — Smith 
V. Walker, 6 S. C, 169. Nor void when the summons bears same date as at- 
tachment but Sheriff's endorsement shows service next day. — Cureton v. Dargan, 
12 S. C, 122. The summons is considered issued as soon as it is made out and 
an application for attachment founded on it. — lb. 

Attachment against foreign corporations. — Williamson v. Ass'n, 54 S. C, 598; 
32 S. E., 765. 

Sec. 249. A warrant of attachment must be obtained from a by whom^^ant- 
Judge, or Clerk of the Court, or Magistrate, in which or be-f^ 



fore whom the action is brought, or from a Circuit Judge. m^''&' 2^^^'' 
Sec. 250. The warrant may be issued whenever it shall ap- j^^ ^^^^ ^^^^^ 
pear by affidavit that a cause of action exists against such de- ^^ ^^ j""^"^! 
fendant, specifying the amount of the claim and the grounds ^^^^^''^^ *° ^^ 
thereof, and that the defendant is either a foreign corporation ^^g^ xxii., 
or not a resident of this State, or that the defendant is the nias-^^x\ii ■3i;^7V, 
ter, captain 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 the service of 
a summons, or keeps himself concealed therein with the like 
intent, or that such corporation or person has removed, or is 
about to remove, any of his or its property from this State, with 



124 CODE OF CIVIL PROCEDURE 

A. D. 1D02. 

/""■^^^ ■ 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 Hke 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 issu- 
ance of the attachment. He shall also cause copies thereof to 
be serv^ed on the defendant with the summons, if he can be 
found within the County: Provided, hozcever, That in cases 
where the defendant is the master, captain or agent of any ves- 
sel 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 de- 
fendant 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 servaces. 

The affidavit need not be made by plaintiff, but may be made by agent or attorney 
on information and belief; and the same affidavit may be used in several cases. — 
Grollman v. Lipsitz, 43 S. C, 341; 21 S. E., 272; Guckenheimer v. Libbey, 42 
S. C, 162; 19 S. E., 999. A verified complaint may be used as an affidavit. — Fersts 
V. Powers, 58 S. C, 398; 36 S. E., 744. But an unverified complaint cannot help 
affidavit. — Addison v. Sujette, 50 S. C, 200; 28 S. E., 948. 

Attachment of non-resident against a foreign corporation is valid to the extent 
that the cause of action arose in this State. — Central R. R. Co. v. Georgia Co., 
32 S. C, 319; II S. E., 192. But attachment will not He in action of resident 
administrator against non-resident guardian of infants 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 inferred that it does 
exist. — Monday v. Elmore, 27 S. C, 126; 3 S. E., 65; Central R. R. Co. v. Georgia 
Co., 32 S. C, 319; II S. E., 192; Roddey v. Erwin, 31 S. C, 36; 9 S. E., 729; 
Bank v. StelHng, 31 S. C, 360; Ketchen v. Landecker, 32 S. C, 155; 10 S. E., 936. 

Where ground of attachment is such non-residence of the defendant, the affidavit 
is sufficient if it state that fact without other facts and circumstances. — Smith v. 
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 information, it must also state the sources of information and cir- 
cumstances relied on to show them. — Smith v. Walker, 6 S. C, 169; Brown v. 
Morris, 10 S. C, 467; Clausen 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; Mixon 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. 

W^hether copies of the affidavits filed will suffice. — Wagener v. 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 motion. — Ketchen v. 
Landecker, 32 S. C, 155; 10 S. E., 936. Service of copies on the defendant 



OF SOUTH CAROLINA. 12 ■ 

A. D. 1902. 



within that time will not suflice. — lb. And this requirement as to the time within ^~— —"^v''™-^ 

which the affidavits must be filed still governs in proceedings to enforce agricultural 

liens. — Doty v. Boyd, 46 S. C, 39; 24 S. E., 59; Townsend v. Sparks, 50 S. C, 

380; 27 S. E., 801; Blair v. Morgan, 59 S. C, 52; 37 S. E., 45. But the time 

within which the affidavits in attachment must now be filed has been reduced by 

that amendment to two days. — Fersts v. Powers, 58 S. C, 398; 36 S. E., 744. 

While the affidavit must be signed by the affiant, the jurat thereto need not 
be signed by the officer administering the oath.— Doty v. Boyd, supra. The affidavit 
is filed when delivered to the Clerk, and by him received to be kept on record.- — • 
Townsend v. Sparks, supra. The affidavit need not state that the property dis- 
posed of was not a part of the homestead. — Grollman v. Lipsitz, supra. 

Sec. 251. Before issuing the warrant, the Judge, Clerk, or o^ffSng^ a°t" 
Magistrate shall require a written undertaking, on the part .*^'^^^™^'^''' 



1870, XIV. 
253. 



of the plaintiff, with sufficient surety, to the effect that if the § 
defendant 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 hun- 
dred and fifty dollars, except in case of a warrant issued by a 
Magistrate, when it shall be at least twenty-five dollars. 

This written undertaking required must be signed by the plaintiff before the 
warrant is issued, or the attachment based on it will be set aside. — Bank v. Stelling, 
31 S. C, 360; 9 S. E., 1028; Wagener v. 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 authority. — Fersts 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 authority 
so to do. — Grollman v. Lipsitz, 43 S. C., 341; 21 S. E., 272. The signature may be 
either in the firm name or the individual names of the partners. — lb.; Hampton v. 
Bogan, 55 S. C, 549; 33 S. E., 581. The undertaking need not be under seal. — lb.; 
Fersts v. Powers, 58 S. C, 398; 36 S. E., 748. 

Sec. 252. The warrant shall be directed to any Sheriff or ^^ "^"holT^di: 
Constable of any County in which property of such defendant ^^^'^^'^ ^^ ^ ' /"'l 

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. 

Debt due defendant by another is subject of attachments. — McElvey v. S. C. 
R. R. Co., 6 S. C, 446; Campbell v. Ins. Co., i S. C, 158. 

The interest of a non-resident partner in partnership property cannot be at- 
tached for partnership debt where one of the partners resides here and is duly 
served. — Whitfield v. Hovey, 30 S. C, 117; 8 S. E., 840. 

Property in hands of receiver cannot be attached. — Regenstein v. Pearlstein, 30 
S. C, 192; 8 S. E., 850. 

Debts evidenced by bonds and notes can be attached. — Williamson v. Eastern 
B. & L. Ass'n, 54 S. C, 582; 32 S. E., 765. As well as books of accounts. — 
Riely v. Middleton, Dud., 21; Waddle v. Cureton, 2 Speer, 53; Burrill v. Letson, 
lb., 378. While a clairh for damages under former attachment act was held not 



126 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^-^ V "^ '' to be the subject of attachment. — lb. Alcoholic liquors, kept contrary to law, 
cannot be attached. — Lanahan v. Bailey, 53 S. C, 489; 31 S. E., 332. 

Where an attachment is set aside after sale, the proceeds of the sale may be 
attached for the same debt, while in the Sheriff's hands. — Roddey v. Erwin, 31 
S. C, 36; 9 S. E., 729. Property levied upon execution may also be attached under 
process against same defendant. — Day v. Becher, i McMul., 92. As to moneys 
received on execution, in hands of Sheriff, see Blair v. Cantey, 2 Speer, 34. 

be^ attached. '° ^60. 253. The Sheriff or Constable to whom such warrant 
jj, § 555_ is directed and delivered shall immediately attach all the real 
estate 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 Constitu- 
tion, and shall take into his custody all books of account, 
vouchers and papers relating to the property, debts, credits, 
and effects of such debtor, together with all evidences of his 
title to real estate, which he shall safely keep, to be disposed of 
as hereinafter directed. 

A\'hen 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, to- 
gether with a description of the real estate so attached, in the 
office where, by law, a deed of such estate is required to be re- 
corded; 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 war- 
rant 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 war- 
' rant 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 : Provided, That all at- 
tachments lodged upon the same day shall take rank together. 

The affidavits and warrant need not be served on the defendant in attaching 
personalty. — Grollman v. Lipsitz, 43 S. C, 341; 21 S. E., 272. 

Two attachments levied upon personal property of the debtor at different hours 
of the same day, they rank together as liens.- — Steffens v. Wanbacker, 17 S. C, 475. 

Sec. 254. He shall, immediately on making such seizure, 
with the assistance of two disinterested freeholders, make a 



OF SOUTH CAROLINA. 




just and true inventory of all the property so seized, and of the 

books, vouchers, and papers taken into custody, statins therein . Sheriff's du- 

■^ -^ ^ ' o ties m case of 

the estimated value of the several articles of personal property, seizure. 

and enumerating such of them as are perishable, which in- i?^o. xiv., 

ventory, 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. 

An action may be brought by the Sheriff on a note seized under this Section, 
while a motion to vacate the attachment is pending. The same defences may be 
made as though the action were brought by the defendant in attachment. — Nichols 
V. Hill, 42 S. C, 28; 19 S. E., 1017. 

Sec. 255. If any of the property so seized be perishable, the^^f^^ ^rop'e'ny 

Sheriff shall sell the same at public auction, under order of the seized. 

Court or of a Judge thereof, and shall retain in his hands the 4owb'^^57"/'' 
proceeds of such sale, after deducting his expenses, to be al- 
lowed by such Court or Judge, which proceeds shall be dis- 
posed of in the same manner as the property so sold would 
have been if it had remained unsold. 

Where a motion to vacate the attachment was made, refused, appeal taken to 
the Supreme Court, and a stay of proceedings asked for, held the Court had a 
right to order the sale of personal property. — So. Ry. Co. v. Sheppard, 42 S. C, 
543; 20 S. E., 481. 

Sec. 255a. If the person in whose possession such property claim of 

third persons. 

shall be attached shall appear at the return of the writ and file p r o c eedings 

on. 

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 part of the said property be claimed by any 
other person than such defendant, then, if the plaintiff be 
satisfied therewith, the party in possession shall be dismissed 
and the plaintiff pay the cost of his action. But if the plaintiff 
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 



lb. 



128 CODE OF CIVIL PROCEDURE 

A. D. 1902. — — 

'^'■'"■^^"^ shall recover the costs of such proceeding of the opposite party, 
and judgment shall be given accordingly. If the party in pos- 
session or the third person claiming the property, 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 action 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 Sec- 
tion 251 ; the said undertaking to be executed within ten (10) 
days after notice of such claim. 

Under this Section, assignee of defendant's property, under deed of assign- 
ment, must establish his right to the property before he can move to discharge 
the attachment under Section 263. — Bryce v. Foot, 25 S. C, 467. 

This Section does not provide that a third person may move to vacate the at- 
tachment, but simply provides a remedy by which he may retain or regain possession 
of the property attached, unless the attaching creditor gives the undertaking required 
by the Act within the time prescribed. — Ford v. Calhoun, 53 S. C, no; 30 S. E., 
830. The provisions of this Section do not apply to proceedings to enforce agri- 
cultural liens. — So. Ry. Co. v. Sarratt, 58 S. C, 103; 36 S. E., 504. 

ment when debt Scc. 255b. 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 credit- 
ors, or to avoid the service of a summons, or keep himself con- 
cealed therein with a like intent, or that such person has re- 
moved 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 plaintiff forthwith to institute suit upon such 
debt or cause of action, and for 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. 

Action on debt not yet due; affidavit held insufficient. — Correll v. Ga. Co., 37 
S. C, 444; 16 S. E., 157. Affidavit sufficient. — Ex parte Chase, 38 S. E., 78. 

inwrporat^on^s! ^®^' ^^^' ^^^ rights or sharcs which such defendant may 
vessels, &c. havc in any vessel, or in the stock of any association or corpo- 
2 5 ^8"^*^ ^8^3' ration, together with the interest and profits thereon, and all 
XVIII., 491. other property in this State of such defendant, except that ex- 
empt from attachment by the Constitution, shall be liable to be 
attached and levied upon and sold to satisfy the judgment and 
execution. 



OF SOUTH CAROLINA. 129 

A. D. 1902. 



Right of Sheriff to sell stock in corporation. — Richardson v. Wallace, 39 S. C, ^^— '^v' '^ ' 
216; 17 S. E., 725. 

Sec. 257. The execution of the attachment upon any such Attachment, 

♦■■ , how executed 

rig"hts, shares, or any debts or other property incapable of on property in- 

° . i J. ^ i. capable ot man- 

manual delivery to the Sheriff or Constable, shall be made by uai delivery. 

leaving a certified copy of the warrant of attachment with the -fb-. § 259. 

President or other head of the association or corporation, or the 

secretary, cashier, or managing- agent thereof, or with the 

debtor or individual holding such property, with a notice 

showing the property levied on. 

Xot necessary to serve copy on defendant in seizing personal property capable 
of manual delivery. — Groliman v. Lipsitz, 43 S. C, 329; 21 S. E., 2T2. * 

Sec. 258. Whenever the Sheriff or Constable shall, with a ^ Certificate of 

' defendants in- 

warrant of attachment or execution against the defendant, 'L^'^'^^.t , t° te 

c' ' turnished. 

apply to such officer, debtor, or individual, for the purpose of ^-^:^ — t";^^ — 
attaching or levying upon such property, such officer, debtor, 
or individual shall furnish him with a certificate, under his 
hand, designating the number of rights or shares of the de- 
fendant 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 defend- 
ant. If such officer, debtor, or individual refuse 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. 

Sec. 259. In case judgment be entered for the plaintiff Judgment, 

■^ ° -^ how satisfied. 



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 per- 
sonal, 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 m 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 execute to the purchaser a certi- 
ficate of sale thereof, and the purchaser shall thereupon have 

9.— C. P. 



130 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^~"*~^'^"^ all the rights and privileges in respect thereto which were had 
by such defendant. 

Question as to e£&cacy of Sheriff's sale of corporate* stock. — Richardson v. Wal- 
lace, 39 S. C, 224; 17 S. E., 72. 

3. If any of the attached property belonging to the defend- 
ant shall have passed out of the hands of the Sheriff or Con- 
stable 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 
seize the same under the attachment ; and any person who shall 
wilfully conceal 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. 

If the attachment is a foreign attachment, it is only a proceeding in rem., unless 
the defendant appear; and if he fail to appear, the Court cannot render a judgment 
that would have any effect beyond the property attached and so subjected to a 
lien. — Stanley v. Stanley, 35 S. C, 94; 14 S. E., 675. 

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 affidavit, setting forth fully all the 
proceedings which have been had by the sheriff 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 portion 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 at- 
torney, 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 de- 



OF SOUTH CAROLINA. 131 

A. D. 1902. 



When action 
e c o V e r 



mand, shall deliver over to the defendant the residue of the 
attached property, or the proceeds thereof. 

Sec. 260. The actions herein authorized to be brought by , ^J 
the Sheriff or Constable may be prosecuted by the plaintiff, or defendant' may 
under his direction, upon the delivery by him to the Sheriff or l^ the°p\ai^tiE 
Constable of an undertaking executed by two sufficient sure- ?^ which^^the 
ties, to the effect that the plaintiff" will indemnify the Sheriff f^^^^™^"* '^ 
or Constable from all damages, costs, and expenses on account -^g^Q^ ^iv., 
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 liabili- 
ties. 

Sec. 261. If the foreign corporation, or absent or abscond- ^ Bon d to 

■=> -^ , Sheriff on at- 

ing or concealed defendant, recover judgment against thetachment, how 

* ' J o o disposed of on 

plaintiff in such action, any bond taken by the Sheriff or Con- judgment for 

•■^ . . . deiendant. 

stable, except such as are mentioned in the last Section, all-— — -— - — 

lb., ^ 263. 

the proceeds of sales and moneys collected by him, and all 
the property attached remaining in his hands, shall be de- 
livered by him to the defendant, or his agent, on request, and 
the warrant shall be discharged and the property released 
therefrom. 

Sec. 262. Whenever the defendant shall have appeared in Discharge of 

•^ -^ a 1 1 a c nment, 

such action, he may applv to the officer who issued the attach- and return of 

' ./ x-jT ^ property or its 

ment, or to the Court, for an order to discharge the same ; proceeds to de- 

' ' ° f e n d a nt, on 

and, if the same be granted, all the proceeds of sales and his appearance 

' o ' J. , m the action. 

moneys collected by him, and all the property attached remain- — - — — ^ — 
ing in his hands, shall be delivered or paid by him to the de- 
fendant or his agent, and released from the attachment. And 
where there is more than one defendant, and the several pro- 
perty of either of the defendants has been seized by virtue of 
the order of attachment, the defendant whose several pro- 
perty has been seized may apply to the officer who issued the 
attachment for relief under this Section. 

Where defendants moved on affidavits to vacate the attachment, and plaintiffs 
offered affidavits in reply, the Judge should indicate what affidavits were considered 
by him. — Grollman v. Lipsitz, 43 S. C, 338; 21 S. E., 272. The weight to be 
given the affidavits must be determined by the Circuit Court. — lb. 

Pendency of another action for same cause is sufficient to vacate. — Fersts v. 
Powers, 58 S. C, 411; 36 S. E., 749. 

Defendant having given bond under next Section does not thereby waive his 
right to have attachment discharged under this. — Bates v. Killian, 17 S. C, 553. 

Circuit Judge, on motion upon notice, may discharge an attachment at chambers. — 
Cureton v. Dargan, 12 .S. C, 122; Clothing Co. v. Shealy, 53 S. C, 14; 30 S. E., 
620. And in so doing he may decide whether or not the plaintiff has a cause of 



132 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^-"-N/— -^ action. — Williamson v. Ass'n, 54 S. C, 582; 32 S. E., 765. But he cannot decide 
questions of fact determining the merits of the case. — lb.; ex parte Rountree, 57 
S. C, 77; 35 S. E., 386. 

Refusal to so discharge the attachment is res adjudicata as to moving party, 
and he cannot raise the question again in formal suit. — Darby v. Shannon, 19 
S. C, 526. 

Such discharge may be had either for invalidity or irregularity of the attach- 
ment. — Smith V. Walker, 6 S. C, 169; Brown v. Morris, 10 S. C, 467; Claussen 
V. Fultz, 13 S. C, 476; Cureton v. Dargan, 12 S. C, 122; Darby v. Shannon, 19 
S. C, 526; Bates v. Killian, 17 S. C, 553; Kerchner v. McCormac, 25 S. C, 461. 

Such motion to discharge the attachment on partnership property against non- 
resident partner granted upon the disclosure of the fact by the papers and affidavits 
that the non-resident had no other property here.- — Whitfield v. Hovey, 30 S. C, 
117; 8 S. E., 840. 

Assignee under deed of assignment of defendant cannot move to discharge at- 
tachment until he has established his right to the property under issue on his return 
to the attachment. — Copeland v. Ins. Co., 17 S. C, 116; Metts v. Ins. Co., 17 S. 
C, 120; Bryce v. Foot, 25 S. C, 467; Ex parte Dickinson, 29 S. C, 453; -7 S. 
E., 593- 

When third party intervenes and claims right to the property, such claimant 
should be actor on trial of issue of ownership. — Central R. R. Co. v. Georgia Co., 
32 S. C, 319; II S. E., 192. 

Another attaching creditor cannot question the regularity of the attachment pro- 
ceedings, and his voluntary appearance in the action for that purpose gives the 
jurisdiction over him. — Ex parte Perry Stove Co., 43 S. C, 176; 20 S. E., 980; 
Ford V. Calhoun, 53 S. C, no; 30 S. E., 830. Property attached may be released 
by the agreement of parties without an order of Court. — Sullivan v. Williams, 43 
S. C, 489; 21 S. E., 642. 

on^h^pS'of Sec. 263. upon such application, the defendant shall deliver 
the defendant. ^^ ^j^^ Court Or officcr an undertaking executed by at least two 
lb., §26o. sureties, who are resident and freeholders or householders in 
this State, approved by such Court or officer, to the effect that 
such sureties will, on demand, 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 undertaking, 
which shall be at least double the amount claimed by the plain- 
tiff 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 attachment, 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 defendant, or any person who establishes a right 
to the property attached, may move to discharge the attach- 
ment, as in the case of other provisional remedies. 

And where there is more than one defendant, and the sev- 
eral property of either of the defendants has been seized by 
virtue of the order of attachment, the defendant whose sev- 
eral property has been seized may deliver to the Court or offi- 
cer 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 



OF SOUTH CAROLINA. 




such defendant. And all the provisions of this Section appli- 
cable to such undertaking shall be applied thereto. 

Bond not good as a statutory bond, held valid as a common law bond. — Sullivan 
V. Williams, 43 S. C, 489; 21 S. E., 642. 

Sec. 264. When the warrant shall be fully executed or dis-to 'ritum^^t- 
charged, the Sheriff or Constable shall return the same, with if i s^^prodid- 
his proceedings thereon, to the Court in which the action wasl^^^ — 

^ , ^ 1870, XIV., 

brought. * § 266. 

CHAPTER V. 

Provisional Remedies. 

Sec. 265. Powers of Courts as to receivers, deposit of money, &c., in Court, 
and other provisional remedies ; judgment for sum admitted due. 

Section 265. A receiver may be appointed by a Judge of the 
Circuit Court, either in or out of Court : Courts' ^a's^ to 

1. Before judgment, on the application of either party, when receivers. 

he establishes an apparent right to property which is the isjo, xiv., 
subject of the action, and which is in the possession of an ad- 
verse party, and the property, or its rents and profits, are in 
danger of being lost, or materially injured or impaired; ex- 
cept in cases where judgment upon failure to answer may be 
had without application to the Court. 

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 ap- 
peal, or when an execution has been returned unsatisfied, and 
the judgment debtor refuses to apply his property in satis- 
faction of the judgment. 

4. When a corporation has been dissolved, or is insolvent, 
or in imminent danger of insolvency, or has forfeited its cor- 
porate rights ; and, in like cases, of the property within this 
State of foreign corporations. Receivers of the property 
within this State of foreign. or other corporations shall be al- 
lowed such commissions as may be fixed by the Court appoint- 
ing 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 other- 
wise provided in this Code of Procedure. 




CODE OF CIVIL PROCEDURE 



6. No receiver of the property of any person or corporation 
to^be"ap^poin°t- ^^^^^ ^^ hereafter appointed by any Court or Judge, either in 
tkeT*^'^"'^'^ ^°' term time or at chambers, without notice of the application 
1897 XXII. ^°^ ^^^^ appointment to the party or parties to the action 
510. 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 in- 
justice, prescribe a shorter time. 
rSdent°"°"' 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 aban- 
doned and not in the possession of any one, and the party 
claiming the same cannot be found within the State, then the 
servedT '^ ° "" appointment may be made without the notice of the applica- 
Proviso. tion: Provided, That wherever a receiver is appointed and 
the party claiming 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 pre- 
scribed by law in the case of a summons in a civil action. 
injunc™on°Say 7- The Court or Judgc may by temporary injunction, with- 
without notiS out notice, pending the hearing of such application, restrain 
J^^ 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 
Proviso. issue so as to interfere with the use and disposition of such 
property by any person or corporation in the usual and cus- 
tomary mode and course of business and use of the same with- 
out the Court or Judge first requiring from the party apply- 
ing for such injunction a bond, with security, in a sufficient 
sum, not less than two hundred and fifty dollars, to pay all 
damages arising from said temporary injunction should no 
receiver be appointed on the hearing of the application. 
No receiver 8. No rccciver of the property of any person or corporation 
before^'^u'd g - shall be hereafter appointed before final judgment in the cause 
bond. ^' '°" if the party claiming the property so sought to be placed in 
lb. ' the hands of a receiver or the party in possession thereof shall 



OF SOUTH CAROLINA. 




offer a bond, in the penalty of double the value of the prop- 
erty, 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 there- 
after required by any final adjudication in the cause the prop- 
erty sought 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. 

9. Whenever the Court or Judge before whom such appli- ^jj^°^^^jy° ^ 
cation is made shall appoint a receiver before final judgment ^^^ Pjj°P^g'^^y *° 

in the cause, there shall be inserted in the order of appoint- j^ — ~ — 

ment a clause fixing the value of the property for which the 

bond may be given, as prescribed in sub-division 8 of this Sec- 
tion ; and upon the due execution and filing of such bond there- 
after 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 where, 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 prop- 
erty. 

10. Whenever a receiver shall have been appointed of any g^grtafnS^^lf 
property against the opposition of any party to the cause, and prop^rfy 'Vp^- 
shall have taken possession of the same, and thereafter by any p^'^^^*^- 
final adjudication such receiver shall be held to have been im- ^^• 
properly 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 receiver- 
ship ascertained and assessed and for judgment therefor 
against the party or parties having procured such receiver. 

11. The several bonds required by this Chapter shall be ^^^°'^'^?^^^°^^'|^ 
made payable to the Clerks of the respective Courts in which qJ^^.^ ^If^ °* 
the action is pending in which the bonds shall be made, and j^ 



136 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^^""'^•-^^'^ shall be conditioned as required by this Chapter, and shall, 
upon execution and approval as to form and sufficiency by the 
Court or Judge, or such other officer as the order shall pre- 
scribe, 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 
v^^hich any party entitled to the benefit thereof may sue the 
parties liable thereon in any Court of competent jurisdiction; 
and the production of such certified copy shall be prima facie 
evidence of the bond. Should the security become insufficient 
* upon any of such bonds after the same have been given and 

approved, the Court or Judge may, upon application, after 
notice, require the security to be made sufficient, and on de- 
fault 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 according to the terms and 
conditions thereof. 

In application for Receiver under subdivision i he may be appointed under sub- 
division 2. — Green v. Bookliart, 19 S. C, 417. 

Receiver may be appointed in supplementary proceedings without notice. — Billing 
V. Foster, 21 S. C, 338. 

Although another Judge upon application of other creditors had previously re- 
fused to do so. — Dauntless Co. v. Davis, 22 S. C, 584. And notwithstanding 
creditors' action in another Court and a previous assignment by debtor. — lb. 

But there can be only one Receiver so appointed. — Sparks v. Davis, 25 S. C, 381. 

Receiver may be appointed at chambers. — Kilgore v. Hair, 19 S. C, 486; Regen- 
stein V. Pearlstein, 30 S. C, 192; 8 S. E., 850; Harmon v. Wagener, 33 S. C, 
487; 12 S. E., 98. 

But the power is a delicate one and must be 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. 

Admissions in answer are sufficient evidence on motion for appointment of Re- 
ceiver. — 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 Mortgage Bonds, 15 S. C, 314; 
Ex parte Brown, 15 S. C, 531. 

Where complaint claims title to land and seeks to recover it and alleges in- 
solvency of defendant and danger of loss of rents, and all these are denied 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 assigned estate, where they have not exhausted their legal remedies, 
nor show danger of loss of property or injury thereto. — Pelzer v. Hughes, 27 S. C, 
408; 3 S. E., 781. 

But upon showing of insolvency, negligence and incompetency on the part of the 
assignee, satisfactory to the Judge, he was justified in appointing 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 ex- 
hausting their legal remedies, have Receiver appointed. — Harmon v. Wagener, 33 
S. C, 487; 12 S. E., 98. 



OF SOUTH CAROLINA. 137 

A. D. 1902. 



Unless mortgagee establishes an apparent right or claim to the assets and profits, 
he is not entitled to have a Receiver thereof appointed in his action for fore- 
closure. — Hardin v. Hardin, 34 S. C, TT, 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 v. Reynolds, 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. — 
McCrady v. Jones, 36 S. C, 136; 13 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 supple- 
mentary proceedings.— Billing v. Foster, 21 S. C, 338. 

Receiver should not be appointed where corporation is solvent. — Miller v. So. 
Land and Lumber Co., 53 S. C, 364; 31 S. E., 281. 

Notice of application for appointment of a Receiver left with defendant's wife, 
at his residence, is good service. — Allen v. Cooley, 53 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, subdivisions 6 to 11 above. — Ih. 

When it is admitted, by the pleading or examination of a money, &c., in 
party, that he has in his possession, or tmder his control, any— — '- 

1 1 • 11 r- J 1- 1 • 1 1- • xl 1S70, XIV., 

money or other thmg capable of delivery, which, being the 423, § 267. 
subject of litigation, 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 delivered to 
such party, with or without security, subject to the further 
direction of the Court. 

TT71 -1 • r- • 1 • /— , 1 11 Other provis- 

Whenever, m the exercise of its authority, a Court shall ionai remedies. 
have ordered the deposit, delivery, or conveyance of money 
or other property, and the order is disobeyed, the Court, be- 
sides punishing the disobedience 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. 

When the answer of the defendant expressly, or by not suJjf^'^dmitted 
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. 

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 Mortgage Bonds, 15 S. C, 314; Ex parte 
Brown, 15 S. C, 531. 

Where complaint claims title to land and seeks to recover it and alleges in- 
solvency of defendant and danger of loss of rents, and all these are denied in 
answer, there is no case for appointment of Receiver. — DeWalt v. Kinard, 19 
S. C, 293. . 




CODE OF CIVIL PROCEDURE 



TITLE VIII. 

OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. 

Chapter I. Judgment upon Failure to Answer, &c. 

Chapter II. Issues, and the Mode of Trial. 

Chapter III. Trial by Jury. 

Chapter IV. Trial by the Court. 

Chapter V. Trial by Referees. 

Chapter VI. Of the Manner of Entering Judgment. 



CHAPTER I. 



Judgment Upon Failure to Answer, &c. 



Sec. 

268. Judgment on frivolous demurrer, 
answer, or reply. 



Sec. 

266. Judgment defined. 

267. Judgment on failure of defend- 

ant to answer, or for excess 
over counter claim, where 
service of summons by pub- 
lication. 

fined ^™''"'' '^^' Section 266. A judgment is the final determination of the 
1S70 XIV rights of the parties in the action. 

§ "^°- A judgment must ascertain and fix these rights to an extent amounting to a 

substantial termination of all the issues. — Donaldson v. Bank, 4 S. C, 106; Agnew 
v. Adams, 24 S. C, 86. It is erroneous if based on grounds not raised by the 
pleadings. — Magovern v. Richard, 27 S. C, 272; 3 S. E., 340. 

When granted upon contract, it determines what the contract is and closes it, 
giving the means of enforcing it or redress for its breach. — Moore v. Holland, 
16 S. C, 15. 

Judgment is not invalid because Circuit Judge made a mistake in the heading 
of it. — Woodward v. Woodward, 36 S. C, 118; 15 S. E., 355. 

A decree cannot be regarded as final that leaves in doubt the question whether 
in the end the plaintiff will be entitled to recover. — Donaldson v. Bank, 4 S. C, 106. 

To entitle a decree to rank as a final judgment for money it must ascertain 
a definite sum to be paid and order its payment, and authorize execution therefor. — 
Ex parte Farrars, 13 S. C, 254. But where the decision disposes of all the issues 
and directs judgment for balance due on a former judgment particularly stated in 
the record and orders execution for the amount to be ascertained by the calcula- 
tion of Clerk, it is a final judgment. — Adickes v. Allison, 21 S. C, 245. 

faliul-rof d°e'^ Sec. 267. Judgment may be had, if the defendant fail to 
fwerry* for auswer the complaint, as follows : 

Muntlr-ciah)?. ^ I- ^^ ^^V actiou ou contract the plaintiff may file proof of 
1870, XIV., lawful service of summons and complaint on one or more of 
xv^,^' slfsi^'-the defendants, or of the summons, according to provision of 
lilt 18^7^9; Section 151, and that no appearance, answer or demurrer has 
1899; XXIII., i^ggj^ served on him. It shall be the duty of the Clerk to place 
all such cases on the default calendar, and said calendar shall 



OF SOUTH CAROLINA. 




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 paid, by discount or other- 
wise, 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 liqui- 
dated 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 inothe/ca^ses! 
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 counter-claim amounting to less than the 
plaintiff's claim, judgment may be had by the plaintiff for the 
excess of said claim over the said counter-claim in like man- 
ner in any such action, upon the plaintiff's filing with the 
Clerk of the Court a statement admitting such counter-claim, 
which statement shall be annexed to and be a part of the 
judgment roll. 

Where time to answer expires after day fixed for opening of Court, but before 
Court is actually opened, and no appearance, answer or demurrer has been served, 
the case may be docketed and judgment by default taken. — McCoomb v. Wood- 
side, 13 S. C, 479. 

The omission of the words "have judgment" in the Judge's order for judgment 
endorsed on the complaint is merely clerical, and does not vitiate the judgment. — 
Henlien v. Graham, 32 S. C, 303; 10 S. E., 1012. 

When defendant does not deny plaintiff's claim, but sets up a counter-claim, the 
plaintiff upon filing with the Clerk an admission of such counter-claim is entitled, 
on call of default docket, to judgment for excess claimed above the counter-claim. — 
Burges v. Pollitzer, ig S. C, 451. 

In order to obtain a judgment by default, without taking a verdict of the jury, 
on an open account, an itemized copy of the account, duly verified, must be served 
on the defendant with the summons and complaint. — Roberts v. Pawley, 50 S. C, 
491; 27 S. E., 913. 



140 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^ -* V "^ ' Where a defendant neither answers nor demurs to a complaint in foreclosure, 

he cannot demand time to the report of the referee, as to the amount due. — 
Johnson v. Masters, 49 S. C, 525; 27 S. E., 474. 

In an action on a liquidated demand an answer was served, and the case docketed 
on calendar one; an oral demurrer was sustained to the answer, and judgment 
rendered on that calendar; held that it was unnecessary for the plaintiff to prove 
his case before the jury, the defendant could not object to his doing so. — ^Jones 
V. Garlington, 44 S. C, 533; 22 S. E., 741. 

of summons by 2. In actions whcre the service of the summons was by pub- 
pu ica ion. ligation, the plaintiff may, in Hke 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 resident 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 restitution of any money that may be collected 
under or by virtue of such judgment, in case the defendant or 
his representatives shall apply and be admitted to defend the 
action, and shall succeed in such defence. 

It is not necessary that the judgment record show the reference here required 
to have been had. — Clemson College v. Pickens, 42 S. C, 511; 20 S. E., 401. 

frivoious^'^'^d°e^ Scc. 268. If a demurrer, answer, or reply, be frivolous, the 

™ve'r7o'r repfj'! p^rty prejudiced thereby, upon a previous notice of five days, 

1870^ XIV., may apply to a Judge of the Court, either in or out of the 

^ ^^ ■ Court, for judgment thereon, and judgment may be given 

accordingly. 

An answer, to be adjudged frivolous, must be clearly so in its whole scope and 
bearing, and not merely through a formal defect that might be cured by amend- 
ment. If argument is necessary to show its character as frivolous, the Court will 
not dispose of it as such.— Boylston v. Crews, 2 S. C, 422. 

An answer is frivolous when it fails to deny any allegation of the complaint 
or to state any new matter by way of defense. — American Co. v. Hill, 27 S. C, 
164; 3 S. E., 82. 

But to make the answer frivolous the objection must extend to and embrace 
the whole answer, so that nothing is left of it that can entitle the party to trial. — 
Tharin v. Seabrook, 6 S. C, 113. So that answer that presents two issues ma- 
terial to plaintiff's case is not frivolous. — Hall v. Woodward, 30 S. C, 564; 9 S. E., 
684; Machine Co. v. Henry, 43 S. C, 17; 20 S. E., 790. 

An answer denying that defendant "ever was indebted to the plaintiff in any 
sum whatever, exceeding eighty dollars" held frivolous. — Grayson v. Harris, 37 
S. C, 606; 16 S. E., 154. So also is an answer presenting no issues which can 
be determined in the action; as attempting to interpose a counter-claim in an 
action for claim and delivery. — Badbam v. Brabham, 54 S. C, 402; 32 S. E., 444. 
This motion may be made at the time of serving written demurrer. — Ih. Where 
the motion is heard at chambers, and the answer adjudged frivolous, judgment can- 
not be then and there given as by default for the plaintiff. — Ih. 



OF SOUTH CAROLINA. 



CHAPTER II. 

Issues and the Mode of Trial. 




Sec 
269 
270, 

271, 
272, 



The different kinds of issues. 

Issue of law. 

Issue of fact. 

On issues of both law and fact, 
the issues to be tried to- 
together. 

273. Trial defined. 

274. Issues, how tried. 

275. Issues triable by the Court. 



Sec. 

276. Summons and complaint to be 

filed in Clerk's office ; docket 
fee in First Circuit for sal- 
ary of stenographer. 

277. Stenographer to be appointed by 

the Judge of First Circuit, 
to take stenographic notes. 

278. Duty of stenographer. 

279. Order of disposing of issues on 

the calendar. 



Section 269. Issues arise upon the pleadings when a fact or i,i„Jfs ^f ■^H'^s 



1870, 
271. 



XIV., 



conckision 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. 

Sec. 270. An issue of law arises — 
I. Upon a demurrer to the complaint, answer, or reply, or 

to some part thereof. 

Railroad Co. v. Gibbes, 23 S. C, 370. 

Sec. 271. 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. 

Sec. 272. Issues, both of law and of fact, may arise upon ^^^"^ law^anl 
different parts of the pleadings in the same action. 



Issue of law. 
lb., § 272. 



Issue of fact. 
lb., § 273. 



In such case the cause shall be placed on the calendar of£ 



fact, the issues 
to be tried to- 
gether. 



issues of fact, and the issues shall be tried together, unless isrl'xv., lis! 
the Court otherwise direct. 

Sec. 273. A trial is the judicial examination of the issues "^"^^ defined. 
between the parties, whether they be issues of law or fact. § .^l[°' -^^^■' 

Meetze v. Railroad Co., 23 S. E., 13. 

Sec. 274. An issue of law must be tried by the Court, as ^Jl'""^'' ^°'^ 
also cases in chancery, unless they be referred as provided ^j,^ g ^-q_ 
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 288, or a reference be ordered. 



142 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^ ■^ V '"^ ^ This Section not affected by the Master's Act. — 16 Stat., 608. — Chapman v. 

Lipscomb, 15 S. C, 470. 

This Section specifies the cases in which a trial by jury may 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 recover real property. — 
Price V. Bowen, 4 S. C, 151. 

Title to land m.ust 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 right by failure to demand it. — DeWalt 
V. Kmard, 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. — R. R. Co. v. Gibbes, 23 S. C, 370. If the 
only issue raised is one of law, it must be tried by 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 v. 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 v. Evans, 31 S. C, 262; 9 S. E., 852; Capel v. Moses, 36 S. C, 559; 15 
S. E., 711. Or where in equity cause defendant sets up title to land in contro- 
versy which, if sustained, would defeat the action, he is entitled to a jury trial of 
that issue. — Adickes v. Lowry, 12 S. C, 108; Cooper v. Smith, 16 S. C, 333; Smith 
V. Bryce, 17 S. C, 544; Chapman v. Lipscomb, 18 S. C, 232; Dewalt v. Kinard, 
19 S. C, 289; McGee v. Hall, 23 S. C, 388; Sale v. Megget, 25 S. C, 72; Reagin 
V. Bishop, 25 S. C, 583; Pelzer v. Hughes, 27 S. C, 408; 3 S. E., 781; Dupont 
V. DuBos, 33 S. C, 389; II S. E., 1073. But where the action is in equity for 
cancellation of deed for fraud, a trial by jury is not demandable of right. — Dupont 
V. DuBos, 33 S. C, 3S9; II S. E., 1073. 

Where a defendant is entitled to specific personal 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 jury of his title to such property. — Trenholm 
V. Morgan, 28 S. C, 268; 5 S. E., 521. 

On appeal from Probate Court there is only a right of jury trial of those issues 
required to be so tried by this Section. — Stewart v. Blease, 4 S. C, 37; Lucken 
V. Wichman, 5 S. C, 411; Prater v. Whipple, 16 S. C, 40; Rollin v. Whipper, 
17 S. C, 32; Ex parte White, 33 S. C, 442; 12 S. E., 5; Ex parte Apeler, 35 S.C., 
417; 14 S. E., 931; Hughes v. Kirkpatrick, 37 S. C, 169; 15 S. E., 912. 

Consent to a reference is waiver of a trial by jury. — Meetze v. R. R. Co., 23 
S. E., 25; Griffith v. Cromley, 58 S. C, 458; 36 S. E., 738, and other cases cited 
in note to Sec. 288. 

Where title is involved in an action for partition, it must be determined by a 
jury, unless a jury 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 v. 
Limehouse, 60 S. C, 559; 39 S. E., 18S; Threatt v. Brewer Mining Co., 42 S. C, 
92; 19 S. E., 1009; Heyward v. Farmers Mining Co., 42 S. C, 138; 19 S. E., 
963. Where the issues are equitable the cause must be heard by the Court. — 
Greenville v. Ormand, 44 S. C, 116; 21 S. E., 64. So in an action for fore- 
closure where usury is interposed as a defence and counter-claim. — McLaurin v. 
Hodges, 43 S. C, 187; 20 S. E., 991. So in action for foreclosure where counter- 
claim is interposed for damages from breach of warranty. — Sullivan Hardware Co. 
v. Washington, 25 S. E., 45; 47 S. C, 187. 

In actions where the issues are partly legal and partly equitable. — Greenville 
V. Ormand, 42 S. C, 119; 21 S. E., 642. 



issues 



1890, XX., 



Framing of 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. 

Trial of is- Such issues shall be tried at the same term of Court at 

sues regulated. 

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. 



OF SOUTH CAROLINA. 143 

A. D. 1902. 

Upon the first day of the term, immediately after the call ''^-""v— -' 
of Calendar Three, the presiding Judge shall call for cases in 
which such issues are desired, and if any are presented in ^^^y^i^^^^" t° be 
which such issues are, in his judgment, proper, he shall at once 
call the same to be framed and placed upon the proper Calen- 
dar for trial. 

The findings of fact upon such issues by the jury shall be 
conclusive of the same : Provided, That the presiding Judge 
may grant nev/ trials therein, according to the practice in other ^,gj.dict^^ °^ ^ 
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 rulings may be reviewed by the ^^ ^ *= eafs°'^^ 
Supreme Court upon appeal from the final judgment. 

At some time during the term the presiding Judge shall 
hear the cause out of which such issues are ordered, and shall, 
some time during said term or thereafter, file his decision ^f^^^ ^I^^ ^^' 

o ' cision at same 

therein as in other equity causes, from which decision there ^^™- 
shall be the same right of appeal now existing in like causes. 

Refusal to frame an issue under this Section does not affect right of Judge to , . 

order an issue in chancery. — Land Mortgage Co. v. Gillam, 46 S. C, 34s ; 26 
S. E., 990; Hammond v. Foreman, 43 S. C, 264; 21 S. E., 3. An order of refer- 
ence preparatory to hearing on merits held not to interfere with right to an issue 
under this Section. — Bank of Hampton v. Fennell, 55 S. C, 379; 33 S. E., 485. 
The discretion of the Circuit Judge in refusing to frame issues under this Section 
will not be interfered with on appeal. — DeLoach v. Sarratt, 53 S. C, 276; 33 S. 
E., 2; Neal v. Suber, 56 S. C, 303; 33 S. E., 463. 

Sec. 275. 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 i,y^t^|^ Court!^ 
it, as provided in Sections 292 and 293. J^ Vm. 

This Section not affected by Master's Act. — 16 Stat., 608. — Lipscomb v. Chap- 
man, 15 S. C, 470. 

Construing this and preceding Section together, it is conclusive that there are 
two general modes of trial, i. e., trials by Court and trials by jury. To the Court 
belongs all issues of law and all cases in chancery, and to the jury all questions 
of fact in cases at law for the recovery of money or of any specific real or per- 
sonal property. — Meetze v. R. R. Co., 23 S. C, i. 

Under this Section a party has no right to demand a jury, unless he proceeds 
according to the 28th Rule of Circuit Court. — -Lucken v. Wichman, 5 S. C, 411; 
Ex parte Apeler, 35 S. C, 417; 14 S. E., 931. 

The mode of trial, whether by the Judge, a referee or a jury, is discretionary 
with the Court. — Lucken v. Wichman, 5 S. C, 411. 

The Constitutional declaration that "the right of jury trial shall remain inviolate" 
does not apply to cases within the equitable jurisdiction of the Court. — Ih. And 
in such cases- neither party has the right to demand a submission of the issues to 
a jury. — Pelzer v. Hughes, 27 S. C, 408; 3 S. E., 781. An action to set aside a 
Sheriff's conveyance of land, sold under execution, on the ground that judgment 
debtor held the land as trustee of plaintiffs, is an equitable action and triable by 
the Court. — Price v. Brown, 4 S. C, 157. 

Summons to renew execution is not case for issues out of chancery. — Adams v. 
Richardson, 30 S. C, 217; 9 S. E., 95. 

Where Judge orders such issues of fact to be tried by a jury, he does so only 
that he may be aided by their verdict; he is not to be controlled thereby. — Flinn 



144 CODE OF CIVIL PROCEDURE 

A. D. 1902. — 

~-~— -N^^^^ V. Brown, 6 S. C, 209; Gadsden v. Whaley, 9 S. C, 147; Ivy v. Claussen, 14 
S. C, 273; Small V. Small, 16 S. C, 76; Grierson v. Harmon, 16 S. C., 619; 
Peake v. Peake, 17 S. €., 425; Pelzer v. Hughes, 27 S. C., 408; 3 S. E., 781. 
And such findings of the jury are properly to be considered on new trial by the 
Judge as ordered by the Supreme Court. — Rynerson v. Allison, 30 S. C, 534; 
9 S. E., 656. 

But all equitable issues must be tried by the Judge either alone or with such 
aid of a jury. — Gadsden v. Whaley, 9 S. C, 147; Sloan v. Westfield, 11 S. C., 
447; Adickes v. Lowry, 12 S. C, 108; Cooper v. Smith, 16 S. C, 331. 

A case involving cancellation of deed for fraud may be referred to the Master. — 
Dupont V. DuBos, 33 S. C, 389; 11 S. E., 1073. 

On appeal from decree of Probate Court, declaring a paper offered for pro- 
bate no will, it was error in Circuit Judge to form issues and submit them to 
jury without notice to appellant, and a judgment based on verdict on such issues 
must be set aside. — Ex parte Apeler, 35 S. C, 417; 14, S. E., 931. 

On appeal from Probate Court disallowing claim against an estate, the appellant 
is not entitled as of right to a jury trial. — Hughes v. Kirkpatrick, sy S. E., 169; 
IS S. E., 912. 

Sec. 276. 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 the complaint in the action, 

S u m m o ns . • 

and complaint endorsmg thcreon the nature of the issue and the docket upon 

Clerk's office; which the samc shall be placed; and if the plaintiff fail so to 

cases. '^ do, the defendant, seven days before the Court, may file copies 

lb., § 27S; of said papers with a like endorsement, and the Clerk shall 

1873, XV., , ^ ^^ , . , . , ' . 

498;^ 1 8 8 2 , thereupon lorthwith enter said cause upon its appropriate 

X V I I I.. 41; , . , ,, , . . 1 . , 

18 8 7, XIX., docket, and it shall stand for trial without any further notice 

of trial or notice of issue. The Clerk shall, within twenty 

trial. days after every adjournment of the Court of Common Pleas, 

Docketing of carry forward on Calendars numbers one and two, for trial 

causes. ,''. _,,,. 

or hearmg- at the next term, all causes not finally disposed of 
dockets for- at the preceding term, and shall enter in regular order all sub- 
sequent 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 an}^ of the requirements of this Section, 
the Clerk shall forfeit all docketing fees for the term of the 
Court next succeeding. 

Forfeiture of There is nothing in this Section which declares that failure to have the case 
i^^s. gQ docketed within a prescribed time after action begun puts a party out of Court. — 

Hagood V. Riley, 21 S. C, 143. 

When the time for answering expires, after the day for the Court to open, but 
before it is actually opened, the case may be put on calendar 3 and judgment by 
default taken. — McComb v. Woodbury, 13 S. C, 479. 

Sufficiency of endorsement by plaintiff of instructions to docket. — Bank of 
Camden v. Thompson, 46 S. C, 499; 24 S. E., 332. The placing on the docket 
fourteen days before Court is the notice of trial. — lb. ; Steffens v. Bulwinkle, 48 
S. C, 362; 26 S. E., 666. Where case is docketed on the wrong calendar, the 
remedy is by motion to transfer. — Threatt v. Brewer Mining Co., 42 S. C, 92; 
19 S. E., 1009. The requirement that a case be docketed before trial does not 
apply to motions for orders preparatory to the hearing of the case on its merits. — 
Bank v. Fennell, 55 S. C, 379; 33 S. E., 485. Answer being stricken out on oral 
demurrer, retaining the case of calendar one, and there giving judgment, held 



OF SOUTH CAROLINA. 145 

■ A. D. 1902. 



harmless error. — Jones v. Garlington, 41 S. C, 533; 22 S. E., 741. A legal action ^ ■^^^^— ^ 
to which an equitable defence has been interposed, which was docketed on calendar 
one, may be transferred to calendar two in order to have the equitable defense 
tried by the Court. — Knox v. Campbell, 52 S. C, 461; 30 S. E., 485. 

Sec. 277. A Stenographer for each of the Judicial Circuits stenographers 

- 1 r- 1111 • 11 1 -1 T 1 to be appointed 

ot the State shaU be apponited by the resident Judge thereof, by circuit 
who shall be a sworn officer of the Court, and shall hold office ies and duties. 
for the term of four 3'ears, subject to the power of the Judge iss", xix., 

, . . ^,, . , . , 815; 18 89, 

to remove him, at any time, upon sufficient cause being shown x x., 3 e 1 ; 

1SS3 XVIII. 

therefor. Each Stenographer so appointed shall receive an 465, ' 643 ; ^issi! 
annual salary as follows: To Stenographers of the First Cir-i88 5;" xix.', 

• 1 1 1 1 1 1, It 1 f- , 287, 329; Code 

cuit, eighteen hundred dollars, and the several Stenographers Pro., § 279. 
of the other Circuits, twelve hundred dollars ; such salaries to 
be paid by the State Treasurer in the same manner provided 
by law for the payment of the salaries of the Circuit Judges 
and Solicitors of the State. It shall be the duty of every Sten- 
ographer so appointed, under the direction of the presiding 
Judge of his Circuit, to take full stenographic notes of all pro- 
ceedings, 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. 

Sec. 278. It shall be the duty of the Stenographer to furnish stenographers 

-^ o JT jg furnish cop- 

to any party to such trials, upon request, a copy of the evi- ies; fees. 

dence and proceedings taken by him in such trials, or of such 1^70, § 279; 

'^ ° . 18S3, xviii., 

part thereof as may be required, on payment in advance, on 465; iss4, /^, 

behalf of such party, to the Stenographers of the First and 287^329^^^ 18S9', 
Second Circuits, respectively, of ten cents, and to the Stenog- 
raphers of the other Circuits, respectively, of three cents, for 
every hundred words of the copy so furnished : Provided, Said 
copy is furnished within ten days after the rising of the Court 
and written demand therefor and tender of said fees. Any 
sum so paid by any party shall be considered a necessary dis- 
bursement in the taxation of costs. 

Sec, 279. The issues on the calendar shall be disposed of in Order of dis- 

'^ posing ot is- 

the following order, unless, for the convenience of parties or |Jj^|°" ^^^ ^^^' 
the despatch of business, the Court shall otherwise direct : -^ 7-^ ■ 

1. Issues of fact to be tried by a jury. 

2. Issues of fact to be tried by the Court. 

3. Issues of law. 

The order in which issues should be tried is discretionary with the Court. — Knox 
V. Campbell, 52 S. C, 461; 30 S. E., 485. Retaining case on calendar one. and 
there giving judgment, after sustaining demurrer to aifswer, if error, is harmless. — 
Jones V. Garlino-ton, 22 S. E., 741; 44 S. C, 533. 

10.— c. p. 



146 

A. D. 190-2. 



CODE OF CIVIL PROCEDURE 



CHAPTER III. 

Trial by Jury. 



Sec. 

280. Trial. Separate trials. 

2S1. Court to be furnished with a 
copy of the pleadings. 

282. General and special verdicts de- 
fined. 
When jury may render either 
general or special verdict 
and when the Court may di- 
rect a special finding. 



283. 



Skc. 

284. On a special finding with a gen- 

eral verdict, the former to 
control. 

285. Jury to assess defendant's dam 

ages in certain cases. 

286. Entry of the verdict. Motion 

for new trial. 

287. Motion for new trial, or for 

judgment on special verdict, 
where to be heard. 



§ 282. 



Court to be 
furnished with 



it"friais^^^' Section 280. Either party complying with the requirements 
'^ XIV., of Section 276 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 de- 
fendants may be allowed by the Court whenever, in its opinion, 
justice will thereby be promoted. 

Sec. 281. When the issue shall be brought to trial by the 

pieTdings.^ *^^ plaintiff , he shall furnish the Court with a copy of the sum- 

ji,_^ I 2S3. mons and pleadings, with the offer of defendant, if any shall 

have been made. \\"hen 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 summons and pleadings 

and the offer of the defendant, the same may be furnished by 

the defendant. 

gp General^ and ggg_ 282. A general verdict is that by which the jury pro- 

dicts defined, nouuce generally upon all or any of the issues, either in favor 

lb., § 284. Qf ^-j^Q plaintiff or defendant. A special verdict is that by 

which the jury finds the facts only, leaving the judgment to 

the Court. 

m a^y^^*^render ^®^- ^^^' ^^ ^" actiou for the rccovcry of specific personal 

or \^pecia!"ver? P^opsrty, if the property have not been delivered to the plain- 

the^'court^^may ^iff , or if it liavc, and the defendant, by his answer, claim a 

finding^ special return thereof, the jury shall assess the value of the property, 

jj, I 285. 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, 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. 



OF SOUTH CAROLINA. 




In every action for the recovery of money only, or specific 
real propert}^, the jury, in their discretion, may render a gen- 
eral 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. 

Where plaintiff takes possession of the property, a verdict in. the words "We 
find for the defendant the return of the property or $507.95" is in compliance 
with this Section. — Bardin v. Drafts, 10 S. C, 493. But where the action is to 
recover "patterns" in foundry proved to be worth $5,000, and the Judge charged 
that defendants were entitled to a part thereof, the verdict in these words, "We 
find the plaintiff patterns the value of $100," does not identify the property, and 
is void. — Eason v. Kelly, 18 S. C, 381. 

In such action a verdict which calls for a delivery or return of the property 
is insufficient and illegal, unless it assess the value of the property, even though 
there be no testimony as to value. The Section is mandatory. — Eason v. Kelly, 
18 S. C, 381; Thompson v. Lee, 19 S. C, 489; Lockhart v. Little, 30 S. C, 326; 
9 S. E., 511; Robbins v. Slattery, 30 S. C, 328; 9 S. E., 510. 

An alternative verdict is only required when the defendant is entitled to the 
return of the property. — Finley v. Cudd, 42 S. C, 121; 20 S. E., 32. 

Where the defendants are not jointly liable, a general verdict for the plaintiff 
for certain property valued at a certain sum, with damages for detention, is too 
indefinite, as it should be against each defendant separately for the specific prop- 
erty in his possession, or its value. — Norris v. Clinkscales, 47 S. C, 488; 25 S. E., 
797- 

To entitle plaintiff to damages he must give some proof thereof. — lb. As to what 
damages are allowed. — Miami Powder Co. v. R. R., 47 S. C, 324; 25 S. E., 153; 
Brock V. Bolton, 37 S. C, 41; 16 S. E., 370; Lipscomb v. Tanner, 31 S. C, 49; 
9 S. E., 733; Loeb V. Mann, 39 S. C, 469; 18 S. E., i; Jones v. Hires, 57 S. C, 
427; 35 S. E., 748; Vance v. Vandercook Co., No. 2, 170 U. S., 472; Buford v. 
Fannen, i Bay, 273; Banks v. Hatton, i N. & McC, 221; Kid v. Mitchell, lb., 324. 
Where the defendant answers that the property does not belong to him, but to his 
assignee, the plaintiff cannot be adjudged to return the goods, or pay their value, 
to the defendant, but the Court, of its own motion, should compel the assignee 
to intervene. — Wilkins v. Lee, 42 S. C, 31; 19 S. E., 1016. See also Sec. 299 and 
note, post. 

Sec. 284. Where a special finding of facts shall be incon- findfng^with'^i 
sistent with the general verdict, the former shall control the IfcT'^tte Lrm- 
latter, and the Court shall give judgment accordingly. er to control. 

Sec. 285. When a verdict is found for the plaintiff in an § Me!^' ^^^•' 
action for the recovery of money, or for the defendant when jury to as- 
a set-ofif for the recovery of money is established, beyond theant^s*^daLfages 
amount of the plaintiff's claim as established, the jury must S. ''^^*^''' ''^^' 
also assess the amount of the recovery; they may also, under ib., § 287. 
the direction of the Court, assess the amount of the recovery 
when the Court gives judgment for the plaintifif on the answer. 
If a set-off, established at the trial, exceed the plaintiff's de- 
mand so established, judgment for the defendant must be given 
for the excess ; or if it appear that the defendant is entitled to 




CODE OF CIVIL PROCEDURE 



any other affirmative relief, judgment must be given accord- 
ingly. 
vefdic7 °M*o^ ^®^' ^^^- ^- ^'po" receiving a verdict, the Clerk shall make 
trial ^°^ ^^''^' ^^ entry in his minutes, specifying the time and place of the 
~^ r^ 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 argument 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 ex- 
ception be taken, it may be reduced to writing at the time, or 
entered in the Judge's minutes, and afterwards settled as pro- 
vided 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 ex- 
ceptions be, in the first instance, 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. 

4. The Judge who tries the cause may, in his discretion, en- 
tertain a motion, to be made on his minutes, to set aside a 
verdict and grant a new trial upon exceptions, or for in- 
sufficient evidence, or for excessive damages ; but such motions, 
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 appeal must be had. 

Unless otherwise directed by the Court, the Clerk must enter judgment in con- 
formity with the verdict or it will be void. — Eason v. Kelly, 15 S. C, 200; lb., 18 

5. C, 381; Kaminsky v. R. R., 25 S. C, 53. 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 ordered the case to be transferred 
to Calendar No. 2 and that plaintiffs have leave to apply for judgment thereon, 
the Clerk could not enter judgment on the verdict. — 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 Cons, of 1868, Art. IV., Sec. 26. — Wood v. 
R. R. Co., 19 S. C, 579. 

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,"' 



OF SOUTH CAROLINA. 149 

■ A. D. 1902. 



and have it so noted on the record; but it has been held that when it appears from ^^-""v^"-^ 
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 ex- 
ception, 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, 257; 
Coleman 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 dam- 
ages, the Circuit 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 insufficient, but refused to grant new trial 
because he underrated his power to do so, under the Constitution, he committed 
error in law. — Wood v. R. R. Co., 19 S. C, 579. 

A Judge cannot grant such a new trial at chambers. — Charles v. Jacobs, 5 S. C, 
348; Clawson v. Hutchison, 14 S. C, 520. And an order transferring 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 Sec. 2734 in Civil Code. 

Sec. 287. A motion for a new trial on a case or exceptions, ne^°'^^ai^ ^°l 
or otherwise, and an application for judgment on a special ^°'" gp|.^[jsnient 
verdict or case reserved for argument or further consideration, ^e'^'^e^d^'^^ *° 
must, in the first instance, be heard and decided at the same~j^ ^~^ 
term, except that when exceptions are taken, the Judge trying 
the cause may, at the trial, direct them to be heard at some 
subsequent term, and the judgment in the meantime sus- 
pended ; 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. 

"Same term" means the term at which the trial was had.^ — Hinson v. 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 v. Brock, 14 S. C, 104; Molair v. R. R., 31 S. C.,510; 
10 S. E., 243. Where the motion is made and heard during the term, the decision 
may be filed nunc pro tunc after the term has ended. — Calhoun v. R. R. Co., 42 
S, C, 132; 20 S. E., 30. This and Section 286 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, 5 S. C, 349; Caston v. Brock, 14 S. C, iii. 



CHAPTER IV. 

Trial by the Court. 



Sec. 

288. Trial by jury, how waived. 

289. On trial by the Court, judgment 

how given. Motion for new 
trial. 



Sec. 

290. Exceptions, how and when taken. 

Judgment at general term. 

291. Proceedings upon judgment on 

issue of law. 



Trial by jury, 
_ . nnn rr^ • ^ t • • 1 /— r r~< how waived. 

Section 288. Trial by lury m the Court of Common Pleas 

■'■'•' ^ 1870, XIV., 

may be waived by the several parties to an issue of fact in § 290. 



ISO CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^ — '- — 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. 

This Section in the terms "actions on contract" includes such actions as before 
its adoption were recognized as actions at common law. — State v. R. R., 8 S. 
C, 129. 

Party may waive right to jury trial, by consenting to reference of such issues 
in the cause. — City Council v. Ryan, 22 S. C, 339; Meetze v. R. R., 23 S. C, i; 
Martin v. Martin, 24 S. C, 446; Calvert v. Nichols, 26 S. C, 304; 2 S. E., 116; 
Archer v. Ellison, 28 S. C, 238; 5 S. E., 713; Rhodes v. Russel, 32 S. C, 585; 
10 S. E., 828. Or by consenting to trial by the Court. — Whaley v. Charleston, 5 
S. C, 206; Magruder v. Clayton, 29 S. C, 407; 7 S. E., 844; Griffith v. Cromley, 
58 S. C, 458; 36 S. E., 738. 

But party cannot so waive such right by his conduct. — Sale v. Meggett, 25 
S. C, 72. 

Where the Judge in an action on contract withdrew the trial of the issues of 
fact from the jury without the consent of the several parties, the party requesting 
the Judge so to do cannot complain on appeal that it was error. — Stepp v. Ass'n, 
37 S. C, 432; 16 S. E., 134. 

the°"c*o'u r t^ Sec. 289. Upon the trial of a question of fact by the Court, 

i^ve^^"" Mo?i°on its dccisiou shall be given in writing, and shall contain a 

for new trial, statement of the facts found, and the conclusions of law, sep- 

ih., § 291. arately ; 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. 

The demand as to the form of the decision should be complied with. — Visanska 
V. Bradley, 4 S. C, 288. 

But where there is no contest as to the facts, there need be no finding of fact. — • 
Briggs v. Winsmith, 10 S. C, 133. 

The rule is directory and not mandatory, and an omission on the part of the 
Court to contain in its decision a statement of the facts found and the conclusions 
of law separately is not ground for reversal unless it appear that appellant has 
suffered prejudice thereby, as to the merits of the case. — Joplin v. Carrier, 11 
S. C, 329; State V. Columbia, 12 S. C, 393; Bouknight v. Brown, 16 S. C, 166; 
Briggs V. Briggs, 24 S. C, z^T, May v. Cavender, 29 S. C, 598; 7 S. E., 489; 
Stepp V. Ass'n, 37 S. C, 432; 16 S. E., 134; Harrell v. Kea, 37 S. C, 372; 16 S. E., 
42; Aultman v. Utsey, 41 S. C, 304; 19 S. E., 617. 

Where decision of the Court found a balance due on former judgment and 
directed execution thereof, the Clerk properly entered up judgment on the decision 
for the balance.— Garvin v. Garvin, 21 S. C, 83. 

The Judge has power upon hearing referee's report in law case to reverse, affirm 
or modify his finding of fact. — Meetze v. R. R., 23 S. C, i; Griffith v. R. R., 23 
S. C, 25. 

Decision valid though filed more than sixty days after Court. — Koon v. Munro, 
II S. C, 139. 

Exceptions, n.r^r\ 1-. 1 r 1-1 

how and when Scc. 290. I. For the purposc of an appeal, either party may 

ment ' at gen- exccpt to a dccisiou on a matter of law arising upon such trial, 

'- within ten days after written notice of the filing of the decision, 

Ih., § 292. , . ^ .,,.„. ", „ 

order, or decree, as provided m Sections 344 and 345: tro- 



OF SOUTH CAROLINA. 




vided, hozvever, That where the decision filed under Section 
289 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, 
except thereto, and make a case or exceptions as above pro- 
vided in cases of an appeal. 

2. And either party desiring a review upon the evidence ap- 
pearing 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 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. 

If exception has been taken to a decision on a matter of law arising on the trial, 
no further exception need be made thereto as required by this Section. — Coleman 
V. Heller, 13 S. C, 491. 

In appealing from a decree in chancery rendered in vacation, it was held not 
necessary to serve the Judge with a copy of the exceptions. — Godbold v. Vance, 14 
S. C, 458. Since the amendments to Sec. 345, it is not now necessary to serve , 

the Judge with the exceptions in any case. 

Matters stated only in the exceptions are not facts in the case. — Lites v. Addison, 
27 S. C, 226; 3 S. E., 214. 

This Section controls on hearing of referee's report in a law case on exceptions 
taken, and allows a review of his findings of fact as well as of law. — Meetze v. 
R. R., 23 S. C, i; Griffith v. R. R., 23 S. C, 23. 

Sec. 291. On a judgment for the plaintiff upon an issue of upo^''°u^|melt 
law, the plaintiff may proceed in the manner prescribed by°^^_ *^^"^ °^ 
Section 267, upon the failure of the defendant to answer, j^sro, xiv., 
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 necessary to enable 
the Court to complete the judgment, a reference or assessment 
by jury may be ordered, as in that Section provided. 



293. 



CHAPTER V. 

Trial by Referees. 



Sec. 

292. All issues referable by consent. 

293. When a reference may be com- 



Sec. 

294. Mode of trial. Effect of report. 
Review. 



pulsorily ordered. I 295. Referees, how chosen. Report. 

As to the application of this Chapter in those Counties where the office of 

Master exists, see Chapman v. Lipscomb, 15 S. C, 474. All issues re- 
ferable by con- 
Section 292. All or any of the issues in the action, whether of sent. 



fact or of law, or both, mav be referred upon the written con-, R- S; i872, 

- ^ 180, § lo. 



152 CODE OF CIVIL PROCEDURE 

A. D. 1902. — 

^"'"^^-'^ sent of the parties; and, in such case, the order, if taken in 

vacation, may be made by the Clerk. 

All issues in law may be so referred. — Meetze v. R. R., 23 S. C, i; Griffith v. 
R. R., 23 S. C, 25. But not except upon written consent. — Sale v. Meggett, 25 
S. C, 72. An order of reference, by consent, is sufficient. — City Council v. Ryan, 

22 S. C, 339; Martin v. Martin, 24 S. C, 446; Calvert v. Nichols, 26 S. C, 304; 
2 S. E., 116; Trenholm v. Morgan, 28 S. C, 268; 5 S. E., 721. 

An order of reference which does not adjudge the rights of the parties is an 
administrative order which may be changed by a succeeding Judge for cause 
shown. — Ex parte Simms, 43 S. E., 311; 21 S. E., 113. 

ference" may Scc. 293. Where the parties do not consent, the Court may, 
ly ordenS.^°" upon the appHcation 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 ex- 
amination 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 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 295. 

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 before him sufficient to show that the 
case did fall under one of the subdivisions. — Ferguson v. Harrison, 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. — Sullivan v. Latimer, 32 S. C, 
281; 10 S. E., 1071. 

This Section, as to subdivision i, must be construed to apply to such cases only 
as were not triable by jury prior to 1868, and where an action 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 involved. — Smith v. Bryce, 17 S. C, 538. 

Where a creditor, defendant, cjaims priority of payment out of a fund in Court, 
through a lien on the property it represented, the case was referable under this 
Section. — State v. 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. Langley, 

23 S. C, 145; Bouland v. Carpin, 27 S. C, 235; 3 S. E., 219. 

An order of reference under this Section is not. appealable, unless it deprive the 
appellant of a mode of trial to which he is entitled by law. — Devereaux v. Mc- 



OF SOUTH CAROLINA. 153 

A. D. 1902. 



Cready, 49 S. C, 423; 27 S. E., 467; Ferguson v. Harrison, supra. Where a party ^-*"~^v^"~' 
is entitled to a jury trial, inconvenience of witnesses, and the length of time the 
case would take, if the testimony were taken before the jury, are not grounds for 
granting a compulsory order of reference. — Wilson v. Township of York, 43 S. C, 
299; 21 S. E., 82. 

Sec. 294. The trial by a blaster, or by referees, shall be con- ^ode of trial. 

' -' ' Effect of _ re- 

ducted in the same manner and on similar notice as a trial by p°^^- Review . 

the Court. Eyery referee appointed pursuant to this Code of ^ ^^™' ^ ^ ^•' 
Procedure shall have power to administer oaths in any pro- 
ceedings before him, and shall haye, generally, the powers 
yested in a reference by law. Masters and referees shall haye 
the same power to grant adjournments, and to allow amend- 
ments to any pleadings and to the summons, as the Court, 
upon such trial, upon the same terms, and with the like effect. 
They shall haye the same power to preserve order and punish 
all violations thereof upon such trial, and to compel the at- 
tendance of witnesses before them by attachment, and to 
punish them as for contempt for non-attendance or refusal 
to be sworn or testify, as is possessed by the Court. They 
must state the facts found, and the conclusions of law, sep- 
arately ; and their decision must be given, and may be ex- 
cepted to and reviewed in like manner, and with like effect, in 
all respects, as in cases of appeal under Section 290; 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. 

Masters and referees to whom causes may be referred, objections'" to 

whether to hear and decide the whole issues or to report upon fl!_!!^!f^ 

any specific question of fact, or upon the facts generally, shall 733. igsg, xx'.', 
hear and decide any obj ection 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 incor- 
porate such testimony so held by him inadmissible with the 
rest of the testimony in the body of his report, but shall append separateiy!^^°'^ 
the same separately at the end of his report. 

The Master or referee, at the request of any party to a cause gteno^ raThir^ 
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 disbursements of the same. 

Whenever any cause shall be referred to any ^Master or and°si^ned"^by 
referee by any Court in this State, and testimony be taken witness. 



154 CODE OF CIVIL PROCEDURE 

A. D. 1902. ^ 

"■"^■^^^"^ therein, it shall be the duty of such Master or referee to reduce 
the testimony of the witnesses to writing and require the same 
to be read over and signed by the witness : Provided, however, 

Proviso as to -pj^^l- nothing herein contained shall be construed to prevent 

stenographers. c _ -^ _ 

the use of stenographers 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. 

scrTbecf ^ ^ ^' •'"^ ^^^ cascs referred to Masters and referees by the Courts 
of Common Pleas, as now provided by law, the blasters 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 
Penalty. ^^^^ £ggg . provided, That nothing herein contained shall pre- 
Extension of vcnt parties to said action, or their attorneys, from extending 

time. ^]^g ^jj^g ^y 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 re- 
viewed on appeal to the Supreme Court. 

An order of reference, reser\-ing equities, does not prevent Master from deter- 
mining objection to testimony. — Devereaux v. McCrady, 49 S. C, 423; 27 S. E., 467. 
Referee has power to allow amendments. — Mason v. Johnson, 13 S. C, 20. 
This Section does not authorize a Master to require a party to produce a deed.^ 
Cartee v. Spence, 24 S. C, 550. 

It is not mandatory, but directory merely, as to the statement "of facts found 
and conclusions of law," separately. — Bollman v. Bollman, 6 S. C, 29. 

The "facts found" are the conclusions of facts drawn from the testimony. There 
should first be a clear statement of all material facts, and then should follow the 
conclusions of the referee. — Moore v. Johnson, 7 S. C, 303. 

An exception to the report cannot by its own statement supply such defect of 
facts. — Thompson v. Thompson, 6 S. C, 279- Nor can the Judge hearing the 
case upon the report call for a paper to be produced which was not before the 
referee. — Griffin v. Griffin, 20 S. C., 486. 

It is the duty of the Judge to determine by his own judgment all the issues 
in an equity cause; and the report of the referee merely aids the Judge in reach- 
ing his judgment. — Thorpe v. Thorpe, 12 S. C, 154. 

While the report of the referee upon an issue of fact "shall have the effect of 
a special verdict," as such a verdict it may be set aside, for any cause for which 
verdicts may be set aside.— Fields v. Hurst, 20 S. C, 282. But in equity his 
findings of fact are only to assist the Court and for its information, and may be 
disregarded by the Court. — lb. 

When there is a consent order of reference, of all issues, in a law case, the 
Judge has power to review the findings of fact as well as of law, made by the 
referee, when the report, the testimony and exceptions are all before him.— Meetze 
V. R. R., 23 S. C, i; Griffith v. R. R., 23 S. C, 25; Calvert v. Xickles, 26 S. C, 
305; 2 S. E., 116. 

A party can be heard in opposition to the confirmation of the report of the 
referee, without having excepted thereto, when he has not been served with a 
copy or notice thereof ten days before Court. — Ex parte Fort, 36 S. C, 20; 15 
S. E., 723. 

The hearing of the exceptions to the Master's report within ten days after 
notice of filing the report is error. — McGee v. Mefriman, 43 S. C, 103; 20 S. E., 



OF SOUTH CAROLINA. 155 

A. D. 1902. 



971. Time to file additional exceptions cannot be extended be3fond ten days. — ^^-»^v^~— ^ 
Verner v. Perry, 45 S. C, 262; 22 S. E., 888. 

Sec. 295. In all cases of reference to referees, the parties to^,^^g|^^'^^'j^°^ 
the issues in the action, except when the defendant is an infant ^°^^- . 



or an absentee, may agree in writing upon a person or persons, » 297 



1870, XIV., 

I 
not exceeding 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 one or more 
referees, not more than three, who shall be free from excep- 
tion. 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 re- 
ferred, 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 submitted ; 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. 



CHAPTER VI. 

Manner of Entering Judgment. 



Sec. 

296. Judgment may be for or against 

any of the parties to the ac- 
tion ; may grant defendant 
affirmative relief. Complaint 
may be dismissed for ne- 
glect toi)rosecute the action. 
Judgment against married 
women. 

297. The relief to be awarded to the 

plaintifE. 

298. Rates of damages where dam- 

ages are recoverable. 



Sec. 

299. Judgment in action for recovery 

of personal property ; how 
directed. 

300. Clerk to keep "Abstract of Judg- 

ments." 

301. Judgment to be entered in Ab- 

stract. 

302. Judgment-roll. Transcript of 

Judgment filed in any other 
County — effect of. 



J u d g m ent 
may be for or 
against any of 

Section 296. i. Judgment may be given for or against one or the parties to 

J c> y o o ^]-jg action ; 

more of several plaintiffs, and for or against one or more 01 ^^dant^affirm- 
several defendants; and it may determine the ultimate rights a,t^ve_^reiie^f. 
of the parties on each side, as between themselves. ^ ^ dismissed 

tr ' for neglect to 

2. And it may grant to the defendant any affirmative relief pros^^^cute the 
to which he may be entitled. Sied^^w o^- 

Harrison v. Manufacturing Co., lo S. C, 278. men. 

In action against survivor of joint obligors and the executor of deceased one, -""" ^^^777" 
the judgment should be separate.- — Trimmier v. Thompson, 10 S. C, 164. 5 298.' 



156 CODE OF CIVIL PROCEDURE 

A. D. 1002. ~ 

^^^'^v'-""^ A separate judgment may be rendered in favor of one defendant against the 

plaintiff, upon a counter-claim. — Plyer v. Parker, 10 S. C, 464. 

Does not apply to partnership contracts where the liability is joint. — Pope M'f'g 
Co. V. Welch, SS S. C, 528; 33 S. E., 787- 

The Court may give judgment for one defendant as against another, if it can be 
done without injury to the plaintiff.— Beattie v. Latimer, 42 S. C, 313; 20 S. E., 53. 

3. 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. The Court may also dismiss the complaint, with costs in 
favor of one or more defendants, in case or unreasonable neg- 
lect on the part of the plaintiff to serve the summons on other 
defendants, or to proceed in the cause against the defendant 
or defendants served. 

Mere failure by plaintiff to proceed with his case after service of summons and 
docketing does not have the effect, under this Section, of putting the plaintiff out 
of Court. — Hagood v. Riley, 21 S. C, 143. 

In an action brought by or against a married woman, judg- 
ment may be given against her as well for costs as for dam- 
ages, 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. 

The provision for the levy and collection out of her separate estate is merely 
directory. — Clinkscales v. Hall, 15 S. C, 602. Only intended to indicate what 
property of the woman could be made liable.^Habenicht v. Rawls, 24 S. C, 461. 

The relief to gee. 297. The relief granted to the plaintiff, if there be no 

be awarded to ° 1 1 1 1 j • 

the plaintiff, answcr, cauiiot exceed that which he shall have demanded m 
lb., § 299. his complaint ; but in any other case, the Court may grant him 
any relief consistent with the case made by the complaint, and 
embraced within the issue. 

The prayer for relief is not essential to the complaint.— Balle v. Moseley, 13 S. 
C, 439- 

Relief not limited by prayer of complaint, if answer is filed and the relief is 
consistent with the case made. — Christopher v. Christopher, 18 S. C, 600. 

Where complaint states notes and credits and demands judgment for a certain 
sum, and answer admitted the allegation, it was error in the Judge to reduce the 
credits and give judgment for a larger sum; this was not consistent with the case 
made. — Straub v. Screven, 19 S. C, 44S- 

Rates of dam- Sec. 298. Whenever damages are recoverable, the plaintiff 

damages are may claim and recover, if he show himself entitled thereto, any 

e . — ^^^^ ^^ damages which he might have heretofore recovered for 

lb., § 300. *= 

the same cause oi action. 

This Section only remands such cases to the former practice, and in actions 
for damages not punitive the recovery is limited to the direct pecuniary loss. — 
Sullivan v. Sullivan, 20 S. C, 509. 

See also Vance v. Vandcrcook Co., 170 U. S., 474. 

Judgment in Scc. 299. In an action to recover the possession of personal 

action for re- . , .,,..;-, 1 r , 1 

covery of per- property, judgment for the plaintiff may be for the possession, 

sonal property. . , "" - . i'i,ir- 

■ or for the recovery of possession, or the value thereot, m case 

lb., § 301. ' '■ 



OF SOUTH CAROLINA. 




a delivery cannot be had, and of damages for the detention. 
If the property have been deHvered 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 with- 
holding the same. 

For measure of damages in claim and delivery, and form of verdict, see cases 
cited in note to Sec. 283. 

This Section does not apply to action for general damages. — Joplin v. Carrier, 
II S. C, 327; Richey v. DuPre, 20 S. C, 6. 

Judgment may be given for value of the property, though only its recovery and 
damages be demanded. — Joplin v. Carrier, 11 S. C, 327. 

In action for bale of cotton, which defendant had sold, or for the value thereof, 
a verdict for stated amount is not invalid, the plaintiff so electing. — Richey v. 
DuPre, 20 S. C, 6. 

In such action, where plaintiff takes possession of the property and the verdict 
gives him a portion of it with damages, and the remainder to the defendant with 
damages, each party is entitled to enter judgment. — Stoney v. Bailey, 28 S. C, 
156; 5 S. E., 347. 

Sec. 300. The Clerk shall keep among the records of the "Abstrac°t ^o? 
Court a book for the entry of judgments, to be called the "'Ab g^ents. 



. r T ■, . „ 1S39, XI., 103, 

stract of Judgments. § s. 

The judgment must be entered on the abstract before execution can issue. — 
Mason &c., Co. v. Killough Music Co., 45 S. C, n; 22 S. E., 755. 

Sec. 301. In this book shall be entered each case wherein be "entered in 

judgment may be signed, including each case in dower, par- ?— 

tition 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 judg- 
ment, time of bearing interest, how judgment obtained, costs, 
(separating attorney, clerk, Sheriff, witness and total,) kind 

- . 1 . . . ^. . -., . , What Index 

of execution, date of issuing, Sherm s return, when renewed, to judgments 

1 . . . , . 1 . . , , 1-1 shall contain. 

and satisfaction, together with an index, by the names of de- 

fendants, and a cross index by the names of plaintiffs, each 436. 
alphabetically arranged and kept in separate volumes, with the 
number of enrollment of judgment. 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 judgment has been entered, and each of them, shall appear 
in cross index. 

Mason, &c., Co. v. Killough, 45 S. C, 11; 22 S. E., 755. 

Sec. 302. Unless the party or his attorney shall furnish a r on . ^ fr "n- 
judgment roll, the Clerk, immediately after entering the judg-ment* filed" in 
ment, shall attach together and file the following papers, which county— effect 
shall constitute the Judgment-roll : — ^ 

I . In case the complaint be not answered by any defendant, § 305. ' 



158 



CODE OF CIVIL PROCEDURE 



A. D. 1902. 



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 affect- 
ing 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 
parties plaintiff and defendant, the attorneys of record, the 
date and amount of the judgment, the time from which in- 
terest is to be computed, and the amount of costs. 

"Case" required as part of judgment roll, is the case prepared on application 
for new trial, and not case for appeal. — Tribble v. Poore, 28 S. C, 565; 6 S. E., 577. 

Final judgment applies to the Circuit Court. — Garrison v. Dougherty, 18 S. 
C, 486. 

A transcript of a final judgment is a copy of the entry in the judgment book. — 
Harrison v. Manufacturing Co., 10 S. C, 278. But is good although certified to 
be from the docket of judgments instead of the judgment book, and without the 
Clerk's name, but with his seal.- 



-Ib. 



TITLE IX. 

OF THE EXECUTION OF THE JUDGMENT IN CIVIL 

ACTIONS. 

Chapter I. The Execution. 

Chapter II. Proceedings Supplementary to the Execution. 

CHAPTER I. 



The Execution. 



Sec. 
303. 

3U4. 
305. 
306. 



Execution within ten years of 

course. 
Judgments, how enforced. 
The different kinds of execution. 
To what Counties execution may 

be issued, sales by whom 

made. Execution against a 

married woman. 



Sec. 

307. Execution against the person, in 

what cases. 

308. Forms of execution. 

309. Final judgments a lien on real 

estate for ten years. 

310. Personal property bound only by 

levy. 

311. Actions on Judgments after 

lapse of twenty yeai-s. 



OF SOUTH CAROLINA. 




Sec. 303. Writs of execution for the enforcement of judg- 
ments shall conform to this Title; and the party in whose favor ••?''^'=,"*'°" 

' ^ J withm three 

iudptnent has been heretofore or shall hereafter be given, and y^^""^ °^ 

JO cs ' > course. 

in case of his death, his personal representatives duly ap-~^^^^^ — ^^^ 
pointed, may, at any time within ten years after the entry of |-y^°^|g H^: 
judgment, proceed to enforce the same, as prescribed by this ^^^°' ^^^^ ^^'^ 
Title. 

This Section is expressly retrospective and applies to executions on previous 
as well as subsequent judgments. — Garvin v. Garvin, 34 S. C., 388; 13 S. E., 625. 

Execution may issue at any time within ten years without leave; and at any 
time after ten years with leave; and if then issued without leave, the execution is 
not void, but only voidable for irregularity. — Lawrence v. Grambling, 13 S. C., 120. 
Consent will cure want of leave, and it may be presumed from payment on the 
execution or failure to move to set it aside. — lb. 

Sec. 304. Where a judgment requires the payment of money, judgments, 
or the delivery of real or personal property, the same may be ^°^ enforced. 
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 re- 
quired thereby or by law to obey the same, and his obedience 
thereto enforced. If he refuse, he may be punished by the 
Court as for a contempt. 

Judgment of foreclosure and sale of mortgaged premises is not a judgment for 
delivery of real property to be enforced by execution alone, but may be enforced 
by attachment. — Trenholm v. Wilson, 13 S. C., 174; LeConte v. Irwin, 23 S. €., 
106; Ex parte Winkler, 31 S. C., 171. 

Sec. 305. There .shall be three kinds of executions : one j^j'^^g *!!Pex"- 
against the property of the judgment debtor; another against; 



his person ; and the third for the delivery of the possession of § f^' •^^^" 
real or personal property, or such delivery with damages for 
withholding the same. They shall be deemed the process of 
the Court. 

Sec. 306. When the execution is against the property of the ^ ^ o what 

° r- 1 y Counties exe- 

judgment debtor, it may be issued to the Sherifl^ of any County c^t'o" may be 

, . issued; sales, 

where judgment is docketed. When it requires the delivery '^y^ whom 

•' "^ ^ - made, bxecu- 

of real or personal property, it must be issued to the Sherififtio" against a 

^ i 1 ^ ' mar ried wo- 

of the County where the property, or some part thereof, is sit- "^^n. 

uated. Executions may be issued at the same time to different Z^^-' § ^lo; 
Counties is78,' x v i . ', 

V^omines. 336, 558; 1884, 

Property adjudged to be sold must be sold in the County ^^^i.-j^^'^^ ; 
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 



i6o CODE OF CIVIL PROCEDURE 

A. D. 1902. — 

'^^"^'^^^^"^ 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 prac- 
tice of the Courts of Equity of this State before said Courts 
were abolished. And whenever real estate is adjudged to be 
sold by a Alaster, such sale may take place by consent of the 
parties to the cause, or their attorneys, or, when infants are 
parties, by the consent of their guardians ad litem, or their at- 
torneys, 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 judg- 
ment against her from her separate property, and not other- 
wise. 

A sale by referee is invalid, but binds defendant until notice of appeal from 
the decree, and a purchaser at the sale will not be affected by appeal afterwards 
taken. — Armstrong v. Humphreys, 5 S. C, 128. 

Execution may issue upon a transcript of the judgment filed in a new County, 
against lands embraced in the new County. — Garvin v. Garvin, 34 S. C, 388; 13 
S. E., 625. Where Sheriff sells land under execution on a judgment not rendered 
when the land was sold by defendant, the purchaser will take good title, against the 
vendee, when there is in Sheriff's office an execution on an older judgment. — lb. 

In Counties where there is no Master, the Court may order a sale of fore- 
closure to be made by the Sheriff. — Childs v. Alexander, 22 S. C, 169. Or where 
he orders titles made by the Clerk he may order the sale to be made by him also. — • 
Fort V. Assman, 38 S. C, 253; 16 S. E., 887. If sale is ordered to be made by 
one other than the proper officer, he may intervene to protect his rights. — Ex parte 
Simms, 43 S. C, 311; 21 S. E., 113. 

The sale of Sheriff made in another County than where the land lies gives indis- 
putable title to purchaser, as to defendant and his vendee, where the defendant 
failed, when served with summons, to show cause against renewal of the execu- 
tion. — Freer v. Tupper, 21 S. C, 75. So, sale by Sheriff under renewal of execu- 
tion more than twenty years old where defendant failed to object, when summoned 
to show cause against the renewal. — Jackson v. Patrick, 10 S. C, 197; McNair 
V. Ingraham, 21 S. C, 70. 

This provision as to execution against a married woman is merely directory, 
and not necessary to its validity. — Clinkscales v. Hall, 15 S. C, 602. 

Cited to show that the limitation upon the right of a married woman to con- 



OF SOUTH CAROLINA. i6i 

A. D. 1902. 



tract was not intended to indicate what property would be liable for the breach ^— "~v^~^ 
thereof. — Habenicht v. Rawls, 24 S. C, 461. 

Sec. 307. If the action be one in which the defendant might ^g^^i^'^sfj.^^^ 
have been arrested, as provided in Section 200 and Section p^^|°"' "''^''^* 
202, an execution against the person of the judgment debtor ^g-Q_ xiv., 
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 200. 

A person so arrested is entitled to obtain a discharge under the insolvent debtor's 
Act. — Civil Code, 3072-3090; Hurst, Purnell & Co. v. Samuels, 29 S. C, 476; 7 
S. E., 822. 

. , ,. 1 01 Ti- Forms of ex- 

Sec. 308. The execution must be directed to the Sheriii, orecution. 



Coroner when the Sheriff is a party or interested, attested i87o, xiv., 
by the Clerk, subscribed by the party issuing it, or his attorney, 
and must intelligibly refer to the judgment, stating the Court, 
the County where, the judgment roll or transcript 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 ofificer, 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 belonging ^ 
to him. 

2. If it be against real or personal property in the hands 
of personal representatives, 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 per- 
sonal property, it shall require the officer to deliver the pos- 
session of the same, particularly describing it, to the party en- 
titled thereto, and may, at the same time, require the officer to 
satisfv any costs, damages, or rents or profits recovered by the 
same judgment, out of the personal property of the party 

II.— C. P. 



i62 CODE OF CIVIL PROCEDURE 

A. D. 1902. — " 

^^"■^^"^^ against whom it was rendered, and the vahie 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 be- 
longing to him, and shall, in that respect, be deemed an execu- 
tion against property. 

The judgment must be entered on the abstract before execution can issue. — ■ 
Mason, &c., Co. v. Killough Music Co., 45 S. C, 11; 22 S. E., 755. 

mentl'aiien on ^®^* ^^^* Filial judgments entered in any Court of record in 
ten yea?s*^ ^°^ ^^^^ State, subscqucnt to the twenty-fifth day of November, 
~7&7~^~~3i3^ A. D. 1873, shall constitute a lien upon the real estate of the 
1SS4' '^xvm ' judgment debtor in the County where the same is entered for a 
749; 1885, XIX, pej-jod of tcu ycars from the date of entry thereof. And a 
Judgment to transcript of such judgment may be filed in the office of the 
fn"tiie"county Clerk of the Court of Common Pleas of any other County, and 
for 10 years, -y^i^en SO filed sliall constitute a lien on the real property of 
Transcripts. |-|-^g judgment dcbtor in that County from' the date of the filing 
^jgj' ^ '^ ^''^'■^ thereof, with the same force and effect as the original judg- 
ment, for the period of ten years from the entry of said original 
judgment. 
in^iTyearr^*^ 2. A filial judgment may be revived at any time within the 
period of ten years from the date of the original entry thereof 
How done, ^y ^j^g service of a summons upon the judgment debtor, as pro- 
vided by law, or, if the judgment debtor be dead, upon his 
heirs, executors or administrators, or, if he be removed out of 
the State, by publication of such summons in the manner pro- 
vided in Section 156 for publication 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 
A lien for 10 judgment is revived. And such judgment shall thereupon 
vfvaf. ^"^"^ '^^' constitute a lien upon the real estate of the judgment 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 tran- 
Transcripts. g(,j.jp|. Qf g^j^j summous 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 revived as aforesaid : Pro- 
i^T^l^oT^^thlnvided, That a judgment shall not in any case constitute a lien 
20 years in all. ^^ ^^^ property of the judgment debtor in any County after 



OF SOUTH CAROLINA. 163 

A. D. 1902. 



the lapse of twenty years from the date of the original entry of ^^-^"^^^^ 
the judgment. 

3. Judgments obtained between the ist day of March, 1870, j^^ntsVrior^^o 
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 De- 
cember, 1885, by service of summons upon the judgment ^^^^ revived, 
debtor, his heirs, executors or administrators, or, if he or they 

be removed out of the State, by publication of the summons 
as hereinbefore provided, to show cause, if any he have, why 
the judgment should not be revived and made a lien according 
to the provisions of this Chapter; and if no sufficient cause be 
shown to the contrary, then it shall be decreed that such judg- 
ment is revived, and it shall thereupon constitute a lien on all ^^^"1^°^^^^' 
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 summons and Transcripts. 
decree may be filed in the office of the Clerk of the Court of 
Common 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 as aforesaid. 

4. This Section shall not be construed so as to make final pro^p^^tTe"^^ 
judgments in any case a lien on the real property of the judg-^^^*" 
ment debtor exempt from attachment, levy and sale by the 
Constitution. 

5. Nothing herein contained shall be construed to affect the t o^'°jud°gments 
lien of judgments or executions entered prior to the ist day of p"""" *° ■^^^°- 
March, A. D. 1870. 

As to eflfect on injunction against enforcing execution on lien, see Sec. 242a; 
Ex parte Graham, 54 S. C, 171; 32 S. E., 67. Mode of renewal.— 7b.; McLaurin 
V. Kelly, 40 S. C, 488; 19 S. E., 143- 

The lien allowed to decrees and judgments is no part of the remedy of enforce- 
ment, and an Act which prevented such lien in absence of levy did not impair 
the obligation of the contract and was valid. — Moore v. Holland, 16 S. C, iS- So 
is an Act that limits the duration of such retrospectively. — Henry v. Henry, 31 
S. C, i; 9 S. E., 726. 

The Section providing no time within which the summons to revive a judgment 
and give it a lien, the Courts cannot fix any. — Alsbrook v. Watts, 19 S. C, 539. 
Any legal objection in response to the summons may be considered by the Courts 
as to whether it is sufficient. — lb. The provisions as to the renew^al of judgments 
after they have lost their active energy do not apply to judgments entered prior 
to March ist, 1870. The only change as to such judgments is the substitution of 
the summons to revive them or to renew executions in place of the old remedy of 
scire facias. — Lauderdale v. Mahon, 41 S. C, 104; 19 S. E., 294; Lawton v. Perry, 
40 S. C, 255; 18 S. E., 861. 

Executions having an unexpired lien before the Act of 25th November, 1873. 
then and thereunder acquired an extended lien for ten years from date the lien 
attached. — Arnold v. McKellar, 9 S. C, 33s; Adickes v. Lowry, 12 S. C, 97- 

A judgment so revived continues to have a lien from its original entry and 



i64 CODE OF CIVIL PROCEDURii 

A. D. 1902. ■ • 

^^""^^^^—^ ranks as of that date. — Railroad Co. v. Marshall, 40 S. C, 63; 18 S. E., 247; Ex 
parte Witte Bros., 32 S. C, 226; 10 S. E., 950. Subdivision 2 does not apply to 
judgments previously obtained. — King v. Belcher, 30 S. C, 381; 9 S. E., 359. The 
judgment may be revived, although signed by one who styled himself "deputy 
clerk," but was never regularly appointed. — lb. 

The proceeding to revive is not by action, but by summons to show cause; 
and when defendant fails to do so at time notified, the Court may, in its dis- 
cretion, give judgment by default or allow him to answer. — Carroll v. Simkins, 14 
S. C, 223. 

Where such summons to revive judgment before the Code is served within 
twenty years and defendant consents to revival and acknowledges debt to be due, 
the presumption of payment ceases to run, and upon revival the lien is continued 
for twenty years longer. — Adams v. Richardson, 32 S. C, 139; 10 S. E., 931; 
Wood V. Milling, 32 S. C, 378; 10 S. E., loSi; Leitner v. Metz, 32 S. C, 383; 
10 S. E., 1082; Railroad Co. v. Marshall, 40 S. C, 63; 18 S. E., 247. 

There is no lien under a decree in equity as a judgment until it is properly en- 
tered in the abstract of judgments. — Reid v. McGowan, 28 S. C, 74; 5 S. E., 215. 

A judgment is not a lien on the homestead of debtor, either in his possession' 
or that of vendee. — Cantrell v. Fowler, 24 S. C, 424; Ketchin v. McCarley, 26 
S. C, i; II S. E., 1099. Or even in lands unpartitioned. — Nance v. Hill, 26 S. C, 
227; I S. E., 897. 

The renewal of the lien exists as to the original parties, but not as to purchasers 
for value, before the renewal is made effective. — Woodward v. Woodward, 39 S. C, 
261; Kaminsky v. Trantham, 45 S. C, 393; 23 S. E., 132. The order of renewal 
need not be entered on abstract to be effective. — Rowland v. Shockley, 43 S. C, 
246; 21 S. E., 21. 

As to renewal of Magistrate's judgments, see Roadt v. Patrick, Z7 S. C, 520; 
16 S. E., 536. Proceedings under this Section res judicata. — Babb v. Sullivan, 43 
S. C, 436; 21 S. E., 277. 

tions'^^may^'is- Scc. 310. I. Executions may issue upon final judgments 

^.^ or decrees at any time within ten years from the date of the 

499^1885, xixi 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 : 

But not after Pi'oz'idcd, The cxecution shall not issue or be renewed in any 

20 years. ^^^^ after the lapse of twenty years from the date of original 

personal" prop- e'^try of the judgment. Executions shall not bind the personal 

ter^'kvy,^^for I property of their debtor, but personal property shall only be 

months. bouud by actual attachment or levy thereon for the period of 

four months from the date of such levy. When judgment 

s u^e^execu'tion s-hall havc bccu rendered in a Court of a Magistrate, or other 

judgment.'^^*^ ^ 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 judginent 

was rendered. 

2. The Sheriff, Coroner, or other officer, with whom final 
process 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 energ\% until full 
execution thereof be returned, make a return to the office of the 



OF SOUTH CAROLINA. 165 

= ^ A. D. 1902. 



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 par- 
tially executed, he shall return, on oath, to the Clerk, a state- 
ment in writing, under his hand, of such partial 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 shall, for all purposes, have the same legal efifect 
as if the said process had been made returnable to the term suc- 
ceeding its first lodgment, and renewed after each subsequent 
regular term. For failure or neglect to make any of the re- 
turns 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 officers. 

Judgments never were a lien on personal property, and under the Code an 
execution has no lien until levy.— Kohn v. Meyer, 19 S. C, 200. 

This Section has no retroactive effect; applies only to executions issued after 
adoption of Code, and does not divest lien of execution of Judgment obtained before 
that time.— Warren v. Jones, 9 S. C, 288; Railroad Company v. Marshall, 40 S. C, 
63- 18 S E., 247; Lauderdale v. Mahon, 41 S. C, 104; 19 S. E., 294; Lawton v. 
Perry, 4o S. C, 255; 18 S. E., 861. Applies to Magistrates' judgments.— 59 S. 
C 70- 37 S. E., 39. Such lien continues after active energy of execution has ex- 
pired and attaches to personal property acquired after adoption of the Code.— 
Carrier v. Thompson, 11 S. C, 79- Such execution may be renewed by consent.- 
Ib Although the Sheriff fails to make such return, it is no reason why he should 
not be competent to prove that endorsements on executions were made by him 
and that he had not sold the property levied on.— Bank v. Kmard, 28 S. C, loi; 

A term of the Common Pleas held at the conclusion of the General Sessions, 
under Sec. 26 is not a regular term within the meaning of this Section.— McLaurm 
V. Kelly, 19 S. E., 143. An order giving leave to issue execution has the effect 
of reviving the judgment. — lb. 

Sec. 311. Nothing in the two preceding Sections contained .^A^^^t^j^ons on 
shall be construed to prevent an action upon a judgment after ^^^J^^P^e of 20 
the lapse of twenty years from the date of the original entry ^^^^^ _,^yj^^^ 
thereof, and a recovery thereon, in case it shall be established 229- 
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. 

The time during which a defendant is absent from the State must be deducted 
from the time prescribed by the Statute to bar an action on a judgment, and the 
same rule applies to the presumption of payment from lapse of time.— Latimer v. 



i66 



CODE OF CIVIL PROCEDURE 



A. D. 1902. 



Trowbridge, 52 S. C, 193; 29 S. E., 634. This Section applies to judgments ob- 
tained before as well as to those obtained after Nov. 25, 1873. — Lawton v. Perry, 
40 S. C, 255; 18 S. E., 861. 



CHAPTER II. 

Proceedings Supplementary to the Execution. 



Sec. 

312. Order for discovery of property ; 

examination of judgment 
debtor, &c. 

313. Any debtor to execution debtor 

may pay his debt to Sheriff. 

314. Examination of debtors of judg- 

ment debtor, or of those 
having property belonging to 
him. 

315. Witnesses required to testify. 

316. Compelling party or witnesses to 

attend. 



Sec. 

317. What property may be ordered 

to be applied to the execu- 
tion. 

318. Judge may appoint receiver, and 

prohibit transfer of prop- 
erty. 

319. Proceedings upon claim of an- 

other party to property, or 
on denial of indebtedness to 
judgment debtor. 

320. Reference by Judge. 

321. Cost of proceeding. 

322. Disobedience of order, how pun- 

ished. 



Section 312. When an execution against property of the 



Order for 
disc overy ot 

property; e x - judp-ment dcbtor, or any one of several debtors in the same 

amination o t "I ° -' 

judgment deb- judgment, issucd to the Sheriff of the County where he resides 



1870, 
§ 318. 



XIV. 



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 up- 
wards, 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 concerning his property before such Judge, at a time 
and place specified in the order, within the County to which the 
execution was issued. 

2. After the issuing of an execution against property, and 
upon proof by affidavit of a party, or otherwise, to the satisfac- 
tion of the Court, or a Judge thereof, that any judgment debtor 
has property which he unjustly refuses to apply towards 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. 



OF SOUTH CAROLINA. 



3. 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. 

4. 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, attend before 
the Judge, as he shall direct, and that he will not, during the 
pendency of the proceedings, dispose of any portion of his 
property not exempt from execution. In default of entering 
into such undertaking, he may be committed to prison by 
warrant of the Judge, as for a contempt. 

5. No person shall, on examination, pursuant to this Chap- 
ter, be excused from answering any question on the ground 
that his examination will tend to convict him of the commis- 
sion 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 con- 
veyance, assignment, or transfer of his property for any pur- 
pose ; but his answer shall not be used as evidence against him 
in any criminal proceeding or prosecution. 

Every judgment creditor who can make the requisite showing is entitled to insti- 
tute supplementary proceedings. — Sparks v. Davis, 25 S. C, 381. And to have 
examination of debtor even after appointment of receiver. — lb. 

The remedy given by this Section cannot be taken by way of defense to an 
action; it is a summary remedy, based directly on the judgment and supplementary 
to the prior proceedings. — Wylie v. Lyie, 7 S. C, 202. 

The judgment debtor has the right to have examination conducted in his own 
County. — Bank v. Northrop, 19 S. C, 473. But he may waive this right by sub- 
mitting his own written statement. — lb. 

It is no ground for dismissing the proceeding that the copy-order to appear 
before referee, served on the defendant, was without seal of Court to Clerk's cer- 
tificate. — Billing V. Foster, 21 S. C, 334. 

Upon proper proceeding heretinder the Court may order money of defendant, 
in its hands, to be applied to execution against him returned unsatisfied. — Mc- 
Daniel v. Stokes, ig S. C, 60. 

Although application for appointment of a receiver was made under subdivision 




i68 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

~~~-^~V-"~-^ I, the appointment might be made under subdivision 2, if the facts justified it, 

although no execution had issued. — Green v. Bookhart, 19 S. C, 466. 

When defendant debtor, residing in another County, appears in the Court of 

another County, where the judgment was rendered, and, without objection, was 

examined, and a receiver was appointed, he waives his right to examination in his 

own County and to object to appointment of receiver. — 7b. 
Any debtor a n-\n \ r, \ • • r 

to execution oec. Old. Alter the issuing of execution against property, 

debtor may pay • 1 1 1 , • 1 

his debt to any person indebted to the judgment debtor may pay to the 
^" — — ■ Sheriff the amount of his debt, or so much thereof as shall be 
§319.' ''necessary to satisfy the execution; and the Sheriff's receipt 

shall be a sufficient discharge for the amount so paid. 

Such payment, with instructions to apply to a junior execution against creditor 
which had lost its active energy, was a valid payment and discharged the debtor 
therefor. — Isbell v. Dunlap, 17 S. C, 581. 

This applies only to claims which have not been reduced to judgment. — Gray v. 
Putnam, 51 S. C, 97; 28 S. E., 149. 

of^ debto"rf' o" Sec. 314. After the issuing or return of an execution against 
tor^^^'o"f those property of the judgment debtor, or of any one of several 
tjldonlinrto debtors in the same judgment, and upon an affidavit that any 

^^ person or corporation has property of such judgment debtor, 

lb., § 320. ^j. -g indebted to him in an amount exceeding ten dollars, the 
Judge may, by an order, require such person or corporation, 
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 
312, may be taken upon the return of an execution unsatisfied 
issued upon a judgment recovered in an action against joint 
debtors, ip 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 maintainable in the like man- 
ner and to the like effect. These provisions shall apply to all 
proceedings and actions now pending, and not actually termi- 
nated by any final judgment or decree. 
qi}h^ed^to"tes- ^^^' ^^^- Witncsscs may be required- to appear and testify 

^^ on any proceedings under this Chapter, in the same manner as 

lb., § 321. upon the trial of an issue. 

party ""or'wh^ ^^^- ^^^- ^hc party or witness may be required to attend 

"end" *° "'" before the Judge, or before a referee appointed by the Court or 

jj,_^ § 322. J^idge. If before a referee, the examination shall be taken by 

the referee, and certified to the Judge. All examinations and 



OF SOUTH CAROLINA. 169 

A. D. 1902. 



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. 

Where the same referee is appointed in separate cases of supplementary pro- 
ceedings by two creditors against the same defendant, the two cases may be heard 
together. — Kennesaw Mills Co. v. Walker, 19 S. C, 104. 

A referee, no matter how limited his power, must sometimes necessarily decide 
questions in making the examination. — lb. 

A Circuit Judge may pass the final order in such proceedings at his chambers 
in a County other than that in which the defendant resides, the examination having 

been held in his County. — lb. 

. What proper- 

Sec. 317. The Judsre mav order any property of the judg-ty may be or- 

" '.,,,., dared to be ap- 

ment debtor, not exempt from execution, m the hands either plied to the ex- 

. ecution. 

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. 

After return of execution unsatisfied, the Court may, upon hearing, order defend- 
ant's property in its hands to be so applied. — McDaniel v. Stokes, 19 S. C, 60; 
Bank v. Northrop, 19 S. C, 473. Or money due the defendant to be so applied. — 
Rhodes V. Casey, 20 S. C, 491. 

But cannot require debtor's sureties to give up property pledged to them as 
indemnity. — Cheatham v. Seawright, 30 S. C, loi; 8 S. E., 526. Nor require inno- 
cent assignee of a judgment, who bought after order to show cause and enjoining 
assignment had been passed but not served. — Robertson v. Segler, 24 S. C, 387. 

The Judge may enforce his order for such application of property by attach- 
ment for contempt. — Kennesaw Co. v. Walker, 19 S. C, 104. 

But such attachments should not issue until party has had an opportunity to 
answer. — lb. 

A fee earned in litigation ended more than sixty days before such order was 
made against the defendant, was not an earning of the debtor's so exempt. — Bank 
V. Northrop, 19 S. C, 473. 

Where there are several judgment plaintiffs the property should go to those 
alone who move hereunder. — Rhodes v. Casey, 20 S. C, 491. 

Sec. 318. The Judge may also, by order, appoint a receiver appoint; receiv- 

r 1 r- 1 • 1 i 1 • 1 ^'" ^^'^ prohibit 

of the property of the judgment debtor, m the same manner, t r a n s f er of 
and with the like authority, as if appointment was made by the ^ 

1870 XIV § 

Court, according to Section 265. But before the appointment 324. 
of such receiver, the Judge shall ascertain, if practicable, by the 
oath of the party or otherwise, whether any other supplemen- 
tary proceedings are pending against the judgment debtor, 
and if such proceedings are so pending, the plaintiff therein 
shall have notice to appear before him, and shall likewise have 
notice of all subsequent proceedings in relation to said receiver- 
ship. No more than one receiver of the property of a judgment 
debtor shall be appointed. The Judge may also, by order, for- 
bid a transfer or other disposition of the property of the judg- 




CODE OF CIVIL PROCEDURE 



ment debtor not exempt from execution, and any interference 
therewith. 

Whenever the Judge shall grant an order for the appoint- 
ment 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 re- 
cord 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 filing 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 direction and 
control of the Court in which the judgment was obtained, or 
docketed, 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 afifected 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. 

Where judgment debtor, residing in another County, appeared without objec- 
tion, and was examined in the County where the judgment was entered, and a 
receiver was then appointed, he cannot afterwards object to such appointment. — 
Green v. Bookhart, 19 S. C, 466. 

On hearing referee's report, Judge may appoint a receiver, without notice having 
been given therefor. — Billing v. Foster, 21 S. C, 334- And it will be assumed, 
in absence of testimony to the contrary, that the Judge did his duty and ascer- 
tained that no other supplementary proceedings were then pending against defend- 
ant. — lb. And a receiver may be appointed although it appears that there is 
sufficient property in debtor's hands to satisfy the judgment. — lb. It is better 
practice to require bond of receiver so appointed. — lb. A receiver should not be 
authorized to sell choses in action, unless they represent desperate debts. — lb. He 
should, after paying the debts, return to the debtor all property remaining in his 
hands. — lb. 

A creditor who obtains his judgment after the appointment of a receiver in a 
former proceeding is entitled to have an examination of the debtor; but not to 
have appointment of another receiver.— Sparks v. Davis, 25 S. C, 381. 

Where the execution is returned unsatisfied and 'the debtor has property which 
he refuses to apply to the debt, the creditor may obtain the appointment of a re- 
ceiver to recover such property, however slight its value may be. — Burdett v. 
McAllister, 42 S. C, 352; 20 S. E., 86. Practice and costs in such proceedings. — lb. 

Proceedings ggg^ 3^9^ jf j|- appear that a person or corporation alleged to 

upon claim 01 rir ir r o 

another^^ party ]^a.ve property of the judgment debtor, or, indebted to him, 
on denial of ^^jg^jj^g ^n interest in the property adverse to him, or denies the 

indebtedness f f J 

to judgment (^gl^^ such interest or debt shall be recoverable only in an 

debtor. ' -^ 

lb., § 326. 



OF SOUTH CAROLINA. 171 

A. D. 1902. 



action against such person or corporation by the receiver; but '"^''^v ' 
the Judge may, by order, forbid a transfer or other disposition 
of such property or interest, 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. 

One not a party to the proceedings, but indebted to the defendant in execution, 
may be enjoined from paying the debt to anyone but the receiver. — Globe Phos. Co. 
V. Pinson, 52 S. C, 185; 29 S. E., 549. 

Sec. 320. The Judge may, in his discretion, order a reference j^^te"^"'^^ ^^ 
to a referee agreed upon by the parties, or appointed by him, j^_^ § 3,6. 
to report the evidence or the facts, and may, in his discretion, 
appoint such referee in the first order, at any time. 

Sec. 321. The Judge may allow to the judgment creditor, ceedfn|.°^ ''''°' 
or to any party so examined, whether a party to the action or "isro, xiv., § 
not, witness' fees and disbursements, and a fixed sum in addi- ^^ ' 
tion, not exceeding thirty dollars, as costs. 

Fee to plaintiff's attorney not allowed. — Billing v. Foster, 21 S. C, 334. And 
a fixed sum as costs must be fixed by the Judge and not by the Clerk of the Court. 
—Ih. 

A party is allowed not only the sum provided by this Section, but also other 
costs due the officers of Court, and the attorneys, for their services. — Dauntless 
Co. v. Davis, 24 S. C, 536. Costs of $10 for motion for appointment of receiver 
cannot be taxed, without order of Court allowing same. — lb. 

No error to allow sureties of debtor their fees and disbursements as witnesses 
and also a fixed sum of ten dollars. — Cheatham v. Seawright, 30 S. C, loi ; 8 
S. E., 526. 

But their payment cannot be enforced by judgment and execution; but must be 
enforced under next Section.— Jb. 

The costs being statutory, a direction as to their payment falls with the reversal 
of the order on its merits. — Burdett v. McAllister, 42 S. C, 352; 20 S. E., 86. 

Sec. 322. 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 com- 
mitted 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. 

This power of the Court to enforce its own orders by attachment for contempt 
is not in violation of the declaration of rights in Constitution of State. — Kenriesaw 
Co. V. Walker,. 19 S. C, 104. 

But such attachment should not issue until the party has had an opportunity 
to answer. — Earle v. Stokes, 5 S. C, 336; Kennesaw Co. v. Walker, 19 S. C, 104. 
The debtor's only relief, therefore, is appeal, not habeas corpus. — In re Knox, 5 
S. C, 71. 

The payment of all amounts ordered to be paid under the preceding Section 
must be enforced as here prescribed, and not by judgment and execution. — Cheatham 
V. Seawright, 30 S. C, loi; 8 S. E., 526. 



1/2 CODE OF CIVIL PROCEDURE 

A. D. 190-2. 

'^ TITLE X. 

OF THE COSTS IX CIVIL ACTIONS. 



Sec. 

323. Costs, except in chancery cases, 

to follow event of action ; 
proviso ; chancery costs. 

324. Officers may take out execution 

for costs. 



Sec. 

330. Costs in action by or against an 
executor or administrator, 
trustee of an express trust, 
or a person expressly au- 
thorized by statute to sue. 



325. Interest on verdict or report, i 331. Costs on review of a decision of 

when allowed. an inferior Court in a spe- 

326. Costs, how to be inserted in : cial proceeding. 

judgment ; adjustment of in- j 332. Costs in an action by the State, 
terlocutory costs I 333. The like. 

327. Costs on postponement of trial, j 334. Costs against assignee after ac- 
tion brought, of cause of ac- 
tion. 



328. Costs on a motion. 

329. Costs against an infant plaintiff. 



in*^ Chan c^e^r^^ SectioiL 323. Ill cverv civil action commenced or pro.secuted in 
evlnV°of°^'ac- ^^^ Coufts o£ rccord of this State, (except cases in chancery,) 
tion. Proviso, ^j^g attomevs of plaintiff or defendant shall be entitled to re- 
cover costs and disbursements of the adverse party as pre- 
scribed in Chapter CIII. of the Civil Code of 1902, such costs 
to be allowed as of course to the attorneys of plaintiff or de- 
fendant, and all officers of the Court thereto entitled, accord- 
ingly 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 im- 
prisonment, libel, slander, malicious prosecution, criminal con- 
versation, or seduction, the amount recovered shall be less than 
one hundred dollars, the total amount of costs and disburse- 
ments shall not exceed the amount so recovered in the action, 
co^t^ ^ " " ^ ''^' In cases in chancery the same rule as to costs shall prevail, 
unless otherwise ordered by the Court. 

A co-defendant is entitled to costs as the prevailing party on appeal. — Murray 
v. Aiken M'f'g Co., 39 S. C, 414; 18 S. E., 5. The right to disbursements was not 
included in the repealing Act of 1892. — Durham Fert. Co. v. Glenn, 48 S. C, 494; 
26 S. E., 796. 

Costs cannot be allowed without statutory warrant. — State v. Treasurer, 10 
S. C, 41; Scott v. Alexander, zj S. C, 15; 2 S. E., 706; Sease v. Dobson, 36 S. 
C, 554; 15 S. E., 703. The right to costs is purely statutory. — Kershaw Co. v. 
Richland County, 61 S. C, 75; 29 S. E., 263; Whittle v. Saluda Co., 56 S. C, 506; 
35 S. E., 203; Green v. Anderson Co., 56 S. C, 411; 34 S. E., 691; Hightower v. 
Bamberg Co., 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, 44s; 19 S. 
E., 74; Thompson v. Farr, i Rich. L., 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. ^larshall, 28 S. C, 
559; 6 S. E., 564. 

Costs are not allowed in special proceedings; only in actions. — Columbia Co. v. 



OF SOUTH CAROLINA. 173 

— A. D. 1902. 



Columbia, 4 S. C, 402. Exception appeal. — Sease v. Dobson, 36 S. C, 534; 15 
S. E., 703. 

Where all issues in a pending cause have been submitted to arbitrators, they 
may award who shall pay 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 verdict gives to each party a portion 
of the property and damages, each is entitled to costs. — Stoney v. Bailey, 28 S. C, 
156; s 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. — Ih. 

The payment of costs in cases in chancery is within the discretion of the Court. — - 
Mars v. Connor, 4 S. C, 70; Nimmons v. Stewart, 13 S. C, 445; Cooke v. Pen- 
nington, 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; Pearson 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; Gary 
V. Barnwell, 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. Hutchinson, 40 S. C, 402; 19 S. E., 9; Younger v. Massey, 41 
S. C, so; 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 disturbed by the Supreme Court. — Mars v. Connor, 9 S. C, 79; 
Bratton v. Massey, iS S. C, 555; Covar v. Sallat, 22 S. C, 265; Gravely v. Gravely, 
25 S. C, 2; Finch v. Finch, 28 S. C, 165; 5 S. E., 348; McAfee, v. McAfee, 28 
S. C, 518; 5 S. E., 480; Bean v. Bean, 28 S. C, 607; 5 S. E., 527; 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, 116; 7 S. E., 49; Miller v. Stork, 29 S. C, 325; 7 S. E., 501; 
Alexander v. Maroney, 30 S. C, 336; 9 S. E., 266; Anderson v. Butler, 31 S. C, 
184; 9 S. E., 797; Bredenburg v. Landrum, 32 S. C, 216; 10 S. E., 556; Young v. 
Edwards, 33 S. C, 437; Dendy v. Waite, 36 S. C, 569; 15 S. E., 712. The Judge 
may in such cases, preparatory to their insertion in his decree, order the Clerk 
to estimate the costs. — Dial v. Tappan, 20 S. C, 167. 

But an appeal alleging error in awarding costs against parties not liable in law 
therefor will be determined by the Supreme Court. — Scott v. Alexander, 20 S. C, 
120. When a board of aldermen have the one issue involved in a case, charging 
them with excess of authority, decided against them, they are liable for costs. — lb. 

But plaintiff should not be required to pay costs incurred in contest between co- 
defendants. — McCrady v. Jones, 36 S. C, 138; 15 S. E., 430. And a pretended 
purchaser who resists action for foreclosure 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 the defendant 
to pay the expenses, 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 incurred in a contest between co- 
defendants.- — McCrady v. Jones, 36 S. C, 138. Pretended 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. Alex- 
ander, 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 actions 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. — Nim- 
mons 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 unen- 




CODE OF CR'IL PROCEDURE 



cumbered 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; Billing 
V. Foster, 21 S. C, 340; Dauntless Co. v. Davis, 24 S. C, 539. An appeal alleging 
error of law maj- be taken from an order made upon the sole question of costs in 
a chancery case. — Scott v. Alexander, 23 S. C, 120. But the Supreme Court has 
no original jiu-isdiction as to costs. — Huff v. Watkins, 20 S. C, 479. 
See also note to Sec. 3098 Civil Code, as to costs on appeal. 

taSpMt Sfe^ ^®^- ^^^' ^^'henever a case may be settled or determined 

costl'°'' ^"""at the mutual costs of parties, or discontinued or settled by 

1 s 7 8, xvi.i plaintiff, or the judgment shall be for defendant, or the execu- 

^^- tion against the defendant shall be returned iiiiUa 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. 

xlrdilt^lf it ^®^- '^^^^ ^Vhen the judgment is for the recovery of money, 

fowed.''^'^'' ^^" interest from the time of the verdict or report, until judgment 

1870, xi\'., § ^s finally entered, shall be computed by the Clerk, and added 

^^- to the costs of the party entitled thereto. 

Stegall V. Bolt, 11 S. C, 552. 

be^°inl4rteT in ^ec. 326. The Clerk shall insert in the entry of judgment, 
ju^t^nTof !n- o" t^^^ application of the prevailing party, upon five days' 
co^s[s_^ ° '^ '^''°''^ notice to the other, except when the attorneys reside in the 
jiy^ I 337_ same city, village, or town, and then, upon two days' notice, 
the sum of the allowances for costs and disbursements, as pro- 
vided by law, the necessary disbursements, including the fees 
of officers allowed by law, the fees of witnesses, the reasonable 
compensation of commissioners 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. 

Whenever it shall be necessary to adjust costs in any inter- 
locutory proceeding 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 de- 
cided or pending, or in such other manner as the Judge or 
Court may direct. 

Taxation of costs must await final judgment when Circuit decree has been re- 
versed. — Addison v. Duncan, 35 S. C, 165; 14 S. E., 305. Costs and disburse- 
ments should be inserted in the judgment. — Lewis v. Brown, 16 S. C, 58. Fees 
of officers of Court and witnesses should be taxed to them as costs, if not paid 
by the party. — Lewis v. Brown, 16 S. C, 58; Cureton v. Westfield, 24 S. C, 457; 
Dauntless Co. v. Davis, 24 S. C, 536. But if so paid by him they are considered 
as disbursements by the prevailing partj'. — Lewis v. Brown, 16 S. C, 58; Cureton 
V. Westfield, 24 S. C, 457; Dauntless Co. v. Davis, 24 S. C, 536. Disbursements 
shotild be taxed under fee bill of force at time incurred. — Lewis v. Brown, 16 



OF SOUTH CAROLINA. 175 

— — A. D. 1902. 



S. C, 58. Expenses of keeping property taken in claim and delivery is properly 
a disbursement to be taxed by Clerk. — Addison v. Sugette, 60 S. C, 58; 39 S. E., 
229; Railway Co. v. Sheppard, 42 S. C, 543; 20 S. E., 481. Disbursements do 
not bear interest before taxation. — Addison v. Sugette, 60 S. C, 58; 38 S. E., 229. 
The right to disbursements was not affected by the repeal of the Act allowing 
attorney's costs.- — Durham Fertilizer Co. v. Glenn, 48 S. C, 494; 26 S. E., 796. 
What are disbursements. — lb. Printing arguments for Supreme Court. — McElwee 
V. Kennedy, S9 S. C, 33S; 37 S. E., 920; Finley v. Cudd, 45 S. C, 87; 22 S. E., 
753. Disbursements should be verified by affidavit. — lb.; Cureton v. Westfield, 24 
S. C, 457. Points and authorities in Supreme Court are taxable as disburse- 
ments.— Elder V. R. R., IS S. C, 610. But copying of case for printer is not so 
taxable. — lb. 

Costs are allowed in lieu of damages by expense in carrying on the litigation.— 
Loeb V. Mann, 39 S. C, 469; 18 S. E., 2. Though they are to be inserted in the 
judgment as matter of course, it is not error to direct in the decree that the 
Clerk shall enter them. — Johnson v. Masters, 49 S. C, 525; 27 S. E., 474. 

This Section does not require that the costs and disbursements shall be taxed 
by the Clerk exclusively; but the Court in equity cases has control of the question 
of costs. — Dial v. Tappan, 20 S. C, 167. 

And it does not prevent taxation by the Master. — lb. But erroneous taxation 
directed by the Court will be reviewed by the Supreme Court. — Dilling v. Foster, 
21 S. C, 334. 

Unless the costs have been taxed by the Clerk and a motion to correct the taxa- 
tion has been decided in the Court below, the Supreme Court will not consider 
any question as to same. — Bradley v. Rodlesperger, 6 S. C, 291; Dilling v. Foster, 
21 S. C, 334; Cooke V. Poole, 26 S. C, 321; 2 S. E., 609; Hecht v. Friesleben, 28 
S. C, 181; 5 S. E., 475 ; Armstrong v. Friesleben, 28 S. C, 605; 5 S. E., 479. 

But when the taxation has been heard and confirmed by Circuit Court, appeal 
lies to Supreme Court. — Stegall v. Bolt, 11 S. C, 522. But such order of con- 
firmation is not a final judgment that allows previous orders to be reviewed. — Huff- 
man V. Stork, 25 S. C, 267. 

Notice of taxation may be given by Clerk as well as by the attorneys. — Cureton 
V. Westfield, 24 S. C, 457. 

The fees cf the officers and witnesses are in theory the disbursements paid by 
prevailing party; but it is not error to tax them as due to them. — Lewis v. Brown, 
16 S. C, 58. And the costs of the officers need not be sworn to or certified by 
them. — Cureton v. Westfield, 24 S. C, 451. 

Production of subpoena writ is not necessary to entitle witness to tax his fees. — lb. 

Disbursements must be taxed under the fee bill in force at time incurred. — lb. 

But they must be verified or not allowed. — Cureton v. Westfield, 24 S. C, 457. 

"A rule of Court" means a pre-existing rule of general operation, and not a 
mere order pro hoc vice. — Scott v. Alexander, 27 S. C, 15; 2 S. E., 706. 

The rules of Court require printing of papers only in the Supreme Court; so 
that printing of papers in the Circuit Court cannot be taxed. — lb. 

Fees of stenographers cannot be taxed. — lb. 



Costs on post- 



Sec. 327. When an application shall be made to a Court or p o n ement of 



trial. 



referee to postpone a trial, the payment to the adverse party 
of a sum not exceeding ten dollars, besides the fees of wit- 
nesses, may be imposed, as the condition of granting the post- 
ponement. 

Sec. 328. Costs may be allowed on a motion, in the discre- ^^°^^ °" ^ ™°' 
tion of the Court or Judge, not exceeding ten dollars, and may ~J^^Y^. 
be absolute or directed to abide the event of the action. 

Such costs are discretionary with the Court and cannot be taxed without order 
allowing them. — Dauntless Co. v. Davis, 24 S. C, 536. 

Appeal from refusal of Clerk to tax costs is not such motion. — State v. Marshall, 
28 S. C, SS9; 6 S. E., 564. 




CODE OF CIVIL PROCEDURE 



Sec. 329. When costs and disbursements are adjudged 

Cost against agaiust an infant plaintiff, the guardian by whom he appeared 

plai ntiff. in the action shall be responsible therefor, and payment thereof 

lb., § 342. j^ay be enforced by attachment. 

Costs in ac- ggc. 330. In an action prosecuted or defended by an execu- 

tionbyor J^ ■' 

against an exe- |.qj- administrator, trustee of an express trust, or a person ex- 

cutor or ad- ' ' . 

minis trator, presslv authorized by Statute, costs shall be recovered, as in an 

trustee of an t^ - -' ' • i • 

express trust, action by and against a person prosecuting or defending in his 

or a person ex- j a l r o <-=> 

pressiy author- q^^j-j risrht ; but such costs shall be chargeable only upon or 

ized by statute fe ' o ./ x 

to sue. collected of the estate, fund, or party represented, unless the 

^^1870, XIV., § Court shall direct the same to be paid by the plaintiff or de- 
fendant personally, for mismanagement or bad faith in such 
action or defence. 

The Court has no right to require an administrator to pay costs of an action, 
personally, unless he has been guilty of mismanagement or bad faith in that action. 
— Clark V. Wright, 26 S. C, 196; i S. E., 814. And the Court should charge the 
assigned estate with costs where the assignee had not made himself so liable "for 
mismanagement or bad faith in the conduct of the business." — Akers v. Rowan, 
36 S. C, 87; IS S. E., 30. 

A committee held liable for the costs of a suit maliciously prosecuted by him 
without cause. — Ashley v. Holman, 44 S. C, 14S; 21 S. E., 624. 

Costs on re- gee. 331. Whcu the decision of a Court of inferior jurisdic- 

view of a de- "^ 

cision of an in- ^Jqj-^ {^ ^ Special proceeding, including appeals from Probate 
a special pro- Courts, shall bc brought before the Circuit Court for review, 

ceedmg. ' ° 

j^ g^^ — 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 provided by law. 

A proceeding before Master under the direct tax refunding Act of 1891 was not 
a proceeding in an inferior Court, and no costs were taxable thereon. — Campbell 
V. Sanders, 42 S. C, 522; 20 S. E., 415. 

Costs in an gee. 332. In all civil actions, prosecuted in the name of the 

action by the ^ 

State. State, by an officer duly authorized for that pur- 

ib., § 345. pQsg^ the State shall be liable for costs 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. 
The like- Scc. 333. In an action prosecuted in the name of the State, 

lb., § 346. fQj. thg recovery of money or property, or to establish a right 
of claim for the benefit of any County, city, town, village, cor- 
poration, 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. 



OF SOUTH CAROLINA. 




Sec. 334, In actions in which the cause of action shall, by 
assignment after the commencement of the action, or in any as^i°nee^^after 
other manner, become the property of a person not a party to of cause of^'^*- 

the action, such person shall be liable for the costs and dis-*_^: 

bursements in the same manner as if he were a party, and pay- ^'^■' § ^^'^■ 
ment thereof may be enforced by attachment. 

Costs against a person not party to the action cannot be taxed by the Clerk; 
they can only be enforced by attachment on rule to show cause. — State v. Marshall, 
28 S. C, 559; 6 S. E., 564. 



TITLE XI. 

OF APPEALS IN CIVIL ACTIONS. 

Chapter I. Appeals in General. 
Chapter II. Appeals to the Supreme Court. 
Chapter III. Appeal to the Circuit Court from an Inferior 
Court. 



CHAPTER I. 

Appeals in General. 



Sec. 

335. Mode of reviewing judgment or 

order. 

336. Orders made out of Court, how 

vacated or modified. 

337. Who may appeal. 

338. Parties, how designated on ap- 

peal. 

339. Appeal, how made. 



Sec. 

340. Clerk to transmit papers to Ap- 

pellate Court. 

341. Intermediate orders affecting the 

judgment may be reviewed 
on the appeal from the judg- 
ment. 

342. Judgment on appeal. 

343. How and when printing, etc., 

dispensed with. 



Mode of re- 
viewing judg- 



Section 335. The only mode of reviewing a judgment or 
order in a civil or criminal action, shall be that prescribed by ment o1r oVder. 
this Title. 

No appeal lies from a verdict of a jury. — Winsmith v. Walker, 5 S. C, 473; 
Bank v. Gary, 14 S. C, 572. Nor from an order made out of Court, without 
notice to the adverse party. — Hill v. Watson, 10 S. C, 268. Nor from a judgment 
by default. — Washington v. Hesse, 56 S. C, 28; 33 S. E., 787. 

Sec. 336. 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. 

Sec. 337. Any party aggrieved may appeal in the cases pre- 
scribed in this Title. 

Special proceedings are included by the word "cases." — Sease v. Dobson, 36 
S. C, 554; 15 S. E., 703. 

12.— C. P. 



1870, XIV., § 



Orders made 
out of Court, 
how vacated or 
modified. 

lb., § 350. 



Who may ap- 
peal. 

lb., § 351. 



178 CODE OF CR'IL PROCEDURE 

A. D. 1902. 

^"■^■"^^^ Sec. 338. The party appealing shall be known as the appel- 
de^^tld ^o n -^^^' ^^^ ^^^ adverse party as the respondent. But the title of 

^PP^- the action shall not be changed in consequence of the appeal. 

lb., § 3o2. ggg_ 339_ i^jj x^ appeal must be made by the service of a 
made.^^^" ^°'' notice, in writing, on the adverse party or his attorney, and, in 
26., § 353; the cases provided by law, on the Judge or Magistrate, or other 
ilso', "^^xvil! 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.) AA'hen 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 
perfect the appeal or to stay proceedings, the Court may per- 
mit an amendment on such terms as may be just. 

Failure to serve exceptions in time, when relieved. — Crosswell v. Connecticut 
Indemnity Ass'n, 49 S. C, 374: 27 S. E., 388. 

A notice of appeal must be in writing. — Abney v. Cole, 30 S. C, 607; 10 S. E., 
390; Barnwell v. Marion, 56 S. C, 54; 33 S. E., 719. And should be from the 
judgment, instead of the mere order for judgment. — Boylston v. Crews, 2 S. C, 
422; Grayson v. Harris, 37 S. C, 606; 16 S. E., 154. 

Sec. 340. If the appellant shall not, within twentv davs after 

C 1 e r k t o _ _ . . . " " . 

transmit p a - his appeal is perfected, cause a certified copv of the notice of 

pars to Appel- '■ '■ f ' ■^- 

late Court. appeal and of the judgment roll, or, if the appeal be from an 
rsro, XIV., 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 
recover the expenses thereof, as a disbursement on such appeal, 
in case the judgment or order appealed from shall be in whole 
or in part affirmed ; and this provision 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. 
Intermediate ^^^" ^^^' ^'p^^ ^" appeal from a judgment, the Court may, 

9 r ders affect- revicw auv intermediate order involving the merits and neces- 

ing the judg- - *=> 

ment mav be garilv affecting the judgment. 

r e v 1 ewed on - o j o 

the appeal from See cases in note to Sac. 11. 

'- Sec. 342. Upon an appeal from a iudgment or order, the 

1870, XIV., § ^ ,, „ ^ ^^ „ •,..,., 

355. Appellate Court may reverse, arhrm, or modity the 'judgment 

Judgment on Or Order appealed from, in the respect mentioned in the notice 

appeal. ,, . , . , 

; : of appeal, and as to any or all ot the parties, and may, it neces- 
sary or proper, order a new trial, ^^'hen the judgment is re- 
versed or modified, the Appellate Court may make complete 
restitution of all property and rights lost by the erroneous 
judgment. 



OF SOUTH CAROLINA. 



179 



A. D. 1902. 



In an action at law the Supreme Court cannot modify a judgment of the Court "~~-^~v'~-^ 
below; it must either reverse or affirm.- — Hosford v. Winn, 22 S. C, 313. But it 
may direct the respondent to enter a remittitur on the judgment below, and grant 
a new trial upon his failure to so do. — Cave v. Ins. Co., 57 S. C, 347; 35 S. E., 580. 

Sec. 343. No rule or order of any Court or Judge shall re- How and 

•' JO when printing, 

quire the printing of any brief, report, or other paper connected ^tc- dispensed 
with appeals by any party to an action or proceeding, who 
makes an affidavit, to be filed with the Clerk of the Supreme s™- 
Court, that he or she is unable to pay for such printing. 

Where typewritten copies are substituted for printed, the cost of having same 
made may be taxed as a disbursement. — Finley v. Cudd, 45 S. C, 87; 22 S. E., 753. 



1873, XV. 



CHAPTER II. 

Appeals to the Supreme Court. 



Sec. 

344. Appeal, in what cases. 

345. When appeal may be taken ; ap- 

pellant to give notice ; case, 
amendments ; docketing ap- 
peal ; waiver of appeal ; 
statement may be agreed 
upon. 

346. When notice of appeal may stay 

execution ; undertaking on 
appeal. 

347. New undertaking in case sure- 

ties insolvent. 

348. Extending time for certain steps 

in appeals. 

349. Appeal, how perfected. 

350. If judgment be to deliver docu- 

ment or personal property, 
it must be deposited or se- 
curity given. 



Sec. 

351. If judgment be to execute con- 

veyance, it must be executed 
and deposited. 

352. Security where judgment is to 

deliver real property, or for 
a sale of mortgaged prem- 
ises. 

353. Stay of proceedings upon se- 

curity being given. 

354. Undertakings may be in one in- 

strument or several. 

355. Security to be approved and 

sureties to justify. 

356. Perishable property may be sold, 

notwithstanding appeal. 

357. Undertaking must be filed. 



Section 344. An appeal may be taken to the Supreme Court ^i^f^^PP^f^'s ' "^ 



in the cases mentioned in Section ii. When the Circuit Court 
shall render judgment upon a verdict taken, subject to the § soS. 
opinion of the Court, the questions or conclusions of law, to- 
gether Avith 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, 



1870, XIV. 



368 
698 
356. 



i8o CODE OF CIVIL PROCEDURE 

A. D, 1902. — 

^"■'^"'^ ' such Statement shall be filed with him, and be deemed a part of 
such return. 
may^be fikeni ^^^- ^45. I. In cvcry appeal to the Supreme Court from an 
gi'vl"notice°o^der, decree or judgment granted or rendered at Chambers 
ments;' d™dfet- ^^o^^ which an appeal may be taken to the Supreme Court, the 
'^five/' P/ ^api appellant or his attorney shall, within ten days after written 
mliy'be^l^^led^'^^^'^s that such ordcr has been granted, or decree or judgment 

"P°"" rendered, give notice to the opposite party or his attorney of 

iJo! \ V i^".' his intention to appeal ; and in all other appeals to the Supreme 
^^^' 1^1,' x\^"', Court the appellant or his attorney shall, within ten days after 
1880, XVII, |-}^g rising of the Circuit Court, give like notice of his intention 
to appeal to the opposite party or his attorney, and within 
inl^notfce^^of thirty days after such notice the appellant or his attorney shall 
rion^^^ '" ^^^^' prepare a case with exceptions and serve them on the opposite 

In other ap- P'^^'^y or his attorney. The respondent, within ten days after 
peals. service of such case, may propose any objection thereto or 

ing"cai°e^ wiS alteration thereof, and the case shall be settled in such mode as 
exceptions. j^^y j-,g provided in the rules of the Supreme Court. 
pJs'^l ^amend- 3- ^hc casc sliall be placed on the docket of the Supreme 
ments. Court at such time as may be fixed by the rules of the Supreme 

Settlement of (^/-inrf 
case. v_uuiL. 

4. 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 
339 and 349. 
1875, XV., 862. ^^ Upou 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 re- 
quired by law, he shall place said cause on the docket for a 
hearing by said Court. 

The time within which to appeal does not commence to run until the order ap- 
pealed from is filed. — Archer v. Long, 46 S. C, 292; 24 S. C, 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 entered. — Appleby v. S. C. & G. Ry. Co., 
58 S. C, 33; 36 S. E., 109. Mailing on the tenth day is sufficient service. — Walters 
V. Laurens Cotton Mill, 53 S. C, 155; 31 S. E., no. 

The time for appeal runs from written notice of the judgirftnt at chambers, 
notwithstanding actual notice previously had. — Lake v. Moore, 12 S. C, 564. 



OF SOUTH CAROLINA. i8i 

^ — A. D. 1902. 



Notice of appeal within ten daj's 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. R. R. 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 fail to serve his 
case within time. — lb.; McElwee v. 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, 581. 

Nor to extend the time within which to serve the case. — Scurry v. Coleman, 14 
S. C, 166. 

Notice of appeal within ten days from notice of filing a decree at chambers, and 
service of case within thirty days thereafter, is a compliance with the law. — God- 
bold 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 ease and embraced 
in his exceptions; but respondeni; may rely upon other and any grounds to sustain 
the judgment. — Southern Co. v. Thew, 5 S. C, 5; 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. Thompson, 6 S. C, 279; State v. Satterwhite, 20 S. C, 538; McPherson v. Mc- 
Pherson, 21 S. C, 267; State v. Jenkins, 21 S. C, 596. 

The exceptions must be served within the required time. — Bell v. Wheeler, 3 
S. C, 104; Weatherly v. Jackson, 3 S. C, 228; Spratt v. Pierson, 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, 15 S. 
C, 600. 

A "case" is a clear and intelligible statement of all the proceedings on the trial 
important to a review 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 am.endments 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 Supreme 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 
en proper motion before the submission or hearing; it is too late after hearing 
begins. — Sullivan v. Thomas, 3 S. C, 548; Redding v. R. R. Co., 5 S. C, 67; 
Green v. R. R. 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 
V. 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 the Rule i 
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. R. R. 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- 



i82 CODE OF CIVIL PROCEDURE 

A. D. 1902. 



"~-"-v-"~^ Where appellant fails to appear on regular call of case on the docket, the 

appeal will be dismissed, on motion, for -nant of prosecution. — Yarn v. Williams, 
30 S. C, 608; 10 S. E., 390. 

Where waiver and order of dismissal bj^ 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., 335. 

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 days, under Rule 49 
of that Court.— Chisolm v. Providence Co., 35 S. C, 599; 14 S. E., 349, 4S0. 

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 return to the 
Supreme Court has not been filed; and if it hsis been filed, in the Supreme Court. — 
State v. Johnson, 52 S. C, 505; 30 S. C, 592. The jurisdiction of the latter 
Court not attaching until the filing of the return. — lb.; Pickens v. Quillian, 31 
S. C, 602; 9 S. E., 743; Pelzer M'f'g Co. v. Celey, 40 S. C, 430; 18 S. E., 790. 

As to form of exceptions, see Rules of Court. 

of^''appeaf°mav Sec. 346. A noticc of appeal from a judgment directing the 
unlemkhiTon P^y"^^^^^ °*" monev shall not stay the execution of the judg- 

^pp^^^- ment. unless the presiding Judge before whom the judgment 

360^-'' i87f,^xv.! was obtained shall grant a stay of execution; but, after notice 
^^- of appeal, the plaintiff shall not enforce a sale of property 

without giving an undertaking or bond to the defendant, with 
two good sureties, in double the appraised value of the pro- 
perty, or double the amount of the judgment, conditioned to 
pav 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 de- 
fendant's property if the defendant do enter into an undertak- 
ing, with good sureties, in double the appraised value of the 
said property, or the amount of the judgment, to pay the judg- 
ment with legal interest, and all costs and damages which the 
plaintiff' may sustain by reason of the appeal, or produce the 
propertv levied on, and submit to the sale in case the judgment 
be confirmed. 

Notice of appeal from decree directing payment of money does not stay execu- 
tion, unless a stay is granted. — Pelzer M'f'g Co. v. Celey, 40 S. C, 43°; 18 S. 
, E., 790. 

The stay of execution is discretionary with the Judge; 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. Gil- 
reath, 16 S. C, 100. 

New under- gec. 347. Whenever it shall be made satisfactorilv to appear 

taking in case ^ ' , . 

sureties insoi- to the Court that since the execution ot the undertakmg the 

vent. 1 1 J 

— ^, ^^^, ■ sureties have become insolvent, the Court mav, bv rule or order, 
1870, XIV., § _, , ' ' , 

360. require the appellant to execute, file, and serve a new under- 

taking as above ; and, in case of neglect to execute such under- 
taking within twenty days after the service of a copy of the 
rule or order requiring such new undertaking, the appeal 



OF SOUTH CAROLINA. 




may, on motion to the Court, be dismissed with costs. When- 
ever it shall be necessary for a party to any action or proceed- 
ing 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 proceed- 
ing. 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 pursuant to such 
order, shall be of the same effect as if made with such officer. 

Sec. 348. The time for taking anv step or proceeding in the ,. ^ x t e nding 

o ~ f tr a time lor cer- 

preparation and perfection of appeals from the Circuit Courts t^m^^steps in 
to the Supreme Court as now prescribed by law, may be ex- 
tended by the Judge w^ho 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 part3^ 

The Supreme Court has no power to remedy the omission to give the notice of 
appeal within the required time of ten days. — Renneker v. Warren, 20 S. C, 581. 

Such motion for extension of time must be made before the expiration of the 
time limited. — Stribbling v. Johns, 16 S. C, 112; Tribble v. Poore, 28 S. C, 565; 
6 S. E., 577. 

Such extension may be granted where record cannot be prepared in the time 
limited. — Lysaght v. Berkeley Co., 41 S. C, 554; 19 S. E., 747. 

This Section relates only to proceedings on appeal. — Brown v. Easterling, S9 ^• 
C, 472; 38 S. E., 121. 

Sec. 349. When any party shall omit, through mistake or Appeal, how 

J ^ -^ » perfected. 

inadvertence, to do anv act or acts necessarv to perfect an ap z^rrrr 

' ' ' . 1880, XVII., 

peal, or to stay proceedings, the Supreme Court may, in their 368. 
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 re- 
quired by law. 

Extension of time to perfect appeal given on account of inadvertence, counsel 
being engaged in the discharge of public duties. — Price v. Price, 45 S. C, 57; 20 S. 
E., 743; 22 lb., 791. To relieve against in construing an indefinite agreement as 
to extension of time. — Buerhaus v. DeSaussure, 39 S. C, 548; 17 S. E., 500. Or 
where a party is misled by another to believe that time will not be insisted on. — 
Geddes v. Hutchinson, 39 S. C, 550; 17 S. E., 560. 

Relief will not be granted for mistakes of law. — Simonds v. Marco, 38 S. C, 
554; 16 S. E., 830. Nor for failure to file points and authorities under Rule 8. — 
N. E. M'tg'e Co. v. McMillan, 41 S. C, 547; 19 S. E., 692. 

This Section is only intended to supply defects in order to perfect appeals; and 



i84 . CODE OF CIVIL PROCEDURE • 

A. D. 1902, 

^ -^ V ^ "^ as after appeal has been dismissed tliere is no appeal, it cannot apply. — Clark v. 
Wimberly, 24 S. C, 138. 

But notice of appeal having been given, the Court has power to relieve against 
the consequences of other omissions. — Wardlaw v. Erskine, 20 S. C, 582. 

Court may grant leave to perfect appeal for excusable neglect in failing to file 
exceptions within ten days after rising of Court in case of jury trial. — Harle v. 
Morgan, 30 S. C, 611; 9 S. E., 659. 

Where notice of appeal has not been given in writing, as required by law, no 
relief under this Section can be had. — Abney v. Cole, 30 S. C, 607; 10 S. E., 390. 

Where appellant was honestly mistaken in supposing that the "case" for appeal 
should constitute a part of the judgment roll and failed to file the return within 
the time, he was allowed to reinstate his appeal, dismissed by the Clerk for such 
failure. — Tribble v. Poore, 28 S. C, 565; 6 S. E., 577; Cummings v. Wingo, 28 
S. C, 610; 7 S. E., 48. 

But such relief must be obtained on motion based upon affidavits, and the 
notice of motion and copies of the afiidavits must be served on the opposite party 
at least eight days before hearing. — Cummings v. Wingo, 28 S. C, 610; 7 S. E., 48. 

If Jud^ent Sec. 350. If the judgment appealed from direct the assign- 
doc ument or nient or delivery of documents or personal property, the execu- 

personal prop- _ _ -' '^ r r j ^ 

erty, it must ^ion of the judgment shall not be stayed by appeal, unless the 

be deposited or jo j j r l ' 

security given , things required to be assigned or delivered be brought into 
1870, XIV., § Court, or placed in the custody of such officer or receiver as 

361. '■ 

the Court shall appoint, or unless an undertaking be entered 
into on 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. 

An order directing executor to turn over assets to a receiver is not stayed by 
appeal to Supreme Court unless a supersedeas bond be given as required by order 
of that Court. — Harmon v. Wagener, 33 S. C, 487; 12 S. E., 98. 

If judgment Scc. 351. If the judgment appealed from direct the execu- 

be to execute . , . . - , 

conveyance, it tioii of a convcyancc Or othcr instrument, the execution of the 

cuted and de- judgment shall not be stayed by the appeal until the instru- 

ment shall have been executed and deposited with the Clerk 

lb., § 362. . , , 1-1 • ■,.,,., c 

with whom the judgment is entered, to abide the judgment of 

the Supreme Court. 

When appeal Scc. 352. If the judgment appealed from direct the sale or 

will stay exe- ... 

c u t i o n, and delivery of possession of real property, the execution of the 
'■ same shall not be stayed unless a written undertaking be exe- 

/&., 363; 1898, "' . .^ 

XXII., 689; cuted On the part of the appellant, with two sureties, to the 

1900, XXIII., ^ . ' , 

351. effect that, during the possession of such property by the ap- 

pellant, he will not commit, or suffer to be committed, any 
waste thereon, and that if the judgment be affirmed, 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. 



OF SOUTH CAROLINA. 185 

'■ — A. D. 19Q2. 

When the judgment directs the sale of land to satisfy a mort- ""— ^v^^^ 

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 pa3^ment 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 (if 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. 

Stay of sale, pending appeal from decree of foreclosure, is not permitted unless 
the appellant has executed the written undertaking required. — City Council v. 
Caulfield, 19 S. C, 201; Gerald v. Gerald, 30 S. C, 348; 9 S. E., 274; Stanley v. 
Stanley, 35 S. C, 584; 14 S. E., 675. 

When defendant surrendered possession of the premises, at the sale, that was 
"delivery of possession pursuant to the judgment," and the undertaking was then 
payable. — Gerald v. Gerald, 30 S. C, 348; 9 S. E., 274; Ex parte Winkler, 31 S. 
C, 171; 9 S. E., 792. 

Sec. 353. Whenever the defendant executes the bond herein- stay of pro- 
ceedings ujjon 

before prescribed, or the appeal is perfected as provided by^?^,^'^'*^ ^""^ 
Sections 346, 350, 351, and 352, it stays all further proceedings -y^ §~F6T^ 
in the Court below upon the judgment appealed from, or upon^*"-^- ^^■' ^^'^■ 
the matter embraced therein ; but the Court below may pro- 
ceed 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 re- 
quired by Sections 346, 350, and 352, when the appellant is an 
executor, administrator, trustee, or other person acting in 
another's right ; and may also limit such security to an amount 
not less than fifty thousand dollars, in the cases mentioned in 
Sections 350, 351, and 352, where it would otherwise, accord- 
ing to those Sections, exceed that sum. 

The discretion of the Court as to security required will not be exercised without 
proper showing to justify it.— Stanley v. Stanley, 35 S. C, 584; 14 S. E., 675. 

Sec. 354. The undertakings prescribed by Sections 346, 347, 
and 352, may be in one instrument or several, at the option of 



i86 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

'""'^-'''^ the appellant ; and a copy, including the names and residences 
mY" be'^Tn 'one ^^ ^^^ surctics, must bc scrved on the adverse party, with a 
seve'raf ^"' ° ^ "oticc of appeal, unlcss a deposit is made as provided in Sec- 

1870 XIV § ^^^^^ 34/' ^^^ notice thereof given. 
365; 1873, XV., ^qq 355^ ^j-^ undertaking upon an appeal shall be of no 
Securities to ^^^^t unless it be accompanied by the affidavit of the sureties 
an/su?eties' to ^^^^ ^^^^^ ^^^ ^^^^ wortli doublc the amouut specified therein. 

j"^^'^y- The respondent may however except to the sufficiency of the 

^^1901, XXIII., 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 216 and 217 within ten 
days thereafter the appeal shall be regarded as if no under- 
taking 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 ap- 
proved 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 hereafter 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, setting out the 
grounds of such belief and serving a copy thereof upon appel- 
lant's attorney, then the said sureties or other sureties shall 
justify anew thereon in the same manner and with the same 
efi'ect as though such new justification were an original justifi- 
cation on said bond, 
st^i'^pro^eld- Sec. 356. In cases not provided for in Sections 346, 350, 351, 
ceptions°^' ^'"^"352 and 353, the notice of appeal shall stay proceedings in the 
1887, XVIII., Court below, upon the judgment appealed from, except that 
355.' ' ' " 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 con- 
tained in the preceding proviso shall be construed to prevent a 



OF SOUTH CAROLINA. 



187 

A. D. 1902. 

review upon appeal from the final order or judgment in the ^"""^v^^^ 
cause of any judgment or decree on demurrer. 

Appeal from order overruling demurrer to one cause of action shall stay pro- 
ceedings as to second cause of action. — Hammond v. R. R. Co., 15 S. C, 10. 

When appeal from an order confirming the sale in an action for foreclosure has 
been taken, it operates to stay proceedings to put the purchaser in possession. — Le- 
Conte V. Irwin, 23 S. C, 106. 

A notice of appeal, orally given, from an order refusing an oral demurrer, stays 
the further hearing of the cause on the Circuit. — Elliott v. PoUitzer, 24 S. C, 81. 

Appeal from return of homestead appraisers operates as a supersedeas upon all 
the proceedings in the Court below. — Simonds v. Haithcock, 26 S. C, 595; 2 S. 
E., 616. 

But appeal from order setting aside attachment does not stay trial of cause upon 
merits. — Cureton v. Dargan, 16 S. C, 619. 

Sec. 357. The undertaking must be filed with the Clerk with n^uYt^KS^ 
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 ap- 
peals taken under Subdivision 3 of Section 11. 



1870, XIV., 
§ 368. 



CHAPTER III. 

Appeal to the Circuit Court From an Inferior Court. 



Sec. 

358. By what Courts judgments to be 

reviewed ; to be heard on the 
papers. 

359. Appeal, when to be taken. 

360. Notice of appeal to be served on 

Magistrate and on respon- 
dent, agent, or attorney. 

361. Filing in lieu of service of no- 

tice of appeal. 

362. Return, when and how made and 

compelled. 

363. How made if Magistrate be out 

of office. 



Sec. 

364. Further return. 

365. Magistrate dead, insane, or ab- 

sent. 

366. Hearing upon return. 

367. Appeal to be heard on the orig- 

inal papers. 

368. Judgment on appeal. New trial. 

369. Judgment roll. 

370. Costs, how awarded. 

371. Restitution. 

372. Setting off costs and recovery. 

373. The costs on appeal. 



Section 358. When a judgment is rendered by a Magistrate's inte^r^or courS 
Court, by the County Commissioners or any other inferior 
Court or jurisdiction, save the Probate Court heretofore pro- 
vided for in this Code of Procedure, the appeal shall be to the 
Circuit Court of the County wherein the judgment was ren- 
dered, 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 judgment and costs 
in the event that he fail to sustain such appeal, and in all me"ts to be re 

J^^ ' viewed; to bt 

cases in which such bond with surety shall be filed no execution '^^^'"'^ °^ ^^^ 

J papers. 

shall issue until the termination of such appeal. The said ~to xiv § 
appeal shall be heard by the Court upon all the papers in the -^l^' i^"^- ^^^' 



Supersedeas. 



By what 
Courts j u d g- 



CODE OF CIVIL PROCEDURE 



A. D. 1902. 



case, including the testimonj^n the trial, which shall be taken 
down in writing and signed~\m^ the witnesses, and the grounds 
of exception made, without the examination of witnesses in 
Court. 

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, i; 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 Court exclusively, under the particular intention 
declared in Section 2790 of the Civil Code, although it is an inferior Court. — City 
Council V. Weller, 34 S. C, 357; 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 ist, 1892. — McFadden v. Tant, 20 S. C, 585. 

An appeal from an order made by two Magistrates 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 Magistrate without making a motion for 
neW' trial before 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. 

The object of exceptions is to point out the particulars in which the errors of 
law complained of consist. — Wolfe v. R. R. Co., 25 S. C, 379. 

And where the ground of appeal taken is that "manifest injustice had been done, 
and that defendant's default in not being present at trial was excusable," it is in- 
sufficient. — lb. 

An appeal lies to the Circuit Court from an order of Magistrate granting a new 
trial. — Redfearn v. Douglass, 35 S. C, 569; 15 S. E., 244. 

Adjustment and taxation of costs by Clerk is not a judgment, and is to be review 
by exceptions, not appeal, in the Circuit Court. — State ex rel. Bartless v. Town 
Council, 44 S. C, 500; 22 S. E., 719. 

oA^e^taken^'^'' Scc. 359. Thc appellant shall, within five days after judg- 
ment, serve a notice of appeal, stating the grounds upon which 
the appeal is founded. If the judgment is rendered upon pro- 
cess not personally served, and the defendant did not appear, 
he shall have five days, after personal notice of the judgment, 
to serve the notice of appeal provided for in this and the next 
Section. 

The Circuit Judge has no power to extend this time within which to appeal. — 
Davis V. Vaughan, 7 S. C, 342. Nor jurisdiction to hear an appeal where notice 
in writing was not served within that time. — Davis v. Vaughan, 7 S. C, 343; Scott 
V. Pratt, 9 S. C, 82; Foot v. Williams, 13 S. C, 601. Notice served seven days 
after order refusing new trial is too late. — Manuel v. Loveless, 56 S. C, 426; 

as S. E., i. 

The notice of appeal must state the grounds in every case. — Sternberger v. Mc- 
Sween, 14 S. C, 35. 

The grounds of appeal being referred to in notice, as being made before the 
Magistrate on motion for new trial and on the evidence and records, is a sufficient 
statement of the grounds.— Dargan v. West, 27 S. C, 156; 3 S. E., 68. When no 
objection is raised in the Circuit Court as to the sufficiency of the notice of appeal, 
it cannot properly be raised on appeal to Supreme Court. — lb. 

Sec. 360. 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 attor- 



to be taken. 
lb., § 370. 



OF SOUTH CAROLINA. 189 

:^ A. D. 1902. 



ney for the respondent, or on the respondent personally, or by ^^—'^v^'^ 
leaving it at his residence, with some person of suitable age ^^'{'^^'^^'^^^^"gg^P; 
and discretion ; or in case the respondent is not a resident of t4te°" and^^on 
such County, or cannot, after due diligence, be found therein, ^^^^p ° ^j.^^^^: 

in the same manner, on the agent, if any, who is a resident of ^"'^"'^y- 

such County, who appeared for the respondent on the trial ; ^^^\-' jly^ ''^^ 
and, if neither the respondent nor such agent or attorney can|-y^j5' 306^°' 
be found in the County, the notice may be served on the re- 
spondent by leaving it with the Clerk of the Appellate Court. 

Failure to serve the Magistrate with such notice of appeal within the five days 
is fatal, and Circuit will dismiss the appeal, being without jurisdiction to hear it. — 
Scott V. Pratt, 9 S. C, 82; Davis v. Vaughan, 7 S. C, 343; Foot v. Williams, 13 
S. C, 601; Manuel v. Loveless, 56 S. C, 426; 35 S. C, r. 

Where respondent was a non-resident, service of the notice on the agent who 
appeared for him at the trial, but was also a non-resident of the County, was held 
insufficient in Sheldon v. Pearson, 42 S. C, m; 20 S. E., 26. The notice must 
be served personally, not by mail. — Bingham v. Holliday, 52 S. C, 528; 30 S. E., 
485. An acknowledgement of personal service by the Magistrate is sufficient to show 
service on him. — Baker v. Irvine, 58 S. C, 436; 36 S. E., 742. But insufficient to 
show service on the respondent. — Whetstone v. Livingston, 54 S. C, 539; 32 S. 
E., s6i. 

Sec. 361. When, by reason of the death of a Magistrate, or of^'serviS^'o'f 
his absence from the County, or any other cause, the notice of peaL^ ° ^^ 
appeal cannot be served as provided by Section 360, it may be " isro, xiv., § 
served by leaving the same with the Clerk of the County. '"^' 

Sec. 362. The Court below shall thereupon, after ten days, and^^how made 
and within thirty days after service of the notice of appeal, ^" compe e . 
make a return to the Appellate Court of the testimony, pro- 1 8 so, xvii.', 
ceedings, and judgment, and file the same in the Appellate ^''^^ 
Court. The return may be compelled by attachment. 

Sec. 363. When a Magistrate, by whom a judgment appealed M'agiltr'at^e ^be 
from was rendered shall have gone out of office before a re- °"^ °^ °^^^' 
turn is ordered, he shall, nevertheless, make a return in thesr^'"' ^ " ^ 
same manner, and with the like effect, as if he were still in 
office. 

Sec. 364. If the return be defective, the Appellate Court Fur ther re- 
may direct a further or amended return as often as may be "'^"" 

necessary, and may compel a compliance with its order by at- '' *■ 
tachment. And the Court shall always be deemed open for 
these purposes. 

Where a return has been made, though defective, it is discretionary with the 
Circuit Court whether to order a further or amended return. — Lynch v. Heyward, 
56 S. C, 562; 35 S. E., 220. 

Sec. 365. If a Magistrate, whose judgment is appealed from, ^ Magistrate, 

'-' ' JO trr 'dead, insane, 

shall die, become insane, or remove from the state, before hav- °^ absent. 
ing made a return, the Appellate Court may examine witnesses ^^^'^'^' ^^V- § 
on oath as to the facts and circumstances of the trial or judg- 




CODE OF CIVIL PROCEDURE 



ment, and determine the appeal, as if the facts had been re- 
turned 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 judgment was rendered, 
return. Sec. 366. If a return be made, the appeal may be brought 

jb., § 3 s 1 ; to a hearing by either party. It shall be placed upon the calen- 
■ dar, 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 vv^ithout any further notice. 

The Statute does not fix the time when the Clerk shall place the case on the 
calendar. — Marshall v. Mitchell, 59 S. C, 523; 38 S. E., 158. The party desiring 
to bring on the appeal is only required to file the return and accompanying papers 
in the office of the Clerk of Court eight days before Court. — Ih. This Section is not 
mandatory. — Manuel v. Loveless, 54 S. C, 346; 32 S. E., 421. Where continued 
at first term by consent, should be dismissed on last day of second term. — Bell v. 
Pruitt, SI S. C, 344; 29 S. E., 5. Dismissal for failure bf Magistrate to file return. 
— Ramseur v. Moore, 43 S. C, 304; 21 S. E., 81. 

het?d^''on*'°the ^^^- ^^'^ ' ^'^^ appeal shall be heard on the original papers, 
original pape rs, ^.nd no copy thereof need be furnished for the use of the Court, 
^^1870, XIV., § Sec. 368. i. Upon hearing the appeal, the Appellate Court 
Judgment on ^^^^^ fe^"^^ judgment according to the justice of the case, with- 
tnai.^^' ^ ^^ ^^'^^ regard to technical errors and defects which do not affect 
'~J^ g 333 the merits. In giving judgment, the Court may affirm or re- 
verse 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 Magistrate, 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 injustice 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. Where a new trial shall be ordered 



OF SOUTH CAROLINA. 191 

■ A. D. 1902. 



before a Magistrate, the parties must appear before him accord- '"— ^v^~" 
ing- 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. 

The Supreme Court will not lend a ready ear to any objections based upon mere 
.matter of form; but will decide without regard to technical errors and defects. — 
Dargan v. West, zy S. C, 156; 3 S. E., 68. 

And the Circuit Court will, in order to do justice when the verdict in Magis- 
trate's Court is not in proper form, send the case back there for new trial. — Du- 
Bose V. Armstrong, 29 S. C, 290; 6 S. E., 934. 

The Circuit Court, on appeal, can review and reverse errors of fact in Magis- 
trate's Court. — Redfearn v. Douglass, 35 S. C, 569; 15 S. E., 244. 

But it cannot review findings of fact by Magistrate not excepted to. — Burns v. 
Gower, 34 S. C, 160; 13 S. E., 331. 

The only mode of relief from a Magistrate's judgment, rendered against a party 
through his excusable defaults, is by appeal to the Circuit Court. — Doty v. Duvall, 
19 S. C, 143; Wolfe v. R. R. Co., 25 S. C, 379; Lawrence v. Isear, 27 S. C, 
244; 3 S. E., 322. 

Such relief applies only to cases of judgment by default, and not where there 
was trial. — Miller v. Schmidt, 20 S. C, 588; Green v. County Commissioners, 27 
S. C, 9; 2 S. E., 618. 

Whether Circuit Court can remand a case to County Commissioners for new 
trial not determined. — Green v. County Commissioners, 27 S. C, 9; 2 S. E., 618. 

On appeal from the County Commissioners, the Circuit Court may review the 
facts, but its finding thereon is not reviewable. — Tinsley v. Union Co., 40 S. C, 
276; 18 S. E., 794; AuU V. Newberry Co., 42 S. C, 321; 20 S. E., 61. 

Failure to file notice and grounds of appeal a mere technical error. — Perkins v. 
Douglass, 46 S. C, 6; 24 S. E., 42. 

An irregularity or defect in summons is waived by appearance. — Grant v. Clinton 
Cotton Mills, 56 S. C, 554; 35 S. E., 193. 

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 plead- 
ings of either party, an amendment of such pleading 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 pleading 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 358. 

5. The Court shall have the same power over its own de- 
terminations, and shall render judgment thereon in the samel^^g' xv., 502, 
manner, as the Circuit Court in actions pending therein, with- 
out 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 




CODE OF CR'IL PROCEDURE 



opposite party an offer, in writing, to allow judgment to be 
taken against him for the sum or 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 entered 
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 exceptions, or otherwise, and such motion may be 
made before or after judgment has been entered; and the pro- 
visions of this Code of Procedure in relation to the proceed- 
ings, exceptions to the decisions of the Court, makiflg 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. 

Sec. 369. 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. 

The return may be used in evidence to show pendency of the case in the Magis- 
trate's Court. — Cothran v. Knight, 47 S. C, 243; 25 S. E., 142. 

Judgment roll, gg^^ 37Q_ jf ^^le judgment be affirmed, costs shall be awarded 
^870, XIV., § ^Q ^YiQ 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. 
Sec. 371. 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 on proof of the facts 
made at or after the hearing, upon a previous notice of six 
davs; and if the order shall be made before the judgment is 
entered, the amount mav be included in the judgment. 



OF SOUTH CAROLINA. 




Sec. 372. If, upon an appeal, a recovery be had by one party, 
and costs be awarded to the other, the appellate Court shall ^^^^^ * l^'^s °^_ 

set off the one against the other, and render judgment for <^°''^^y- 

the balance. ^^■' § ^^''■ 

Sec. 373. Costs shall be allowed to the prevailing party, in ap^peai.''°^*^ °'^ 
judgments rendered on appeal, in all cases, with the following ~^_ §388; 
exceptions and limitations: In the notice of appeal, the ap-§^2o! '^^'' ^°^' 
pellant 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 Magistrate a written acceptance of 
such off'er, 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 ac- 
cordingly; 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 
favorable to the appellant than the judgment of the Court be- 
low, or if such offer be made and not accepted, and the judg- 
ment in the appellate Court be more favorable to the appellant 
than the offer of the respondent, the appellant shall recover 
costs : Provided, hozvever, That the appellant shall not recover 
costs unless the judgment appealed from shall be reversed on 
such appeal, or be made more favorable to him, to the amount 
of at least ten dollars. 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 ap- 
pellant shall not recover costs, except as provided in this Chap- 
ter. The respondent shall be entitled to recover costs where 
the appellant is not. Whenever costs are awarded to the ap- 
pellant, and when the judgment in the suit before the Court 
below was against such appellant, he shall further be allowed 
to tax the costs incurred by him which he would have been 
entitled to recover in case the judgment below had been ren- 
dered in his favor. If, upon an appeal, a recovery for any 

13.-C.R 



194 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^~'^">'' ' 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 proceed- 
ings before trial, three dollars; for trial of the cause, five dol- 
§ '^^0; "^xvil' l^rs ; when the amount sued for is under twenty dollars, only 
297, § 2. ^^^^Q dollars and fifty cents. If the judgment appealed 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 appel- 
late Court may award, not exceeding five dollars. If the 
appeal be dismissed for want of prosecution, as provided by 
Section 366, no costs shall be allowed to either party. In 
ih., § 7. every appeal, the Magistrate, before whom the judgment ap- 
pealed 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 of appeal, the ap- 
pellant 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 \vholly reversed. 

Where a party appeals from judgment of a Magistrate without stating in what 
particular or particulars the judgment should have been more favorable to him, 
he will not be entitled to costs unless the judgment be wholly reversed. — Wall v. 
Davis, 19 S. C, 455. And where appellant is not entitled to costs the respondent 
is. — Ih. 

Where appellant refuses to accept offer of respondent to allow judgment for cer- 
tain amount, and finally obtains judgment for less than defendants offer, he is 
liable for all costs subsequent to the offer. — Williford v. Gadsden, 2y S. C, 87; 
2 S. E., 858. 

An application to the Circuit Court to correct errors in the adjustment of costs 
by the Clerk is not an appeal under this Section. — State ex rel. Bartless v. Town 
Council of Beaufort, 44 S. C, 500; 22 S. E., 719. 

As to appeal dismissed for failure to file return. — Ramseur v. Moore, 43 S. C, 
304; 21 S. E., 81. 



OF SOUTH CAROLINA. 



TITLE XII. 

OF THE MISCELLANEOUS PROCEEDINGS IN CIVIL 
ACTIONS, AND GENERAL PROVISIONS. 




Chapter 
Chapter 
Chapter 
Chapter 



IV. 



V. 
VI. 



Chapter 
Chapter 
Chapter 
Chapter VIII 
Chapter IX 



I. Submitting a Controversy without Action. 
II. Proceedings against Joint Debtors. 
III. Confession of a Judgment without Action. 
Offer of the Defendant to Compromise the 

Whole or a Part of the Action. 
Admission or Inspection of Writings. 
Examination of Parties. 
VII. Examination of Witnesses. 
Motions and Orders. 
Entitling Affidavits. 



Chapter X. Computation of Time. 

Chapter XI. Notices, and Filing and Service of Papers. 

Chapter XII. Miscellaneous Provisions. 



CHAPTER I. 



Submitting a Controversy Without Adtion. 



Sec. 

374. Controversy, how 
without action. 



submitted 



Sec. 

375. Judgment, how enforced. 

376. Judgment, how enforced or ap- 

pealed from. 



Section 374. Parties to a matter in dispute, which might 1^^ how""!!^^!^^! 
the subject of a civil action, may, without action, agree upon a without action. 
case containing the facts upon which the controversy depends, gg^^'"' ^^^■' § 
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 de- 
pending. 

Cases submitted to Supreme Court. — Simpson v. Willard, 14 S. C, 191; Macoy v. 
Curtis, 14- S. C, 367. Original proceedings in mandamus.- — Carolina Grocery Co. 
V. Burnet, 61 S. C, 205; 39 S. E., 381. 

The Court of Common Pleas refused to entertain a case for prohibition under 
this Section because Section 452, Code, provides that this Section shall not affect 
the procedure in cases of mandamus and prohibition. — The South Carolina Society 
V. Gurney, 3 S. C, 51. 



196 CODE OF CIVIL PROCEDURE 

A. D. 1902. ■ 

^ -^^ V ""• '^ The Court has no jurisdiction unless the affidavit is filed. — Reeder v. Workman, 

37 S. C, 415; 16 S. E., 187; Bradford v. Buchanan, 39 S. C, 242; 17 S. E., 503. 

The agreement must be signed by the parties themselves, and not by their attorneys 

for them. — lb. 

The Court will look alone to the facts stated in the agreement, without regard to 

any legal conclusions incorporated with them. — So. Ry. Co. v. City Council of 

Greenville, 49 S. C, 449; 27 S. E., 652. 

Judgment, Scc. 375. Judgment shall be entered, as in other cases, but 

how enforced. . , . , ^^, 

Without costs for any proceeding prior to the trial, i he case, 

the submission, and a copy of the judgment, shall constitute 

the judgment roll. 

Judgment, Sgc. 376. The judgment may be enforced in the same man- 
how enforced ...,,, 

or appeaiedner as if it had been rendered m an action, and shall be subject 

from. , . ,., 

to appeal m like manner. 

lb., § 391. ^^ 



CHAPTER II. 

Proceedings Against Joint Debtors. 



Sec. Sec. 



377 Parties not summoned in action 
on joint contract, may be 
summoned after judgment. 

378. Form of summons. 

379. Summons to be accompanied by 

affidavit of amount due. 



380. Party summoned may answer 

and defend. 

381. Subsequent pleadings and pro- 

ceedings the same as in an 
action. 

382. Answer and reply to be verified 

as in an action. 



summonid'' fn Scctioii 377. Whcu a judgment shall be recovered against 
cont°r"c*trm°ryOi^s o^ morc of scveral persons jointly indebted upon a contract, 
after^rudgm^nl by procccdiug as provided in Section 157, those who were not 
1870, XIV., § originally summoned to answer the complaint may be sum- 
^°^" moned to show cause why they should not be bound by the 

judgment, in the same manner as if they had been originally 

summoned. 

Judgment was obtained against a copartnership and one of the firm. Several years 
afterwards, the other copartner, having returned to the State, was summoned to 
show cause why he should not be bound by the judgment. Judgment against him 
was entered for the sum of the original judgment, with interest to date. This was 
error, as judgment against him should have been that he "be bound by" the 
original judgment, and that plaintiff have leave to issue execution thereon. — Form 
of such judgment suggested. — Adickes v. Allison, 21 S. C, 245. 

Form of sum- gee. 378. The summons provided in the last Section shall be 
lb § 394 — 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 ser- 
vice of the summons; and shall be served in like manner as 
the original summons. 



mons 



OF SOUTH CAROLINA. 




Sec. 379. The summons shall be accompanied by an affidavit 

Si 

accompan- 



of the person subscribing it, that the judgment has not been i^ g^"^^^°j^^^^° 
satisfied, to his knowledge or information and belief, and shall ^f'^^^^o^^t'^lye^ 
specify the amount due thereon. ~/&7^§^. 

Sec. 380. Upon such summons any party summoned may p^^-^y ^^^, 
answer within the time specified therein, denying the judg-!fj^3^"g^and"cfe^ 

ment, or setting up any defense thereto, which may have ^^"'^- 

arisen subsequently to such judgment; and, in addition thereto, ^^■' ^ ^^^' 
if the party be proceeded against according to Section 377, 
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 originally commenced and such defense 
had been then interposed to such action. 

In answer to such summons the Statute of Limitations cannot be pleaded to the 
claim upon which the judgment had been entered, if not barred when the action 
commenced. — Adickes v. Allison, 21 S. C, 245. 

Sec. 381. The party issuing the summons may demur or jf^^in^l'^^^nd 
reply to the answer, and the party summoned may demur to P^^'^g^e^mgs the 

the reply; and the. issues may be tried and judgment may be action. 

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 judgment may be compelled by attachment, 
if necessary. 

Sec. 382. The answer and reply shall be verified in the like ^^^j^^^^^g^J^^"^ 
cases and manner, and be subject to the same rules, as the^^^j^^^^^ ^^ ^^ 
answer and reply in an action. ~i^ ^~^_ 



CHAPTER III. 

Confession of Judgment Without Action. 



Sec. 

383. Judgment may be confessed for 

debt due or for contingent 

liability. 



Sec. 

384. Statement in writing, and form 

thereof. 

385. Judgment and execution. 



_... .. , ,., Judgment may 

Section 383. A mdsrment by confession may be entered, with- be confes s e d 

. , , ^ y , . for debt due or 

out action, either for money due, or to become due, or to secure for contingent 

any person against contingent liability on behalf of the de ; — ■; 

fendant, or both, in the manner prescribed in this Chapter. 399. 

A confession of judgment may be made by a client to his attorney, if made 
with entire fairness and full knowledge. — Wise v. Hardin, s S. C, 325. 

A judgment by confession has all the characteristics of an ordinary judgment 
and cannot be attacked collaterally; the remedy is by application to the Court in 
which the confession is entered to vacate or modify it, if it is insufficient in form 
or for any reason void. — Southern Co. v. Thew, 5 S. C, 5. A confession of judg- 
ment against it, by the president of a corporation, is invalid, it not appearing that 
he had authority to make it, or that it had been confirmed by acquiescence. — Ih. 



198 CODE OF CIVIL PROCEDURE 

A. D. 1902. ■ 

^ -•" V "'- ' A confession of judgment entered without action in the Clerk's office during 

vacation is valid. Section 2(1^, subdivision i, does not conflict with this Section. — 
Weinges v. Cash, 15 S. C, 44. 

There is no law which requires a confession of judgment to be obtained or read 
in open Court. — Ih. 

A confession made with view to protect debtor's property against debts present 
or which he expects to contract may be set aside for fraud, by the subsequent 
creditors. — Kohn v. Meyer, 19 S. C, 190. 

The Clerk of Court may take a confession of judgment in his own favor. — Trim- 
mier v. Winsmith, 23 S. C, 449. 

The confession can only be entered in the County where the action could be 
brought and tried. — Ex parte Ware Furniture Co., 49 S. C, 20; 2.y S. E., 9. 

wr1tfn|?'''a*n'd ^60. 384. A Statement in writing must be made and signed 
for m thereof. |^y ^j^^ defendant, and verified by his oath, to the following 

/?,., §400. g^g^^. 

1. It must state the amount for which judgment may be 
entered, and authorize 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 liability, it must state concisely the facts consti- 
tuting the liability, and must show that the sum confessed 
therefor does not exceed the same. 

A confession is not void merely because the value of the consideration is less 
than the amount of the confession. — Wise v. Hardin, s S. C, 325. 

A confession for an amount less than what is actually due contains a sufficient 
statement. — Weinges v. Cash, 15 S. C, 44. 

A description of the debt without a statement of its consideration and facts 
out of which it arose is insufficient. — Ex parte Carroll, 17 S. C, 446; Kohn v. 
Meyer, 19 S. C, 190. A confession insufficient in statement is not merely irregular 
but is invalid. — Ex parte Carroll, 17 S. C, 446; Kohn v. Meyer, 19 S. C, 190. 
And cannot be corrected by amendment. — Ex parte Carroll, 17 S. C, 446. And 
should be set aside on motion, as proper proceeding. — Ih. And such motion may 
be made at any time within five years. — Ih. 

When statement is false or so grossly inaccurate as to mislead inquirers, it 
is void as to other creditors. — Kohn v. Meyer, 19 S. C, 190. 

"For goods sold and delivered" is a sufficient statement. — Ex parte Graham, in 
re. Plyler v. Robertson, 54 S. C, 163; 32 S. E., 67. A confession of judgment 
on note without mentioning the indebtedness for which the note was given is void. — 
Woods v. Bryan, 41 S. C, 74; 19 S. E., 218. 

Judgment gee. 385. The statement may be filed with the Clerk of the 

and execution. -' 

lb 401- 1884 Court of Commou Pleas, or with a Magistrate, if the amount 
XVIII., 693. fQj. vv^hich judgment is confessed shall not exceed one hun- 
dred 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 attorney, 
and the usual fees provided by law to the Clerk of the Court 
of Common Pleas or Magistrate, as the case may be, for enter- 
ing up judgments and issuing executions in any cases, together 
with any necessary disbursements of the plaintiff. The state- 



OF SOUTH CAROLINA. 



ment 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 installments, 
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 be in the usual form, but shall 
have endorsed thereon, by the attorney or person 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 interest thereon, and the costs of said judgment. 
Notwithstanding the issue and collection of such execution, 
the judgment shall remain as security for the installments 
thereafter to become due, and whenever any further install- 
ments become due, execution may, in like manner, be issued 
for the collection and enforcement of the same. 

Debtor confessing judgment to Clerk himself, his creditor cannot object that the 
Clerk had no right to consider his application and statement and enroll the judg- 
ment. — Trimmier v. Winsmith, 23 S. C, 449. 

"The Clerk" is the Clerk of the County where the defendant resides. — Ex parte 
Ware Furniture Co., 49 S. C, 20; 27 S. E., 9. Entry on the abstract of judgments 
is sufficient. — Putney v. McDow, 54 S. C, 172; 32 S. E., 67. 



CHAPTER IV. 

Offer of the Defendant to Compromise the Whole or a Part 
of the Action. 



Sec. 

386. Offer of compromise. 

387. Defendant may offer to liquidate 

damages. 



Sec. 

388. Effect of acceptance or refusal 
of offer. 




Section 386. The defendant may, at any time before the trial offer of com- 

1 1 • • rr rr • • • 11 promise. 

or verdict, serve upon the plaintiff an offer m writing to allow 

, f y , . r ■, 1S70, XIV., § 

judgment to be taken against him for the sum or property, or 402; ists, xv., 
to the effect therein specified, with costs. If the plaintiff 
accept the offer, and give notice thereof in writing within ten 
days, he may file the summons, complaint, and offer, with an 
affidavit 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 



200 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

^"^ ' in case the defendant shall set up a counter-claim 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 speci- 
fied, or to allow said counter-claim 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 al- 
lowed him in the trial of the action. If the notice of acceptance 
be not given, the offer is to be deemed withdrawn, and cannot 
be given in evidence ; and if the defendant fail to recover a 
more favorable judgment, or to establish his counter-claim 
for a greater amount than is specified in said offer, he cannot 
recover costs, but must pay the plaintiff's costs from the time 
of the offer. 
mOT^offe"/^?o ^^c- 38'^- III ^" action arising on contract, the defendant 
ages.'^^'^^ "^^"^ may, with his answer, serve upon the plaintiff an offer in 
~E7~fm. writing that, if he fail in his defense, the damages be assessed 
Effect of ac- ^^ a Specified sum ; and if the plaintiff signify his acceptance 
fusai"of offen thcrcof in writing, before trial, and on the trial have a verdict, 
lb § 404. 'the damages shall be assessed accordingly. 

Sec. 388. 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 defendant shall recover his costs incurred in 
consequence of any necessary preparation or defence in respect 
to the question of damages. 



CHAPTER V. 

Admission or Inspection of Writings. 

Sec. 389. Inspection and copy of books, papers, &c., how obtained. 

and" copy'^^'of Sectloii 389. Either party may exhibit to the other, or to his 
&°°!'^'how^^^ob- attorney, at any time before the trial, any paper material to 

^^^ . the action, and request an admission in writing of its genuine- 

^^1870, XIV., § j^ggg^ j^ ^-^^ adverse party, or his attorney, fail to give the 
admission, within four days after the request, and if the party 



OF SOUTH CAROLINA. 



201 



exhibiting- tlie 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. 

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 con- 
ferred upon him. — Cartee v. Spence, 24 S. C, 550. 

Doubtea whether a Circuit Judge or Court authorized to do so. — lb. 

Before the order can be ;nade 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., I. 

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. — Jenkins v. 
Bennett, 40 S. C, 393; 18 S. E., 929. 



A. D. 1902. 



CHAPTER VI. 



Examination of Parties. 



Sec. 

390. Action for discovery abolished. 

391. A party may examine his adver- 

sary as a witness. 

392. Such examination also allowed 

before trial. Proceedings 
therefor. 

393. Party, how compelled to attend. 

394. Testimony of party may be re- 

butted. 

395. Effect of refusal to testify. 



Sec. 

396. Testimony of a party not re- 

sponsive to the inquiries 
may be rebutted by the oath 
of the party calling him. 

397. Persons for whom action is 

brought or defended may be 
examined. 

398. Examination of co-plaintifE or 

co-defendant. 



Section 390. No action to obtain discovery under oath, in aid ..Action for 

-' discovery abol- 

of the prosecution or defense of another action, shall be al- 's^gd. 
lowed, nor sTiall any examination of a party be had on behalf -^^-^ § ^'^■ 
of the adverse party, except in the manner prescribed by this 
Chapter. 

Sec. 391. A party to an action may be examined as a witness, 
at the instance of the adverse party, or of any one of several ^^j^^^^y 
adverse parties, and for that purpose may be compelled, in 



A party may 
examine his ad- 



Ib., § 407. 



202 CODE OF CIVIL PROCEDURE 

A. D. 190-2. - 



"""'^^-^ — ■ the same manner, and subject to the same rules of examina- 
tion as any other witness, to testify, either at the trial, or con- 
ditionally, or upon commission. 

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. — Devereaux 
V. McCready, 46 S. C, 133; 24 S. E., tj. 

This Section does not authorize the physical examination of the plaintiff in an 
action for personal injuries. — Easier v. So. Ry. Co., 60 S. C, 117; 38 S. E., 258. 

nation afs^^™i- Scc. 392. The examination, instead of being had at the trial, 

triaL Proc°eed^as provided in the last Section, may be had at any time before 

ings — trial, at the option of the party claiming it, before a judge of 

4ce.' ' ' " 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. 

com^Jeiied°t^ Scc. 393. 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. 
paTty'm°a7be Scc. 394. The examination of the party, thus taken, may 
r ebutted. |^^ rcbuttcd by adverse testimony. 

ih., § 410. ggj,_ ggg_ j-£ ^ party refuse to attend and testify, as in the 

fufd uft^tify! ^ast four Sections provided, he may be punished as for a con- 

ih., § 4u. tempt, and his complaint, answer, or replv may be stricken out. 

Sec. 396. A party examined by an adverse party, as in this 

a part^nofre^ Chapter provided, may be examined on his own behalf, sub- 

mquiV7el m a^y J ect to the samc rulcs of examination as other witnesses. But 

the'^oath^of the if ^6 testify to any new matter, not responsive to the inquiries 

him! ^^ *^^''''^° put to him by the adverse party, or necessary to explain or 

jb.^ § 412. qualify his answers thereto, or discharge when his answers 

would charge himself, such adverse party may offer 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. 

Persons for §£(;_ ^^^ ^ person for whose immediate benefit the action 

whom action is ^ 

fended^ma Ife ^^ prosccutcd Or defended, though not a party to the action, 
examined. j^^y j^g examined as a witness, in the same manner and subject 
lb., § 413. ^Q ^l-^g same rules of examination as if he were named as a 
party. 



OF SOUTH CAROLINA. 




ant. 



lb., § 414. 



Sec. 398. A party may be examined on behalf of his co- 
plaintiff, or of a co-defendant, as to any matter in which he is^jj^^^'^\"f^'^°g 
not jointly interested or liable with such co-plaintiff or co-de- ""^ '^"''^^^ ^ " '^" 
fendant, and as to which a separate and not joint verdict or 
judgment can be rendered. And he may be compelled to at- 
tend 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 Sections 391 and 392, one of the several plaintiffs 
or defendants who are joint contractors, or are united in in- 
terest, is examined by the adverse party, the other of such 
plaintiffs or defendants may offer himself as a witness to the 
same cause or action or defense, and shall be so received. 



CHAPTER VII. 

Examination of Witnesses. 



Sec. 

399. Interest not to exclude a wit- 
ness. 



Sec. 

400. Parties to actions and special 
proceedings may be wit- 
nesses on their own behalf 
except in certain cases. 

Interest not 
to exclude a 

Section 399. No person offered as a witness shall be excluded witness. 
bv reason of his interest in the event of the action. , is7o, xiv., § 

414. 

Sec. 400. A party to an action or special proceeding in any j,^^^-^^^ ^g ^^. 
and all Courts, and before any and all officers and persons ^'^°^^, ^nd spe- 

' -' -"^ c 1 a I proceed- 

acting judicially, may be examined as a witness on his owni"?s may be 

o J J ' J wit nesses on 

behalf, or in behalf of any other party, conditionally, on com- t^^eiv '^own ^be- 
mission, and upon the trial or hearing in the case, in the same certain cases. 
manner and subject to the same rules of examination as any ^^-^ § '^'^•^■ 
other witness : Provided, however, That no party to the action 
or proceeding, nor any person who has a legal or equitable in- 
terest which may be affected by the event of the action or pro- 
ceeding, nor any person who, previous to such examination, 
has had such an interest, however the same may have been 
transferred 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 transaction or communi- 
cation 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, de- 



204 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

"--"^-^^-^ visee, or survivor of such deceased person, or as assignee or 

committee of such insane person or hmatic, when such exami- 
nation, or any judgment or determination in such action or 
proceeding, can in any manner affect the interest of such wit- 
ness or the interest previously owned or represented 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 communica- 
tion, (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 trial or hearing. Nothing contained in 
Section 8 of this Code of Procedure 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 anv 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, 
prosecuted, 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 communication made by one to the other during 
their marriage. 

"This Section describes four classes of persons and three characteristics of testi- 
mony. The four classes of persons are these: (i) A party to the action or 
proceeding; (2) a person having an interest that may be affected by the event 
of the trial; (3) a person who has had such an interest, but which has been in 
any manner transferred to, or has in any manner come to, a party to the action 
or proceeding; (4) an assignor of a thing in controversy in the action. The three 
characteristics of the testimony are these: (a) Tn regard to any transaction or com- 
munication between the witness and a person deceased, insane, or lunatic; (b) 
against a party 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; (c) when the 
present or previous interest of the witness may in any manner be aifected 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 400, 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 circum- 
stances be excluded; and, secondly, lliat his testimony partakes of, not merely one 



OF SOUTH CAROLINA. 205 

: A. D. 1902. 



or two of the disqualifying 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. Hallman, 53 S. C, 32; 30 S. E., 601; Martin v. Jen- 
nings, 52 S. C, 371; 29 S. E., 808; Burkim v. Pinkhussohn, 58 S. C, 469; 36 S. E., 
908; Westbury v. Simons, 57 S. C, 472; 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 cannot be extended by construction beyond its clearly expressed 
design. — Guery v. Kinsler, 3 S. C, 423; Jones v. Plunkett, 9 S. C, 392. The pro- 
visions of this Section apply to criminal as well as civil actions. — State v. Reynolds, 
48 S. C, 384; 26 S. C, 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 prevented, cannot be included. — Guery v. Kinsler, 
3 S. C., 423; Jones v. Plunkett, 9 S. C., 392; Colvin v. Phillips, 25 S. C, 228; 
Brown v. Moore, 26 S. C., 160; 2 S. E., 9; Huff v. Latimer, 33 S. C., 225; 11 
S. E., 758; Rapley v. Klugh, 40 S. C., 142; 18 S. E., 680. But the Section must 
be construed by the intent appealing on its face, and whether the proviso should 
be applied must be determined by the issue raised through the pleadings aud not 
by the form of the action. — Boykin v. Watts, 6 S. C., 76. 

These provisions do not apply where the witness is not a party to the action, 
has no interest in the event of it, and cannot be affected by it. — Bollman v. Boll- 
man, 6 S. C., 29; Twitty v. 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 had assigned to de- 
fendant, to testify, in an action to recover the money collected by defendant there- 
under, that he had advanced the money to pay the first premium on the policy. — 
Westbury v. Simons, 57 S. C., 473; 35 S. E., 764. 

A person is not excluded as. a witness whose liability on a note will in no way 
be increased or diminished by the event of the suit. — Twitty 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 v. 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 v. Trammell, 57 S. C., 89; 35 S. E., 533. 

A witness in interest is not incompetent to testify to communications and trans- 
actions had between a person deceased and some third person. — Roe v. Harrison, 
9 S. C., 279; Brock V. Odell, 44 S. C., 25; 21 S. E., 977; Hughey v. Eichelberger, 
II 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. Kennemore, 26 S. C, 
251; I S. E., 881; Moore v. Trimmier, 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; Brockle 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 promoted; parties are competent to 
testify against their interest. — Boykin v. Watts, 6 S. C, 76; Robinson v. Robinson, 
20 S. C, 567; Moffatt V. Hardin, 22 S. C, 25; Griffin v. Earle, 34 S. C, 246; 
13 S. E., 473. 

A factor in his action against executor of owners of cotton for reclamation can- 
not testify to conversation had with him. — Blakely v. Frazier, 11 S. C, 122. 

Where assignee of sealed note sues, the defendant may prove the loss of the 
receipt given him by assignor, since deceased, but he cannot testify to contents of 
it. — Standeridge v. Powell, 1 1 S. C, 549. 

The introduction of testimony other than that of the representative of the de- 
ceased, 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. 



2o6 CODE OF CIVIL PROCEDURE 

A. D. 1002. 



A legatee under lost will, in attempting to set up same, cannot testify to com- 
munications or transactions with testator. — Bauskett v. Keitt, 22 S. C, 187. 

In proceeding to revive execution by administrator of the assignee the defendant 
cannot testify that he had placed two notes in hands of the deceased assignee to 
collect. — Monts v. Koon, 21 S. C, no. 

A ward, in action for account brought by him after majority, against the executor 
of his deceased 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 communications 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 judgment confessed by father, since de- 
ceased, to defendant, his daughter, and to set aside sale of land thereunder, the 
plaintiff could not prove communications 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 partner- 
ship property, the plaintiff was incompetent to prove any communications or 
transactions 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 plaintiff 
could not, in reply, 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 deceased 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 com- 
munications and transactions between 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, 142; 18 S. E., 680. 

Plaintiff in action against a town can testify as to the transactions between him- 
self and a former Intendant of the town, acting for the corporation, but at the 
time of trial deceased. — Coleman v. Chester, 14 S. C, 286. 

In action to recover share of crop made by plaintiff 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. — Rookheart v. Dean, 21 S. C, 597. 

In action by executrix, an attorney can testify to communications between him- 
self as attorney for the testator and the administrator, now deceased, 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 com- 
munications between himself and a former trustee of the property now deceased, 
under whom plaintiff claimed, the plaintiff not holding any of the relations to the 
deceased specified in this Section. — Minton v. Pickens, 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. — Colvin v. Phillips, 
25 S. C, 228. 

In a contest between two claimants under -the obligee in a bond for titles, the 



OF SOUTH CAROLINA. 207 

— — A. D. 1902. 



obligor can testify to communications between himself and the deceased obligee, 
as such a witness, though a party to the cause, has no interest in the action. — Wood 
V. Wood, 25 S. C, 600. 

Witness, through whom defendants claimed, was competent to testify in their 
behalf that he permitted another party, since deceased, to remain on the land in 
dispute, the testimony relating to an act of the witness and not to a transaction 
with the deceased. — Brown v. Moore, 26 S. C, 160; 2 S. E., g. 

A grantor, as against her grantee, is a competent witness to prove the declaration 
of one deceased under whom both of the parties to the cause derived their title. — - 
Blohme v. Lynch, 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. — McCauley v. National Bank, 
27 S. C, 215; 3 S. E., 193. 

Where the defendant, as administrator of deceased executor, brings out on cross- 
examination of the plaintiff, the surviving co-executor, that certain payments have 
been made to him by defendant's intestate, the plaintiff was allowed to testify as 
to whether other alleged payments had been made to him. — Williams v. Mower, 
29 S. C, 332; 7 S. E., 505. 

In action by creditor to set aside judgment confessed to defendant by her father, 
who died before 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 con- 
versations with the father and he had never made demand upon the defendant, 
as administrator, for payment 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 property 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 trans- 
actions with the deceased land owner, he being no party to action nor interested 
in the result, and the action being against the defendants 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 building 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 
independent fact. — Fogette v. Gaffney, 33 S. C, 303. 

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 administrator of deceased co-executor, 
for account and settlement, the plaintiff can testify to the fact that he had con- 
versations with defendant's intestate as to certain matters, and when, where, and 
in whose presence such conversation was had, the statements of witness or de- 
ceased 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., i; Burris v. Whitner, 3 S. C, 510; 
Bollman v. Bollman, 6 S. C, 30; McCougan v. Hall, 21 S. C., 601. 

It was error for Probate Judge to strike out on motion testimony as incom- 
petent under this Section, where such testimony had been previously given without 



2o8 ■ CODE OF CIXIL PROCEDURE 

A. D. 1D02. 

'■^-- s^ ■"— ' objection. — Stark v. Hopson, 22 S. C, 42. And Circuit Judge erred in holding 
such testimonj- to be competent and sustaining the decree below; he should have 
ordered a new trial so that the Court below might first consider such testimony. 
—lb. 

A partj- examined on his own behalf may, like other witnesses, refresh his 
memory by book entries and other memoranda. — Bull v. Lambson, 5 S. C, 284. 

An heir at law, co-defendant with an administrator, 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 plaintiff to the deceased. — Martin v. Jennings, 52 S. C, 
371 ; 29 S. E., 808. 

To permit a defendant in a suit by an administrator to testify he met the de- 
ceased on several occasions, with certain amounts of monej' on his person, that he 
did not have when he left him, is a palpable effort to evade the provisions of this 
Section. — Martin v. Fowler, 51 S. C, 499; 29 S. E., 261. 

One who petitioned for letters of administration could testify that he paid a 
doctor's bill for the deceased, since the testimony was not given in an action against 
anj' of the parties named in the Section. — Burkim v. Pinkhussohn, 58 S. C, 469; 
36 S. E., 908. 

Testimony of physician, who presents bill for sers'ices in attending on deceased, 
as to his physical condition, is competent. — Sullivan v. 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. — Devereaux v. McCrady, 46 S. C, 133; 24 S. E., 77. 

The heirs at law and grantee of deceased, by introducing the testimons' of de- 
ceased, 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. 



Definition of 
an order. 



CHAPTER VIII. 

Motions and Orders. 

Sec. I Sec. 

401. Definition of an order. ' 403. Notice of motion. 

402. Definition of a motion. Motions, 404. In absence, &c., of Judge at 
how and when made. Stay Chambers, motion may be 
of proceeding. Compelling transferred to another Judge 
parties to testify on mo- 1 405. Enlarging time for the proceed- 
tions. Decision on motion. i ings in an action. 

Section 401. Every direction of a Court or Judge, made or 
§ 416.' " "entered in writing, and not included in a judgment, is denomi- 
nated an order. 

The refusal of a motion for nonsuit, never being "made or entered in writing," 
is not an order. — ^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, 233. 

The order of one Court or Judge cannot be set aside or disregarded for irregu- 
larity 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 an- 
other 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. 

Sec. 402. I. An application for an order is a motion. 

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 juris- 
diction of the case. — State v. Black, 34 S. C, 194; 13 'S. E., 361. 



OF SOUTH CAROLINA. 209 

'- — A. D. 1902. 



2. Motions may be made to a Judge or Justice out of Court, ^--^v"*-^ 
except for a new trial on the merits. Definition of 

■T a motion. Mo- 

As to motions at chambers, see Sec. 2736, Civil Code and note. As a Judge tions, how and 

■ 1 , , T-,, ■<«■,, o^ „ „, when made. 

cannot vacate a judgment at chambers. — Bank v. Mellett, 44 b. C, 383; Claussen Stay of pro- 

V. Hutchinson, 14 S. C, 517; Charles v. Jacobs, 5 S. C, 348; Turner v. Foreman, ceeding. Com- 

47 S. C, 31; 24 S. E., 989. So he cannot give a judgment at chambers. — Badham P'^^""S,.P^'^'-''^^ 

to testify on 
V. Brabham, 54 S. C, 400; 32 S. E., 444. Nor can he, on motion to dissolve an u^ q tions. De- 
attachment, decide on the merits of the action. — Williamson v. Ass'n, 54 S. C, cision on mo- 

582; 32 S. E., 76s; Moore v. Rountree, 35 S. E., 386; 57 S. C, 75. So a Judge ^^°"- ^ 

of one Circuit cannot hear a petition for mandamus arising in another Circuit, /{,_ §417; 
the Courts of which he is not holding. — State e.r rel. Cunningham v. Williams, 1S99, XXIII., 
52 S. C, 416; 29 S. E., 814. Nor can application for such writ be heard outside 
of Circuit. — State ex rel. LaMotte v. Smith, 50 S. C, 558; 2y S. E., 933. 

The following motions may be made at chambers : 

Motion to dissolve an attachment upon notice. — Cureton v. Dargan, 12 S. C, 122. 

Motion for leave to file a supplemental complaint. — Edwards v. Edwards, 14 
S. C, II. 

Motion to vacate a warrant of seizure to enforce 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; i 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 certificates. — State v. R. R. Co., 45 
S. C, 413; 23 S. E., 362. 

3. Orders made out of Court, without notice, may be made 
by the Judge of the Court, in any part of the State. 

Judge can correct mere clerical error in his decree on ex parte application out 
of Court. — Chafee v. Rainey, 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 purchase 
money. — Odom v. Burch, 52 S. C, 305; 29 S. E., 726. 

4. Motions upon notice must be made within the Circuit in 
which the action is triable, or, in the absence or inability of 
the Judge of the Circuit, may be made before the resident or 
presiding Judge of a Circuit adjoining that in which it is 
triable. 

This subdivision does not empower a Circuit Judge to perform judicial duties 
outside of his own Circuit. — Ex parte Parker, 6 S. C, 472. 

But Judge may render a decree in cause heard by him in one Circuit after he 
had entered upon his duties in another Circuit. — Chafee v. Rainey, 21 S. C, 11. 

Motion to set aside a decree of foreclosure can be made only in the Circuit 
where the action is pending. — Thomas v. Raymond, 4 S. C, 347. 

It is error to grant relief beyond the terms of the notice. — De Walt v. Kinard, 
19 S. C, 286. 

Applications for writ of mandamus must be heard in Circuit. — State ex rel. La- 
Motte v. Smith, so S. C, 588; 27 S. E., 933. And must be heard by the Judge 
of, or holding the Courts in the Circuit. — State ex rel. Cunningham v. Williams, 
52 S. C, 416; 29 S. E., 814. 

5. 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. No order to stay proceedings for a longer time than 



14.— C. P. 



2IO CODE OF CIVIL PROCEDURE 

A. D. 1902. 

'^■''"V"*^ 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 prescribe a shorter period. 

This Section applies only to a Circuit Judge, and not to a Justice of the Supreme 
Court. — Salinas v. Aultman, 49 S. C, 378; 27 S. E., 407. Nor does it refer to 
injunctions against individuals; or, if so, it merely makes the restraining order 
nugatory after the lapse of twenty days, and not irregular ab initio. — Strom v. 
American Freehold, &c., Co., 42 S. C, 97; 20 S. E., 16. The defect, if any, by 
motion to vacate within the twenty days. — Meinhard v. Youngblood, 37 S. C, 223; 
IS S. E., 947. 

7. 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, -ap- 
point 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. Whenever a motion shall be made in any cause or pro- 
ceeding in any of the Courts in this State to obtain an injunc- 
tion 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 may be submitted to him for his decision. 

tion '^'^^ °^ ™° ^®^' ^^^- When a notice of a motion is necessary, it must 
"TsTO XIV § ^^ served four days before the time appointed for the hearing ; 
^^^- . but the Court or Judge may, by an order to show cause, pre- 

scribe a shorter time. 

An order cannot be made without notice to the party prejudiced by it. — State v. 
Parker, 7 S. C, 235. 

An order to enjoin a decree for sale of mortgaged premises cannot b^ made 
without four days' notice. — Rice v. Mahaffey, 9 S. C, 281. 

Motion for security for costs should be notified four days before the time for 
hearing. — Dulany v. Elford, 22 S. C, 304. 

Orders granted upon notice for less time should be set aside. — Ex parte Apeler, 
35 S. C, 419; 14 S. E., 931. 

Notice of motion to change venue. — Willoughby v. N. E. Ry. Co., 46 S. C, 317; 
24 S. E., 308, and Sec. 2785, Civil Code. 

&c^," of '^judg^e ^^^' ^^^' When notice of a motion is given, or an order to 
motio^nwy^'be show causc is returnable before a Judge out of Court, and at 
In^o'the7?udgl° ^^^ ^^nie fixed for the motion he is absent or unable to hear 
jj,_^ § 4i9_ it, the same may be transferred, by his order, to some other 
Judge, before whom the motion, in case of his absence or in- 
ability, might originally have been made. 



OF SOUTH CAROLINA. 211 

A. D. 1902. 



This Section extends the provisions of Section 402, subdivision 4, to the case ^-^^-y"*-^ 
of a motion already noticed or ordered to be heard in proper Circuit. — Ex parte 
Parker, 6 S. C, 472. 

It does not enlarge the authority of the Judges to perform judicial acts beyond 
the limits of their own Circuits. — lb. 

Does not apply to proceedings in nvaiidamits. — State ex rel. Cunningham v. Wil- 
liams, 52 S. C, 416; 29 S. E., 814. 

See. 405. The time within which any proceeding in an action time'^ ilr ^thl 
must be had, after its commencement, except the time within an°action.^^ 
which an appeal must be taken, may be enlarged, upon an it., § 420. 
affidavit showing grounds therefor, by a Judge of the Circuit 
Court. The affidavit, or a copy thereof, must be served with a 
copy of the order, or the order may be disregarded. 



CHAPTER IX. 

Entitling Affidavits. 

Sec. 406. AflBdavits defectively entitled valid. 



Affidavits de- 



Section 406. It shall not be necessary to entitle an affidavit in fectiveiy' ^entt 
the action ; but an affidavit made without a title, or with a de- ^'^'^ '^^^"^' 



fective 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. 

It is not necessary to state the venue in the affidavit. — Clemson College v. Pickens, 
42 S. C, sii; 20 S. E., 401. An affidavit defined; before whom to be taken. — 
Marine Wharf Co. v. Parsons, 49 S. C, 136; 26 S. E., 956. The affidavit need 
not be signed by the affiant. — Armstrong v. Austin, 45 S. C, 69; 22 S. E., 767. 
As to the necessity of the officer signing the jurat. — Doty v. Boyd, 46 S. C, 39; 
24 S. E., 59. 



CHAPTER X. 

Computation of Time. 

• Sec. 407. Time, how computed. 

Section 407. The time within which an act is to be done, as Time, how 

1- '111 f 1 f 1 computed. 

herem provided, shall be computed by excluding the first day 

and including the last. If the last day be Sunday, it shall be 422. 
excluded. 

When an order allowing twenty days in which to serve an answer is affirmed, the 
defendant has twenty days after the answer reaches the lower Court in which to 
do so. — Barnwell v. Marion, 56 S. C, 54; 33 S. E., 719. 




CODE OF CIVIL PROCEDURE 



CHAPTER XL 

Notices, and Filing and Service of Papers. 



Sec. 

408. Notices, &c., how served. 

409. Service, how made. 

410. Service by mail. 

411. The like. 

412. Double time where service by 

mail. 

413. Notice of motion, &c., where 

personally served. 



Sec. 

414. When papers need not be served 

on defendant. 
-±15. Service of papers where parties 

reside out of the State. 

416. Summons and pleadings to be 

filed. 

417. Service on attorney. 

418. When this Chapter does not 

apply. 



Notices, &c. 
how served. 

lb., § 423. 



Service, liow 
made. 

lb., § 424. 



S e r V ice by 
mail. 

lb., § 425. 



The like. 
lb., § 426. 



Section 408. Notices shall be in writing, and notices and 
other papers may be served on the party or attorney, in the 
manner prescribed in the next three Sections, where not other- 
wise provided by this Code of Procedure. 

Telephone notices, being verbal, do not comply to this Section. — Ex parte Apeler, 
35 S. C, 417; 14 S. E., 931. Notice of appeal.^ — Abney v. Cole, 30 S. C, 607; 
10 S. E., 390; Barnwell v. Marion, 56 S. C, 54; 33 S. E., 719. 

Sec. 409. The service may be personal, or by delivery to the 
party or attorney on whom the service is required to be made; 
or it may be as follows : 

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 morn- 
ing 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 attorney'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 between the hours of six in the morning and 
nine in the evening, with some person of suitable age and 
discretion. 

Leaving with wife at residence sufficient. — Allen v. Cooley, 53 S. C, 414; 31 
S. E., 634. 

Sec. 410. 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. 

Service by mailing on last day sufficient. — S3 S. C, 155; 31 S. E., i. 

Sec. 411. In case of service by mail, the paper must be de- 
posited in the postoffice, addressed to the person on whom it 
is to be served, at his place of residence, and the postage paid. 



OF SOUTH CAROLINA. 




Sec. 412. When the service is by mail, it shall be double the 
time required in cases of personal service. Double time 

T- ^ where service 

This provision is intended for the benefit of the party upon whom the service "y ma"- 
is made and not for the party making the service. The service is complete as ^^g^o XIV § 
soon as the paper is deposited in postoffice, properly addressed and stamped. — 427. 
Sullivan v. Speights, 12 S. C, 561. The time for service of exceptions upon the 
Judge, after rising of the Court, not extended when sent by mail. — lb. 

Sec. 413. Notice of a motion or other proceeding- before a Noticeof 

, mot ion, &c.. 

Court or Judge, when personally served, shall be given at where person- 

1 r r 1 • • 1 r ^^^^ served. 

least four days before the time appointed therefor. — • 

-^ _ ^^ ^ lb., § 428. 

An order to enjoin a decree for sale of mortgaged premises cannot be made 
without four days' notice. — Rice v. Mahaffey, 9 S. C, 281. Motion requiring 
security for costs should be notified four days beforehand. — Dulany v. Elford, 22 
S. C, 304. 

Notice of motion for change of venue. — Willoughby v. N. E. Ry. Co., 46 S. C, 
317; 24 S. E., 308; Civil Code, Sec. 2785. 

Sec. 414. When a defendant shall not have demurred or When papers 

need not be 

answered, service of notice or papers in the ordinary proceed- served on de- 
insrs in an action need not be made upon him unless he be im- = ■ 

. . ^ lb., § 429. 

prisoned for want of bail, but shall be made upon him or his 
attorney, if notice of appearance in the action has been given. 

Sec. 415. Where a plaintiff or a defendant who has de- Service of pa- 

^ _ pers where par- 

murred or answered, or gives notice of appearance, resides ti|s reside out 
out of the State, and has no attorney in the action, the service— r — — — — • 

.... -'''•■ S 430. 

may be made by mail, if his residence be known; if not known, 
on the Clerk, for the party. 

Sec. 416. The summons and the several pleadings in an Summons and 

^ '-' pleadings to be 

action shall be filed with the Clerk within ten days after the fii^^- 



service thereof respectively, or the adverse party, on proof of ^^^ § 431. 
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. 

Sec. 417. Where a party shall have an attorney m the action,^ Service on at- 

'^ -' ■' torney. 



the service of papers shall be made upon the attorney instead ^^ ^^^ 
of the party. 

Applies only after action has been commenced.- — Duncan v. Brown, 15 S. C, 416. 
Notice to set aside an execution should be served on the parties; service upon 
attorney who renewed the execution is not sufficient. — lb. 

Sec. 418. The provisions of this Chapter shall not apply to ch^pte? d o*e's 

the service of a summons, or other process, or of any paper to "°^ ^^^ ^' . 

bring a party into contempt. 




CODE OF CIVIL PROCEDURE 



CHAPTER XII. 

Miscellaneous Provisions. 



Sec. 

419. Papers lost or withheld, how 

supplied. 

420. Where undertakings to be filed. 



Sec. 

421. Time for publication of notices, 

how computed. 

422. Laws of other States and Gov- 

ernments, how proved. 



or^w f tVh°efd! Section 419. If an original pleading or paper be lost or with- 
how supplied, i^gi^ i^y ^j^y person, the Court may authorize a copy thereof 
lb., § 437. ^Q ^g i^ig^. ^^^ ^gg(^ instead of the original. 

This Section confers no new powers, but simply recognizes the general power 
already existing in the Court of so substituting new records. — DuBois v. Thomas, 
14 S. C, 30. Such general authority includes judgments. — lb. 
Where un- . . 1 • 1 

d e r takings to gec. 420. The various undertakings required to be given by 

be filed. 

— this Code of Procedure must be filed with the Clerk of the 

Court, unless the Court expressly provides for a different dis- 
position thereof, except that the undertakings provided for by 
the Chapter on the claim and delivery of personal property, 
shall, after the justification of the sureties, be delivered by the 
Sheriffs to the parties, respectively, for whose benefit they are 
taken. 
licatTon o'f^no- Scc. 421. The time for publication of legal notices shall be 
putld. °'^ '^""^ computed so as to exclude the first day of publication, and 
1S70, XIV., § include the day on which the act or event, pf which notice is 
given, is to happen, or which completes the full period required 
for publication, 
er ^stltes and Scc. 422. Printed copies, in volumes, of statutes, code, or 
how^'prove^d! ^' Other written law, enacted by any other sovereignty, State or 
lb., § 441. Territory, or foreign government, purporting or proved to 
have been published by the authority thereof, or proved to be 
commonly admitted as evidence of the existing law in the 
Courts and judicial tribunals of such sovereignty, State, Ter- 
ritory, or government, shall be admitted by the Courts and 
officers of this State, on all occasions, as presumptive evidence 
of such laws. 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 pre- 
sumptive evidence of such law. 



OF SOUTH CAROLINA. 



TITLE XIII. 

ACTIONS IN PARTICULAR CASES. 

Chapter I. Actions against Foreign Corporations. 
Chapter II. Actions in place of Scire Facias ^ Quo Warranto, 

and of Informations in the nature of Quo 

Warranto. 




CHAPTER I. 

Actions Against Foreign Corporations. 

Sec. 423. Where and by whom action brought. 

Section 423. An action against a corporation created by or by^^ Ijh'o^jn^ ac'^ 
under the laws of any other State, government, or country, ^'°" ^°^° ^' 
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. 

A complaint in a Court of general jurisdiction is not demurrable on the ground 
of want of jurisdiction, because of the non-residence of the plaintiff, it not appear- 
ing therefrom what his residence is. — Pollock v. B. & L. Ass'n, 48 S. C, 65; 25 
S. E., 977. 

Where such corporation appears and answers on the merits, it submits itself 
to the jurisdiction of the Court, and the complaint will not then be held defective 
because it failed to show that the plaintiff was a resident of the State. — Chafee v. 
Postal Co., 35 S. C, 372. 

A non-resident can sue a foreign corporation only in the two cases specified in 
subdivision 2, and this action cannot be maintained unless it appear that it is 
brought in one case or the other. — Central R. R. v. Georgia Company, 32 S. C, 319. 

The cause of action arises at the place of performance, presumably the place of 
making. — Tillinghast v. Boston Lumber Co., 38 S. C, 319; 18 S. E., 120; Curnow 
V. Phoenix Ins. Co., 37 S. C, 407; 16 S. E., 132; Carpenter v. American Accident 
Co., 46 S. C, 541; 24 S. E., 500. 




CODE OF CIVIL PROCEDURE 



CHAPTER II. 

Action in Place of Scire Facias, Quo Warranto, and of In - 
formations in the Nature of Quo Warranto. 

Sec. Sec. 

424. /Scire facias and quo warranto 434. 

abolished, and this Chapter 
substituted. 

425. Action may be brought, by di- 435. 

rection of the Legislature, 436. 
by the Attorney General, to 
vacate a charter. 

426. Action to annul a corporation, 437. 

when and how brought by 

the Attorney General, by 488. 

leave of the Supreme Court. 

427. Leave to sue, how obtained. 439. 

428. Action upon information or com- 

plaint of course. 

429. Action, when and how brought 440. 

to vacate letters patent. 

430. Relator, when to be joined as 441. 

plaintiff. 

431. Complaint and arrest of defend- 

ant in action for usurping 442. 
an office. 

432. Judgment in such actions. 443. 

433. Assumption of office, &c., by re- 

lator, when judgment is in 
his favor. 



Proceedings against a defendant, 
on his refusal to deliver 
books or papers. 

Damages, how recovered. - 

One action against several per- 
sons claiming office and 
franchise. 

Penalty for usurping office or 
franchise, how awarded. 

Judgment of forfeiture against a 
corporation. 

Costs against a corporation, or 
persons claiming to be such, 
how collected. 

Restraining corporation, and 
appointment of receiver. 

Copy of judgment roll against 
corporation, where to be 
filed. 

Entry of judgment relating to 
letters patent. 

Action for forfeiture of prop- 
erty to the State. 



Scire facias 
quo warranto 
abolished, and 
this Chapter 
substituted. 

1S70, XIV., § 
443. 



Action may 
be brought, by 
direction of the 
Legislature, bj' 
t li e Attorney 
General, to va- 
cate a charter. 

lb., § 444. 



Section 424. The writ of scire facias, the writ of quo war- 
ranto, and proceedings by information in the nature of quo tvar- 
ranto, are abolished ; and the remedies heretofore obtainable in 
those forms may be obtained by civil actions under the provis- 
ions of this Chapter. But any proceeding heretofore com- 
menced, or judgment rendered, or right acquired, shall not be 
affected by such abolition. 

The Supreme Court still retains the power conferred upon it by Cons., Art. IV., 
Sec. 4, to issue writs of quo zvarranto in tlie sense that it has jurisdiction of such 
proceedings. This Section does not attempt to abolish that jurisdiction, but 
simply to abolish the formal characteristics of the writ. — Alexander v. McKenzie, 
2 S. C, 8i; State v. Bowen, 8 S. C, 382. 

Relates only to scire facias as a civil remedy; does not affect it as a remedy to 
estreat a recognizance in the Court of General Sessions. — State v. Wilder, 13 S. 
C, 344. 

Sec. 425. An action may be brought by the Attorney Gen- 
eral, in the name of the State, whenever the Legislature shall 
so direct, against a corporation, 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 conceal- 
ment of a material fact, by the persons incorporated, or by 
some of diem, or with their knowledge and consent. 



OF SOUTH CAROLINA. 




Sec. 426. An action may be brought by the Attorney Gen- 
eral in the name of the State, on leave granted by the Supreme ^^^1'"'^'°"^*°^^^.^: 
Court or a Justice thereof, or a Circuit Judge, for the purpose ^j,'°";;''1fj?^^^g'^'J 
of vacating the charter or annulling the existence of a cor- J^^^ ^^^ Qg'^g^j."^^ 
poration, other than municipal, whenever such corporation I^^J^^^'^ °*4^| 
shall— ^""'•^- 

1. Offend against any of the provisions of this Code of ■^^■' ^ ^^^' 
Procedure, or the Acts creating, altering, or renewing such 
corporation ; or, 

2. \^iolate the provisions of any law by which such cor- 
poration shall have forfeited its charter by abuse of its 
powers ; or, 

3. Whenever it shall have forfeited its privileges or fran- 
chises by failure to exercise its powers ; or, 

4. Whenever it shall have done or omitted any act which 
amounts to a surrender 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 reason to believe that any of these acts or omis- 
sions can be established by proof, to apply for leave, and, upon 
leave granted, to bring the action, in every case of public in- 
terest, and, also, in every other case in which satisfactory se- 
curity shall be given to indemnify the State against the costs 
and expenses to be incurred thereby. 

Sec. 427. Leave to bring the action may be granted upon Leave to sue, 

the application of the Attorney General ; and the Court or _^:^ — _ — 

Judge may, at discretion, direct notice of such application to 446.' ' ' 
be given to the corporation or to its officers, previous to grant- 
ing such leave, and may hear the corporation in opposition 
thereto. 

See. 428. An action may be brought by the Attorney Gen- Action upon 

. . . r 1 A , 1 • ' • r i_- information or 

eral m the name of the State, upon his own miormation, orcompiaint of 
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 fran- 
chise 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 



2i8 CODE OF CIVIL PROCEDURE 

A. D. 1002. — 

'•~— 'v-^ 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 incor- 
porated, 
a t''d°"'h''o^ w S^c. 429. An action may be brought by the Attorney Gen- 
c™e''!etter°s pa- ^^^^' ^^ ^^^ uamc of the State, for the purpose of vacating or 

^J^ .annulling letters patent granted by the people of this State in 

lb., § 448. ^Yie following cases : 

1. When he shall have reason to believe that such letters 
patent were obtained by means of some fraudulent sugges- 
tion 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 ma- 
terial fact; or, 

3. When he shall have reason to believe that the patentee, or 
those claiming under him,- have done or committed an act, in 
violation of the terms and conditions on which the letters patent 
were granted, or have, by any other means, forfeited the inter- 
est acquired under the same. 

Relator, when Scc. 430. When an action shall be brought by the Attorney 

to be joined as . . , . _,, , , . - 

plaintiff. General, by virtue of this Chapter, on the complaint of any 

1870, xiY., private party, or by a person having an interest in the question, 
the name of such person shall be joined with the State as plain- 
tiff ; and, in every 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 in- 
curred thereby ; and in every case brought by the Attorney 
General where such security is given, the measure of compen- 
sation to be paid by such person to the Attorney General, shall 
be left to the agreement, express or implied, of the parties. 

Complaint and Scc. 431. When such an action shall be brought against a 

arrest of de- "^ ^ 

tfon'^for usur"" P^^sou for usurping an office, the Attorney General, or private 
ing an office, party bringing the same, in addition to the statement of the 
lb., § 450. 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 received fees or emoluments belonging 
to the office, and by means of his usurpation thereof, an order 



OF SOUTH CAROLINA. 219 

— - A. D. 1902. 



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. 

Sec. 432. In every case, judgment shall be rendered upon the Judgment in 

J ' J <^ ^ such actions. 

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. 

Sec. 433. If the judgment be rendered upon the right of the .Assumption 
person so alleged to be entitled, and the same be in favor of by relator 

•■^ ° ' ^ when judgment 

such person, he shall be entitled, after taking the oaths of office, is in his favor. 
and executing such official bond as may be required by law, ^^■> § "152. 
to take upon himself the execution of the office ; and it shall 
be his duty, immediately thereafter, to demand of the defend- 
ant 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. 

Sec. 434. If the defendant shall refuse or neglect to deliver Proceedings 

•-' against a de- 

over such books or papers, pursuant to the demand, he shall be ^Ifusl'i^'to'^ di^ 
guilty of a misdemeanor, and the following proceedings shall ^'^er books or 
be had, to compel delivery of such books or papers : —^ — r^^^ — 

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, deliver over to his successor all 
the books and papers in his custody as such officer, 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 satisfied by the oath of the complainant, and such testimony 
as shall be offered, that any such books or papers are with- 
held, 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. At the time so appointed, or at any other time to whicli 
the matter may be adjourned, upon due proof being made of the 
service of the said order, such officer shall proceed to inquire 



220 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

' r — "^ into the circumstances. If the person charged with withhold- 
ing 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 withholding to the jail 
of the County, there to remain until he shall deliver such 
books and papers, or be otherwise discharged according to 
law. 

A party having prima facie title to an appointive office is entitled to a summary 
order against the party in possession of the books belonging to the office. — Verner 
V. Seibels, 39 S. E., 274. 

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, commanding 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 of- 
ficer, 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 appertaining 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, 



OF SOUTH CAROLINA. 221 

A. D. 1902. 



and the propert}' seized by virtue thereof may be delivered to ^-*-v-*-^ 
the complainant, as hereinbefore prescribed. 

Where a person has been elected Probate Judge and he qualifies and is com- 
missioned as such, he is prima facie entitled to the possession of the office and its 
books, records and property, without awaiting a judgment in his favor under a 
proceeding in quo zi^arraiito; and his predecessor in office may be committed to jail, 
as for contempt, for refusal to obey an order of the Circuit Judge directing him to 
surrender such office and property to his successor. — Ex parte ^^■hipper, 32 S. C, 
5; 10 S. E., 579. 

Sec. 435. If judgment be rendered upon the right of the per- re^o^'fed.' ^"'"^ 
son so alleged to be entitled, in favor of such person, he rnay ^sto, xiv., § 
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. 

Sec. 436. Where several persons claim to be entitled to the ag°n"t^ sevlml 
same office or franchise, one action may be brought against all fn"°office'' liTd 
such persons, in order to try their respective rights to such !!!!liJ!l . 

rr r ^ • ^b., § 455. 

office or francnise. 

Sec. 437. When a defendant, whether a natural person or ^^Pe^a^tj j^^r 
corporation, against whom such action shall have been brought, o^ j ^ a n^diise, 
shall be adjudged guilty of usurping or intruding into, or un- ^^_^ ^ ^^g_ • 
lawfully holding or exercising, any office, franchise, or privi- 
lege, judgment shall be rendered that such defendant be ex- 
cluded from such office, franchise, or privilege, and also that 
the plaintiff recover costs against such defendant. The Court 
mav also, in its discretion, fine such defendant a sum not ex- 
ceeding two thousand dollars, which fine, when collected, shall 
be paid into the Treasury of the State. 

Sec. 438. If it shall be adjudged that a corporation against ^ J^^gment^ of 
which an action shall have been brought pursuant to this Chap- pf^itilV.^ ''°''" 
ter, has, by neglect, abuse, or surrender, forfeited its corporate j^_^ ^ ^^^ 
rights, privileges, and franchises, judgment shall be rendered 
that the corporation be excluded from such corporate rights, 
privileges, and franchises, and that the corporation be dis- 
solved. 

Sec. 439. If judgment be rendered in such action against a ^ Cost^pj;.|^|JJJ 
corporation, or against persons claiming to be a corporation, "[^jPf^^^^'^i,! 
the Court may cause the costs herein to be collected by execu- fe^c'te'd.''"'^ ^°^' 
tion against the persons claiming to be a corporation, or by at- j^_^ § ^gg^ 
tachment or process against the Directors or other officers of 
such corporation. 

Sec. 440. When such judgment shall be rendered against a ^^^^^^''^^^fi^f^^ 
corporation, the Court shall have power to restrain the corpo- 1^\'^^ tTf°'re- 
ration, to appoint a receiver of its property, and to take anf!^ 



lb., § 459. 



222 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

' Y ' 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. 

Copyofjudg- Sgc_ 44i_ Upon the rendition of such iude-ment against a 

mentroll ^ JO o 

alon^ whereTo Corporation, or for the vacating or annulling of letters patent, 
^^ ^^^^- it shall be the duty of the Attorney General to cause a copy of 

460^"' '^"^^■' ^^^^ judgment roll to be forthwith filed in the office of the 

Secretary of State, 
men't^ ?eiitm<^ ^®^' ^'^^' Such Secretary shall thereupon, if the record re- 
ent ^"^""^ P^t- lates to letters patent, make an entry in the records of the office 
II, ^^gy — of the Secretary of State, of the substance and effect of such 
judgment, and of the time when the record thereof was dock- 
eted ; 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, 
f (^r future °of ^®^* '^^^- Whenever, by the provisions of law, any property, 
Itetl"^^ *° *^^ real or personal, shall be forfeited to the State, or to any officer 
j^ g ^, for its use, an action for the recovery of such property, al- 
leging the grounds of the forfeiture, may be brought by the 
proper officer in the Circuit Court. 



TITLE XIV. 

GENERAL PROVISIONS. 

Sec. Sec. 

444. Definition of real property. 450. Judges to meet and malie gen- 

445. Definition of personal property. eral rules. 

446. Definition of property. 451. Justices of Supreme Court may 

447. Definition of Clerk. ! make rules. 

4iS. Eules of construction. 452. Proceedings by mandamus and 

449. Inconsistent statutory provisions prohibition not affected, &c. 

repealed. 1 453. Equity rules to prevail in cases 

I of conflict. 

Definition of Scctioii 444. The words "real propertv'" and "real estate," as 

real property. i j. . ^ • 1 i j 

,, , ,,, — -used in this Code of Procedure, are co-extensive with lands, 

lb., S ioD. 

tenements, and hereditaments. 
Definition of Sec. 445. The words "personal property," as used in this 
persona prop q^^^ ^£ Proccdurc, includc money, goods, chattels, things in 
lb., § 467. action, and evidences of debt. 

Held to include debts evidenced by bonds and mortgages. — Williamson v. Ass'n. 
54 S. C, 582; 32 S. E., 765. 



OF SOUTH CAROLINA. 




Sec. 446. The word "property," as used in this Code of Pro- 
cedure, includes property, real and personal. property!"" °^ 

Sec. 447. The word "Clerk," as used in this Code of Pro- y^_^ g 468. 
cedure, signifies the Clerk of the Court where the action is Definition of 

pending, and, in the Supreme Court, the Clerk of the County ^'^'"^" , 

mentioned in the title of the Complaint, or in another County ^^■' ^ '^^^■ 
to which the Court may have changed the place of trial, unless 
otherwise specified. 

Sec. 448. The rule of common law, that Statutes in deroga- R^i" of con- 

' ° struction. 

tion of that law are to be strictly construed, has no application— — — - — 
to this Code of Procedure. 

Sec. 449. All Statutory provisions inconsistent with this i " consistent 

'^ statutory pro- 

Code of Procedure are repealed ; but this repeal shall not re- ^|f'°"^ repeai- 

vive a Statute or law which may have been repealed or abol- ^g^^ ^^y ^ 

ished 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 protection 

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. 

Remedy can be had under the Code, in action already pending, according to 
its new forms of proceeding if practicable; if not practicable, in order to prevent 
failure of justice, resort might be had to the former practice. — Parnell v. Maner, 
16 S. C, 348; Arthur v. Allen, 22 S. C, 432. In the light of this Section so 
much of the Act of 1878 as to appeals (16 Stat., 698,) is inconsistent with Section 
345, subdivision 2, and must be considered as repealed. — Molair v. R. R. Co., 31 
S. C, 510; 10 S. E., 243. 

The Code making no provision as to proceedings in case of certiorari, the "prac- 
tice heretofore in use" must govern in such case. — Ex parte Black, 34 S. C, 194; 
13 S. E., 361. 

Sec. 450. The Justices of the Supreme Court and the Judges j^^^^ f^d^i^ake 
of the Circuit Courts shall meet in general convention on such £!!^!^iLjZ!l!!i_ 
day and at such place as may be designated by the Chief Jus- issl'' xviii.', 
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 amending the rules of the Circuit 
Court, and establishing such additional rules as may be deemed 
necessary to regulate the practice in the Circuit Courts : Pro- 
vided, Such alterations or additions be not inconsistent with 
any of the Statutes of this State. 

Such convention has no power to prescribe rules for the exercise of any special 
jurisdiction conferred by statute upon a Clerk or Magistrate. Rule 66 of the 
Circuit Court does not apply to sureties on a bond given by lienee to obtain war- 
rant for seizure of crop under agricultural lien. — Sharp v. Palmer, 31 S. C, 444! 
IP S. E., 98. 



224 CODE OF CIVIL PROCEDURE 

A. D. 1902. 

v.^^-y'-^fcX The authority of the Rules, so adopted, not inconsistent with the Code, recog- 

nized.- — Ketchin v. Landecker, 32 S. C, 155; 10 S. E., 936; Townsend v. Sparks, 
50 S. C, 3S0; 2.^ S. E., 802. 

Justices of Sec. 451. The Justices of the Supreme Court shall, from 

may make rules time to time, make such rules for the orderly conduct of busi- 

ih., § 471. ness in said Court as they may deem proper, not inconsistent 

with this Code of Procedure. 

Proceedings Sec. 452. Until the Legislature shall otherwise provide, the 

and prohibition second part of tliis Codc of Procedure shall not affect proceed- 
not affected, . 1 -l-j^- 

&c. mgs by mandamus or prohibition. 

Ih., I 475. State ex rel. LaMotte v. Smith, 50 S. C, 558; 27 S. E., 933; State ex rel. Cun- 

ningham V. Williams, 52 S. C, 416; 29 S. E., 814. 

Equity Rules ggg^ 453^ Generally in all matters in which there is any con- 
to prevail m -' 

cases of con- flj^»^ qj- variance between the rules of equity and the rules of the 

nict. ^ ' 

common law, with reference to the same matter, the rules of 
equity shall prevail. 



ADDEINDA 



TO 



Code of Civil Procedure. 

Bein^ a List of Sections Construed by Supreme Court in Volumes 62 and 63 

S. C. I^eports. 



Published Since Adoption of Code. 



Sec. 11, S. d. 1. 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 Mas- 
ter is not appealable. — Halk v. Stoddard, 62 S. C, 563; 40 S. E., 
957- 

Sec. 11, S. d. 2. An order refusing petition to be made a party is appealable. — Rutledge 
V. Tunno, — S. C, — ; 41 S. E., 308. 

Sec. 11, s. d. 4. Order denying injunction appealable. — South Bound R. R. v. Burton, 
63 S. C, 348; 41 S. E., 451. Interlocutory order restraining opera- 
tion of ginnery appealable. — Williams v. Jones, 62 S. C, 472; 40 
S. E., 880. 

Section 26. Term of Common Pleas. — Burwell v. Chapman, 59 S. C, 581; 38 S. E., 

224; Ward V. Tel. Co., 62 S. C, 274; 40 S. E., 670. 

Section 59. Probate Court cannot grant administration during pendency of appeal 

from its judgment on question of "Will" or "No Will." — In re es- 
tate of Seay, 63 S. C, 130; 41 S. E., 11. 

Section 94. Adverse possession may be shown under general denial. — Loyd v. 

Rawl, 63 S. C, 241; 41 S. E., 312. 

Adverse possession. — Kolb v. Jones, 62 S. C, 193; 40 S. E., 168. 

Adverse possession. — Loyd v. Rawl, 63 S. C, 241; 41 S. E., 312. 

An allegation of a payment by defendant on a day certain is an alle- 
gation of a new promise. — McBrayer v. Mills, 62 S. C, 36; 39 

S. E., 788. 

The summons is the process by which jurisdiction of defendant's per- 
son is acquired. — Wren v. Johnson, 62 S. C, 533; 40 S. E., 937. 

Service on foreign corporation. — Emanuel v. Ferris, 63 S. C, 104; 
41 S. E., 20. 

Service of summons out of State, without order of publication and at- 
tachment is void. — Wren v. Johnson, 62 S. C, 533; 40 S. E., 937; 
Emanuel v. Ferris, 63 S. C, 104; 41 S. E., 20. 

Section 160. An appearance for purpose of motion to vacate judgment obtained by 

void service of summons in foreign State gives no jurisdiction of 
the person. — Wren v. Johnson, 62 S. C, 533; 40 S. E., 937. 

Section 163. It is unnecessary to allege in what State defendant corporation is 

chartered. — Machen v. W. U. Tel. Co., 63 S. C, 363; 41 S. E., 448. 



Section 


98. 


Section 


101. 


Section 


131b. 


Section 


148. 


Section 


155. 


Section 


156. 



ADDENDA TO CODE OF CIVIL PROCEDURE. 



Section 


195. 


Section 


230. 


Section 


232. 


Section 


240. 



Section 170. Suicide when a cause of forfeiture must be specifically plead in an ac- 

S. C, 38; 40 S. E., 1023. 

tion on insurance policy. — Latimer v. Woodman of the World, 
62, S. C, 14s; 40 S. E., 155. 

Section 178. A party may always verify his own pleading. — Holmes v. Moore, 63 

S. C, 182; 41 S. E., 90. Sufficiency of verification by agent. — 
Carolina Grocery Co. v. Moore, 63 S. C, 184; 41 S. E., 88. 

Section 181. Remedy for indefiniteness is by motion. — Smith v. Bradstreet Co., 63 

S. C, 525; 41 S. E., 763. Allegations held not irrelevant. — Sim- 
mons V. W. U. Tel. Co., 63 S. C, 425; 41 S. E., 521. 

Section 186a. It is unnecessary to separate allegations as to actual and exemplary 
damages. — Machen v. W. U. Tel. Co., 63 S. C, 425; 41 S. E., 763. 
Butler V. Same, 62 S. C, 235; 40 S. E., 162. 

Section 193. 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. 

195. The remedy where default judgment goes beyond relief demanded is 
by appeal. — McMahon v. Pugh, 62 S. C, 509; 40 S. E., 961. 

The undertaking on part of plaintiif must be executed by him. — Polite 
V. Bero, 63 S. C, 241; 41 S. E., 312. 

The undertaking on part of the defendant here required need not be 
executed by him. — Polite v. Bero, 63 S. C, 209; 41 S. E., 300. 

The wheels of a going concern should not be stopped before it is de- 
termined to be a nuisance.- — Williams v. Jones, 62 S. C, 483; 40 
S. E., 880. The issue as to existence of nuisance, sought to be 
enjoined, should be tried by a jury.— Lipscomb v. Littlejohn, 63 
S. C, 38; 40 S. E., 1023. 

Section 248. The property of a foreign corporation may be attached in an action for 

unliquidated damages, sounding in tort. — Chitty v. Penn. Ry. Co., 
62 S. C, 526; 40 S. E., 944. 

Sec. 265, S. d. 7. The undertaking required cannot be dispensed with. — Roberts v. Pip- 
kin, 63 S. C, 252; 41 S. E., 300. 

Sec. 267, S. d. 1. The order for judgment may be on paper separate from complaint. — 
Melchers & Co., v. Moore, 62 S. C, 389; 40 S. E., 773. Giving 
two orders for judgment not prejudicial error. — Carolina Grocery 
Co. V. Moore, 63 S. C, 184; 41 S. E., 88. Renditions of judgment 
on admission of counter claim. — ifelchers & Co. v. Moore, 62 S. 
C.„ 389; 40 S. E., 773. 

Section 274. Motion to recommit to Master discretionary. — Halk v. Stoddard, 62 

S. C, 564; 40 S. E., 1023. Issue as to existence of nuisance must 
be tried by jury. Lipscomb v. Littlejohn, 63 S. C, 38; 40 S. E., 1023. 

Section 275. Nonsuit is improper on trial of issue in chancery. — So. Ry. Co v. Beaud- 

rot, 63 S. C, 266; 41 S. E., 299. 

Section 276. Placing on wrong calendar is a mere irregularity, and not a jurisdic- 

tional defect. — Ward v. Western U. Tel. Co., 62 S. C, 279; 40 S. 
E., 670; Carolina Grocery Co. v. Moore, 63 S. C, 386; 41 S. E., 88. 
Case is properly retained on Calendar 2 after withdrawal of de- 
murrer to give judgment on admission of counter-claim. — Melchers 
& Co. V. Moore, 62 S. C, 386; 40 S. E., 773- 

Section 297. Where the relief given exceeds that demanded, the remedy is by ap- 

peal. — McMahon v. Pugh, 62 S. C, 509; 4° S. E., 901. 

Section 417. Service of notice of survey, after action commenced, should be made 

on attorneys. — Kolb v. Jones, 62 S. C, 193; 40 S. E., .168. 



I— I. 



ALPHABETICAL INDEX 

TO 

CODE OF LAWS OF SOUTH CAROLINA. 

VOLUME II. 



Code of Civil Procedure. 



A 

Abatement — 

[See Actions.] 

When action does not abate 142 

Action by pledgee abates with extinguishment of his interest. . (n) 142 
For injuries to real property do not abate on death. . . (Civil Code) 2859 

Abbeville County — 

Time for holding Courts in 25 

Embraced in Eighth Circuit ■. 17 

Abscond — 

Persons about to, may be arrested for debts not due (s. d. 5) 200 

Absconding Debtors — 

Property of, may be attached 250 

Arrest of (s. d. 5) 200 

Absence from State — 

Effect on Statute of Limitations 121 

Of party to joint contract (n) . .377, 380 

Absence from State after Statute has commenced to run (n) 121 

To whom applied (n) 121 

Absent — 

Debtors; [See Non-Residents.] 

Defendants ; permitted to defend 156 

Abstract of Judgments — 

Clerk to keep a book to be called 300 

Judgment to be entered in 301 

What to contain 301 



II INDEX TO CODE OF CIVIL PROCEDURE 

SEC. 

Acceptance — 

Of offer of judgment, to be filed (s. d. 5) 368 

Notice of acceptance to be given (s. d. 5) 368 

Effect of refusal (s. d. 5) 368 

Of summons, by defendant in writing (s. d. 4) 159 

by attorney (n) 159 

by infant (n) 159 

by adult (n) 159 

offer for judgment in Magistrate's Court (s. d. 15) 88 

refusal effect (n. s. d.) 88 

by respondent on appeal 373 

Accounts — 

How stated in pleadings I79 

Verified copy of, to be delivered 179 

Further, may be ordered I79 

Further, demand for necessary (n) 179 

Mutual, limitation actions on 116 

In Magistrates' Courts, either party may be required to exhibit 

(s. d. 14) 88 

Pleading founded on 88 

Reference to take, after judgment on issue of law 291 

Compulsory reference on 293 

For information of Court, or to carry a judgment into effect 293 

Guardians, &c., to render final, before discharge 41 

[See Bill of Particulars, Current Account, Long Account.'] 

Acknowledgement of Debt — 

When it must be in writing 131 

By partner after dissolution of firm 131a 

Actions on causes saved by, how brought 131b 

Rule of evidence (n) 131 

Action — 

Definition of 2 

Two kinds of, civil and criminal 4 

Civil, defined 6 

Criminal, defined 5 

Remedies divided into, and special proceedings i 

May be brought by Attorney General, when 426- 429 

One form of, established 89 

Not to be brought on judgment without leave of Court, exception. 91 

For discovery abolished 39° 

Against domestic corporation to vacate charter 4^'i 

For usurpation of office 42<^ 

For trying title to office 430- 437 

Against bail 211 

To vacate letters patent 429 

For negligence and other torts — pleadings 189a 

After discontinuance in Magistrate's Court 84 



INDEX TO CODE OF CIVIL PROCEDURE. Ill 

SEC. 

Action — (Continued.) 

Against foreign 'corporations 4^3 

Mode of trial in equitable and legal actions unchanged (n i, n) 274 

Equitable, to be tried by the Court 275 (n) 274 

verdict of jury in, effect of, under 274 

where issue is not ordered 

under Act of 1899. . . (n) 275 

trial by Judge, Referee or Jury, when discretionary. . (n) 275 

Legal waiver of jury trial in (n.) 274, 288 

Where both issues of law and fact are involved 272 

Title not changed on appeal 33S 

Another, pending, ground for demurrer 165 

Complaint need not be served in, where no personal demand 152 

Severance allowed in, on demurrer for improper joinder I93 

Severance in rendering judgment in 296 

Dismissal for want of prosecution (s. d. 4) 296 

Distinction in forms of action abolished ^ 

No merger of civil and criminal actions 7 

Discontinuing in Magistrate's Court, on answer of title 81 

Limitation of: 

Civil, when can be commenced 94 

Limitation not to apply when right of, already accrued 93 

Nor where a different limitation is prescribed by statute 94 

Objection must be taken by answer 94 

For recovery of real property 96- 99 

Plaintiff limited to two, for recovery of real property (s. d. 2) 98 

Second, to be brought within two years after verdict or non- 
suit (s. d. 2) 98 

None to be commenced for recovery of real property after forty 

years ^°9 

Upon judgments, bonds or instruments secured by mortgage in 

Upon contract ^^^ 

Upon liability by statute ^^^ 

For trespass to real property ^^2 

Detaining or injuring goods 1^2 

For criminal conversation ^ ^^ 

For relief 112, 118 

Upon policies of insurance ^^^ 

Against Sheriff, Coroner, &c ii3> nS 

Upon a statute for penalty, forfeiture 112, 117 

For libel, slander, assault, &c ^^4 

In behalf of the State "4, ^9 

When deemed commenced 120, 248 

If defendant out of the State ; 121 

By persons insane, imprisoned, or under age 122 

By representative of a deceased person ^23 

By aliens ^^4 

After judgment reversed ^^3 

Where stayed by injunction ^^o 



IV INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Action — (Continued.) 
Parties to : 

How designated 90 

Must be prosecuted in name of real part\- in interest 132 

When cause of action assigned 133 

By executor, trustee, &c 134 

"When married woman a party 135 

Additional, to be brought in, where necessary to determination 

of controversy 143 

Additional, in actions on contracts in relation to specific property. 143 

Additional, in actions for recovery of specific property 143 

Grantee suing in name of grantor 132 

In actions for foreclosure of mortgages 188 

When infant a party 136 

For partition or foreclosure 137 

Who to be plaintiffs in 138 

Who to be made defendants 139 

Joinder of Parties to : 

Those united in interest to be joined 14c 

Persons claiming realty adversely to plaintiff 139 

Persons severally liable may be 141 

Landlord and tenant may be joined in actions for recover}^ of 

real propertv' 139 

Continuance or Abatement of: 

Not abated by reason of death or marriage of party 142 

Nor after verdict for a wrong 142 

Court may order abated in certain cases 142 

For injuries to real property (Civil Code) 2859 

On extinguishment of pledgee's interest (n) 142 

On transfer of interest 142 

Substitution of new parties ; practice (n) 142 

For foreclosure 188 

Place of Trial of : 

Certain, to be tried in County of the situs 144 

Court may change place of trial I44 

For recover)' of real property', partition, foreclosure 144 

For the recover}' of personal propertj^ distrained 144 

Place changed by consent 144 

Magistrate (s. d. 19) 88 

For penalty or forfeiture I45 

Against a public officer I45 

All other, to be tried in County where defendant resides 146 

If more than one defendant 146 

When Court may change place of trial (Civil Code 2735) 147 

Place changed, all proceedings to follow I47 



INDEX TO CODE OF CIVIL PROCEDURE. V 

SEC. 

Action — (Continued.) 

Permission to Bring : 

On judgments 91 

To vacate charters, &c 4:26, 427 

Against usurpers in office, &c 428 

of franchise 428 

For forfeiture of office 428 

Joinder of Causes in : 

What may be made 188, i86a 

How Commenced : 

By service of summons 148 

Requisites of summons 149 

Notice to be inserted in summons 150 

Deemed Commenced: 

On appearance of party 160 

When summons is served 120 

Or allowance of provisional remedy 160 

Or lodged for service 120 

When summons is issued 248 

On filing of lis pendens 153 

Submitting Controversy Without: 

Parties may agree upon a case 374 

Case, what to contain 374 

Court to hear and render judgment 374 

Offer to compromise 386 

Acceptance of compromise ; 386 

Offer compromise, in Magistrate's Court (s. d. 15) 88 

Confession of judgment, without 383 

Active Energy — 

Of executions, how renewed (s. d. i) 310 

Additional — 

Allowance as costs 321 

Terms of Supreme Court 13 

Circuit Court 28 

Time allowed 195, 405, 412 

Adjustment of Costs — 

By the Court or Master (n) 326 

By the Clerk 326 

Notice of 326 

Of interlocutory 326 

Must await final judgment (n) 326 

Motion to correct (n) 326 

Administration — 

Granting, of, by Judge of Probate Court 39 

Settlement of, where granted 40 



VI INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Administrators — 

Actions By or Against : 

Costs in actions by or against 330 

No discharge to be granted to, until after notice 41 

Parties, non joinder of parties in interest 134 

Security, on appeal by may be dispensed with 353 

Admission — 

Of foreign laws, &c., in evidence 422 

Of defendants to defend after judgment 156 

Of service of summons , 159 

Of genuineness of paper, when may be required, &c 389 

In answer of part of plaintiff's claim 265 

By not answering or replying 189 

Verification omitted, when 178 

Of absent defendant, or his representative, to defend 156 

Adverse — 

Claims to real estate 139 

Party, examination of 390, 397 

Possession under written instrument 102, 103 

Possession, not under written instrument 104, 105 

Possession, period .' loi 

Possession, effect of relation of landlord and tenant on 106 

Possession, effect of descent cast 107 

Possession, tacking (n) 107 

Possession, action by grantee of lands in 132 

Advertisement— 

Of summons 156 

Of special sessions of Courts 28 

Affidavits — 

Defined (n) 406 

Before whom taken (n) 406 

Jurat, officers signing (n) 406 

Venue, need not be stated (n) 406 

Affiant need not sign (n) 406 

Not necessary to entitle 406 

Necessary to procure warrant of attachment 250 

To be filed ; when and where 250 

Requisites of, in actions for claim and delivery 228 

To obtain publication of summons 156 

In actions for foreclosure and partition 156 

Of proof of service for publication IS9 

In case of service otherwise than by publication _ 159 

Proof of disbursements by 326 

On motion, proceedings where a person refuses to make. . . (s. d. 7) 402 

to vacate order of arrest or to reduce bail 226 

to vacate inj unction, &c 247 

to obtain arrest 202 



INDEX TO CODE OF CIVIL PROCEDURE. VII 

SEC. 

Affidavits — (Continued.) 

To change venue in Magistrate's courts (s. d. 19) 88 

To obtain injunction .240, 241 

Copy to be served on Defendant 241 

To be made by any person 241 (n) 250 

Additional 226, 247 

In reply 226, 247 

Of verification 178 

To obtain arrest, original delivered to Sheriff 205 

To obtain arrest, copy delivered to Defendant 205 

Affidavit of claim by third party 237, 238 

For enlargement of time 405 

Copy to be served with order • 40S 

Affirmance — 

On appeal, vi^here Court is equally divided 14 

from Magistrate not brought to hearing at second term 366 

costs, how awarded 37° 

when affirmed in part 370 

Probate Court, failure to prosecute 61 

Affirmative Relief — 

To Defendant ■ 285 (s. d. 2) 296 

Agent — 

Notice of appeal from Magistrates to be served on 360 

When he may verify a pleading 178 

Service of process upon, in what cases i5S 

Liable to arrest (s. d. i) 200 

Aiken County — 

Embraced in Second Judicial Circuit 17 

Times for holding Courts in 19 

Allegations — 

In pleading, when deemed true 189 

Of pleading liberally construed 180 

Of different causes to be made separately 188 

Irrelevant or redundant 181 

Alien Enemy — 

Excepted from Statutes of Limitations, when 124 

Allowance — 

Of costs and disbursements 326 

Of costs on continuance 3^7 

Of costs on appeal to Circuit Court , 373 

Of provisional remedy, effect 160 

Of costs on motion 328 

Of bail 74 217 



VIII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Alternative — 

Judgment in claim and delivery to be in the 283 

Amendment — 

Of complaint, time of answer after 167 

Proceedings after 167 

Of variances igo, 191 

Of course 193 

After service of answer or demurrer 193 

By the Court to perfect proceedings . . .". 194 

By the Court to relieve against mistake, &c 195 

To bring in new party 145 

As to names of parties 196, 194 

On appeal 339, 349 

In Magistrate's Court 88 

By Referees and Masters 294 

Amount — 

Claivied, judgment by default not to exceed 297 

Of relief, to be consistent with the issues in case 297 

Admitted to be due ; deposit in Court 265 

Admitted to be due ; order for payment of 265 

Of excess over counter claim, judgment for 267 

Anderson County — 

Embraced in Eighth Judicial Circuit 17 

Times for holding Courts in 25 

Answer — 

The only pleading by Defendant is demurrer or 164 

Statute of Limitations must be set up by 94 

Time to 164 

Extending time to 405 

And demurrer 164 

What to contain 170 

And counter-claim i^i 

Certain objections to complaint must be taken by 169 

In action for libel or slander 186 

In action to recover property distrained, doing damage 187 

Of several defenses 171 

Sham and irrelevant, may be stricken out 173 

Demurrer to 172 

Frivolous 268 

New matter in, when deemed controverted 174 

Judgment on failure of 267 

Objections to complaint not appearing on the face thereof are to be 

taken by, instead of by demurrer 168 

Of Defendant unreasonably defending 152 

Offer of compromise on 386 

Offer of liquidated damages served with 387 

Objection not taken by, or demurrer, when waived 169 



INDEX TO CODE OF CIVIL PROCEDURE. IX 

SEC. 

Answer — (Continued.) 

Time to, if complaint be amended 167 

Time to, after service of order of arrest 204 

May be allowed after time therefor has expired 195 

Admitting part of claim 265 

Amended, of course 193 

Of counter-claim 170, 171 

When it may be replied or demurred to 174, 175 

Motion for judgment on 175 

Injunction after 242 

Supplemental, when proper • 142, 198 

Frivolous, motion for judgment on 268 

In Magistrates' Courts , 88 

Of title in Magistrates' Courts * 83 

To be accompanied with undertaking 84 

As to one of several causes of action 86 

Appeal — 

Allowed from Probate to Circuit Court 55, 57 

Allowed from Magistrate's Court 358 

Proceedings in Probate Court stayed by 59 

Who may 337 

Parties to, how designated 338 

Title of action not changed by 338 

How made 339 

Reviewing judgment by, in civil or criminal action 335 

Mistake in proceedings after notice of, may be rectified 339, 349 

Clerk to transmit papers to appellate Court 340 

Intermediate orders reviewed on 11, 341, 345 

Interlocutory orders as to injunction or receivers ; procedure 11 

Judgment on 342 

Restitution on reversal of judgment on 342 

New trial may be ordered on 342 

To Supreme Court — 

Time for .- 11, 345 

Time for serving notice of cannot be enlarged 349 

Time for, when it commences to run 57, 345, 359 

Costs on 331 

Exceptions for purposes of 290, 345 

To Supreme Court, in what cases 11, 290, 344, 352 

Power of Court on 12 

Remittitur after 12 

When to be reheard 13, 14 

Security or deposit on 346, 350, 352, 353, 354, 355, 356, 357 

Sureties becoming insolvent, new undertaking may be ordered. . . 347 
Stay of execution on, from judgment directing the payment of 

money 346 

Stay of, from judgment directing the assignment or delivery of 

documents or personal property 350 



X INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Appeal- — (Continued.) 

To Supreme Court — 
Stay of, from judgment to execute conveyance or other instru- 
ment 351 

Stay of, from judgment directing sale or delivery of real prop- 
erty, or for the sale of mortgaged premises 352 

On being perfected, proceedings stayed 353 

Security may be dispensed with or limited in certain cases 353 

By executors, administrators, trustees, or persons acting in an- 
other's right 353 

Undertaking on, and service thereof 354 

Security on, to be approved and justify 355 

Undertaking on, may be in one instrument or several 354 

Case of perishable property 356 

Undertakings on, to be filed 357 

Statement of case for 344, 345 

To the Circuit Court — 

Time for 57, 359 

When process not personally served 359 

Notice of — 

What to contain 57, 339 

On whom to be served 360 

To be filed with Clerk 360 

Where Magistrate dead or removed 365 

Return, how made and compelled on 362 

Return, how made if Magistrate be out of office 363 

Return, where Magistrate is out of office, dead, insane, &c 365 

Return, amended, or further 364 

Hearing of — 

To be on original papers 367 

To be on original testimony 358 

At hearing of, new trial may be ordered 368 

Dismissal of, for want of prosecution 366 

Judgment on (s. d. 2) 368 

New trial on (s. d. 6) 368 

Costs on, how awarded 373 

Restitution on 371 

Set-off costs and recovery 373 

Amount of costs on 373 

Fee to Magistrate for his return 373 

From judgment on controversy submitted without action 376 

Appearance — 

Of Defendant equivalent to service 160 

Without answering or demurring, effect mode taking judgment. . . . 267 

Effect on mode of serving notices 414, 4^5 

Entitles defendant to notice of motions 414, 415 



INDEX TO CODE OF CIVIL PROCEDURE. XI 

SEC. 

Appellant — 

Party appealing known as 33° 

To cause certified copy of papers to be transmitted to appellate 

Court 340 

Arrest — 

[See Arrest and Bail.] 

Arrest and Bail — 

No person to be arrested in a civil action, except as prescribed 

herein ^^ 

Provisions of Code as to, not to apply to proceedings for con- 

, 199 

tempts 

-. 1 , 200 

In what cases 

On proceedings supplementary to execution (s. d. 4) 312 

Of female («• d- 4) 200 

Order for, by whom made ^°^ 

affidavit to obtain 202 

security on issuing of ^°3 

when made ^°^ 

to be served ^°^ 

and affidavit to be delivered to Sheriff 205 

copy of, and affidavit, to be delivered to defendant 205 

motion to vacate ^^5 

time to answer after 2°4 

Delivery of defendant's undertaking to plaintiff 213 

How made 

Defendant may be discharged from, on bail or deposit 207 

Bybail ^°^ 

In action for usurping an office • 43i 

Of persons about to abscond (s. d. 5) 200 

May be where debt is not due in certain cases 200 

Securities on, how proceeded against 211 

how exonerated ^'■•^ 

justification of ^^" 

notice of justification 214 

qualification of 72, 215 

deposit in lieu of ^'^° 

Payment of deposit into Court ^^9 

Bail, allowance of " • 

Substituting, for deposit ^^° 

Deposit, how disposed of after judgment 221 

Sheriff, when liable as • ^^^ 

Vacating arrest, or reducing 225 

Affidavits, on motion for • ^26 

Bail, liable to Sheriff • • ^^4 

Proceedings on judgment against Sheriff 223 



XII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC 

Assault — 

Action for, within two years 114 

^Magistrates have jurisdiction of action for; Hmit (s. d. 3) 78 

Costs in action for 323 

Arrest of defendant in actions for (s. d. 6) 200 

Assessment — 

Of damages, jury to make 285 

On judgment on issue of law 291 

In special findings 283 

In favor of defendant 283 

By j ury in default cases 267 

Assets — 

Probate Court may order marshaling or administration of 40 

Assignee — 

Of thing in action to sue 133 

Takes subject to set off 133 

When not to testify 400 

Costs against, after action brought 334 

Assignor — 

Of thing in action, examined as witness 400 

Attachment — 

In what cases it may issue ■ 248 

By whom granted 249 

Requisites to the issuance of 250 

Affidavit to obtain, to be filed 250 

Security on issuance of 251 

Several may issue at the same time to diff'erent Counties 252 

To whom directed and what to require 252 

How executed 253 

Property seized on to be appraised 254 

Proceedings on, in case of perishable property or vessels 255 

Claim of third person ; proceeding on 255a 

When debt not due 255b 

Of rights and shares of defendant in the stocks of corporations, &c., 

may be attached 256, 257, 258 

Sheriff may sue for debts, &c (s. d. 4) 259 

Plaintiff in, may prosecute actions on notes, &c., attached 260 

How executed on property incapable of manual delivery 257 

Certificate of the defendant's interest in stock of corporation to 

be furnished to Sheriff 258 

Defendant may procure discharge of, and return of property on 

giving undertaking 262, 263 

Issue of ownership, how tried 255a 

Undertaking of the defendant on such discharge of attachment. . . . 263 

Return of, and proceedings thereon 264 

Release of propert}'' of one of several defendants 263 



INDEX TO CODE OF CIVIL PROCEDURE. XIII 

SEC, 

Attachment — (Continued.) 

Judgment, how satisfied 259 

How satisfied, on judgment for the plaintiff in the action. . (s. d. i) 259 

Sheriff may repossess himself of property eloigned (s. d. 3) 259 

Court may order things in action to be sold (s. d. 4) 259 

Residue of attached property, after satisfaction of judgment, to 

be delivered to defendant (s- d. 4) 259 

On judgment for the defendant, the bond given to the Sheriff on 

the attachment to be delivered to the defendant 261 

Lien on property attached ■."."' ^^"^ 

To enforce payment of costs against guardian of an infant plaintiff. 329 

against assignee of cause of action 334 

For contempt, for disobedience to orders in supplementary pro- 
ceedings 2^^ 

In Magistrates' Courts (s. d. 4) 7i, 249 

Person establishing right to property may move to discharge 263 

Action to recover on notes, and other evidences of indebtedness 

seized by Sheriff or Constable in (s. d. 4) 259, 254 

Bond of indemnity to be given Sheriff by plaintiff in 260 

Debt in hands of defendant's debtor may be attached 257 (n) 252 

Debtors to furnish certificate of defendant's interest, &c 258 

Attempt — 

To commence action equivalent to commencement 120 

Attendance — 

Of parties as witnesses, how enforced 393, 395 

defendant in execution, under supplementary proceedings. .312, 316 

witnesses, under supplementary proceedings 3i5> 3i6 

Attorney — 

When liable to arrest (s. d. i) 200 

Service of papers in cause upon 408, 409, 4^7 

When he may verify pleading 178 

To subscribe pleadings '^77 

To subscribe execution 30o 

To subscribe summons • • • • ^49 

Attorney General — 

Actions, may be brought by, in name of State, when. .425, 426, 428, 429 

To vacate charter 425 

To annul existence of corporation 426 

Upon information against usurpers 428 

To vacate letters patent 429 

When Legislature directs 425 

Duty of, to apply for leave to bring (s. d. S) 426 

To bring, upon his own information, when 428 

On leave granted by Supreme Court, when 426 

On complaint of any private party relator to be joined in. . 43a 

Jn cases of usurping office 431 



XIV INDEX TO CODE OF CIVIL PROCEDURE. 



B 

SEC. 

Bail— 

Action against 211 

Allowance of ; what done 217 

Defendant may give at any time before execution 207 

How given 208 

May arrest defendant 210 

May surrender defendant 209 

How proceeded against 211 

How exonorated 212 

Substituted for deposit 220 

Deposit in lieu of , . . 218 

Qualifications of 215 

Justification of 214, 216 

New sureties 214 

Sheriff liable as t 222 

Proceedings against Sheriff as 223 

Bail liable to Sheriff. 224 

Reduction of 225 

Bailee — 

[See Interpleader^ 143.] 

Bamberg County — 

Embraced in Second Judicial Circuit 17 

Times for Courts in 19 

Banking Associations — 

Bills issued by, not subject to limitation of actions 129 

Actions against directors or stockholders of 130 

Barnwell County — 

Embraced in Second Judicial Circuit 17 

Time for holding Courts in 19 

Special provision as to Courts in 19 

Battery — 

Costs in actions for 3^3 

Beaufort County — 

Embraced in Second Judicial Circuit 17 

Time for holding Courts in IQ 

Berkeley County — 

Embraced in First Judicial Circuit i7 

Time for holding Courts in 18 

Bill of Particulars — 

Court may order either party to deliver I79 



INDEX TO CODE OF CIVIL PROCEDURE. XV 

SEC. 

Bills and Notes — 

Complaint in action on 183 

Parties to actions upon 141 

Put in circulation as money by moneyed corporations, limitation of 

action on 130 

Provisions as to assignment not to apply to transfer of 133 

Action or defense upon, how pleaded 183 

Taken upon attachment, may be put in suit (s. d. 4) 259 

Bond — 

Actions on, Magistrate has jurisdiction in certain (s. d. s) 71 

Limitation of (s. d. 2) iii 

On application for appointment of receiver 265 

Injunction bond 265 

[See Official Bond; Security; Undertaking.^ 

Books — 

Abstract of judgments 300 

Inspection of, how obtained 389 

Belonging to public ofRce; proceedings to compel delivery of 434 

Bringing in New Parties — 

Proceedings for 143 



c 

Calendar — 

Clerk, when to enter cause on 276 

Fees for entering cause on, in First Circuit 276 

Disposition of causes on 279 

Preference on^ in Supreme Court (s. d. 4) 11, 13 

Canceling — 

Notice of lis pendens 153 

Capacity to Sue — 

Objection to, taken by demurrer 165 

answer 168 

when waived 169 

Case — 

On trial of questions of fact by the Court (s. d. 2) 290 

Settlement of (s. d. 4) 286 

Motion for new trial on 287 

On appeal from motion for new trial (s. d. 4) 286 

With exceptions on appeal (s. d. i) 345 

When to be docketed in Supreme Court (s. d. 2) 345 

May be agreed upon (s. d. 4) 34s 

2—1. 



XVI INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Cause — 

Of action, when it accrues on a current account ii6 

when it accrues in cases of fraud (s. d. 6) 112 

what may be joined 188 

misjoinder of 165 

to be separately stated 188 

Of demurrer 165 

Certificate — 

Of service of summons by the Sheriff 159 

defendant's interest in rights and shares in corporations 258 

deposit in lieu of bail (s. d. 2) 209 

Magistrate to answer of title 79 

final decision in appeals from Probate Court 62 

Chambers — 

Orders at, how appealed from (s. d. i) 345 

Motions may be made before Judge at 402 

Receivers may be appointed at 265 

Jurisdiction of Justices of Supreme Court at lia 

Chancery Cases — 

Judgment in default of answer in 267 

Rule as to costs in 323 

Change — 

Of place of trial (s. d. 19) 88, 147 

In Magistrate's Courts (s. d. 19) 88 

Affidavit used on motions (s. d. 19) 88 

When in Circuit Court 147 

Effect of 147 

Charleston County — ^ 

Embraced in First Judicial Circuit 17 

Time for holding Courts in 18 

Stenographer for 277 

City Court of 9 

Court for settling mercantile disputes in city of 9 

Term of service of jurors in 29 

Cherokee County — 

Embraced in Sixth Judicial Circuit 17 

Courts in, times for 23 

Chester County — 

Embraced in Sixth Judicial Circuit 17 

Time for holding Courts in 23 

Chesterfield County — 

Embraced in Fourth Judicial Circuit 17 

Time for holding Courts in 21 

Order of business at Courts in ^ 21 



INDEX TO CODE OF CIVIL PROCEDURE. XVII 

SEC. 

Circuit Courts — 

Judges to hold 28 

Judges may adjourn, in certain cases 30 

Qualification of Judges of 31 

To be Courts of record 32 

Clerk and Deputy Clerk of 33 

To have appellate jurisdiction of matters in Probate Court 55 

Appeals to, from Probate Court 57 

Trial in, of cases appealed from Probate Court 60 

Appeals to, from inferior Court 358 

May tax costs for prevailing party 33i 

Stenographer may be appointed for 277 

Times for holding 18- 26 

Special sessions of 28 

Civil Actions — 

[See Actions.] 

Civil Remedy — 

Not merged in criminal 7 

Claim — 

Admission of, by answer 267 

Partial admission by pleading 265 

Of third person in supplementary proceedings 319 

attachment proceedings 255a 

claim and delivery proceedings 237 

Personal, notice of having no 152 

Satisfaction of admitted ; order for 265 

Reduction of, to give jurisdiction (n., s. d. i) 71 

Claim and Delivery — 

Of personal property in Courts of record 227 

within what time action to be commenced. .. . 112 

requisites of affidavit to obtain delivery 228 

requisition to Sheriff to take and deliver the 

property 229 

Security for return of the property 230 

Copy affidavit, notice and undertaking to be served on defendant. . 230 

Return by Sheriff 238 

Undertaking of plaintifif for delivery of property 230 

defendant for return of property 232 

Defendant may except to plaintiff's sureties 231 

When defendant deemed to have waived exception to plaintiff's 

sureties 231 

Plaintiff's sureties, when and how to justify 231 

When defendant entitled to a redelivery of the property taken. . . . 232 

Defendant to give undertaking with sureties 232 

When property taken is to be delivered to plaintifT 232 

Defendant's sureties, when and how to justify 233 



XVIII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Claim and Delivery — (Continued.) 

When Sheriff responsible for defendant's sureties 233 

Qualification and justification of sureties, same as on arrest 234 

Property, how taken when concealed in any building or inclosure. . 235 

Duty of Sheriff as to keeping and delivering property taken 236 

Claim of property by third party 237 

Notice and affidavit, and proceedings thereon, to be filed 238 

Judgment in action for 299 

Verdict on 283 

Jury to assess damages 283 

III Magistrates' Courts (s. d. 11) 71 

Affidavit in action for (s. d. 11) 71 

Undertaking on part of plaintiff (s. d. 11) 71 

Direction to Constable (s. d. 11) 71 

Summons (s. d. 11) 71 

Duties of Constable (s. d. 13) 71 

Defendant may except to plaintiff's sureties (s. d. 14) 71 

Proceedings on exception to plaintiff's sureties (s. d. 14) 71 

Judgment for defendant, if plaintiff's sureties fail to justify 

(s. d. 14) 71 

Defendant may require return of the property (s. d. 15) 71 

Undertaking on the part of defendant (s. d. 15) 71 

Qualification and justification of sureties 72 

Trial of 77 

Magistrate or jury to assess value of property and damages 77 

When action may proceed without personal service of summons. 77 

Fee of Magistrate 77 

When property claimed by other person than defendant 77 

Clarendon County — 

Embraced in Third Judicial Circuit 17 

Time for holding Courts in 20 

Clerk of Court of Common Pleas — 

On docketing ^Magistrate's judgment 87 

To insert costs in entry of judgment 326 

To make up judgment roll 302 

To enter judgment in conformity with verdict 2S6 

To transmit papers to appellate Court 340 

Service on, for the party 4^5 

On entry of judgment by confession 385 

To compute interest on verdict or recovery 325 

To issue executions for costs ^ 324 

To keep book of abstracts of judgments 300 

Abstract to contain certain entries 301 

To place causes on Calendar 267, 276 

To advertise special terms 28 

To enter decrees from Probate Court 67 

To docket transcript of judgments from Magistrates' Courts 87 



INDEX TO CODE OF CIVIL PROCEDURE. XIX 

SEC. 

Clerk of Probate Court — 

Not to practice as attorney in 35 

Appointment of 35 

Co-Defendant — 

May be examined as a witness 39° 

Colleton County — 

Embraced in Second Judicial Circuit I7 

Time for holding Courts in IQ 

Color of Title — 

Adverse possession under I03 

Commencement of Actions — 
[See Actions.] 

Commercial Paper — 

Plaintiff may sue in one action different parties to 141 

Commissions — 

Of Receivers of corporations (s. d. 4) 265 

Complaint — 

Is the first pleading on the part of the plaintiff ■ 162 

Requisites of, ordinarily 163 

In action for libel or slander 185 

What causes of action may be joined in 188 

Allegations of, when admitted • 189 

Time to answer 164 

Copy of, need not be served with summons 151 

Demand of copy of ^51 

Demurrer to ^"5 

Objections to, when deemed to be waived 169 

After amendment, service on defendant '^^7 

Filing of, before publication of summons i5i> ^53 

in all cases 4io 

Dismissal of, for not serving copy (s. d. 4) 290 

for not proceeding to trial (s. d. 4) 296 

Supplemental, when allowed 142, 198 

Verification of ^77> 178 

Proceedings in Probate Court may be commenced by 64 

Motion to make more definite must be made before pleading 

thereto (n) 181 

Complete — 

When service by publication is complete 158 

Complete Determination — 

Bringing in parties to effect I43 

Compromise — 

Offer of, in Magistrates' Courts (s. d. 15) 88 

Defendant may serve offer of, any time before trial 386 



XX INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Computation of Time — 
[See Time.] 

Concealed Defendant — 

Attachment against the property of 248 

Service of process on, by pubHcation 156 

[See Attachment] 

Condition Precedent — 

Performance of, how pleaded 183 

Confession — 

Of judgment without action, may be for debt due or contingent 

liability 383 

Statement in writing, and form thereof 384 

Statement to be filed, and judgment entered thereon 385 

Judgment roll in 385 

Costs on 385 

Execution on judgment in 385 

Magistrates may take (s. d. 8) 71 

Conflicting Claims — 

Place of trial of action for, to real property I44 

To property, intervention , 143 

Constables — 

Action against, within three years 113 

Construction — 

Of pleadings to be liberal ' 180 

Of Code of Procedure 448 

Of words 444, 445, 446 

Constructive Notice — 

Lis pendens is I53 

Contempt— 

Service of papers or process to bring parties into 418 

Master and Referee may punish for 294 

Probate Court may punish for 66 

Refusing to deliver papers, &c., under order of Court 434 

Refusal of party to be sworn 395 

Disobedience of order in supplementary proceedings 322 

Disobedience of order as to deposit, delivery or conveyance of 

money or other property 265 

Refusal to allow examination of books and papers 389 

Continuance — 

Costs on 327 

Contract — 

Acknowledgement of by partner after firm's dissolution 131a 

Action on, where saved by acknowledgement 131b 



INDEX TO CODE OF CIVIL PROCEDURE. XXI 

SEC. 

Contract — (Continued.) 

Joint and several, where parties are severally liable on 141 

service of summons in actions on IS7 

Summoning parties to, after judgment on 377 

Joint ; proceedings on ^4i> 377" 3o2 

[See Joint.] 

Action on, v^^hen to be commenced • • ^^^ 

Evidence of new, or continuing, must be in writing 131 

Magistrate to have jurisdiction of certain actions on 7^ 

Controversy — 

Submitting without action 374 

Complete determination of -^43 

Contumacy — ■ ^ 

Commitment for "^- " 4 

Convenience of Witnesses — 

Change of venue for -^47 

Conveyance — 

In judicial sales, by officer making sale 300 

Copartners — 

Acknowledgement of one, after dissolution of firm does not bmd 

others • ^3^^ 

COPLAINTIFF — 

Examination of as witness 39o 

Copy — „ 

Of books, papers, &c., used on trial 3«9 

lost paper may be filed and used 4^9 

paper in hands of opposite party. 389 

summons, how served, &c ^55 

pleadings to be furnished the Court 281 

record on appeal from Probate Court to filed, &c 58 

record on appeal certified to appellate Court 34°, 345 

Coroner — 

Action against, within three years ^^3 

Corporations — 

Service of summons upon -"-SS 

Service on agent of certain ^55 

Injunction to suspend business of ^45 

Actions against, in name of Attorney General 425, 426, 427 

Interest in, may be sold under attachment ■ 256 

Judgment of forfeiture against 438, 44° 

Receiver of property of ^°5> 44° 

How examined, as to property of a judgment debtor 3H, 3i9 

Action to annul charter of 420 

Verification of pleadings by ^78 

Answer of, in supplementary proceedings 3I4 



XXII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Corporations — (Continued.) 

Execution against 439 

Foreign; where and by whom actions against must be brought 423 

Shares in may be attached 256 

Actions against directors and stockholders of; limitations 130 

To answer in supplementary proceedings by oath of officer 316 

Action to vacate charter 425 

Action ; leave to bring against 427 

Costs — 

Except in chancery cases to follow event of action 323 

No more, than recovery in certain actions 323- 

Execution may issue for 324 

To be inserted in entry of j udgment 326 

Interlocutory, how adjusted 326 

In special proceedings 326 

Against corporations, how collected 439 

Allowance of, on appeal to Circuit Court 373 

Allowance of, in supplementary proceedings 321 

W^hen appellant from Magistrate is not entitled to 373 

Defendant unreasonably defending to pay 152 

Notice for adjustment of, and disbursements 326 

Court or Judge may adjudge interlocutory 326 

As condition of postponement of trial • 327 

On motion 328 

Against an infant plaintiff, guardian liable for 329 

In actions by or against executors, &c 330 

On appeal from inferior to Circuit Court 331 

In actions prosecuted in name of the State 332 

To be charged against person for whose benefit action brought or 

defended 333 

Against assignee of cause of action 334 

In chancery cases, in discretion of the Court Z^Z 

On appeal from Magistrate's Court 373 

On issue of title in Magistrate's Court 81 

On submitting controversy without action 375 

Set-off of Z73 

After offer of defendant to compromise, or to liquidate damages. . . 388 

After notice of no personal claim 152 

None allowed for service of process unless made by Sheriff 154 

Counter-Claim — 

Defendant may set up in answer 170 

What may be set up as 171 

Several may be set up 171 

Reply to demurrer to 172, I74 

Judgment by default on I75 

Judgment for excess over 267 

Effect of amount of on jurisdiction of Magistrates. . . . (n., s. d. i) 71 



INDEX TO CODE OF CIVIL PROCEDURE. XXIII 

SEC. 

Counter- Clai m — (Con tin u e d) 

In Magistrate's Court (s. d. 4) 88 

Allegations of, when deemed true 189 

Order to allow 386 

County — 

In what, action to be tried 144- 146 

Court — 

Designation of, for trial of impeachment 9 

Supreme Court 9 

Common Pleas, General Sessions 9 

Probate Courts 9 

County Courts 9 

Courts of Magistrates 9 

City Court of Charleston 9 

For Arbitration of Mercantile Disputes 9 

Municipal Courts 9 

To be furnished with a copy of the pleadings 281 

To direct j ury as to verdict 282 

Leave of, to issue execution 304 

Leave of, to bring action, on judgment 91 

Leave of, to bring action, by Attorney General 426, 427, 428 

Tries issues of law unless referred 274 

Tries other issues 275 

Tries issues of fact, when jury trial waived, &c 279, 288 

May frame and submit issues to jury 274, 275 

Proceedings on trial by 288- 291 

New trials may be granted by 274, 286, 287, 290 

Supreme, jurisdiction of 11 

power of 12 

appeals to 344 

terms of 13 

additional terms of 13 

preference of causes on calendar of 13 

position of cause on calendar on a second or subsequent 

appeal 13 

judgment of, how pronounced 14 

Sheriff to provide rooms for 15 

where to be held 16 

how adjourned 16 

rehearing in 14 

opinions of 14 

procedure where issues arise in 11 

may call Circuit Judges to its assistance 14 

Courts of Common Pleas — 

[See Circuit Courts.] 
Criminal Action — 

[See Actions.] 



XXIV INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Criminal Conversation — 

Action for, may be brought in Magistrate's Court; limit. . . (s. d. 3) 78 

limited to six years (s. d. 5) 112 

rule as to costs in 323 

Current Account — 

Actions on 116 



D 

Damages — 

Rate of, where recoverable 299 

When costs not to exceed 222. 

Writ of inquiry of 175 

Defendant's, jury may assess 285 

In actions for recovery of specific property 283, 299 

Rates of 297 

Defendant may offer to liquidate 387 

. Mitigation of, in libel, &c 186 

Pleading in action to recover property distrained for 187 

Pleading in action ex delicto for vindictive, punitive, exemplary 

and actual i86a 

By reason of injunction, reference to ascertain 245 

Assessment of, after appeal to Supreme Court 11 

In action for usurping office 43S 

Darlington County — 

Embraced in Fourfh Judicial Circuit 17 

Times for holding Courts in 21 

Death — 

Action not to abate by reason of, of party 142 

Of persons before expiration of time to bring action 123 

After verdict 142 

Of Magistrate, effect of, on appeal from 3^5 

Debtors — 

Arrest of, leaving State 312 

Examination of 312 

Of execution debtors may pay Sheriff 313 

Of execution debtors may be examined 3^4 

Proceedings against joint 277 

To be summoned 2>77 

Form of summons 378 

Affidavit to accompany summons 379 

Party summoned may answer and defend 380 

Examination of, in supplementary proceedings 312 

To defendant in attachment (n) 252, 254, 257, 258, 259 

[See Exectition.] 



INDEX TO CODE OF CIVIL PROCEDURE. XXV 

SEC. 

Decision — 

On trial of question of fact by the Court 289 

On a question of law , 290 

Time for filing, &c., on motion (s. d. 8) 402 

by Supreme Court 12 

by Master 294 

by Referee 294 

Decree — 

Money, by Probate Court, to be enrolled 6^ 

Manner of enrolling 67 

To be a lien from time of enrollment 67 

Deed of Conveyance — 

To be executed by officer making sale 306 

Stay on appeal from order requiring execution of . . ., 351 

Default — 

Judgment by, when may be taken (s. d. i ) 267 

plaintiff to give security in certain cases before 

taking (s. d. 2) 267 

on counter claim 175 

how taken in Magistrates' Courts (s. d. 8) 88 

appeal from order refusing to open (s. d. 2) 11 

opening 195 

Defect of Parties — 

Demurrer on account of (s. d. 4) 165 

Pleading to be corrected as to 194 

Plaintiff ignorant of name of party may amend when discovered. . . 196 

Defense — 

Occurring after commencement of action 198 

To be separately stated 171 

Joinder of several 171 

After judgment when allowed 156 

When deemed waived - . 169 

Sham and irrelevant, may be stricken out I73 

Judgment on frivolous answer or, may be taken 268 

Defendant — 

Party adverse to plaintiff is 90 

Who to be 139 

Service of summons on ' 154 

May file notice of lis pendens I53 

May demur or answer 165 

Served by publication, may be allowed to defend after judgment. . . 156 

Name unknown, may be sued by fictitious name 196 

Unknown, served by publication 156 

Not originally served; may be summoned after judgment on joint 

contracts 377- 382 

Discharge of, on arrest 207 



XXVI INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Defendant — (Continued.) 

Arrest of 200, 312 

Attachment against property of 248 

Appearance by 160 

Order on, to satisfy amount admitted due 265 

Affirmative relief to 285, 296 

Judgment against one of several 296 

Damages of, jury to assess 285 

When papers need not be served on 414, 415 

Costs against, after notice of no personal claim 152 

Where several defendants 140 

Offer of, to compromise 386 

When to furnish copy pleadings to Court 281 

Not personally served with process in Magistrate's Court, time for 

appeal 359 

May offer to liquidate damages 387 

Deficiency — 

On mortgage debt ; judgment for 188 

On parties in actions to recover 188 

Definition — 

Of action 2 

civil action 6 

criminal action 5 

special proceeding 3 

judgment 266 

trial 273 

general verdict 282 

special verdict 282 

order 401 

motion 402 

real property 444 

personal property 445 

property 446 

Clerk 447 

Delivery of Personal Property — 
[See Claim and Delivery.] 

Demand — 

Counter claim exceeding, effect 386 

For trial in proper County 147 

Of copy complaint, when and how made 151 

admission or inspection of writings 389 

items of account 179 

bill of particulars 179 

For relief to be inserted in summons ". 150 



INDEX TO CODE OF CIVIL PROCEDURE. XXVII 

SEC. 

Demureier — 

Or answer only pleading on part of defendant 164 

Within what time to be served 164 

Need not be verified .• 177 

To the complaint, when 165 

May be to all complaint or to any one alleged cause of action 166 

When it may be disregarded 166 

Must specify the grounds of objection 166 

Objections not appearing on face of complaint to be taken by 

answer 168 

Grounds for, when deemed waived 169 

To amended complaint 167 

And answer, when both allowed 172 

To answer, in what cases 174 

To counter-claim 174 

To reply 176 

Frivolous, judgment on 268 

Amendments after 193 

In Magistrate's Court (s. d. 6) 88 

Denial — 

How made 170 

Deposit in Lieu of Bail — 
[See Arrest and Bail.] 

Of moneys in Court 265 

In lieu of security on appeal 347 

Deposition — 

On motion (s. d. 7) 402 

Taking testimony by in Probate Court 47 

Descent Cast — 

Right of person not affected by 107 

Detention of Personal Property — 

[See Claim and Delivery, 227-238.] 

Limitation of action for 112 

Determination — 

Complete ; bringing in parties to effect. 143 

Of rights of parties, judgment is final 266 

ultimate rights of parties by judgment 296 

right to personal property, in claim and delivery. 227- 238 

right to personal property, in attachment 255a 

right to real estate ; parties in actions for 139 

Disabilities — 

What are 108 

Effect of 108 

When they must exist 122 

Cumulative 128 



XXVIII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Disabilities — (Continued.) 

Only available where right of action has accrued 127 

Defendant out of State 121 

Of alien enemy 124 

By death of party entitled to sue or be sued 123 

Several, effect of 128 

Not applicable to certain actions 129, 130 

Stay of action by injunction 126 

Not to be available in certain cases 127 

Disbursements — 
[See Costs.] 

Fees of Stenographer allowed as 278 

Amount of, to follow event of action 323 

To be inserted in judgment 326 

Against an infant plaintiff 329 

Charged against assignee after action brought 334 

Copy of disbursement stated in detail to be served with notice of 

taxation 3^^ 

Discharge — 

Judge of Probate not to grant a final discharge to executor, &c., 

without notice 4i 

Notice of application for, how given 41 

Notice of, how to be advertised 41 

Of attachment, motion for 262 

On defendant's giving security 263 

From arrest, on giving bail or making deposit 207 

Discontinuance of Action — 

Limitation as to new action to recover real estate 98 

In Magistrate's Court, title to land being involved 81 

Discovery — 

Action for, abolished 390 

Of property, order for 312 

Of books, papers and documents 389 

Dismissal — 

Of complaint, for not serving summons (s. d. 4) 296 

Of action, for want of prosecution (s. d. 4) 296 

Of appeals from Magistrate 366 

Disobedience — 

Of order in supplementary proceedings 322 

order to deposit money, &c 265 

order to deliver papers, &c 434 

order of Probate Court 4^ 

Dissolution — 

Of corporation 265 



INDEX TO CODE OF CIVIL PROCEDURE. XXIX 

«■ 

SEC. 

Distinction — 

None as to forms of pleadings in actions in Courts of Record i6i 

Distrained Property — 

Actions for recovery of — venue 144 

Answers in actions to recover 187 

Docket — 

Cause to be entered on, when 276 

Magistrate to enter judgments in 87 

Magistrate to enter pleadings in (s. d. 2) 88 

Decree of Probate Court to be entered in ofifice Clerk of Circuit 

Court on judgment (y'j 

Appeal to Supreme Court to be placed on 345 

Document — 

[See Discovery.l 

Stay on appeal from order requiring delivery of 350 

Dorchester County — 

Embraced in First Judicial Circuit 17 

Times for holding Courts in 18 

Double Time — 

On service by mail 41® 



E 

Edgefield County — 

Embraced in Fifth Judicial Circuit 17 

Eighth Circuit — 

Counties composing 17 

Times for holding Courts in 25 

Embezzlement — 

Agent, &c., may be arrested in action for 200 

Enlarging Time — 

In case of surprise, mistake and excusable neglect 195 

For proceedings in actions 405 

On appeal 348j 349 

Where Defendant is arrested 204 

Enrollment — 

Of money decrees dj 

Index of , 68 

Entitling — 

Affidavits 406 



XXX INDEX TO CODE OF CIVIL PROCEDURE. 

■* 

SEC. 

Entry — 

Of verdict (s. d. i ) 286 

Of judgment, manner of 296 

After offer 3^^ 

Costs after 386 

In abstract of judgments 301 

By Magistrate of judgments 87 

By Magistrate of pleadings (s. d. 2) 88 

Equity — 

Rules of practice in, to prevail 453 

Causes, at Summer terms of Courts 26 

Errors and Defects — 

When to be disregarded 197 

Escape — 

Action for ; limitation 115 

Evidence — 

Of foreign laws 422 

Of foreign public records 422 

On the trial of an issue of fact by the Court, how reviewed (s. d. 2) 290 

Pleadings not to be, in criminal proceedings 178 

Examination in supplementary proceedings not to be in criminal 

proceedings (s. d. 5) 312 

Of new or continuing contract to take case out of Statute of Limi- 
tations 131, 131a 

Of acknowledgement, &c., by partner after dissolution of firm 131a 

Taking by deposition in Probate Court 47 

Of parties 400 

Of party taken conditionally 391 

May be rebutted 394 

Certain persons not to give, of transaction or communication with 

lunatic or deceased person 400 

Examinations — 

Of parties, by adversary only in the cases prescribed by the Code. . 390 

May be on the trial, conditionally, or on commission 391 

Before trial 392 

Attendance for purpose of, how compelled 393 

Punishment for refusing to submit to 395 

Testimony on, may be rebutted 394 

On their own behalf, when 396 

Of co-plaintiff or co-defendant 398 

Of joint contractors or parties united in interest 39S 

Of witnesses, witness not excluded by reason of interest 399 

Party for whose immediate benefit action is prosecuted or defended 400 

Assignor of cause of action 400 

In supplementary proceedings 314 

Of parties or witnesses on a motion (s. d. 7) 40^ 



INDEX TO CODE OF CIVIL PROCEDURE. XXXI 

SEC. 

Exceptions — 

On appeal to Supreme Court may be served within 30 days after 

Notice of Appeal 345 

To a matter of law arising on the trial by the Court may be taken 

within ten days after written notice of the judgment 290 

To be reduced to writing or entered on minutes of Judge. . (s. d. 2) 286 

Separating s. d. 3) 286 

Need not be signed, nor sealed, nor need a bill of exceptions be 

made (5. d. 2) 286 

How stated in a case (s. d. 2 286 

Settlement of 287 

To sureties on appeal to Supreme Court 355 

To sureties on claim and delivery 231 

To report of Referee 294 

Executions — 

Of course, within ten years 303 

Judgments enforced by 304 

Kinds of 30S 

Form of 308 

To be deemed process 305 

To what Counties may issue 306 

May issue to several Counties at same time 306 

How renewed 310 

Debtor of execution debtor may pay 313 

Leave to issue, how obtained 309 

Against the person 307> (s. d. 3) 308 

Against a married woman 306 

Return of, in what time. .♦ 310 

On judgment of Magistrate's Court (s. d. 12) 88 

Proceedings supplementary to 312 

On confession of judgment without action 385 

Sales under, by what Court or officer to be made 306 

For the delivery of real or personal property (s. d. 4) 308 

Probate Court empowered to issue., • 69 

Not to be issued till decree enrolled 69 

May issue, upon transcript from other Counties 69 

Satisfaction of 69 

Executors — 

Costs in actions by or against 3Z^ 

May sue without joining party in interest 134 

May appeal without giving security 353 

Not to be discharged except after giving notice 41 

Limitation for actions by 123, 125 

Exemption from Arrest — 

Of females 200 

Exoneration — 

[See Arrest and Bail.] 

3-1. 



XXXII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Ex Parte Order — 

May be made by Judge in any part of the State (s. d. 3) 402 

How vacated or modified 342 

None to stay proceedings longer than twenty days (s. d. 6) 402 

Extension — 

Of time to answer when defendant arrested 204 

perfect appeal '. 348, 349 

answer generally 195 

for proceedings in actions 405 

Express Company — 

Manner of serving process on (s. d. i ) 155 

F 

Fact — 

Issues of, directing 274, 275, 92 

trial of, by Jury 274, 92 

trial of 279 

trial of by Court 289 

waiver Jury trial 288 

trial by Master or Referee 294 

Failure — 

Of proof, what is 192 

Fairfield County — 

Embraced in the Sixth Judicial Circuit 17 

Times for holding Courts in 23 

False Imprisonment — ^ 

Action for, may be brought in Magistrates' Courts (s. d. 3) 78 

Must be within two years 114 

Costs in action for 323 

Fees — 

[See Costs.] 

Of Stenographer 278 

Feigned Issues — 

Not allowed ; substitute 92 

Females — 

Not to be arrested in civil actions (s. d. 4) 200 

Fictitious Name — 

Parties may be sued by, when real name unknown 196 

Fiduciary Capacity — 

Arrest for money received in (s. d. i) 200 

Fifth Circuit — 

Counties composing 17 

Times for holding Courts in 22 



INDEX TO CODE OF CIVIL PROCEDURE. XXXIII 

SEC. 

Filing — 

Transcript of judgment, effect of (s. d. 2) 302 

Of Magistrate's Court 8? 

Complaint ^Si 

Notice of lis pendens • i53 

Undertakings 357, 420 

■ Affidavits 250 

Copy in lieu of original 4^9 

Notice and affidavit on claim and delivery 238 

Of complaint in cases of service by publication 156 

Order appointing receiver 318 

Appeal papers from Probate Court 58 

Decrees of Probate Court in office of Clerk Circuit Court 67 

Final Order — 

Appeal from, to Supreme Court (s. d. 2) 11 

Circuit Court on appeal from Probate Court 62 

Final Settlement — 

Of estates of deceased persons 4i 

Finding — 

Of facts controlled by general verdict 284 

on issues out of chancery, by jury 274 

fact and law, by Referee or Master 294 

the Court 289 

Firm — 

Acknowledgement by partner after dissolution of 'i-Z^^ 

First Circuit — 

Counties composing i7 

Time for holding Courts in 18 

Foreclosure of Mortgage — 

Power of Court on (s. d. 7) 188 

Judgment on (s. d. 7) 188 

Service of summons on unknown parties in actions for 156 

Guardian for infant in (s. d. 2) 137 

Place of trial of (s. d. 3) 144 

Notice of lis pendens in actions for I53 

Parties in (s. d. 7) 188 

Foreign Corporation — 

Actions against, in what Court and by whom it may be brought. . . . 423 

Service of summons on (s. d. i) 155 

Service of summons by publication 156 

Attachment against the property of 248 

Receiver for property of 265 

Foreign Laws — 

Printed copies of, to be evidence 422 



XXXIV INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Forfeiture — 

Action for, within what time to be commenced (s. d. 2) 114 

Against Directors or stockholders of moneyed corporation 130 

Place of trial of action to recover (s. d. i) 145 

Judgment of, against corporation 438 

To State, actions for 443 

Form — 

Of action 89 

Of pleading 161 

Provision as to, applied to Magistrates' Courts (s. d. 15) 88 

Former Practice — 

Inconsistent with the Code abrogated 449' 

Preserved where not changed 449 

Fourth Circuit — 

Counties composing 17 

Times for holding Courts in 21 

Special provisions as to Courts in 21 

Franchise — 

Action against persons claiming (s. d. 5) 426 

Penalty for unlawfully exercising (s. ds. i and 3) 428 

Fraud — 

Certain actions for, may be in Courts of Magistrates (s. d. 9) 71 

When right of action accrues in cases of (s. d. 6) 112 

Time of limitation in actions for relief on the ground of, pre- 
scribed (s. d. 6) 112 

Arrest when defendant has been guilty of (s. d. 3) 200 

Frtv'olous Pleading — 

If demurrer, answer or reply be, may be stricken out 268 

Further Return — 

'When required on appeal from Magistrate 364 

G 

Georgetown County — 

Embraced in Third Judicial Circuit 17 

Times for holding Courts in 20 

Genuineness — 

Of writing, admission of - 389 

Grantee of Real Property — 

Action by in name of grantor 132 

Of lands held adversely, action by 97 

Grantee of the State — 

Limitation of action by 96 



INDEX TO CODE OF CIVIL PROCEDURE. XXXV 

SEC. 

Grant — 

[See Grantee of the State.] 

Greenville County — 

Embraced in Eighth Judicial Circuit 17 

Times for holding Courts in 25 

Business at Summer terms of Courts in (s. d. 6) 25 

Greenwood County — 

Embraced in Seventh Judicial Circuit 17 

Times for Courts in 24 

Guardians — 

When minors may choose 50 

Probate Court appointing, to have jurisdiction of w^ard's estate. ... 51 

For infant, when necessary 50, 136 

Appointment of 137 

For married women, not necessary 135 

Ad litem, liable for costs 329 

For lunatics or persons imprisoned 156 

Discharge of 41 



H 

Hampton County — 

Embraced in Second Judicial Circuit 17 

Times for holding Courts in 19 

Heir at Law — 

Person prosecuting or defending suit as, not to testify to trans- 
actions with deceased persons 400 

May commence new action after ancestor's death 122 

May commence new action after reversal, &c 125 

Of person under disability 108 

Effect of descent cast 107 

Horry County — 

Embraced in Third Judicial Circuit 17 

* Times for holding Courts in 21 

Houses — 

May be broken open in claim and delivery .75, 235 

Husband and Wife — 

When they should join, or be joined, as parties 135 

Shall not be compelled to disclose confidential communications 

(s. d. 2) 400 



XXXVI INDEX TO CODE OF CIVIL PROCEDURE. 

I 

SEC. 

Idiots — 

Service of summons on (s. d. 3) 155 

Guardians for 38 

[See Insane Person.] 

Imprisonment — 

Of defendant, effect of, on time of limitation 122 

Inability of Judge — 

To hear motion 404 

Inconsistent — 

Statutory provisions repealed 449 

Index — 

Judge of Probate to keep, of money decrees 68 

Infancy — 

Effect of, on time of limitation 122 

Infant — 

Costs against 329 

Service of summons on (s. d. 2) 155 

Guardian of, liable for costs 329 

To appear by guardian 136 

Guardian for, how appointed 50 

Guardian ad litem for (s. d. 2) 137 

Inferior Court — 

Appeal from, to Circuit Court 358, 359 

Information — 

Action by Attorney General upon 428 

Injunction — 

Justices of Supreme Court may grant 11, 239 

May be by the Court or a Judge 11, 241 

To suspend business of corporation 245 

In what case granted 2f40 

May be granted at any stage of the action before judgment 241 

How grounds for issuing may be shown to the Court 241 

After answer 242 

Order to show cause ; restraint meanwhile 244 

Copy affidavit be served with 241 

When granted 241, 242a 

On application for appointment of Receiver 265 

Granting to stay certain sales 242a 

Damages on, how ascertained 243 

Security upon 243, 265 

Security upon, to stay business of corporation 245 



INDEX TO CODE OF CIVIL PROCEDURE. XXXVII 

SEC. 

Injunction — (Continued.) 

Motion to vacate or modify 246 

Affidavits on motion 247 

Stay by, effect of, on time of limitation 126 

Probate Judge may grant, in certain cases 40 

Injury — 

To person or character, arrest in action for (s. d. 6) 200 

Insane Person — 

Service of summons on (s. d. 3) 155 

Limitation of action against 108, 122 

Insolvent — 

Corporation ; Receiver for 265 

Sureties on appeal bonds ; substituted bond 347 

Inspection of Books and Writings — 

How obtained 389 

Installments — 

Execution for, on judgment by confession 385 

Action in Magistrates' Courts for (s. d. 5) 71 

Instruments — 

For payment of money, action or defense on, how pleaded 183 

In Magistrates' Courts 88 

Insurance Companies — 

Service of summons on (s. d. i) 153 

Actions against limitation of (s. d. 7) 112 

Interest — 

Party in, to sue 132 

All parties in, to be joined 138, 139 

When all parties in, need not be joined 140 

Transfer of, not to abate action 142 

On verdict, &c., how allowed and computed 325 

Not to disqualify witness 399 

I nterlocutory — 

Costs, how adjusted.^ 326 

Orders — appeals from (s. d. 4) 11 

Intermediate Order — 

May be reviewed on appeal li 

Interpleader — 

When it will be ordered 143 

Inventory — 

To be made of property seized on attachment 254 

To be returned to officer issuing warrant 254 



XXXVIII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Irrelevant — 

Answers and defenses may be stricken out i73 

Or redundant matter may be stricken out on motion i8i 

Issues — 

Different kinds of 269 

When issues of law arise 270 

When issues of fact arise 271 

Of law and fact may arise in one action 272 

When there are issues of law and fact, the issues to be tried to- 
gether 272 

The judicial examination of, is a trial 273 

How tried 274 

How, of fact in equity causes may be framed and tried 274a 

May be referred 275, 292 

Of law to be tried by the Court, unless referred 274 

Of fact in action for the recovery of money only, or specific real or 
personal property, or for a divorce, to be tried by a jury, unless 

jury trial is waived, or a reference be ordered 274 

Of fact in equity causes 274 

not put issue by pleadings 92 

trial by Court 288, 289 

trial by Master or Referee 294 

In other actions, to be tried by the Court, except a jury trial or a 

reference be ordered 275 

Of law, proceedings in judgment on 291 

Either party may bring, to trial 276 

To be entered on calendar 276 

How disposed of on the calendar 279 

Costs of trial of 323 

Nature of, to be endorsed on complaint 276 

[See Trial, Verdict.'] 

Feigned, not allowed 92 

Collateral 92 

Items of Account — 
[See Accounts.'] 



J 

Joinder — 

Of causes of action 188 

defenses (s. d. 2) 171 

parties plaintiff 138 

parties, where some refuse to join 140 

when very numerous 140 

defendant I39 

[See Parties to Actions.] 



INDEX TO CODE OF CIVIL PROCEDURE. XXXIX 

Joint — ^ 

And several defendants, proceedings against, where the summons 

is served on one or some of the defendants only (s. d. i) 157 

Where the summons is served on all the defendants (s. d. 3) 157 

Judgments in actions against 377 

Contractor^ examination of, as a witness on his own behalf 398 

Debtors 314 

Debtors, proceedings against when not served originally 377 

Debtors, form of summons 378 

Summons to be accompanied by affidavit of amount due 379 

Answer by party summoned 380 

Subsequent proceedings the same as in an action 380, 381 

Answer and reply to be verified as in an action 382 

Attachment may issue to compel application of property to pay- 
ment of the judgment 381 

Supplementary proceedings against 314 

Judge — 

May adjourn Court of Common Pleas 27 

Power to open Common Pleas before completion of criminal busi- 
ness 27a 

May hold special sessions of Circuit Court 28 

None to be ordered except by, at the time of holding the regular 

sessions for the County 28 

What causes to be tried at extra term 28 

May adjourn Circuit Courts when dangerous and general disease 

prevails 30 

Qualification of 31 

Who may administer oath to 31 

Not to act as Referee 295 

May grant orders of injunction 239 

May order reference in supplementary proceedings 320 

Judges to meet and revise Rules of Court 450 

Judges — 

[See Judge.] 

Judgment — 

Defined 266 

A lien on real property for ten years 309 

On failure of defendant to answer 267 

After service by publication (s. d. 2) 267 

For the difference on an admitted demand and admitted counter- 
claim (s. d. I ) 267 

After amendment of complaint 167 

Clerk to enter, pursuant to verdict (s. d. i) 286 

Manner of entering 296 

Clerk to insert costs in entry of 326 

In action to recover personal property 299 

On the pleadings, motion for 175 

Against joint or several defendants 157, 296 



XL INDEX TO CODE OF CIVIL PROCEDURE. 

* . SEC. 

Judgment — (Continued.) 

For want of reply to answer 175, 267 

On frivolous demurrer, answer or reply 268 

To be entered in abstract of judgments 301 

When and how docketed 87, 302 

On report of Referee 294 

On issue of law, proceedings on 291 

By confession 383 

Against one of several partners 157 

On answer, motion for 175 

On verdict 286 

Against married women (s. d. 4) 296 

Of Supreme Court 14 

Of Magistrate, transcript of 87 

docketing 87 

How pleaded 182 

How satisfied in action commenced by attachment 259 

Appeal from, to Supreme Court 368, 369, 370, 371 

On appeal to Supreme Court from order granting a new trial. 

(s. d. 2) II 

In foreclosure cases (s. d. 7) 188 

Taken against a party through his mistake, inadvertence or sur- 
prise, or excusable neglect. Court may relieve from 195 

How enforced 305 

When a lien on real estate 309 

Security to be given on appeal from 350- 355 

Restitution on reversal of 156, 342 

Reversed, time for commencing action after 125 

Will not be reversed for technical defects 197 

Actions on, regulated 91 

Lien of, on personal property for four months after levy. . . (s. d. i) 310 

Actions on, in Magistrates' Courts (s. d. 7) 71 

Time for commencing actions on (s. d. i) iii 

Roll, when and how Clerk to make up 302 

What papers to contain 302 

On submission of controversy without action 375 

Roll, on confession of 385 

In actions for usurping office 432 

How lien of certain, may be affected 310 

How revived 310 

Judge of Probate — 

[See Probate Court.] 

Jurisdiction — 

Of Courts generally 10 

To enforce judgment against married woman (s. d. 4) 296 

Answer or demurrer for want of 165 

Courts acquire, from time of service of summons, or allowance of 

provisional remedy 160 



INDEX TO CODE OF CIVIL PROCEDURE. XLI 



Jurisdiction — (Continued.) 

Of Supreme Court ^^ 

Of Judges of Probate 37, 38, 43, 48, 49> 5i 

Probate Court first taking cognizance of settlement of estates to 

have exclusive 4° 

Not to be collaterally impeached 49 

Circuit Courts to have appellate, of cases from Probate Court 55 

Of Magistrates' Courts in civil cases 7i 

Jury Trial — 

Of issues not embraced in pleadings 92 

Of issues out of chancery i74, i/S 

Of what issues ^74 

How waived ^°° 

Justification — 

Of slander, how pleaded ^8; 



bail 



216 

sureties on appeal 355 

claim and delivery ^33 



Kershaw County — 

Embraced in Fifth Judicial Circuit I7 

Times for holdings Courts in 22 

L 

Lancaster County — 

Embraced in Sixth Judicial Circuit. I7 

Times for holding Courts in 23 

Land — 

Sale of, under execution or order of Court 3°^ 

under order of Probate Court 4^ 

Landlord and Tenant — 

Magistrates' Courts to have jurisdiction of matters between. 

(s. d. 10) 71 

Joinder of, as defendants in actions to recover land I39 

Relation of adverse possession 100 

Law Issues of — 

To be tried by Court 274 

Judgment on 291 

Arise how • • 270 

Laurens County — 

Embraced in Seventh Judicial Circuit I7 

Times for holding Courts in 24 



XLII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Leave — 

To bring action, Attorney General 426, 427, 428 

on j udgment 91 

issue execution 304 

Legal Notices — 

Time for publication of, how computed 421 

Levy and Sale of Property — 

Sales, by vi^hom and how made 306 

Lexington County — 

Embraced in Fifth Judicial Circuit 17 

Times for holding Courts in 22 

Libel and Slander — 

Action for, within two years 114 

How stated in complaint 185 

Answer in action for 186 

Costs in 323 

Lien — 

Judgment a, on real estate for ten years 309 

On personal property for four months after levy (s. d. i) 310 

When entered prior to March i, 1870 309 

Of attachment on real estate 253 

On personal property 254, 258 

How obtained, on certain j udgments 309 

Money decrees of Probate Court 67 

Judgments of Magistrates' Courts 87 

Limitation of Actions — 

For Recovery of Real Property — 

Not to apply where action commenced or right of accrued 93 

Civil to be commenced as prescribed 94 

Plea of, to be taken by answer 94 

For recovery of real property 95 

By grantee from State 96 

To be brought within ten years 97 

Seizin when necessary 98 

Seizin within ten years 99 

After entry or right of entry 100 

Possession presumed in what time loi 

Occupation under written instrument 102 

Under written instrument, where adverse possession 103 

Actual occupation 104 

Possession under claim of title not written 105 

Possession by tenant 106 

Possession not affected by descent cast 107 

Not to apply to persons under disability 108 

Possession for forty years valid against world 109 



INDEX TO CODE OF CIVIL PROCEDURE. XLIII 



SEC. 



Limitation of Actions — (Continued.) 

Ill 



Other than real property "° 



Within twenty years 

Decree, judgment, bond, or writing secured by mortgage m 

Within six years ; • • ^ ^^ 

Contract, Hability by statute, trespass, detaining or mjuruig 

goods, injury to person, relief, policies of insurance 112 

Within three years ^^^ 

Against Sheriff, &c., for penalty or forfeiture ii3 

Within two years ^^4 

For libel, slander, assault, battery, false imprisonment, or upon a 

statute ^^4 

Within one year ^^^ 

For escape ^ 

On current accounts ^^ 

. 117 

For penalties ^ 

For relief generally in ten years ^^° 

Not to apply in actions by State ^^9 

When defendant out of State ^^i 

As to persons under disabilities 122 

Death of person before claim barred 123 

As to alien subjects ^^4 

When judgment reversed ^^5 

Stay of action by injunction 126, 142a 

Disability must exist when right accrued 127 

Two or more disabilities coexisting 128 

Not to apply to bills issued by moneyed corporations 129 

Nor to affect actions against directors or stockholders, &c 130 

Promise to take case out of statute to be in writing 131 

Promise of partner after dissolution of firm 131a 

Actions on claims saved from bar of statute 131b 

Non suit new action in two years 9° 

Liquidate Damages — 

Defendant may offer to ^ 387 

Lis Pendens — 

Notice of, when may be filed ^53 

What to contain -^53 

In foreclosure suits -^53 

When constructive notice -^53 

When it may be removed • -^53 

Must be followed by publication of summons i53 

How canceled ^3 

Long Account — 

Reference ordered on, when (s. d. 2) 293 

Lost Paper — 

How supplied 4i9 



XLIV INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Lunacy — 

Judge of Probate to have jurisdiction in cases of y] 

Lunatic — 

Judge of Probate may commit to Asylum 7° 

Service of process on 150 

[See Insane Person.] 

M 

Magistrate's Court — 

In civil actions, jurisdiction of 71 

Rules in 88 

Pleadings in (s. d. 2) 88 

Answer of title in 79 

Variance (s. d. 10) 88 

Amendments (s. d. 11) 88 

Execution (s. d. 12) 88 

To furnish transcript of judgment 87 

Judgment by confession in (s. d. 8) 71 

Proceedings in action to recover personal property (s. d. 11) 71 

To have jurisdiction in matters between landlord and tenant. 

(s. d. 10) 71 
Judgment of, transcript of, may be filed and docketed with County 

Clerk 87 

Effect of filing such transcript 87 

Time for service of process in (s. d. 16) 88 

New trials in (s. d. 17) 88 

Motion for new trial, when to be made (s. d. 18) 88 

When to transfer cases (s. d. 19) 88 

Mail— 

Summons to be served by, in what cases 156 

Service of notice by 410 

Notice must be deposited in postoffice 411 

Double time where service by 412 

Exception where party charged with contempt 418 

Malicious Prosecution — 

Costs in action for 3^3 

Magistrate's jurisdiction in actions for 78 

Managing Agent — 

Of corporation, service of summons on i55 

Mandamus — 

Proceedings on, not affected by the second part of the Code 452 

Issuance of "writ of, by Supreme Court 11 

Marion County — 

Embraced in Fourth Judicial Circuit I7 

Times for holding Courts in 21 



INDEX TO CODE OF CIVIL PROCEDURE. XLV 

SEC. 

Marlboro County — 

Embraced in Fourth Judicial Circuit 17 

Times for holding Courts in 21 

Marriage — 

Not to abate action 142 

Married Women — 

Costs against (s. d. 4) 296 

Need not prosecute or defend by guardian or next friend, (s. d. 2) 135 

Judgment against (s. d. 4) 296 

Execution against (s. d. i ) 135 

Masters — 

Causes to be referred to (s. d. 4) 293 

Trial by 294 

To grant orders for publication of summons 156 

make sales in what cases 306 

appoint guardians for infants 136 

appoint guardians ad litem (s. d. 2) 137 

make sales of property in certain cases 306 

file report within sixty days 294 

Material Allegation— 

If not denied, deemed admitted 189 

Material Variance — 

What is 190 

When not 191 

Merger — 

None of civil and criminal remedies 7 

Minutes — 

Special verdict or finding to be entered on 283 

Verdict to be entered on (s. d. i) 286 

Motion for new trial founded on (s. d. 4) 286 

Entry on, at trial (s. d. 2) 286 

Misnomer — 

May be remedied by amendment 196 

Mistake — 

[See Pleadings, Amendments.] 

Mitigating Circumstances — 

May be shown in actions for libel and slander 186 

Money Decrees — 

Made by Probate Court to be enrolled 67 

Manner of enrolling 67 

To be indexed 68 

Time for enrolling 68 



XL VI INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Money Decrees — (Continued.) 

To be filed in Clerk's office 67 

Satisfaction of 69 

Not to rank as judgment unless enrolled 67 

Execution not to issue on, from Probate Court unless enrolled. ... 69 

Moneyed Corporations — 

Time of limitation not applicable to actions on certain evidences of 

debt of 129 

Time of limitation against stockholders and directors of, in cer- 
tain cases 130 

Moneys — 

[See Deposit.] 

Mortgages — 

[See Foreclosure of Mortgages.] 

Limitation of actions on instruments secured by 11 1 

Motion — 

Defined 402 

Decision, within what time : (s. d. 8) 402 

Affidavits on, to be served 405 

Preference of certain (s. d. s) 402 

To stay proceedings (s. d. 6) 402 

Notice of (s. d. 4) 402 

Transfer of 404 

Questions of fact arising on, may be referred (s. d. 3) 293 

Costs on, allowed in discretion of Court 328 

For injunctions generally 242 

For injunction to stay certain sales 242a 

To vacate inj unction 246 

To discharge attachment 262 

For appointment of Receiver 265 

For judgment for amount admitted in answer 265 

For judgment on frivolous pleading 268 

Mutual Account — 

Limitation of action on 116 



N 

Name — 

Fictitious, when party may be sued by 196 

Names to be stated in complaint 163 

Neglect — 

Court may relieve from consequences of excusable 195 

New Bail — 

Defendant may give 214 



INDEX TO CODE OF CIVIL PROCEDURE, XLVII 

SEC, 

Newberry County — 

Embraced in Seventh Judicial Circuit 17 

Times for holding Courts in 24 

New Matter — 

Must be replied to I74 

In answer or reply, when deemed controverted 189 

In answer 170 

New Promise — 

To take case out of limitation, must be in writing 131 

By partner after dissolution of firm 131a 

Action on cause saved by 131b 

Newspaper — 

Publication of summons in 156 

Special sessions of Court to be advertised in 28 

New Trials — 

[See Civil Code, Sec. 2^34.] 

Motions for 287, 274, 286, 290 

when to be heard 287 

On appeal from judgment (s. d, 2) 11 

Magistrate may grant (s. d. 17) 88 

Motion for, before whom to be made (s. d. 18) 88 

On appeal from inferior Court 368 

Non-Joinder — ■ 

[See Parties.] 

Non-Resident — 

Service of summons on, by publication 156 

Attachment against property of 248 

Service of papers on 415 

Action by, against foreign corporations 423 

Notice — 

Of intention to offer copy of lost paper 389 

To be in writing 408 

In summons 150 

Service of, personal, or as prescribed 409 

By mail 410, 415 

On party out of the State 415 

To bring party into contempt 418 

Where party appears by attorney 151, 417 

Of motion generally, time of 412, 413 

for injunction 242a 

appointment of Receiver 265 

judgment on frivolous pleadings 268 

To defendant of no personal claim 152 

Proof of service of I59 

For judgrnent, for want of a reply or demurrer 175 

4-1. 



XLVIII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Notice — (Continued.) 

Of trial not required 276 

Of adjusting costs 326 

Of lis pendens IS3 

When it may be canceled I53 

[See Lis Pendens.l 

Of appeal 57> 339, 345 

[See Appeal] 

Legal, publication of 4^1 

On motion to end reference 295 





Oath— 

Judge or Clerk of Probate Court may administer 44 

Referee may administer 294 

Judges to take Constitutional, and oath against dueling 31 

Objectioxs — 

When -waived 169 

OcoxEE County — 

Embraced in Eighth Judicial Circuit 17 

Times for holding Courts in 25 

Occupation — 

Of lands, when deemed to be under legal title 104 

Under written instrument 103 

Offer — • 

Of defendant to compromise the whole or part of the action 386 

Defendant maj^ before trial or verdict, offer to allow judgment for 

a certain sum and costs 386 

Acceptance of 386 

When deemed withdrawn 386 

Effect of, if plaintiff do not recover a more favorable judgment. . . . 386 

To liquidate the damages 387 

Effect of acceptance or refusal of such 388 

Office — 

Action to try title to 428, 437 

Usurpation of, action for 428, 437 

arrest for 431 

penalty for 437 

When several claim, one action to try title of all 436 

Officers — 

To turn over books and papers to successors, penalty 434 

Actions against ; where brought 145 

Official Bond — 

Action on, limitation of 112 



INDEX TO CODE OF CIVIL PROCEDURE. XLIX 

SEC. 

Omissions — 

Court may supply, in any proceedings IQS 

Of necessary acts to perfect appeal, Court may relieve against. .339, 349 

Open Account — 

Limitation of action of 116 

Opening Judgments by Default — 

For surprise, &c I95 

After service by publication 156, 267 

Orangeburg County — 

Embraced in First Judicial Circuit 17 

Times of holding Courts in 18 

Order — 

Definition of 401 

Review of, on appeal from judgment 335 

By whom and where made (s. d. 3) 402 

Made out of Court, how vacated or modified 336 

Staying proceedings (s. d. 6) 402 

Copy affidavit to be served with 405 

To show cause 404 

Appeal from 11, 335 

For publication 156 

For arrest 201 

For new trial 286 

Before issuing injunction restraining party 244 

Restraining, after answer 242 

Restraining, against corporation 440 

Original — 

When copy may be substituted 419 



Papers — 

Service of, how made 409 

by mail 410 

When not required to be served on defendant 414 

On party out of the State 415 

- Where party appears by attorney, to be on the attorney 417 

To bring party into contempt 418 

Admission of genuineness of 389 

Lost or withheld, how place of supplied 419 

Transfer of, on change of place of trial 147 

Particulars — ^ 

Bill of 179 



L INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Parties to Actions — 

Provisions as to, applied to Magistrates' Court (s. d. 15) 88 

How designated 90, 338 

Provisions as to 132 

Party in interest to sue 132 

By grantee of land held adversely 132 

By assignees 133 

By administrators 134 

By executors 134 

By trustees of express trusts 134 

By parties authorized by statute to sue 134 

On bills and notes, &c 141 

By and against married women 135 

Plaintiff, who may be united as 138 

Defendant, who may be united as 139 

By and against infants 136 

Who must be joined as 140 

Death of, pendente lite 142 

Marriage of, pendente lite 142 

Transfer of interest of 142 

Court may determine controversy between 143 

When they may interplead 143 

Demurrer for defect of (s. d. 4) 165 

When others may be ordered to be brought in 143 

Examination of, as witnesses 391 

at trial or conditionally 391 

before trial 392 

Refusing to testify, penalty 395 

Testimony of, rebutted 396 

Defect of, how taken advantage of (s. d. 4) 165 

Service of notices and papers on 409 

Parties to Appeal — 

How designated 338 

Partition — 

Place of trial of action for (s. d. 2) 144 

Guardian for infants (s. d. 2) 137 

Publication of summons to parties having lien or interest 156 

Partners — 

Acknowledgement, &c., of one after dissolution of firm, binds no 

others , 171 

Omission of name in summons ; effect 157 

Party — 

[See Parties to Actions.'] 

Payment — 

Effect on Bar of Statute of Limitations 131, 131a, 131b 

Of money ordered, when 265 



INDEX TO CODE OF CIVIL PROCEDURE. LI 

SEC. 

Penalties — 

Limitation o£ action for 114, 117 

Against directors or stockholders, &c 130 

Action for, where to be tried (s. d. i ) 145 

Pending Suits — 

Notice of 153 

Performance — 

Of conditions precedent, how pleaded 183 

Perishable Property — 

Under attachment, to be sold 255 

To be sold pending appeal 356 

Person — 

Execution against the 308 

Personal Claim — 

Notice of no, to be served with summons 152 

Notice of none effect of defending after 152 

Personal Property — 

Definition of 445 

Time for commencing action for taking, detaining or injuring, or 

for recovery of possession of '. (s. d. 4) 112 

Arrest in action to recover (s. d. 2) 200 

Judgment in action to recover 299 

Distrained, action for recovery of, where to be tried (s. d. 4) 144 

Doing damage, answer 187 

Execution against 306, 309 

Claim and delivery of 227 

[See Claim and Delivery.] 

Petition — 

Proceedings in Probate Court by complaint or 64 

Pickens County — 

Embraced in Eighth Judicial Circuit 17 

Times for holdings Courts in 25 

Pilot — 

May attach vessel for pilotage fees 248, 250 

Place of Sale — 

Of lands 306 

Place of Trial — 

Of actions to recover real property, or any estate or interest in real 
property, or to determine right or interest in real prop- 
erty (s. d. I ) 144 

For injuries to real property (s. d. i) 145 

For partition of real property (s. d. 2) 144 



LII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC, 

Place of Trl.\l — (Continued.) 

To foreclose a mortgage of real property (s. d. 3) 144 

To recover personal property distrained for any cause. . . . (s. d. 4) 144 

To recover a penaltj' or forfeiture imposed by statute (s. d. i) 145 

Against a public officer or his deputy (s. d. 2) 145 

In other actions, where defendant resides 146 

May be changed by Court 147 

Magistrate (s. d. 19) 88 

consent of parties 144 

Plaintiff — 

[See Parties to Actions, Pleadings, Complai}its.] 

Pleadings — 

In Courts of Record, prescribed in Code 161 

The complaint 162 

Complaint, what to contain 163 

The demurrer 164 

The answer 170 

The reply I74 

Mistakes and Amendments. [See Amendments.] 

To be subscribed I77 

To be verified, except demurrers 177 

How verified ■■ 178 

When Terification may be omitted 178 

When agent or attorney may make the verification 178 

Account, how to be stated in 179 

Copy account to be furnished I79 

Further account -may be ordered 179 

Bill of particulars. Court may order to be furnished 179 

To be liberally construed 180 

Irrelevant or redundant matter may be stricken out 181 

Indefinite or uncertain, may be ordered to be made more definite 

and certain 181 

Judgments and determinations, how pleaded 182 

Conditions precedent, how pleaded 183 

In actions or defense founded on instrument for the payment of 

money 183 

Private statutes, or rights derived therefrom, how pleaded 184 

Libel and slander, how stated in complaint 185 

Answer in actions for libel and slander 1S6 

In actions to recover property distrained, doing damage 187 

What causes of action may be joined 188 

In actions on torts i86a 

Allegations not denied, when deemed true 189 

New matter in answer (not a counter-claim) is not to be deemed 

controverted as upon a direct denial or avoidance 189 

The like of new matter in a reply 189 

Cannot be used as evidence in criminal proceedings 178 

Party unknown may be sued by a fictitious name 196 



INDEX TO CODE OF CIVIL PROCEDURE. LIII 

SEC. 

Fl-eabings— (Continued.) . , . , ^ u a;.,-^ 

Errors and defects not affecting substantial rights to be disie- 

s^'^d^f ••••;: '.'.'.'.'.'.'. iS 

Failure of proof m 

Supplemental pleading, when allowed J 

When amended, to be answered anew ^7 

Court to be furnished with copy of 

To be filed f 

Motion for judgment gg 

In Magistrates' Courts 

In Probate Court ■ 

[See Ansiver, Complaint, Demurrer, Reply.], 

Policy of Insurance— . ^^^ 

Limitation of action on *^^- 

Possession — ^^^ 

Of land, when presumed 

by tenant, deemed that of landlord 

adverse. [See Adverse Possession, 101-107, 132.] 

Postponement — 

Cost on application for 

Postage — 

To be paid on papers mailed 

Practice — ^ 

In Probate Court, to conform to Common Pleas. "4 

All inconsistent with Code repealed 449 

In cases not provided for by Code. 449 

1 .... 45*-' 

Rules to regulate 

Preliminary Injunction— 
[See Injunction.] 

Presumption — ^^^ 

Of possession , 

Of tenant holding under landlord ^ 

Printing — ■ f- 

Papers for Court to be taxed as disbursement. . . ■ 3^" 

Not required where party is unable to pay for it 343 

Prisoners — • ^ g 

Service of summons on ^ 

Guardians ad litem for 

Private Statutes— ^g 

How pleaded ' " * 



LIV IXDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Probate Comx — 

Established 34 

Sessions of 34 

To be a Court of record, and have a seal 35 

Judge of, may appoint a Clerk 35 

Duties of Clerk of , 36 

Clerk not to practice law 35 

Jurisdiction of Judges of 37, 38 

Of Count}- w-here will is proved to have settlement of estates 40 

To have jurisdiction in proceedings relating to guardians, &c 38 

Blay issue warrants and processes 45 

To punish for contumacj- 46 

To issue commissions to examine witnesses 47 

First taking cognizance of settlement of estate to have exclusive 

jurisdiction 48 

Jurisdiction of, not to be collaterally impeached 49 

Clerk to give certified copy of records ; fees 36 

To have the appointment of guardians of minors in certain cases. . 50 
To have jurisdiction of ward's estate and settlement of guardian's 

accounts 51 

Time for holding 52 

To be open at all times for transaction of certain business 53 

Adj ournment of the 54 

Appellate jurisdiction of Circuit Court over 55 

Appeal to Circuit Court to be taken within fifteen days 57 

Proceedings in, stayed bj' appeal 59 

Proceedings in, to be commenced by petition or complaint 64 

Supreme Court may make rules for 65 

'Mzy issue executions against propertj^ 69 

Administration and probate of wills 39 

JMay marshal assets 40 

May stay actions or proceedings against executors, &c 40 

When to grant discharge to administrators, &c 41 

Money decrees of, to be enrolled 67 

Manner of enrolling 67 

To keep index to decrees 68 

Judge of, may punish for contempt 66 

not to have voice in determining appeal 62, 

may commit to State Hospital for Insane 70 

Supreme Court, to have appellate jurisdiction over 56 

decision of, to be certified to 62 

[See Appeal.] 

Practice in, to conform to Common Pleas 64 

Probate Judge — 

[See Judge of Probate Court.] 

Proceedings — 

Supplementary- to execution 312- 322 



INDEX TO CODE OF CIVIL PROCEDURE. LV 

SEC. 

Process — 

[See Smnmons, Service of.'\ 

Probate Judge to frame in certain cases 69 

Sheriff to execute, of Probate Courts 69 

Production and Discovery of Papers, &c. — 

Proceedings for 389 

Prohibition — 

Second part Code not to apply to 452 

Writs of, who may issue iia 

Promise — 

When to be in writing '. 131 

Of partner after dissolution of firm 131a 

Action on claim saved from bar of statute by 131b 

Proof — 

Of service of summons, notice, &c 159 

Of service of amended complaint, &c 167 

Failure of 192 

Of laws of other States, &c 422 

Of public records of other States 422 

Of default 267 

Of claim on default 267 

In supplementary proceedings 312 

In attachment proceedings 250 

Property — 

Real, defined 444 

Personal, defined 445 

Arrest for fraudulently taking or detaining (s. d. 2) 200 

Execution against ' 309 

Distrained doing damage 187 

[See Claim and Delivery."] 

Causes of action for injury to, and to person, may be joined 188 

Stay on appeal from order directing sale or delivery of 352 

Provisional Remedies— 

Allowance of, gives jurisdiction 160 

Motion to vacate or modify, to have preference (s. d. 5) 402 

[See Arrest, Attachment, Claim and Delivery, Injunction, Receivers, 
Remedies.] 

Publication — 

Of application for discharge by trustee, &c 41 

Of legal notices, time for 421 

Of notice of motion for leave to issue executions 304 

Of advertisement of summons, how proved 159 

Service of summons by, in what cases 156 

Service of summons by, order for 156 

Personal service out of State 156 



LVI INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Publication — (Continued.) 

When defendant allowed to defend after 156 

Complaint must be first filed 156 

AVhen service complete after 158 

Proof of 159 

Application for judgment after 267 

Judgment after service by 267 



a 



Qualification — 
[See Bail] 



Question of Fact — 

May be referred 292 

Trial of by Jury 279 

Court 288, 289 

Referee 294 

Quo Warranto — 

Writ of, abolished 424 

issuance of i la 



Railroad Companies — 

Service of summons on 155 

Rates of Damages — 

Recoverable 298 

Real Estate — 

[See Real Property.] 

Real Party in Interest — 

Every action to be brought in name of 132 

Real Property — 

Definition of 444 

When title to, need not be set forth 187 

When title to, in question 79 

Lien on, by attachment 253 

Adjudged to be sold, where to be sold 306 

Notice of lis pendens in actions affecting 153 

Sale of, to pay debts 40 

Lien on, of money decrees 67 

Place of trial of actions relating to (s. d. i) 144 

[See Conflicting Claims, Partition, Limitations of Actions.] 

Reargument — 

Of appeal 14 



INDEX TO CODE OF CIVIL PROCEDURE. LVII 

SEC. 

Rebutting — 

Testimony of party called as a witness 394 

Receiver — 

In what case he may be appointed 265 

Not to be appointed without four days' notice 265 

Notice, how served on non-resident 265 

Publication of notice 265 

Temporary injunction on application for 265 

Security to be given 265 

Not to be appointed before judgment, where bond is given by re- 
spondent 265 

Order for appointment to provide in alternative for bond 265 

Order vacated where bond is given 265 

Reference to ascertain damages, where receivership is vacated 265 

Bond, to whom payable 265 

filed with Clerk 265 

certified copy • 265 

strengthening • 265 

For insolvent corporations 265 

Commissions to (s- d. 4) 265 

In supplementary proceedings, when may be appointed 318 

Order appointing, to be filed 3i8 

Subject to order of the Court 3i8 

Only one to be appointed 318 

Record — 

Of foreign State, how proved 422 

[See Judgment Roll.] 

Recovery of Personal Property — 
[See Claim and Delivery.] 

Reducing — 

Amount of bail 225 

Referee — *• 

How chosen 295 

Mode of trial by 294 

Powers of 294 

Report of 294 

Within what time to report 295 

To administer oaths 294 

Report has effect of special verdict 294 

. Interest on report of 325 

In proceeding supplementary to execution 320 

Judge not to act as, in certain actions 295 

Reference— 

After judgment on issue of law 291 

For trial issue of fact 274 

In default cases 267 



LVIII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Reference — (Continued.) 

By consent 292 

By compulsion 293 

When ordered 293 

Of issues 293 

To take an account (s. d. 2) 293 

Of questions arising on motion, &c (s. d. 3) 293, 402 

On judgment for want of answer 267 

In proceedings supplementary to execution 320 

To ascertain damages on injunction 245 

To ascertain damages on Receivership being vacated 265 

When action to proceed as if none ordered 295 

Of other than the issues, proceedings on (s. d. 3) 293 

To be to Master in Counties where office of exists (s. d. 4) 293 

Relator — 

Joinder as plaintiff in action by Attorney General 430 

Rights, on judgment in favor of 433 

Relief — 

Demand of (s. d. 3) 163 

In cases of mistake 195 

When there is no answer, extent of 297 

For judgment taken by mistake, &c 19S 

To defendant 296 

Time of limitation in certain actions for 112, 118 

To be consistent with case made 297 

Remedies — 

Division of i 

Civil and criminal, not merged . 7 

[See Provisional Remedies.] 

Remittitur — 

From Supreme Court 12 

To be certified to Probate Court, when I 62 

Removal — 

Of cases from one Magistrate to another (s. d. 19) 88 

Repeal — 

Of inconsistent statutory provisions 449 

Replevin — 

[See Claim and Delivery, 22^-238.] 

Reply — 

When to be put in, and what to contain 174 

Demurrer to 176 

Motion for judgment for want of I7S 

When Court may order a 174 



INDEX TO CODE OF CIVIL PROCEDURE. LIX 

SEC. 

Reply — (Continued.) 

Supplemental, when may be put in 198 

New matter in, deemed controverted 189 

Frivolous, judgment on 268 

[See Demurrer.] 

Reports — 

Of foreign States presumptive evidence 422 

Of Referees, what to state 294 

exceptions to 294 

Respondent — 

Adverse party in appeal, known as , 338 

Representative — 

Of deceased party to be substituted 142 

Restitution — 

After reversal or modification of judgment on appeal 342, 37i 

[See Judgment.] 

Restraining Order — 

[See Injunctions.] 

Return — 

Of summons, Sheriff to make I54 

Of execution 3io 

On appeal from Magistrate 362 

to Supreme Court 34^, 345 

Reversal of Judgment — 

Cost on 370 

Not allowed for errors or defects not affecting the merits I97 

Time for commencing action after 125 

On appeal 342, 368 

[See Judgment.] 

Review — 

Of question of law and fact arising on a trial of fact by the Court, 

how obtained (s. d. 2) 290 

Richland County — 

Embraced in Fifth Judicial Circuit I7 

Times for holding Courts in • • • 22 

Rules — 

Supreme Court may make, for Probate Courts 65 

All, inconsistent with Code repealed 449 

Judges to meet to revise and make new 45° 

Supreme Court to make 45° 

In Magistrates' Courts 88 

Judge of Probate to frame, when none prescribed 69 

Of construction 44° 



LX INDEX TO CODE OF CIVIL PROCEDURE. 

s 

Sale — 

Inj oining execution of j udicial 242a 

Of property under mortgage; proceeds to be credited on judgment. 18S 

Of Property under mortgage, deficiency 188 

Of property under execution 306 

Of property, under orders of Probate Court 40, 306 

by Clerk 306 

by Master 306 

Of evidence of debt taken on attachment 259 

Of perishable property 3S6, 255 

Of vessels 255 

Conveyance to purchaser, by officer making 306- 

Saluda County — 

Embraced in Fifth Judicial Circuit 17 

Times for holding Courts in 22 

Satisfaction of Execution — 

When debtor to judgment debtor may make 313 

What property may be ordered to be applied to 317 

Return of, Sheriff to make 310 

Scire Facias — 

Writ of, abolished 424 

'Sealed Instruments — 

Time for commencing actions on (s. d. 2) iii 

Second Circuit — 

Counties composing 17 

Times for holding Courts in 19 

Security — 

On arrest, plaintiff to give 203 

On attachment, plaintiff to give 251 

By defendant on return of property to him 263 

On claim and delivery, by plaintiff 230 

By defendant 232 

On injunction, where no special provision on the subject 243 

To suspend business of corporation 245 

On appeal to Supreme Court 346, 352 

On taking a judgment for want of an answer (s. d. 2) 267 

On injunction pending motion for Receiver. 265 

Seduction — 

Rule as to costs in actions for 323 

Seizin — 

Necessary in real actions 98, 99 



INDEX TO CODE OF CIVIL PROCEDURE. LXI 

SEC. 

Separate — 

Trials between plaintiff and any defendant 280 

Defences to be separately stated 171 

Judgments may be given 296 

Service — 

Of summons, by whom made I54 

Time of I54 

How made I5S 

By publication 156 

On unknown defendant 156 

On corporation (s. d. i) 155 

On a minor \ (s. d. 2) 155 

On a person of unsound mind (s. d. 3) 155 

On one temporarily out of the State (s. d. 3) 156 

On joint and several defendants I57 

Time for, may be fixed I54 

When complete by publication 158 

Proof of 159 

Gives jurisdiction i6br 

Voluntary appearance equivalent to 160 

Is commencement of action 148 

Of order of arrest 204 

Time to answer after 204 

On corporations, provisions as to, applied to Magistrates' Courts. 

(s. d. 15) 88 

Of complaint, with summons 151 

notice of no personal claim 152 

After demand .' 151 

Dismissal of judgment for default in (s. d. 4) 296 

Of notices and other papers on party or attorney 408, 409 

How made 409 

By mail 4io, 411 

On a party residing out of the State 41S 

On attorney for the party 4^7 

To bring a party into contempt 4^8 

No costs where made other than by Sheriff I54 

Set- Off — 

Assignee of right of action takes subject to 133 

Exceeding plaintiff's demand 285 

[See Counter Claim.] 

Settlement — 

[See Case.] 

Of estates of deceased persons ; 4°) 4i 

Seventh Circuit — 

Counties composing 17 

Times for holding Courts in 24 



LXII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Severance — 

Of actions I93 

In rendering judgments 296 

Sham — 

Answers and defenses may be stricken out I73 

Sheriff — 

In civil actions, duties of, &c., incident to arrest: 

To execute order by arresting defendant 206 

To deliver copy order of arrest and affidavit to defendant 205 

To accept bail or deposit 207 

To detain defendant at instance of bail 209 

To deliver order, virith return endorsed, and certified copy of 

undertaking of bail, to plaintiff 213 

When exonerated from liability 213 

To give defendant a certificate of deposit 218 

To pay deposit into Court 219 

When liable as bail 222 

Proceedings on judgment against, as bail 223 

Liability of bail to 224 

Action against, to be within three years 113 

Action against, for escape to be within one year 115 

To return summons I54 

Proof of service of summons by IS9 

To provide rooms, &c., for Supreme Court IS 

May be ordered to take property, &c., and deposit it in Court. 

(s. d. 5) 265 

Duties of, incident to attachment: * 

To execute warrant of attachment 253 

To make an inventory 254 

Inventory to be signed and returned 254 

To take legal proceedings to recover debts, credits, &c., of the 

defendant 254 

To sell perishable property 255 

To sell vessels 256 

As to property incapable of manual delivery 257 

To satisfy judgment out of property attached 259 

As to residue of attached property after satisfaction of judg- 
ment (s. d. 4) 259 

May apply to Court for leave to sell evidences of debt. . (s. d. 4) 259 

May permit actions to be in name of plaintiff 260 

On judgment for the defendant 261 

On discharge of the attachment 262 

To return warrant and proceedings thereon 264 

Duties, &c., incident to claim and delivery of personal property: 

To take property 230 

To deliver to the defendant a copy of the affidavit, notice and 

undertaking 230 



INDEX TO CODE OF CIVIL PROCEDURE. LXIII 

SEC. 

Sheriffs — (Continued.) 

Duties, &c., incident to claim and delivery of personal property — 

Responsible for plaintiff's sureties 231 

When to deliver property to the plaintiff 232 

When to deliver property to the defendant 233 

When responsible for defendant's sureties 233 

Proceedings by, where the property is concealed in building or 

enclosure 235 

To keep property in a secure place 236 

When property claimed by third party 237, 2SSa 

■ When to file notice and affidavit, with proceedings thereon 238 

Duties of, &€., incident to execution: 

To make all sales under 306 

To make return of, at each term of Court (s. d. 2) 310 

Return, when partially executed (s. d. 2) 310 

Nulla bona feturn (s. d. 2) 310 

Penalty for failure or neglect to make return (s. d. 2) 310 

To execute process of Probate Court 69 

Ships — 

Subj ect to attachment 248, 250, 255 

Sixth Circuit — 

Counties composing ' 17 

Times for holding Courts in 27 

Slander — 

[See Lib el and Slander.] 

Spartanburg County — 

Embraced in Seventh Judicial Circuit 17 

Times for holding Courts in 24 

Special — 

Finding, when Court may direct 284 

Jurisdiction, judgment of Court or officer of, how pleaded 182 

Proceedings defined 3 

appeal from final order in, to Supreme Court, (s. d. 3) 11 

costs of reviewing the decision of an inferior Court in. 331 

examination of witnesses in 400 

Sessions of Circuit Court, Circuit Judges may hold 28 

Chief Justice of Supreme Court may di- 
rect holding of 28 

Order for, to be entered of record 28 

Sessions of Probate Court 52 

Supreme Court 13 

Verdict 283 

[See Verdict.] 

Verdict to be filed 283 

Referee's report to have effect of 294 

5-1. 



LXIV INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

State — 

When action cannot be brought by the grantee of the 96 

Effect of absence from, on time of limitation 121 

When it will not sue for real property 95 

To sue within twenty years in certain cases 95 

Time of limitation applies to actions by 119 

When it cannot sue or be sued in Magistrates' Courts 78 

Injunction at instance of, to suspend business of corporations 245 

Costs in actions by, or in name of 430 

Actions in name of 425 

Actions for forfeiture of property to 443 

Statute — 

Action upon, for penalty or forfeiture 114 

Private, how pleaded 184 

[See Limitation of Actions.] 

Statutes — 

Construction of 448 

How proved 422 

Stay — 

Of execution, by appeal to Supreme Court. 346 

Of proceedings, order for, for more than twenty days, cannot be 

granted except on notice (s. d. 8) 402 

By appeal from Probate Court 59 

By inj unction 142a 

Effect of, on time of limitation 126, 142a 

Stenographer — 

To be appointed 277 

His compensation 277 

Duties of 277, 278 

Charges of, may be taxed as disbursements 278 

Stockholder — 

Limitation of actions against 130 

Strict Foreclosure — 

Proceedings on ; parties 188 

Striking Out Irrelevant Matter — 

On motion of any party aggrieved 181 

Submitting Controversy — 

Without action 374 

Judgment as in other cases, but without costs 375 

Judgment roll in 375 

Judgment on, may be enforced or appealed from 376 



INDEX TO CODE OF CIVIL PROCEDURE. LXV 

SEC. 

Subscribing — 

Summons 149 

Pleadings I77 

Execution 308 

Substituted Service — 

Of process 156 

Substituting Parties- — 

[See Parties to Actions.] 

On death, or transfer of interest 142 

Where another claimant to the subject matter 143 

Summons — 

Actions to be commenced by service of 148 

Form of, ordinarily 149 

Form of, when served without copy complaint 151 

Form of, when served by publication 156 

Notice to be inserted in 150 

Service of, by vv^hom it may be made IS4 

Commences action 120 

How it must be served I55 

On corporation (s. d. i ) 155 

On minor under age of fourteen (s. d. 2) 155 

On person judicially declared to be of unsound mind, &c. . (s. d. 3) 155 

In other cases (s. d. 4) 155 

On unknown defendant in foreclosure action 156 

Party subscribing may fix time for 154 

By publication, when ordered, and how made 156 

On joint and several defendants IS7 

To revive j udgmfint 309 

To create j udgment lien 309 

To renew execution 310 

Service of, when complete 158 

Proof of service iS9 

Effect of, to confer jurisdiction 160 

Voluntary appearance is equivalent to personal service 160 

In proceedings against joint debtors 377, 378 

From Probate Court 64 

Sumter County — 

Embraced in Third Judicial Circuit 17 

Times for holding Courts in 20 

Supplemental — 

Pleading, when allowed 198 

Complaint, action may be continued by 142 

Supplementary Proceedings — 

When an order for the examination of the judgment debtor may be 

applied for ( s. d. i ) 312 



LXVI INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Supplementary Proceedings — (Continued.) 

Arrest of defendant upon (s. d. 4) 312 

Examination upon order (s. d. 2) 312 

Against debtor of judgment debtor, or of those having property be- 
longing to him 313 

Witnesses, how required to appear and testify in 315 

Examinations in, to be on oath 316 

What property may be ordered to be applied to execution in 317 

Appointment of receiver in 318 

Prohibiting transfer of property 319 

Where a third party claims property alleged to be the property of 

the judgment debtor 319 

Where the alleged debtor to judgment debtor denies his indebted- 
ness 319 

Reference may be ordered in 320 

Disobeying order in 322 

Supreme Court — 

Original jurisdiction of II 

How issues of fact in matters within original jurisdiction are de- 
termined II 

Appellate jurisdiction in chancery cases II 

To correct errors of law 11 

Appellate jurisdiction of, generally 11 

In Probate matters 56 

Additional terms of 13 

Sessions of 13 

Opinions of, how pronounced 14 

Rehearing in 14 

Rooms, fuel, stationery, &c., for 15 

Sessions, where to be held 16 

May make rules for Probate Court 65 

May make general rules 451 

Causes in which State a party preferred 13 

Precedence given certain appeals (s. d. 4) 11 

Sureties — 

[See Security, Undertaking.^ 

Surprise — 

Relief in cases of neglect or 195 

T 

Taxation of Costs — 

[See Adjustment of Costs, 326.] 

Telegraph Companies — 

Service of process on agent of (s. d. i ) 155 

Tenant — 

[See Landlord and Tenant.] 



INDEX TO CODE OF CIVIL PROCEDURE. - LXVII 

SEC, 

Testimony — 

Of parties 391 

Of witnesses 399, 400 

Taken by deposition in Probate Court 47 

On motion, by deposition (s. d. 7) 402 

Third Circuit — 

Counties composing 17 

Times for holding Courts in 20 

Time — 

To serve complaint after demand 151 

To answer or demur 149, 151 

To answer or demur to amended complaint 167 

To answer after service of order of arrest 204 

To reply 174 

Within which to amend of course 193 

For service of notices, &c 413 

For appeal 345 

[See Appeal] 

Enlarging 195, 412, 405 

How computed 407 

if last day be Sunday 407 

For publication of legal notices 421 

Double, when service by mail 412 

For commencing actions in general 94- 119 

Objection that action not commenced in time must be taken by 

answer 94 

To place cause on calendar 276 

Title — 

Of action not changed on appeal 338 

Need not be set forth in answer to action to recover property dis- 
trained damage feasant 187 

Magistrates have no jurisdiction of actions involving, to real estate. 78 

Answer of, in Magistrates' Courts 79 

Certificate that it came in question 79 

Costs when it comes in question 81 

Color of 102- 104 

Of cause to be stated in complaint 163 

Of affidavit '. 406 

Tort — 

Pleading vindictive, punitive, exemplary and actual damages from. i86a 

Counter claim in actions for (n.) 171 

Transcript— 

Of Magistrate's judgment 87 

Of judgment in Common Pleas 302 

Of money decree from Probate to Circuit Court 69 



LXVIII INDEX TO CODE OF CIVIL PROCEDURE. 

SEC. 

Transfer — 

Judge may prohibit, of property in certain cases (s. d. 4) 312, 318 

Of interest not to abate action 142 

Of case by Magistrate, for trial (s. d. 19) 88 

Trespass — 

On real property, time for commencing action for 112 

Trial — 

In civil actions, definition of 273 

Of question of fact not in issue on pleadings (s. d. 3) 293 

Place of 144 

[See Place of Trial.] 

Mode of 274 

Separate, between the plaintiff and one or some of the defendants, 

may be had 280 

Copy summons and pleadings to Court on 281 

Costs on postponement of 327 

Amendments at * 193 

Court to be furnished with copy pleadings, etc 281 

Set-off established at, exceeding plaintiff's demand 285 

Stenographer to take evidence 278 

Dismissal of complaint for not proceeding to 296 

By jury 280 

How waived 288 

By the Court, of a question of fact, decision to be given in writing, 

and be filed with the Clerk within sixty days 289 

Finding of Judge on, what to contain 290 

For the purpose of an appeal, either party may except to a decision 

on a matter of law arising on (s. d. i) 290 

Questions of law, how and when reviewed (s. d. i) 290 

Question of fact, how and when reviewed (s. d. 2) 290 

By Referee or Master 292, 295 

In Probate Court, to conform to, in Common Pleas 64 

Trustees— 

Appointed by will. Probate Court to have jurisdiction of 38 

When personally liable for costs 330 

Of express trusts may sue without joining party in interest 134 

Who is such trusteee 134 

Costs in actions by or against 330 

Truth — 

May be shown in actions for libel and slander 186 



u 

Uncertain Allegations — 

Remedy for 181 



INDEX TO CODE OF CIVIL PROCEDURE. LXIX 

SEC. 

Undertaking — 

On answer of title in Magistrates' Courts 80 

On appeal 346, 347, 3So, 352, 354 

To be filed with Clerk. 357 

To be delivered to parties 354 

On obtaining order of arrest 203 

On obtaining warrant of attachment 251 

[See Security, Bonds.] 

Unknown Defendant — 

How served with summons i5o 

Union County — 

Embraced in Seventh Judicial Circuit I7 

Times for holding Courts in 24 

Unreasonably Defending — 

Costs for , ^52 

Usurping Office or Franchise — 

Action for 43i, 437 



V 

Vacating — 

Order of arrest 204, 225 

Order made out of Court 33^ 

Attachment 263 

Injunction 246 

Provisional remedy, motion for, to have preference 402 

Charter of corporation, action for. 426 

Enrollment of money decree ^7 

Variance — 

When not material IQO 

Amendment of material 192 

In Magistrates' Courts 88 

Venue — 

Settlement estates 42 

[See Place of Trial, s. d. 19, 88, 144-^47-] 

Verdict — 

General and special, defined 282 

What, jury may render 282 

Special, controls general 284 

Referee's report to have effect of 294 

Assessing defendant's damages 285 

Subject to the opinion of the Court 286 

Judge may entertain motion to set aside 286 

Entry of 286 



LXX INDEX TO CODE OF CIVIL PROCEDURE. 

SEC 

Verdict — (Continued.) 

Entry of judgment on 286 

Interest on, when allowed 325 

Death of party after 142 

On issue out of chancery 274 

Veeificatiox — 

Of pleadings, when necessary- 177 

How to be made 178 

When it may be omitted 178 

By the attorney or agent 178 

When corporation is a party 178 

Vessel — 

Subject to attachment 248, 250, 255 

Voluntary Appe.a.rance — 

Equivalent to personal service 160 



w 

Waiver — 

Of defense 169 

trial by j ury 288 

Warrant — 

[See Attachment, Arrest and Bail.] 

Warrants and Process — 

Judge of Probate may issue 45 

AViFE — 

Xot to disclose communications made by husband (s. d. 2) 400 

Will — 

Where to be proved 39 

Wit h dr a w al— 

Of offer of judgment 386 

Withheld Papers — 

How supplied 419 

WiLLIAJtSBURG CoUNTY — 

Embraced in Third Judicial Circuit 17 

Times for holding Courts in 20 

Witnesses — 

Compelled to attend, on trial by referees 294 

On supplementary proceedings 315 

Allowance to, in proceedings supplementary to the execution 321 

Punishment of, for disobedience to orders of Judge or Referee. . . . 322 

Change of place of trial for convenience of 147 



INDEX TO CODE OF CIVIL PROCEDURE. LXXI 

SEC. 

Witnesses — (Continued.) 

Parties to action may be 399 

Interest not to disqualify 400 

Compelling parties to attend as 393 

Co-plaintiff or co-defendant may be examined as 398 

Examination of, on motion 402 

In supplementary proceedings 315 

In special proceedings 400 

Assignor of thing in action may not be 400 

Party may not be 400 

Persons having legal or equitable interests to be affected may not be 400 

Husband or wife may be (s. d. i) 400 

[See Evidence.] 

Probate Court may issue commission to examine 47 

Woman — 

Not subject to arrest in civil actions 291 

Words — 

Construction of 444, 445, 446, 447 

Writing — 

Admission and inspection of 389 

Promise in, effect on limitation of actions 131, 131a, 131b 

Written Instrument — 

Pleadings in action on 88, 183 



York County — 

Embraced in Sixth Judicial Circuit. 17 

Times for holding Courts in 23 



Criminal Code. 



TABLE OF CONTENTS. 

TITLE I. 

Criminal Procedure. 

PAGE. 

Chapter I. Arrests, Examination, Commitment and Bail 225 

Chapter II. Jurisdiction of Magistrates and their Courts 228 

Chapter III. Proceedings in Courts of Sessions 237 

Chapter IV. Rights of Persons Accused 241 

Chapter V. Trials 242 

Chapter VI. Appeals and New Trials 247 

Chapter VII. Judgment and Execution 249 

Chapter VIII. Habeas Corpus 253 



Chapter 
Chapter 
Chapter 
Chapter 
Chapter 
Chapter 
Chapter 
Chapter 



Chapter 
Chapter 
Chapter 

Chapter 

Chapter 

Chapter 
Chapter 
Chapter 



TITLE II. 

Crimes and Misdemeanors. 

IX. Offenses Against the Person 260 

X. Offenses Against Property 280 

XL Offenses Against Public Policy 302 

XII. Offenses Against Public Peace 312 

XIII. Offenses Against Public Justice 318 

XIV. Offenses Against Chastity, Morality and Decency.... 327 
XV. Offenses Against Public Health 331 

XVI. Offenses of Selling Property Under Lien, Violation 
of Contracts, and Regulation of Trade in Cer- 
tain Cases 342 

XVII. Forgery and Offenses Against the Currency 355 

XVIII. Offenses by Certain Officers 358 

XIX. Violations of the Provisions Regulating the Establish- 
ment and Repairing of Highways 376 

XX. Offenses by and against Railroad Companies, their 

Agents and Employes 387 

XXI. Violation of the Laws Regulating the Assessment and 

Collection of Taxes 392 

XXII. Bastardy 394 

XXIII. Vagrancy 396 

XXIV. Non-observance of the Lord's Day and the Disturb- 
ance of Religious Worship 397 



11 TABLE OF CONTENTS. 

PAGE. 

Chapter XXV. Gambling 3Qg 

Chapter XXVI. Protection of Fish, Oysters, Animals, &c 403 

Chapter XXVII. Violation of Laws Regulating the Sale of Spirituous 

Liquors 415 

Chapter XXVIII. Violation of the License Laws by Insurance and other 
Companies, Emigrant Agents, Owners of Shows 
Persons Selling Pistols, &c 446 

Chapter XXIX. Violation of the Law Concerning Sailors, Immigrants, 

&c 448 

Chapter XXX. Cruelty to Animals . .~ 451 

Chapter XXXI. Felonies, Accessories, Aiders and Abettors 454 

TITLE III. 
Prisons and Imprisonment. 

Chapter XXXII. Jails and Prisoners 456 

Chapter XXXIII. State Penitentiary 461 

TITLE IV. 

Inquests. 

Chapter XXXIV. Inquests on Dead Bodies 473 



CRIMINAL CODE. 



Chapter I. 

Chapter II. 
Chapter III. 
Chapter IV. 
Chapter V. 
Chapter VI. 
Chapter VII. 
Chapter VIII. 



TITLE L 

CRIMINAL PROCEDURE. 

Of Arrests, Examination, Commitment and 

Bail. 
Jurisdiction of Magistrates and their Courts. 
Proceedings in Courts of Sessions. 
Of the Rights of Persons Accused. 
Of Trials. 

Of Appeals and Nezu Trials. 
Of Judgment and Execution. 
Of Habeas Corpus. 



CHAPTER L 

Of Arrest, Examination, Commitment and Bail. 



A. D. 1902. 



Sec. 

6. Agents to receive three dollars a 

day and expenses ; how paid. 

7. Proceeding for the discharge of 

prosecutor on his own recog- 
nizance in criminal cases not 
capital. 

8. Witnesses may be discharged in 

like manner. 

9. Penalty for failure to appear. 
10. Clerk's costs. 



Sec. 

1. Who may arrest a felon, and 

where. 

2. When citizens may arrest, and 

the means to be used. 

3. Sheriffs and Deputies may ar- 

rest for offences committed 
in their view. 

4. No civil process to be executed 

on any person attending 
musters. 

5. Officers may issue warrants for 

arrest of fugitives from jus- 
tice charged with crime, and 
shall transmit copies of pa- 
pers to the Governor. 



Section 1. Upon view of felony committed, or upon certain ^^.^^^"^ "j^jj^ 
information that a felony has been committed or upon view of ^^"^ where. 



a larceny committed, any person may arrest the felon or thief, j^ % ^■. iggg' 

""":i.", 406; § 
_ _ 1898, XXII, 

cording to law. 
15.-C. P. 



809. 



226 CRIMINAL CODE 

A. D. 1902. — 



^~— •""v^""^ Prior to the amendments of 1898, such an arrest could not be made where only 

a simple petit larceny was committed. — State v. Davis, 50 S. C, 426; 27 S. E., 
905. See also Sec. 590 as to arrests for violation of Dispensary Law. 

It is sufficient to justify an arrest in this State, by private persons, without 
warrant, to show that prima facie a felony has been committed in a sister State 
and the party arrested is the perpetrator. — State v. Anderson, i Hill, 327; State 
V. Whittle, 59 S. C, 297; 37 S. E., 923. 

The jury is the judge as to how much force was necessary to be used in making 
the arrest. — State v. Golden, i S. C, 292; State v. Anderson, i Hill, 237. How 
arrest should be made. — lb. Resistance to arrest. — State v. Brownfield, 60 S. C, 
S15; 39 S. E., 2. A person has the same right to resist an unlawful arrest as he 
has to resist an assault. — State v. Davis, 53 S. C, 150; 31 S. E., 62. 

may arrest and Scc. 2. It shall bc lawful for any citizen to arrest any person 
be used. in the night time, by such efficient means as the darkness and 

G. s. ^617; the probabihty of his escape render necessary, even if his life 
12. ■ ' ■' 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 out-house, with a view to plunder, 
or has in his possession stolen property, or, being under cir- 
cumstances which raise just suspicion of his design to steal or 
to commit some felony, flees when he is hailed. 

This only applies to arrests in the night time, under the circumstances named. — 
State V. Davis, 50 S. C, 426; 2y S. E., 905. 

Sheriffs and Sec. 3. It shall be lawful for the Sheriffs and Deputy Sher- 

Deputies to ar- ^ -' 

rest for of- jff g of this State to arrest without warrant any and all persons 

fenses commit- ..... . . . 

ted in view, who, withiu their view, violate any of the criminal laws of this 
gggi898, XXII., State : Provided, Such arrest be made at the time of such vio- 
lation of law. or immediately thereafter. 

Applies where the offence was committed within the hearing of the officer. — 
State V. Williams, 36 S. C, 493; 15 S. E., 554. 

cess°to'be exe- ^^^' ^' '^^ '^^^^^ officcr shall cxccutc any process arresting 
person °attemi^ ^^"^ Confining the person, or requiring bail or surety, (unless 
ing musters, jqj. trcason, fclony, or breach of the peace,) on any person en- 
439'^ M6-*^is39' g'^&^'i i^ ^^^ military service required by the laws of this State, 
1841 xi ^ 210' goi^g to or returning from the same, under the penalty of twen- 
2618^'^fe s'. 3^' ty-five dollars, and the service of any such process shall be void. 

This Section does not apply to officers in the military service. — Moses v. Millett, 
3 Strob., 210; applied. — Gregg v. Summers, i McC, 461. 

1. Officers Sec. 5. I. Any officer in the State authorized by law to issue 

may issue war- ■' -^ 

re^t*^ o\°^iu^i warrants for the arrest of any persons charged with crime, 
tiyes charged shall, ou Satisfactory information laid before him under the 

with crime. ' -^ 

rektfon'^th^ r " °^^^ '^^ ^"^ Credible person, that any fugitive in the State has 

^^ committed, out of the State, and within any other State, any 

D % ^: ^c"°,' offence which by the law of the State in which the offence was 

K. O. 4; 1d<52, -' 

xvii., 784. 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 



OF SOUTH CAROLINA. 




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. Every officer committing any person under this Section, record \n§ 
shall keep a record of the whole proceedings before him, and to^Govemon^^ 
immediately transmit a copy thereof to the Governor of this 

State for such action as he may deem fit therein under the law, 

3. The Governor of this State shall immediately inform the to info°m^Gov^ 
Governor of the State in which the crime is alleged to have dgn'^state. 
been committed of the proceedings had in such case. 

E01 • r-c T M • 1 /I 4. Sheriff and 

very Sheriff or J ailer, m whose custody any person com- jaikr to sur- 

mitted under this Section shall be, upon the order of the Gov- under'^ orde/ol 

ernor of this State, shall surrender him to the person named 

in said order for that purpose. 

Arrest of such fugitive without warrant. — State v. Whittle, 59 S. C, 306; 37 
S. E., 923. 

Such warrant may be issued before demand has been made upon the Governor 
for such fugitive. — State v. Anderson, i Hill, 327. 

As to order of Governor to surrender prisoner on requisition from another 
State. — Ex parte Swearingen, 13 S. C., 74. 

Technical accuracy of an indictment is not required in a commitment. — State 
V. Killet, 2 Bail., 289. A warrant must be subscribed by the officer issuing it. — 
State V. Davis, 40 S. C., 507; 19 S. E., 138. But need not be under seal. — State 
V. Vaugh, 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 v. Rowe, 8 
Rich., 17. But the nature of the offense should be stated. — State v. Everett, 
Dudley, 295. One who appears and submits to trial cannot object to defect in 
warrant. — State v. Mays, 24 S. C., 190. 

Sec. 6. In all cases of requisition for the delivery of fugitives cefv^e^'$3^ I°day 
from justice the agents appointed by the Governor to bring t^ '^ expenses. 
such fugitives into this State shall receive in compensation forxix., 'sso."^^ ' 
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. 

Upon presentation to the Governor of the accounts of such accounts.^ 
agents, itemized and duly verified by their affidavits thereto 
annexed, the Governor, if he approve the same as correct, shall 
endorse his approval thereon, and upon presentation of the 
said accounts, so endorsed, to the Comptroller General, he shall 



228 



CRIMINAL CODE 



A. D. 1902. ■ 

^""^■^^^ draw his warrants on the State Treasurer for the amount 
How paid, thereof, payable out of the regular contingent fund of the Gov- 
ernor. 
j^^Proceedings g^^^ i^_ Hereafter, when any prosecutor, resident in the Ju- 
prosfcutor ''on ^icial District where the prosecution is instituted, in criminal 
nizanc^ i"''c°n- cases Icss than capital, shall have been committed to jail by 
Spitii? ^^" ''°* rs^son of his or her inability to give surety, on his or her 
G. s. 2625; recognizance to prosecute, the Clerk of the Court of Common 
^•jj^- el^-f^i; Pleas and General Sessions of such District shall have power 
to discharge such prosecutor on his or her own recognizance, 
upon being satisfied of his or her inability to give such surety, 
ma^ ' be*" "d" Scc. 8. Whenever any witness in a criminal case less than 
manner.''' ^'^^ Capital shall havc been committed to jail by reason of the like 
G. s. 2626; inability to give surety on a recognizance to testify, the Clerk 
R. s. 7; lb., §^^ ^j^^ Court shall have the like power to discharge such wit- 
ness on his or her own recognizance. 



kir^to S Sec. 9. Prosecutors or witnesses failing to appear under 
such recognizance shall be deemed guilty of a misdemeanor, 



failure 
pear 



G. S. 2627; 



R. s'. 8;'7fc./§land the Attorney General and Solicitors are hereby authorized 
to order warrants to issue against such offenders without affi- 
davit or bond to prosecute. 

Sec. 10. The Clerks of the Court shall be entitled to one dol- 

R. s. 9;"7&.,"§ilar costs for each recognizance taken under the provisions of 
Sections 7 and 8 of this Chapter. 



Clerk's costs. 



CHAPTER II. 

Jurisdiction of Magistrates and Their Courts. 



Sec. 

11. Jurisdiction generally. 

12. Jurisdiction where crimes are 

not subject to a punishment 
more than one hundred dol- 
lars or imprisonment more 
than thirty days. 

13. Of assaults and batteries. 

14. May arrest affrayers and others 

threatening breach of the 
peace. 

15. Jurisdiction in certain cases. 

16. Jurisdiction in larceny. 

17. Jurisdiction in receiving stolen 

goods. 

18. Jurisdiction in obtaining prop- 

erty by false pretenses. 

19. Can arrest persons charged with 

offenses. 

20. All proceedings to be by infor- 

mation. 



Sec. 

21. All persons entitled to trial by 

Jury. 

22. In Charleston can try offenses 

against city ordinances. 

23. Can appoint Special Constables. 

24. Magistrates must hold prelimi- 

nary examinations on de- 
mand of defendant, regula- 
tions as to. 

25. Can bind over witnesses. 

26. May command the peace. 

28. May admit to bail except in capi- 

tal felonies and cases pun- 
ished by imprisonment for 
life. 

29. Scale by which recognizances 

shall be regulated. 

30. May arrest witnesses and com- 

mit to jail, on their refusal 
to recognize. 



OF SOUTH CAROLINA. 229 

A. D. 1902. 



Sec. 
31. Eeturn papers to Clerk ten days 
before Court. 



Sec. 
35. Prosecutor not to serve war- 
rant. . 



32. Duty of, on information of an I 36. Magistrates may issue search 

impending duel. ' warrants. 

33. Change of venue. ! 37. Warrants to be endorsed in 

34. Constables not to swear out , County where served. 

warrants. | 

Section 11. Magistrates shall have and exercise, within their Generally. 
respective Counties, all the powers, authority and jurisdiction g.s_.s22;R. 
in criminal cases hereinafter set forth. xiv., 402, § 1! 

Sec. 12. They shall have jurisdiction of all offences which OY^r offen- 

-^ •' ses in whicJi 

ma}^ be subject to the penalties of either fine or forfeiture not^^^^ °.^ torfeit- 

, . ure IS under 

exceeding- one hundred dollars, or imprisonment in the jail or 5i?o and im- 

° ' r J prisonmentless 

workhouse not exceeding thirty days; and may impose any^^^^^^ thirty 
sentence within those limits, singly or in the alternative. „ „ „„„ — — 

' <=> J G. S. 823; R. 

This, construed with Sec. 657, gives power to sentence to imprisonment, at hard S. 11; lb., § 2. 
labor on chain gang, not exceeding thirty days. Tiie case of State v. Williams, 40 
S. C., 373; 19 S. E., 5, decided under the Constitution of 1868, does not apply 
since the Constitution of 1S95. 

Magistrates have jurisdiction of an offense only where the punishment is limited 
to a fine of $100, or to imprisonment for thirty days. — State v. Madden, 28 S. C, 
50; 4 S. E., 810. 

When the punishment of petit larceny was not so limited, Magistrates had 
no jurisdiction of it. — State v. Williams, 13 S. C, 546; State v. Jenkins, 26 S. C, 
121; I S. E., 437. But since Act 1887 (19 Stat., 819,) so limiting the punish- 
ment, they have jurisdiction of that offense. — State v. Cooler, 30 S. C, 105; 8 
S. E., 692. 

They have no jurisdiction of the offense of taking or stealing a boat under 
the Act of 1695, because the penalty is indefinite. — State v. Weeks, 14 S. C, 402. 

Under Art. V., Sec. 18, Constitution of 1895, the Circuit Court has concurrent 
jurisdiction in all cases where "exclusive" jurisdiction is not given the Magistrates' 
Court. — State v. Wolfe, 61 S. C, 25; 39 S. E., 179. 

Sec. 13. They may punish by fine not exceeding one hundred ^,,1^^^,^^ tifgy^^j^ay 
dollars, or imprisonment in the jail or house of correction not^'f^he pea^c''^^^ 
exceeding thirty days, all assaults and batteries, and other q g. S24; r. 
breach of the peace, when the offense is not of a high and ag-^Vt.'^^i'.,^§"^2i; 
gravated nature, requiring in their judgment, greater punish- ■^^■' ^ ^' 
ment. 

Jurisdiction to bind over party to keep the peace, and in default of bond to 
commit to jail. — State v. Garlington, 56 S. C, 413; 34 S. E., 689. 

The determination of the Magistrate that a case is within his jurisdiction, where 
it is an assault of a high and aggravated nature, as with a pistol, is not binding 
on the Circuit Court. — State v. Burch, 43 S. C, 3; 20 S. E., 758. Since the 
Constitution of 1895 the Circuit Court has concurrent jurisdiction. But prior 
to :8q5 it was held that if the indictment in the Court of General Sessions did 
not show on its face that the assault and battery was of a high and aggravated 
nature, it was without its jurisdiction and was exclusively within the jurisdiction 
of the Magistrate's Court. — State v. McKetterick, 14 S. C, 353; State v. Grant, 
34 S. C, 109; 12 S. E., 1070. 

Where an indictment charged an assault and battery with intent to kill in the 
first count and carrying concealed weapons in the second, and a true bill was 
returned only as to the second, the case was properly remanded to a Magistrate 
for trial. — State v. McClenton, 59 S. C, 226; 37 S. E., 819. 




CRIMINAL CODE 



Sec. 14. They may cause to be arrested all affrayers, rioters, 

ai^^^affra'^^rs'^^s^^^^^^^' ^""^ breakers of the peace, and all who go armed 

th'VeVt'lnin'^^^^^^'^^^y' ^° ^^^ terror of the people, and such as utter men- 

breach of peace ^^^.gg qj- threatening speeches, or otherwise dangerous and dis- 

R. s. 13; 7b., Qj-(^gj.|y persons. Persons arrested for any of said offences 

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 13, or, when the offence is of a 

high and aggravated nature, they may be committed or bound 

over for trial before the Court of General Sessions. 

What is an affray. — State v. Sumner, s Strob., 53. 

0/ Mag1strat°es ^^c. 15. Any pcrsou, upou conviction of any one of the fol- 
cMes! ^ *^ * ^ '" lowing named misdemeanors, shall be subject and liable for 
R. s. 14; 1892, each offense to a fine not to exceed one hundred dollars or to 
isQsi xxi" 411. imprisonment for a term not exceeding thirty days, to wit: 
1894, XXI, 824. (3a,rrying concealed about the person any deadly weapon, such 
as are enumerated in Section 130; disturbing a religious meet- 
ing in any way, or otherwise violating the provisions of Section 
505, when no weapons were actually used and no wounds in- 
flicted; all riots, routs or affrays where no weapons were 
actually used and no wounds inflicted ; malicious mischief and 
malicious trespass as contemplated in Sees. 170 and 171, 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, 
in larceny? '°" Scc. 16. Magistrates shall have jurisdiction of larcenies, by 
G. s. 826; R. stealing of the property of another, of money, goods or chat- 
XIV., 403; § s.'tels, 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 conveyance 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. 

When there was no law limiting punishment of petit larceny to one hundred 
dollars' fine or thirty days' imprisonment, this Section was unconstitutional, and 
Magistrates had no jurisdiction of the crime, and the jurisdiction was exclusively 
in the Court of General Sessions. — State v. Williams, 13 S. C, 546; State v. 
Jenkins, 26 S. C, 121; i S. E., 437. But since Act of 1887, (19 Stat., 819,) 
so limiting the punishment, Magistrates have jurisdiction of petit larceny. — State 
V. Cooler, 30 S. C, 105; 8 S. E., 692; 3 L. R. A., 181. Concurrently with the 
Circuit Court since the Constitution of 1895. . 



OF SOUTH CAROLINA. 




Sec. 17. They shall have jurisdiction of the offences of buy- 
ing, receiving or aiding in the concealment of stolen goods and stolen "^goods"^ 
other property, where they would have jurisdiction of the q g S27- r 
larceny of the same goods or property. ^- ^'^' ^^■' § ®- 

Sec. 18. They shall have jurisdiction of the offences of ob- pj-^pg °jy' yJJJj"^ 
taining property by any false pretense, or any privy or false ^^'^^ pretenses 
token, or by any game, device, sleight of hand, pretensions to s^'^y^'j^^^'g^; 
fortune-telling, trick or other means, by the use of cards or 
other implements or instruments, where they would have juris- 
diction of a larceny of the same property, and may punish said 
offenses the same as larceny. 

Sec. 19. They shall cause to be arrested all persons found per^ns cillrg* 
within their Counties charged with, any offense, and persons fensel'^^ °^' 
who after committing any offense within the County escape g. s. 82s; r. 
out of the same ; examine into treasons, felonies, grand lar- ' ■^^' ^^" ^ ^' 
cenies, high crimes and misdemeanors ; and commit or bind 
over for trial those who appear to be guilty of crimes or of- 
fenses not within their jurisdiction, and punish those guilty of 
such offenses within their jurisdiction. 

Sec. 20. All proceedings before Magistrates in criminal ah proceed- 

. . in!?s to be by 

cases shall be commenced on information, under oath, plainly information, 
and substantially setting forth the offense charged, upon which, g. s. sso; r. 

,•,,,, r • ^ ' ^ ' S. 19; lb., § 9. 

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. 

The affidavit may be amended before trial. — State v. Nash, 51 S. C, 321; 28 
S. E., 946. 

A warrant issued upon a statement of facts not sworn to is unconstitutional, 
null and void. — State v. Wimbush, 9 S. C, 309. 

This Section was only intended to require the sworn information to so set 
forth the charge "plainly and substantially" as that the accused would understand 
the nature of the offense with which he was charged and might prepare to meet 
it. It was not designed to require any formality or technical accuracy in stating 
the offense. — McConnel v. Kennedy, 29 S. C, 180; 7 S. E„ 76; Rogers v. Marl- 
boro Co., 32 S. C, 555 ; 11 S. E., 383. 

Sec. 21. Every person arrested and brought before a Magis-g^^k^jPto"";"! 
trate, charged with an offense within his jurisdiction, shall be p^^jg^ YroL. ^^" 
entitled, on demand, to a trial by jury, which shall be selected q s. ssi; r. 
as provided in Section 987 of the Civil Code. ^- ^°' ^^•' ^^*^- 

Demand for jury made after State has closed its case comes too late. — State 
V. Mays, 24 S. C, 194. 

A prosecutor may demand a jury trial. — State v. Nash, 51 S. C, 321; 28 S. 
E., 946. 




CRIMINAL CODE 



See. 22. Magistrates residing within the limits of the City 
in^Ch^ries^ton°^ Charleston are vested with jurisdiction to try, determine and 
f enses^Tgainst impose the penalties authorized by ordinance of the City Coun- 
city ordinances ^^^ of Charleston. 

^ G. s^. S32^^R. ggg_ 23. Whenever a Magistrate shall have issued a warrant 
XIV., 382; § 2. £qj. ^j^^ arrcst of any person charged with an offense above the 
spi^fai ^officers grade of a misdemeanor, such Magistrate shall be authorized 
sCns^^^^chargedto sclcct any citizcn or citizens of the County to execute the 
Tbove '^ mis'de^ Same, upon his endorsement upon the said warrant that, in his 
meanor. jnrlgmpnt, the Selection of such person or persons will be con- 

s '22'; 1S71; ducive to the certain and speedy execution of the said warrant; 
XI ., 666, 1. ^^^ ^j^^ person 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 willfully, negli- 
gently 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 imprisonment, in 
the County jail, in the discretion of the Judge before whom 
the indictment may be tried; said imprisonment not to be less 
than six months. 

A Magistrate cannot verbally authorize a person not a Constable by legal ap- 
pointment to convey a prisoner to jail. — State v. Clark, 51 S. C, 265; 28 S. E., 906. 

Magistrates ggg 24. It shall be the duty of any Magistrate who issues 

must bold pre- •' .' o 

iMtkfns"uTn^ warrant charging a crime beyond his jurisdiction to grant 
fen'dant-v4e1f-^^'^ ^^ ^^^^ ^ preliminary investigation of the same upon de- 
ini^&c'^^^''^^''" mand of the defendant at any time before trial, at which investi- 
1898 xxiLgs-tion the defendant shall have the right to cross-examine the 
^^^- State's witnesses in person or by counsel, 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 with- 
out day. And the defendant when first brought before the 
Magistrate shall have the right to demand a removal 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 requested, within which to prepare a showing for 
removal: Provided, The defendant be held by recognizance 
in bailable cases or committed for custody in the meantime. 

This Act repeals by implication G. S. 834; R. S. 23. 

No formal indictment is required in a Magistrate's Court. — State v. Brown, 
14 S. C, 380. 



OF SOUTH CAROLINA. 233 

A. D. 1902. 



Magistrates have no authority in cases of felony, except to so examine the ^■"-""""v^^-^ 
prisoner and commit or bind him over for trial in the General Sessions. — Cherry 
V. McCants, 7 S. C, 224. 

It is not the duty of the Magistrates, under this Section, to examine accused 
persons or to take their statements in writing, unless they are sworn as witnesses 
on behalf of the State by their own consent; and if he does so, it is not an 
official act; but he is not prohibited from doing so. — State v, Branham, 13 S. C, 
389; State V. Howard, 32 S. C, 91; 10 S. E., 831. 

A Magistrate cannot supplement the testimony of a witness as taken, after it is 
signed by the witness, by appending a statement as to the testimony. — State v. 
Freeman, 43 S. C, 105; 20 S. E., 974. The Magistrate may discharge absolutely 
on the preliminary examination. — State v. Jones, 32 S. C, 583; 10 S. E., 577. 

Sec. 25. Upon information made of the materiality of any ^^^^^^..^^^^^^^ 
witness within the State, to support any accusation made, or ^ g gg.. ^ 
where the materiaHty of such witness shall be within the knowl- ^3 ^|'s'^^^°' ^^' 
edge 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 Magistrate, and refusing to enter into recogni- 
zance, 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. 

Sec. 28. Any ^Magistrate shall be authorized and required May com- 
to command all persons who, in his view, may be engaged in "'^" — epeace 
riotous or disorderly conduct, to the disturbance of the peace, s. 25; 'ib. 21, § 
to desist therefrom, and to arrest any such person who shall re- "' 
fuse obedience to his command, and to commit to jail any such 
person who shall fail to enter into sufficient recognizance either 
to keep the peace or to answer to an indictment, as the Magis- 
trate may determine. In like manner he shall arrest and com- 
mit, if necessary, any person who, in his view, shall perpetrate 
any crirne or misdemeanor whatsoever. In making any such 
arrest, the Magistrate shall have power to command any Con- 
stable, bystander, or the posse comitahis, as the emergency may 
require ; and any person who shall refuse to aid in such arrest, 
when requiredby the Magistrate, shall be liable to indictment as 




CRIMINAL CODE 



for a misdemeanor. Whenever there shall be an indictment 
for any offense committed in his view, the Magistrate shall be 
the prosecutor, and he shall bind in recognizance all necessary 
witnesses. 

The authority here given to a Magistrate to arrest and commit for said offenses 
committed "in his view" extends to such offenses committed in his hearing. — 
State V. Williams, 36 S. C, 493; 15 S. E., 554. 

may" be^ basiled Scc. 28. Magistrates may admit to bail any person charged 

excl^t^^'^^'hosl with any offense the punishment of which is other than death 

offeS^es pui>or imprisonment for life ; and if any person under lawful arrest 

dik^th^ or'im^on a charge regularly made and not bailable, be brought before 

i^r^sonment for ^ Magistrate he shall commit the prisoner to jail; but if the 

G. s. 2621; R^ offense charged be bailable, the Magistrate shall take recogni- 

XI., 22'; § \^.''^' zance, 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. 

Seal not necessary to the recognizance. — State v. Foot, 2 Mill, 123. 

Legal obligation of surety is, that principal shall appear and abide by judgment 
of the Court. — Reynolds v. Harral, 2 Strob., 87. 

And sureties are liable notwithstanding discharge of prisoner by U. S. Judge. — 
State v. Davis, 12 S. C, 528. 

In felony, it requires the personal appearance of the principal. — State v. Rowe, 
8 Rich., 17. 

Even failure to appear and plead will estreat recognizance. — State v. Minton, 
19 S. C, 282. 

Objections to recognizance come too late after estreat. — Barton v. Keith, 2 
Hill, 537- 

No objection, that there is a variance between it and warrant. — State v. 
Rowe, 8 Rich., 17. 

It must appear on its face to have been issued by competent authority; other- 
wise it will be held invalid on objection, ore tenus. — State v. Ahrens, 12 S. C, 493- 

Surety not estopped from denying validity of recognizance because another 
made payments thereon. — State v. Bright, 14 S. C, 7. 

Court of General Sessions may estreat recognizance by scire facias. — State v. 
Wilder, 13 S. C, 344; State v. Jackson, 13 S. C, 344- 

And rule to show cause why not is not appealable. — State v. McNinch, 13 S. 
C, 452- 

Scale by which Sgc. 29. Rccognizanccs entered into before a Magistrate shall 

recognizances , ^ ., 

shall be regu- be according to the following scale : 

lated; recog- '^^ ° .,,,.,_ . . . 

nizances; of I. If the offcnsc charged be punishable with fine and impris- 

prosecutors . 

and witnesses, onment, or either, the recognizance of the accused shall not be 
G. s. 2622; R. for less than two hundred dollars. In all cases the Magistrate 

S. 35; lo., § 7; 1-11 

1885, XIX., 349 taking the recognizance shall cause the same to be m 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 



OF SOUTH CAROLINA. 




to be in such large amount as the circumstances may seem to 
require. 

Sec. 30. Upon information made of the materiaHty of any j^^^y^^^f gf^'^^fj^; 
witness within the State to support any accusation made, or ^^^^^jfj^^^lgj^*^^ 
where the materiaHty of such witness shall be within the kno wl- -^^^^ * y^^J^ol' 

edge of any Magistrate he shall issue his warrant requiring ^^^^f^ 

such witness to appear before him or the next Magistrate tog^gg^.- /^^^^i^; 

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 Magistrate, and refusing to enter into recognizance, 

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. 

Sec. 31. All Magistrates before whom recognizances of^^ ^turn"pa- 
witnesses, defendant, or prosecutor, for their respective ap-P^^J^ days'^^be'^ 
pearances at any of the Courts of Sessions for this State shall ^"'"^ Court. 
be taken, or before whom any information or other paper ^&- s%'-r,'i836^,'^', 
turnable to the same shall be made, shall lodge the said recog- ^l, ia,^ ii.^^' 
nizances, 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. 

Sec. 32. Whenever any Magistrate shall receive information o^y ^f^ ^^ 
in writing, and under oath, that any person or persons are about Ln "Tmp^ending 

to leave this State for the purpose of sending or receiving a chal- "^ ' 

lenge to fight a duel, or for the purpose of fighting a duel after s. ' 2 8, is57,' 
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 persons to enter into recogni- 
zance in such sum as to such Magistrate may seem meet, con- 
ditioned that such person or persons shall keep the peace within 
this State, and shall not leave the State for the purpose of send- 
ing or receiving a challenge to fight a duel, or for the purpose 
of fighting a duel after such challenge has been sent or received. 

Sec. 33. Magistrates shall have the power to change the Change of 

venue. 

venue in all cases, civil and criminal, pending before them: 

1 , R. S. 29; 1887, 

Provided, That in Counties where they have separate and ex-xix.,7s7;i896, 
elusive 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 




CRIMINAL CODE 



criminal 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 obtain 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 applica- 
tion for change of venue shall be given to the adverse party. 
One such transfer only shall be allowed each party in any 
case. 

See McNair v. Tucker, 24 S. C, 107. 

to Twear^out Sec. 34. No Magistrate shall permit a Constable to swear 

warrants. 



.out a warrant in any criminal case, except where the Con- 
XIX.,' 53i. ' stable has been personally affected by the offense with which 

p r o secutor the party is charged, 
warrant. ^ Scc. 35. No Magistrate shall deputize the person swearing 
R. s. 31, is86;Out a warrant in any case to serve the same. 

'' "^' ' Sec. 36. I. Magistrates shall have authority to issue war- 

may issue rants to make search or seizure in suspected places, and to 

search war- , , . , . 

rants. arrcst suspected persons and to seize their property. 

1SS5, XIX., 2. Such warrants shall issue only in cases of stolen 

251 R. S. 32. 

goods, and must be supported by the oath or affirmation of the 

When and in , . . , ,.,,,, . , - ,, , 

what cases. party applying for the same, which shall set forth fully and par- 
ticularly all the facts upon which such application is based, and 
shall specially designate the suspected place or places, the ob- 
ject or objects of search or seizure, the name or names of the 
person or persons suspected, and who are to be arrested. 

erwise. 2- No such Warrant shall issue except in the cases and with 

the formalities herein prescribed. 

Such warrant issued upon a statement of facts not sworn to is unconstitu- 
tional, null and void. — State v. Wimbush, 9 S. C, 309. 

be indorsed in Scc. 37. Magistrates are authorized and empowered to en- 
served ^"^^^ dorse the warrant or warrants issued by Magistrates of other 
R. s. 33; 1891, Couutics whcn the person or persons charged with a crime in 
" " ■' "' ■ said warrant or warrants resides, or is, in the County of said 
Magistrate. When a warrant or warrants is presented to a 
Magistrate for endorsement, as herein provided, the said Mag- 
Appointment istrate shall authorize the person presenting the same, or anv 

of Constable. ^ ^ . . . ^ 

special Constable, to execute the same within his County. 



OF SOUTH CAROLINA. 



Sec. 
38. 



39. 



40. 



41. 



A. D. 1902. 



CHAPTER III. 

Proceedings in Courts of Sessions. 



Grand jurors, how returned, and 
term of service. 

Who to be grand jurors and who 
jurors for trials. 

Persons indicted for capital of- 
fenses to have a copy of the 
indictment. 

Persons indicted may have coun- 
sel. 



Sec. 

42. Court may assign counsel. 

43. Traverse of an indictment not a 

continuance. 

44. How juries are empaneled. 

45. Accused in felonies may have 

process to compel attendance 
of witnesses. 

46. Clerks to keep record of persons 

tried. 



Section 38. a. During the last term of the Court of General jufors°of^'^is97 
Sessions for each County in the year 1897, six of the grand igos.^^'"''*^ ^°'' 
jurors then in service shall be drawn in the manner now pro- g. s. 2629; 
vided by law for the empaneling of petit jurors in crimmal x'xii., 419. ' 
cases, who shall serve as grand jurors during the next succeed- 
ing year. 

h. The Clerk of the Court of General Sessions in each juries^ drawn 
County in the year 1898, and each succeeding year thereafter, ler. 
not less than fifteen days before the commencement of the is7i, xiv., 

/- , . r .1 r- ^ • -J 1 11 • -^ ■ 694, § 33; 1897, 

first term of the Court m said year, shall issue writs venire xxii., 419. 
facias in each County for twelve grand jurors to be returned 
to that Court, who, together with the six grand jurors for 
whose selection provision has hereinbefore been made, shall 
be held to serve at each, term thereof throughout said year, and 
until another grand jury is selected and empaneled. 

c. At the end of each succeeding year thereafter, during the Six of tiie 
last term of the Court of General Sessions held in each County be drawn each 

. , . . , , . , . .-HI year for the 

for such year, six of the grand jurors then m service shall be next year. 
drawn as hereinbefore provided, who, together with twelve ib. 
grand jurors selected in the manner herein prescribed, shall 
constitute the grand jury for said year : Provided, That no Proviso. 
person shall serve as a grand juror for more than two con- 
secutive years, and that the provision of this Section shall not 
apply to the County of Charleston. 

d. Whenever for any cause, such as the quashing of the array cr^^d ^?urors 
or there being no Court at the Fall Term, there has heretofore ^f^J/y drcum- 
been or shall hereafter be a failure to draw the names of six stances. 
members of any Grand Jury for any County to serve on iht^f}' ^^"i- 
Grand Jury for that County for the ensuing year as required by 

law, there shall be drawn, at the proper time for drawing the 
Grand Jury, eighteen names from the jury box, instead of 



238 CRIMINAL CODE 

A. D. 1902. 



^"""^"^''^'^ twelve, and the said eighteen persons, whose names are so 
drawn, shall be summoned and shall serve as the Grand Jury 
for the year in question, and shall be the lawful Grand Jury 
for such County for that year, and until their successors be 
drawn, summoned and qualified according to law. 

e. When the Judge, entitled to preside, fails to attend and 
to hold the fall or last term of the Court of Common Pleas and 
General Sessions for any County, the Clerk of the Court shall 
have the right and is required hereby to make the drawing 
from the outgoing Grand Jury, that is to say from the Grand 
Jury for the then current year of the names of the six mem- 
bers who shall serve as a part of the Grand Jury for the then 
ensuing year, with the same force and effect as if the names of 
the said six Grand Jurors had been drawn in the presence of the 
Presiding Judge. 

The writ of venire must have the seal of the Court or it is invalid. — State v. 
Dozier, 2 Speer, 216; State v. Williams, i Rich., 189- But it is not necessary 
that the impression of the device should be manifest on the seal. — State v. Mc- 
Elmurray, 3 Strob., 39; State v. Thayer, 4 Strob., 287. It is not necessary that 
the names of the jurors should be embodied in the writ; it is sufficient if they 
be arranged in lists below the signature of the Clerk. — State v. McElmurray, 3 
Strob., 39. 

Grand jury need not consist of more than twelve members. — State v. Clayton, 
II Rich., s8i. If grand jury drawn to serve during the year are discharged 
before they are empaneled, the grand jury of the preceding year may act. — State 
V. McEvoy, 9 S. C, 208. 

Indictment quashed because a paid attorney, representing Solicitor in his ab- 
sence, advised the grand jury as to their duty. — State v. Addison, 2 S. C, 366. 

But no ground to do so, where Solicitor, at foreman's request, went into their 
room and advised as to how the jury should write their findings, already agreed 
on. — State v. McNinch, 12 S. C, 89. 

Witnesses examined before grand jury must be sworn in open Court. — State 
V. Kilcrease, 6 S. C, 444. Court will not inquire into testimony that influenced 
the jury. — State v. Boyd, 2 Hill, 288. 

Finding of grand jury in writing, if publicly announced by the Clerk in their 
presence, is good, though not signed by the foreman. — State v. Creighton, i N. 
& McC, 256. 

The Act of 1897, XXII., 419, is directory only, and not mandatory. — State v. 
Powers, 59 S. C, 201 ; 37 S. E., 690. So as to time within which venire must 
issue. — State v. Smith, 38 S. C, 270; 16 S. E., 977. 

The presentment of a grand jury as to the management of County affairs is 
only advisory to the County Commissioners; and if, on being served with the pre- 
sentment, they make return that they disapprove of the recommendations of the 
grand jury, and decline to comply, the Court will not order an indictment against 
them. — State v. Commissioners, 12 Rich., 300. 

Who to be Sec. 39. Grand Jurors shall be drawn, summoned, and re- 
and who jur- turned, in the same manner as jurors for trials, and, when 

ors for trials. . . . , , . 

: drawn at the same time as jurors for trials, the persons whose 

R. s. 39; i87i; names are first drawn, to the number required, shall be returned 

XIV., 694, § 34 . , , 1 -L 

as grand jurors, and those afterwards drawn, to the number 



required, shall be jurors for trials. 



OF SOUTH CAROLINA. 




Deficiency in grand jurors to be supplied as provided in Sec. 2924, Civil Code. 
The accused not entitled to demand copy of jury list. — State v. Merriman, 34 
S. C, 16; 12 S. E., 619. 

The fact that the grand jury which found the indictment contained no member 
of the race to which the defendant belongs is not, of itself, a ground for quashing 
the indictment. — State v. Brownfield, 60 S. C, 509; 39 S. E., 2. Objection as to 
qualification of grand juror comes too late after pleading to the indictment. — 
State V. Boyd, 56 S. C, 382; 34 S. E., 661. 

Sec. 2946, Civil Code, does not apply to grand jurors. — lb.; State v. Rafe, 56 
S. C, 381; 34 S. E., 660. 

Sec. 40. Whoever shall be accused and indicted for any capi- ,. fj"?"® ^"' 

-^ ^ dieted for cap- 

tal offense whatsoever, shall have a true copy of the whole i^a^ offenses to 

' J^-' have a copyof 

indictment, but not the names of the witnesses, delivered to him,tiieir indict- 

' ' ' ment. 

three days, at least, before he shall be tried for the same, where- ^ g 2632- 
by to enable him to advise with counsel thereupon, his attorney ^jj^-g^^: j"^^' 
or attorneys, agent or agents, or any of them requiring the same, 
and paying the officer his usual fees for the copy of every 
such indictment. 

The three days are inclusive of day on which motion is made for copy. — State 
V. Briggs, I Brev., 8. 

The demand for the copy should be made at the latest at the arraignment. — 
State v. Willingham, lo Rich., 257. 

When made after trial had commenced and more than three days after arraign- 
ment, it was properly refused. — State v. Briggs, 27 S. C, 80; 2 S. E., 854. 

To move for a continuance at arraignment, on the ground that the prisoner 
was entitled to a copy of the indictment three days before trial, was considered 
a demand for the copy. — State v. Willingham, 10 Rich., 257. 

Arraignment without demand for the copy amounts to a waiver. — lb. 

On Monday the prisoner was arraigned and his counsel demanded a copy of 
indictment, which was furnished same day. The counsel then said they thought 
they would be ready for trial on Wednesday, but on that day they were not 
ready, and declined to move for delay. Held that they had waived right to have 
copy of indictment three days before trial. — State v. Colclough, 31 S. C, 156; 
9 S. E., 811. 

Sec. 41. Every such person so accused and indicted, arraign- ^g^gg,^ ^^^^ 
ed or tried, for any capital offense, shall be received and admit- q §. 2033; 
ted to make his full defence by counsel learned in the law, and^' ^' ^^' ^'^' 
to make any proof that he can by lawful witness or witnesses, 
who shall then be upon oath, for his just defence in that behalf. 

Sec. 42. In case any person so accused or indicted shall de- assign^aju^eh 
sire counsel, the Court before whom such person shall be tried g. s. 2684; 
is authorized and required, immediately upon his request, to as- ifi., '286,' § '43! 
sign to such person such and so many counsel, not exceeding- 
two, as the person shall desire, to whom such counsel shall 
have free access, at all seasonable times, either before, at, or 
after the said trial, any law or usage to the contrary notwith- 

j . Traverse of 

Standmg. an indictment 

Sec. 43. A traverse of an indictment shall not, in any Court ance. 
of criminal jurisdiction in this State, of itself, operate to con- g. s. 2635; 

^ ' R. S. 43; 1871, 

tmue the case. xiv., 534. 




CRIMINAL CODE 



Sec. 44. In empaneling juries in criminal cases, the jurors 
e JpTn e Hed! ^hall be Called, sworn, and empaneled anew for the trial of each 



&c., in each 



case. 



case, according to the established practice, and their foreman 
G. s. 2636; shall be appointed by the Court or by the jury when they retire 
692, ^§ w.' ^^'' to consider their verdict. 

As to practice of empaneling juries. — State v. Stack, i Bail., 330; State v. 
Sims, 2 Bail., 29; State v. Crank, 2 Bail., 66; State v. Kleinback, 2 Spear, 421; 

State V. Brown, 3 Strob., 514. 

Pay of de- ggc. 45. In all criminal prosecutions the accused shall have 

fendant s wit- ■■- 

nesses in crim- compulsorv proccss for obtaining witnesses in his favor ; and in 

ma cases. jr - jt & ' 

felonies, and no other cases, such witnesses shall receive the 
same pay as the State's witnesses upon the certificate of the 
Trial Judge that the testimony of such witness was material to 

I n felonies J s> J ^ 

prisoners may the dcfcncc ! Provided, That the compulsor\^ process herem- 

have process to 

compel attend- abovc mentioned shall be in misdemeanors a subpoena under the 

ance of wit- 
nesses^ ^ official signature of the Clerk of the Court, or other judicial 

G. s_. 2638; officer, which subpoena or copy shall be served upon the wit- 

R. o. 4o J 1S96, 

XX II , 102; ness a reasonable time before such witness is required to attend 

1731, III., 286, . ^ 

|44; 1S39, XI., Court, and for any disobedience to such subpoena the Court 
may punish for contempt. 

No process can be issued to compel attendance of witnesses from another State, 
nor can their testimony be taken by commission. — State v. Murphy, 48 S. C, 
i; 25 S. E., 43. 

In cases of misdemeanor defendant cannot have his witnesses bound over. — 
State V. Thomas, 8 Rich., 295. His witnesses are onlj' to be paid in case of felony. 
— Whittle V. Saluda Co., 59 S. C, 554; 38 S. E., 168; ex parte Henderson in re. 
State V. Evans, 51 S. C, 331; 29 S. E., 5. 

In case of a capital offense, the prisoner having been committed a short time 
before the Court, he was allowed continuance to procure his witnesses. — State v. 
Lewis, I Bay, i. 

Clerk of Court gee. 46. Each Clerk of the Court of General Sessions 

to keep record 

t/ied'for"rime shall kccp a rccord, and report annually to the Attorney General 
1900 XXIII ^^d the Solicitor of his Circuit, in duplicate, by the loth day of 

^^- December, on blank forms to be furnished by the Attorney 

General, the name, race, sex, age, alleged crime, of every per- 
son brought to trial in his Court for the year ending December 
1st; and in case of his failure to make said report within the 
time herein limited, he shall forfeit to the County ten dollars 
as a penalty for each day's delay in making such report, to be 
recovered by the Solicitor of the Circuit by an action in any 
Court of competent jurisdiction. 



OF SOUTH CAROLINA. 



CHAPTER IV. 

Of the Rights of Persons Accused. 



Sec 
47, 



Persons arrested to be informed 
of ground of arrest, &c. ; 
penalty for false answering, 
&c. 

48. Offenses to be prosecuted by in- 
"^ dictment, except, &c. 



Sec 
49. 



Persons arrested may have coun- 
sel, &c. 

50. Persons indicted, bow convicted. 

51. When no defense. 

52. No person to be punished until 

legally convicted. 




Section 47. Every person, arrested by virtue of process, or ,.^5^!"°" ^i^g [^'. 
taken into custody by an officer in this State has a right to knowjg^^^^^^f l^, 
from the officer who arrests or claims to detain him, the true^ffy' f^; f^^^ 
ground on which the arrest is made ; and an officer who refuses ^"swers, &c. 
to answer a question relative to the reason for such arrest, org^/|- fg ^^'' 
answers such question untruly, or assigns to the person arrest- 
ed an untrue reason for the arrest, or neglects, on request, to ex- 
hibit to the person arrested, or any other person acting in his 
behalf, the precept by virtue of which such arrest is made, shall 
be punished as for a misdemeanor. 

Sec. 48. No person shall be held to answer in any Court be prosecuted 
for an alleged crime or offense, unless upon indictment by a except, ''s™^"*' 
grand jury, except in the following cases : ~ g. s. 2448; 

1. When a prosecution by information is expressly author- of Procedure! 
ized by statute. 

2. In proceedings before a Police Court or Magistrate ; and, 

3. In proceedings before Courts-martial. 

Sec. 49. The accused shall, at his trial, be allowed to be^d^mlyXve 

heard by counsel, may defend himself, and shall have a right to counsel, &c. 

produce witnesses and proofs in his favor, and to meet the wit-j^/g fg -^^' 
nesses produced against him face to face. 

Sec. 50. No person indicted for an offense shall be convicted ^ i c?rd,^ how 
thereof, unless by confession of his guilt in open Court, or by co"v'cted. 
admitting the truth of the charge against him by his plea orj^ g^-^f; ^^^^' 
demurrer, or by the verdict of a jury accepted and recorded 
by the Court. 

Sec. 51. If a person, on his trial, be acquitted upon the j^^^^"^^*^ "° '^^■ 
ground of a variance between the indictment and the proof, or ^ g —- 
upon an exception to the form or substance of the indictment,^ s. 50. 
he may be arraigned again on a new indictment, and tried and 
convicted for the same offence, notwithstanding such former 
acquittal. 

State V. Jenkins, 20 S. C, 351; State v. Brown, 33 S. C, 151; 11 S. E., 641. 



16.— c. p. 



242 CRIMINAL CODE 

A. D. 1902. 

^ y ' Sec. 52. No person shall be punished for an offense unless 

No person to dulv Eud legfally convicted thereof in a Court havinar competent 

be punished. f ,. . ^ , ^ r ^ s= i- 

until legally juHsdiction of the CEUsc and of the person. 

convicted 



G. S. 2452; 
R. S. 51. 



CHAPTER V. 
Of Trials. 

Sec. ( Sec. 

53. No grand juror to be on trial ' 60. Indictments for murder. 

jury. I 61. Averment of instrument of writ- 

54. Payment of taxes not a cause i ing. 

for challenge. I 62. Indictment for perjury. 

55. Rights of challenge. | 63. Prisoners' witnesses to be sworn. 

56. What indictment shall be suf- I 64. Defendant may testify. 



ficient. 

57. How defects may be objected to. 

58. Amendments of indictments. 

59. Plea of autre fois acquit or coti- 

vict. 



65. Persons not required to crimi- 
nate themselves ; privilege of 
husband and wife. 



As to nolle pros, where both civil and criminal actions are being prosecuted for 
same assault. — State v. Blyth, i Bay, 167; overruled in State v. Frost, i Brev., 
385. A nolle pros, may be entered at any time before the jury is charged. — State 
V. McKee, i Bail., 651. 

A motion for severance of trial is addressed to the discretion of the Circuit 
, . ... -. - Judge. — State v. Mitchell, 49 S. C, 410; 27 S. E., 424. 

No grand ju- Section 53. No member of the errand jury which has found 

ror to be on . . 

trial jury. a.n indictment shall be put upon the jury for the trial thereof. 

G. S. 2639; gut tjjg objection must be made before the juror is sworn. — State v. O'Driscoll, 
R. S. 52; 1731, „ 
III., 279, § 19. 2 Bay, 153- 

Payment of Sec. 54. Ill indictments and penal actions for the recovery of 
cause of °chai^ a sum of monev, or other thing forfeited, it shall not be a cause 

^^"^^" of challenge to a juror that he is liable to pay taxes in any Coun- 

R.% ^; if-i! ty, city, or town, which may be benefitted by such recovery. 
XIV., 693, § 23 gg^^ gg^ ^^^^ person or persons who shall be arraigned for 
lenfe.^ °^ '^^^^' the Crime of murder, manslaughter, burglary, arson, rape, 
R. s. 54; 33 grand larceny or forgery, shall be entitled to peremptory chal- 
II.;' 549; i84i! Icngcs uot excccding ten ; and the State in such cases shall be 
xix.,'^^^'o;ii2; entitled to peremptory challenges not exceeding five; and any 
person or persons who shall be indicted for any crime or offense 
other than those enumerated above shall have the right to per- 
emptory challenges not exceeding five, and the State in such 
cases shall be entitled to peremptory challenges not exceeding 
two. But no right to stand aside jurors shall be allowed to 
the State in any case whatsoever : Provided ^ That in no case 
where there shall be more than one defendant jointly tried 
shall more than twenty peremptory challenges be allowed in all 
to the defendants. 



XXI., 94. 



OF SOUTH CAROLINA. 243 

~ A. D. 1902. 



Arraignment is only required in the cases here enumerated, and has never ^ ■> 

been necessary in cases of misdemeanors, where defendants may be tried in their 
absence. — State v. Brock, 6i S. C, 141; 39 S. E., 59; State v. Tucker, 40 S. C, 
549; 18 S. E., 932; State v. Meyers, 40 S. C, 55s; 18 S. E., 892. 

The right to arraignment in larceny is determined by the value of the property 
stated in the indictment, whether below the value of twenty dollars. — State v. 
Moore, 30 S. C, 69; 8 S. E., 437. 

The Acts reducing the number of challenges to what is here allowed are not 
unconstitutional, as they do not prevent the right of trial by jury. — State v. 
Wyse, 32 S. C, 45; 10 S. E., 612. 

The right to challenge is a sacred right. — State v. Briggs, 27 S. C, 80; 2 S. 
E., 854. But the right to challenge is not a right to select a jury, but a right to 
reject certain number of jurors. — State v. Wise, 7 Rich., 412; State v. Coleman, 
8 S. C, 237; State v. Gill, 14 S. C, 411; State v. Prater, 26 S. C, 198; 2 S. E., 
108. Effect of exhausting jury by challenge. — State v. Burket, 2 M. Con. Rep., 
155. Prisoner cannot withdraw a peremptory challenge in order to challenge for 
cause.- — State v. Price, 10 Rich., 351. 

Overruling challenges for cause not to be considered as error when jury was 
completed without exhausting peremptory challenges.- — State v. McQuaige, s S. 
C, 420; State v. Dodson, 16 S. C, 453. Defendant on trial for burning stacks 
of hay and ricks of corn fodder only entitled to five peremptory challenges.- - 
State v. Pope, 9 S. C, 273. 

Defendant on trial for burning a frame building is only entitled to five per- 
emptory challenges. — State v. Workman, 15 S. C, 544. 

Defendants on trial for receiving stolen goods above $20 are each entitled to 
only five challenges. — State v. Jacob, 30 S. C, 131; 8 S. E., 698. 

Formerly, before the amendatory Act of December 23, 1882, no peremptory 
challenge, in trials for offenses not described in this Section, could be made to 
jurors drawn from supernumeraries to fill places of those challenged. — State v. 
Cardozo, 11 S. C, 197; State v. Smalls, 11 S. C, 262. 

Where the panel is exhausted by challenges of four prisoners, it was irregular 
to postpone trial to another week before another original jury; and it was error 
to allow the prisoner then only twelve challenges because he had exhausted eight 
the week before. — State v. Briggs, 27 S. C, 80; 2 S. E., 854. 

Where juror's father and grandfather of accused were brothers, the Judge 
properly excluded the juror on account of consanguinity.— State v. Merriman, 34 
S. C, 16; 12 S. E., 619. 

In trial on an indictment for larceny of live stock, valued at $13, the State was 
held entitled to only two peremptory challenges. — State v. Anderson, 59 S. C, 
229; 37 S. E., 820. 

Arraignments by de facto deputy clerk valid. — State v. Hopkins, 15 S. C, 153. 
Defendant being once arraigned, and a mistrial had, need not be again arraigned 
on second trial. — State v. Stewart, 26 S. C, 125; i S. E., 468. 

Peremptory challenge may be interposed at any time by the State before the 
prisoner has spoken. — State v. Corley, 43 S. C, 127; 20 S. E., 989; State v. 
Haines, 36 S. C, 504; 15 S. E., 555. 

Judge may refuse to have list entirely called over in hearing of the prisoner before 
the jurors are presented. — State v. Hallback, 40 S. C, 298; 18 S. E., 919. 

Sec. 56. Every indictment shall be deemed and judged suf-jj^^^g^gj^'^^'^lg 

ficient and good in law which, in addition to allegations as to sufficient. 

time and place, as now required by law, charges the crime ^^x^- 1^| ^^^'^' 

substantially in the language of the common law or of the 

statute prohibiting the same, or so plainly that the nature of 

the offense charged may be easily understood; and if 

the offense be a statutory offense, that the same be alleged to 

be contrary to the statute in such case made and provided. 

Such indictment for forgery held sufficient, though the word "feloniously" was 
not used. — State v. Allen, 56 S. C, 499; 35 S. E., 402. 

It must not allege the date of the commission of the crime posterior to the finding 



244 CRIMINAL CODE 

A. D. 1902. ~ ~ 

^^. of the indictment.^ — State v. Ray, Rice, 3. It must set fortli the necessary in- 
^^^y^'"^ gredients of the offense charged. — State v. Henderson, i Rich., 184. How third 
persons should be described. — State v. Anderson, 3 Rich., 174; State v. Scurry, 
3 Rich., 70. Defendant's name once set out in full need not be constantly re- 
peated. — State V. Anderson, 3 Rich., 176. 

It is correct to charge in the indictment that the ofEense was committed at the 
court house. — State v. Colclough, 31 S. C, 156; 9 S. E., 811. 

Even when the name of the owner of the stolen goods as laid in the indictment 
for larcenj' is idem sonans with the name proved, and the defendant was not mis- 
led, the variance is not fatal. — State v. White, 34 S. C, 59; 12 S. E., 661. 

If the offense be statutory, it must be alleged to be contrary to statute in 
such case made and provided. — State v. Strickland, 10 S. C, 192. 

Where several offences grow out of the same transaction, they may be joined 
in the same indictment and the jury instructed to pass upon the several counts 
separately. — State v. Sheppard, 54 S. C, 178; 32 S. E., 146. Each count must be 
complete in its allegations without aid from another. — State v. Johnson, 45 S. C, 
483; 23 S. E., 619; State v. Langford, 55 S. C, 327; 33 S. E., 370. If the counts 
do not grow out of the same transaction the Solicitor may be required to elect upon 
which count he will proceed. — State v. Sheppard, supra; State v. Bouknight, 55 
S. C, 354; 34 S. E., 431; State v. Woodward, 38 S. C, 353; 17 S. E., 135. Joinder 
of counts for robbery and assault with intent to kill. — State v. Smith, 57 S. C, 
490; 34 S. E., 657; 35 S. E., 727. Grand larceny and receiving stolen goods 
joined.- — State v. Posey, 7 Rich., 484. Murder and accessory after the fact. — 
State v. Burbage, 51 S. C, 284; 28 S. E., 937. Dispensary cases. — State v. 
Beckroge, 49 S. C, 484; 27 S. E., 658. 

A general verdict of guilty will be sustained where there is one good count to 
which the evidence applies. — State v. Henderson, 52 S. C, 470; 30 S. E., 477; 
State v. Poole, 2 Brev., 490; State v. Smith, 18 S. C, 149; State v. Woodward, 
38 S. C, 353; 17 S. E., 135; State v. Burbage, 51 S. C, 288; 28 S. E., 937. 

How defects Sec. 57. Everv obiection to anv indictment for anv defect 

may be objec- . j . 

ted to. apparent on the face thereof shall be taken by demurrer, or on 

lb., R. s. 56. motion to quash such indictment before the jur}- shall be sworn, 
and not afterwards. 

A motion to quash indictment on ground of disqualification of grand juror comes 
too late after pleading thereto. — State v. Boyd, 56 S. C, 382; 34 S. E., 661. See 
note to Sec. 2946, Civil Code, and Sec. 39, ante. 

State V. Crank, 2 Bail., 66; State v. Cook, Riley's Coll. of Cases, 1837, p. 233. 
The Supreme Court will not consider error imputed to trial Judge for refusing to 
quash indictment, when the "Case" does not show that motion therefor was 
made. — State v. Atkinson, 33 S. C, 100; 11 S. E., 693. 

The fact that the indictment was found on a bill sent to the grand jury by the 
Solicitor without a preliminary examination before a Magistrate is no objection 
to it. — State V. Bowman, 43 S. C, 108; 20 S. E., loio; State v. Bullock, 54 
S. C, 313; 32 S. E., 424. 

Amendments ^qq 5g_ That if there be anv defect in form in any indictment 

of indictments - -' 

it shall be competent for the Court before which the case is 
T, • tried to amend the said indictment : Provided, Such amend- 

Proviso. 

T, c K- Tu ment does not change the nature of the offense chars:ed ; that if 
,. ■ on the trial of anv case there shall appear to be anv variance 

V ariance. - ^ '^ ' 

between the allegations of the indictment and the evidence 
offered in proof thereof, it shall be competent for the Court 
before which the trial shall be had to amend the said indictment 
Proviso. according to the proof: Provided, Such amendment does not 
change the nature of the offense charged ; and after such amend- 
ment the trial shall proceed in all respect^ and with the same 



OF SOUTH CA'ROLINA. 245 

A. D. 1902. 



consequences as if no variance had occurred, unless such ^—-^v^^-' 
amendment shall operate as a surprise to the defendant, in 
which case the defendant shall be entitled, upon demand, to a Continuance. 
continuance of the cause. 

While a material change in the body of the indictment cannot be made by amend- 
ment by order of Court, such amendment may be made with the defendant's con- 
sent in open Cout. — State v. Faile, 43 S. C, 52; 20 S. E., 798. 

Indictment amended to insert proper date. — State v. May, 45 S. C, 509; 23 
S. E., 513- 

The Court may amend caption of indictment at any time. — State v. Williams, 
2 McC, 301; Vandyke v. Dare, i Bail., 65. 

Sec. 59. In any plea of autre fois acquit or autre fois convict fois o°g!«Tor 

it shall be sufficient for any defendant to state that he has been '^ "^"^ " . 

lawfully acquitted or convicted, as the case may be, of the of- • • > • 
fense charged in the indictment. 

Where defendant was convicted on second count, and a new trial granted, the 
whole case stood as though it had never been tried. — State v. Commissioners of 
Roads, Riley, 273; State v. McGee, 55 S. C, 254; 33 S. E., 353; State v. Stephens, 
13 S. C, 285. 

Such defense, under the Cons, of 1868, Art. I., Sec. 18, could not avail except 
where the defendant had been acquitted or convicted by a jury. — State v. Shirer, 20 
S. C, 392; State V. Wyse, 33 S. C, 582; 12 S. E., 556. 

An acquittal upon an insufficient indictment is no bar to a second indictment 
for same offense. — State v. Ray, Rice, 3; State v. Jenkins, 20 S. C, 35; State v. 
Brown, 33 S. C, 151; 11 S. E., 641. 

The acquittal or conviction must be upon charge of same offense to sustain such 
plea. — State v. Thurston, 2 McM., 396; State v. Casey, i Rich., 92; State v. 
Risher, i Rich., 219; State v. Nathan, 5 Rich., 231; State v. Parish, 8 Rich., 322. 

The provision of the Constitution of 1895, Art. i. Sec. 17, differs from the 
Constitution of 1868; and as to what is "jeopardy" under it, see State v. Stephen- 
son, 54 S. C, 237; 32 S. E., 305; State v. Richardson, 47 S. C, 166; 25 S. E., 
220; State V. McKee, i Bail., 651; State v. McLemore, 2 Hill, 680; State v. 
Briggs, 27 S. C, 8s; 2 S. E., 854; State v. Syphrett, 27 S. C, 34; 2 S. E., 624. 

In arson, the crime being against possession rather than against the ownership, 
the subject might be alleged as the property of either the owner or the possessor, 
and an acquittal would bar a new indictment in the name of the other. — State v. 
Copeland, 46 S. C, 13; 23 S. E., 980. But as an indictment for larceny must 
allege the true name of the owner, an acquittal for stealing the fowls of A cannot 
be set up as former jeopardy for stealing the fowls of A's wife. — State v. Council, 
58 S. C, 368; 36 S. E., 663. 

Sec. 60. Every indictment for murder shall be deemed and for^^urder"*^ 
adjudged sufficient and good in law which, in addition to -^ g gg. j^ 
setting forth the time and place, together with a plain state- 
ment, divested of all useless phraseology of the manner in 
which the death of the deceased was caused, charges that the 
defendant did feloniously, willfully, and of his malice afore- 
thought kill and murder the deceased. 

Principal and accessory may be charged jointly in same count. — State v. Atkin- 
son, 40, S. C, 363; 18 S. E., 1021. 

Concluding "against the peace and dignity of the same State aforesaid" instead 
of "against the peace and dignity of the State" is good. — State v. Robinson, 27 
S. C, 615; 4 S. E., 570. 

The place of death is an essential allegation which this Section has not dis- 
pensed with, and which, under the terms of the Constitution, the Legislature can- 
not dispense with. — State v. Blakeney, 33 S. C, iii; 11 S. E., 637. 



246 CRIMINAL CODE 

A. D. 1902. 



■^^^-Y"^.^ If the indictment fail to allege the place of death, the omission cannot be 

supplied by amendment. — lb. 
See also note under Sec. io8. 

insfrumTnt'^'' of ^^^' ^^' ^^ ^^^ CESCS whatsocver ill which it shall be neces- 

writing. 



sary to make any averment in any indictment as to any instru- 

R. s. 60; lb. j^gj^^^ whether the same consists wholly or in part of writing, 
print or figures, it shall be sufficient to describe such instrument 
by any name or designations by which the same may be usually 
known, or by the purport thereof, and in such manner as to 
sufficiently identify such instrument without setting out any 
copy or fac simile of the whole or any part thereof, 
for perjury.'^ ^ Scc. 62. In any indictment for perjury it shall not be neces- 
R. s. 61; 7&. sary to set forth more than the substance of the oath and the 
fact concerning which the perjury is alleged to have been com- 
mitted. 
nesses to be Scc. 63. Evcry pcrsou who shall be produced or appear as 
^^— — '- — -a witness on the behalf of the prisoner, upon any trial for trea- 

G S 2642- . 

R.s.'62;'i Ann son or fclony, before he be admitted to depose, or give any man- 

St2c9' <j -' 

1712, li., 543, § ner of evidence, shall first take an oath to depose the truth, 

g 

the whole truth, and nothing but the truth, in such manner as 

the witnesses for the State are by law obliged to do ; and, if 

convicted of any wilful perjury in such evidence, shall suffer 

all the punishments, penalties, forfeitures, and disabilities 

which, by law, may be inflicted upon persons convicted of wilful 

perjury. 

ma/^t^est1fy^fn Scc. 64. In the trial of all criminal cases, the defendant 

criminal cases. g|^g^^| |^g allowcd to testify (if he desires to do so, and not other- 

R % fs; 1866', wise,) as to the facts and circumstances of the case. 

Xlil., 378; §^. j^ defendant cannot be made to testify against himself and be convicted on his 
own testimony. — Town Council v. Owens, 6i S. C, 22; 39 S. E., 184. 

Defendant taking the stand may be cross-examined as any other witness. — State 
V. Robertson, 26 S. C, 117; 1 S. E., 443; State v. Wyse, 33 S. C, 582; 12 S. E., 
556; State V. Merriman, 34 S. C, 16; 12 S. E., 619. May be examined as to his 
religious belief. — State v. Turner, 36 S. C, 534; 15 S. E., 602. His veracity may 
be assailed. — State v. Robertson, 26 S. C, 117; i S. E., 443. When two defend- 
ants are jointly tried for larceny, the testimony of one already convicted of an 
infamous crime should go to the jury under instructions that it is incompetent 
as to the other. — State v. Peterson, 35 S. C, 279; 14 S. E., 617. 

It is improper for Solicitor in argument to comment upon defendant's failure 
to testify; but it is not reversible error if trial Judge corrected the effect intended. — 
State V. Howard, 35 S. C, 197; 14 S. E., 481. 

This Section was intended to render a defendant competent to testify in hfs 
own behalf, and does not relieve him from his common law disability to testify 
in behalf of a co-defendant, when jointly indicted with others. — State v. Franks, 
51 S. C, 259; 28 S. E., 908. One defendant may introduce testimony to contra- 
dict a co-defendant who testifies against him.— State v. Adams, 49 S. C, 414; 
27 S. E., 451- 

Sec. 65. No person shall be required to answer any question 
tending to criminate himself, nor shall husband or wife be re- 



OF SOUTH CAROLINA. 



247 

A. D. 1902. 

quired to disclose any communication made to each other during » ' 

their coverture; nor shall testimony given under the preceding j.g-^^"°^|^j'^°o 
Section be afterwards used against him in any other criminal s"™'^"fs^_*^|^' 
case, except upon an indictment for perjury, founded on that ^ 4^ J^d ^| ° ^ 
testimony. ^^^^- 



Construed as "simply intended to preserve the then existing rules of law by r g 
which persons could not be required to criminate themselves, and by which con- § 3. 
fidential communications" between husband and wife were protected; it does not 
change the rule that a wife is an incompetent witness for or against her husband. — 
State V. Workman, 15 S. C, 540; State v. Dodson, 16 S. C, 453. Accomplice, 
by becoming witness, does not waive protection accorded to his communications 
to his attorney. — State v. James, 34 S. C, 49; 12 S. E., 657. 

See Sec. 2264, Civil Code, as to commitment of persons non compos mentis, 
charged with crime, to the State Hospital for the Insane. See Sec. 2735 of Civil 
Code as to change of venue; when and how made. 



S. 2644; 
65; lb.. 



CHAPTER VL 



Of Appeals and New Trials. 



Sec. 

66. Appeals from Magistrates' 

Courts. 

67. Time of appeal. 

68. Notice to be filed with Clerk of 

Court. 

69. Defendant entitled to bail. 

70. Clerk to enter case on proper 

docket. 



Sec. 

71. Appeal heard without examina- 

tion of witnesses. 

72. Circuit Courts may grant new 

trials. 

73. Stay of execution. 

74. No bail after conviction for 

higher crimes. 

75. Practice and proceedings on ap- 

peal. 



Defendant cannot appeal after fine is paid. — Town of Batesburg v. Mitchell, 
58 S. C, 564; 37 S. E., 36. 

Section 66. Every person convicted before a Magistrate of ^i"^lfl\^l°^ 

any offense whatever, and sentenced, may appeal from the sen- Courts. 

tence to the next term of the Court of General Sessions for jj % qq. 1I70', 
the County. All appeals from Magistrates' Courts in criminal "^^^■' ^°^' ^ ^^ 
causes shall be taken and prosecuted as hereinafter prescribed. 

Sec. 67. The appellant shall, within five days after sentence, peai.™^ ° ^^" 
serve notice of appeal upon the Magistrate who tries the case, g. s. 2647; 
stating the grounds upon which the appeal is founded. xVii., 493. ' 

Sec. 68. Within ten days after said service the said Magis- Notice to be 
trate shall file in the office of the Clerk of Court the said notice, of^ Coirt. 



together with the record and statement of all the proceedings in g. s. 2.64S; 
the case, and the testimony in writing taken at the trial and xVii., 493. 
signed by the witnesses. 

Sec. 69. Upon service of the said notice the said Magistrate entitled to ban 
shall, on demand of the defendant, admit him to bail in such g. s. 2649; 
reasonable sum, and with good sureties, as said Magistrate may 
require, with conditions to appear at the Court appealed to, and 



248 CRIMINAL CODE 

A. D. 1902. 



^— "v-^*-^ at any subsequent term to which the case may be continued, if 
not previously surrendered, and so from term to term until the 
final decree, sentence, or order of the Court thereon, and to 
abide such final sentence, order, or decree, and not depart with- 
out leave, and in the meantime to keep the peace and be of good 
behavior. 
te/''"ase° Tn ^^^- '^^- The Clerk of Court, upon receipt of said case, shall 
proper docket, pj^ce the samc upon the proper docket of the Court of Gen- 
R. %. 70; ^ib!' ^^^^ Sessions for trial or other disposition at the next ensuing 

term of said Court. 

^vhhouf examt Scc. 71. The Said appeal shall be heard by the Court of 

nisses. °^ ''^*" General Sessions upon the grounds of exception made, and 

G. s. 2651;' upon the papers hereinbefore required, and without the examin- 

■ ■ '^' ^^- ation of witnesses in said Court. And the said Court may 

either confirm the sentence appealed from, reverse or modify 

the same, or grant a new trial, as to the said Court may seem 

meet and conformable to law. 

After making order sustaining appeal and dismissing case, the Circuit Judge 
may amend his order, and remand the case for a new trial. — State v. Fullmore, 
47 S. C, 34; 24 S. E., 1026. 

But pending such appeal the Court of General Sessions has no authority to 
order a new trial on the ground of newly-discovered evidence. — Sams v. Hoover, 
33 S. C, 401; 12 S. E., 8. 

The appeal should be heard on the papers, not de novo. — State v. Brown, 14 
S. C, 380. 

Circuit Courts Scc. 72. All the Circuit Courts of this State shall have power 

may grant new _ _ -^ _ 

trials. to grant new trials in cases where there has been a trial by jury, 

G. ^s. 2652; for reasous for which new trials have usually been granted in 
the Courts of law of the United States. 

See also Sec. 2734 of Civil Code, and note. 

To be liberally construed as to granting new trials. — Elmore v. Scurry, i S. C, 
139. No time prescribed to move therefor. — Sams v. Hoover, 33 S. C, 401; 
12 S. E., 8. Error in amount of verdict should be corrected by new trial. — Wilson 
v. R. R., 16 S. C, 592; Levi v. Legg, 23 S. C, 282. New trial is the remedy 
where there is variance between the testimony and material allegation of the in- 
dictment. — State V. Hamilton, 17 S. C, 462. New trial should be granted when 
the jury disregard the Judge's charge. — Dent v. Bryce, 16 S. C, 14; Thompson v. 
Lee, 19 S. C, 489. Judge's conclusion as to new trial, when founded on the 
facts at trial, is final. — Brickman v. R. R., 8 S. C, 173; Steele v. R. R., 11 S. 
C, 589; Warren v. Lagrone, 12 S. C, 45; Steele v. R. R., 14 S. C, 324; Wood 
V. R. R., 19 S. C, 579; Lanier v. Tolleson, 20 S. C, 57; Blakely v. Frazier, 20 
S. C, 144; Finch v. Finch, 21 S. C, 342; Hyrne v. Erwin, 23 S. C, 226; State 
V. Tarrant, 24 S. C, 593. But not when founded on error of law. — State v. 
David, 14 S. C, 428; Wood v. R. R., 19 S. C, 579. Judge has discretionary 
power to grant new trial on after-discovered testimony. — State v. David, 14 S. 
C, 428; Tarrant v. Gilletson, 14 S. C, 620; State v. Workman, 15 S. C, 540; 
Durant v. Philpot, 16 S. C, 116; Waring v. R. R., 16 S. C, 416; Sams v Hoover, 
33 S. C, 401; 12 S. E., 8. Circuit Court has no power to grant new trials, except 
in cases tried by a jury. — Meetze v. R. R., 23 S. C, i. Judge cannot grant at 
chambers. — State v. Chavis, 34 S. C, 132; 13 S. E., 317. 

In absence of facts showing prejudice to appellant, judgment will not be re- 



OF SOUTH CAROLINA. 



249 

A. D. 1902. 



Appeal to 



versed because Judge permitted a letter to be handed a juror without examining 
it or asking consent of counsel.— State v. Wine, 58 S. C, 94; 36 S. E., 439. 

Sec. 73. In criminal cases, service of notice of appeal in^^^y execution 
accordance with law, shall operate as a stay of the execution"^ sentence. 
of the sentence, until the appeal is finally disposed of. 737^ r.'^S^™."' 

Pending- such appeal the defendant shall still remain in con- j^^^ endant 
finement, unless he give bail in such sum and with such sureties "x^pMn ^cLpl- 
as to the Court shall seem proper : Provided, however, Bail ^^^ '^^^''^■ 
shall not be allowed in case the defendant has been convicted 
of a capital crime. 

An appeal is finally disposed of when declared abandoned by competent au- 
thority. — State V. Johnson, 52 S. C, 507; 30 S. E., 592. The jurisdiction of the 
Supreme Court to the exclusion of that of the Circuit Court does not attach until 
the "return" is filed, and the appeal may be declared abandoned by the Circuit 
Court where the return has not been filed and the appeal perfected in the time 
prescribed by Sec. 345 of the Code of Civil Procedure. — lb. 

Sec. 74. It shall not be lawful for any Justice of the Su- Judges shall 

-^ •' not grant bail 

preme Court, or any Circuit Judge of this State, pending an in certain cases 
appeal to the Supreme Court, to grant bail to any person who^ggi887. g^^^^-' 
shall have been convicted of any offense the punishment whereof 
is death, or imprisonment for life, or imprisonment for any 
term exceeding ten years. 

This Section does not limit the power of the Supreme Court. — State v. Farris, 
SI S. C, 176, 540; 28 S. E., 308, 370. 

Sec. 75. The practice and proceedings in cases of slPP^^^ p^oleedlnls^on 

from the Courts of General Sessions shall conform to the appeal. 

practice and proceedings in cases of appeal from the Courts ,^^jjS:J4^'3^^^8^. 
of Common Pleas. 

An appeal from an interlocutory order, in a criminal case, before final judg- 
ment, is premature. — State v. Hughes, 56 S. C. ; 35 S. E., 214. 



CHAPTER VII. 

Of Judgment and Execution. 



Sec. 

76. Punishment for felony where not 

specially provided. 

77. Punishment in cases where im- 

prisonment is provided. 

78. Sentence where no punishment 

is provided. 

79. Prisoners to pay their own costs, 

if able, &c. 

80. Courts may order Sheriffs to sell 

goods of prisoner to pay 
costs. 

81. Appraisement of such goods ; 

how made. 

82. Sale of goods, &c., by prisoner 

void. 



Sec. 

83. Prisoner acquitted freed from 

costs. 

84. Recognizances to be in the name 

of the State. 

85. Proceedings in cases of forfeit- 

ure of recognizance. 

86. Execution to issue for sale of 

estate of offender, &c. 

87. If amount not made, offender 

may be committed to jail, 
&c. 

88. Court may remit forfeiture in 

certain cases. 



250 CRIMINAL CODE 

A. D. 1902. — 



An erroneous sentence only affects the sentence, and will be reversed with- 
out granting a new trial. — State v. Trezevant, 20 S. C, 364; State v. Jeffcoal, 
20 S. C, 283; State V. Baker, 58 S. C, iii; 36 S. E., 501. 

Where an act violated has been repealed before sentence, none can be imposed 
on a convict. — State v. Mansel, 52 S. C, 468; 30 S. E., 481. See also State v. 
Cole, 2 McC, I. 
Punishment 



for fe'i^ny when Sectloii 76. Where no special punishment is provided for a 
providir'for!^ fslc>^y' ^^ shall, at the discretion of the Court, be by one or 
G. s. 26U;"^<^re of the following modes, to wit: confinement in the 
xiiL.^^.'^fg;' Penitentiary, or in a work-house or penal farm (when such 
186^9, xi\ , i7d, institutions shall exist) , for a period not less than three months 

nor more than ten years, with such imposition of hard labor 

and solitary confinement as may be directed. 

A Judge cannot pass an alternative sentence of so many years, and then of so 
many more, or banishment from the State. — State v. Baker, 58 S. C., iii; 36 
S. E., 501. 

in Sses^w"here ^®^" '^'^ ' ^^ cvcry casc in which imprisonment is provided 
is™ rovlded ^"^ ^^ ^^^ punishmcnt, in whole or in part, for any crime, such 
— ^~g~^^ imprisonment shall be either in the Penitentiary with or with- 
xVi' 451-1893'°^^ hdiV^. labor, or in the County jail with or without hard 
^l^g^g' '*^'^§j-|' labor, at the discretion of the Circuit Judge pronouncing the 
^^■j^'j J ^^^gg. 'Sentence: Provided, That all able bodied male convicts, whose 
1^8 9 0, XXIII., sentences shall not be for a longer period than five years, shall 
be sentenced to hard labor upon the public works of the County 
in which such convict shall have been convicted, and in the 
alternative to imprisonment in the County Jail or State Peni- 
tentiary at hard labor. 

Violations of law in selling liquor without license being then punishable by 
fine or imprisonment, such imprisonment was properly made in the penitentiary 
with hard labor. — State v. Boyd, 35 S. C, 269; 14 S. E., 620. 

Person convicted of assault and battery with intent to kill may be sentenced to 
imprisonment at hard labor in the penitentiary. — State v. Welsch, 29 S. C, 4; 
6 S. E., 894. 

s e n t e nee gec. 78. In cascs of legal conviction, where no punishment 

where no pun- _ _ ° ^ r- 

ishment is pro- is provided by Statute, the Court shall award such sentence 
— 2653- ^^ ^^ conformable to the common usage and practice in this 

R-S. 78;. (See State, according to the nature of the offense, and not repug- 
406. '§§ 9, io.)"nant to the Constitution. 
Prisoners to Scc. 79. Every person who shall be committed to any com- 

pay their own .... . 

costs if able, nion jail in this State, by any Magistrate for any offense or 
— ^—^-^g— misdemeanor, having means or ability to do the same, shall 
m^'ess' sY^^'bear his own reasonable charges for conveying or sending him 
to the said jail, and the charges also of such as shall be ap- 
pointed to, and shall guard him to the said jail. 

Sec. 80. The Court of General Sessions before whom any 
criminal shall be tried, shall, upon conviction of the 
offender, by order, authorize and direct the Sheriff or any 



OF SOUTH CAROLINA. 




Constable or Constables of the County where such person shall 
be dwelling or inhabit, and from whence he shall be committed ^j.£°"''*gij^j.f/ 
as aforesaid, or where he shall have any goods within the f^;;JP^ ^^goo^s 
County, to sell so much of the goods and chattels of the person ^°^ p^^ '=°^'^^' 
so to be committed as shall satisfy and pay the charges of con- g. s. 2655! 
veying and sending him to the said jail as aforesaid. ^- ^- ^°' ^''• 

Sec. 81. The appraisement of the goods and chattels of such 
person so convicted shall be made by three freeholders, inhabi- of^such ^|^d"! 
tants of the said County where such goods or chattels shall '^^^Li^^_^ 
be (the said freeholders being first sworn to make a just andj^l; g^-. f^f*^' 
true appraisement of the same) ; and the Constable shall return 
the sum so by him levied to the County Treasurer, and the 
overplus of the money which shall be made on such levy shall 
be delivered to the part^. 

See. 82. Any sale of the goods and chattels made by the 
person committed, as provided by Section 79 of this Chapter, gop^al/ Ic., by 
between the time of the commitment and the time of conviction, p"soner, void. 
in order to avoid the payment of the aforesaid charges, Isr/I. Isj^l^!' 
hereby declared to be null and void. 

Sec. 83. When a prisoner shall be discharged, by reason of the 
non-attendance of the prosecutor, or on account of a bill pre- qui^[ed?'^^f re^ed 

sented against him being rejected by the grand jury, or by from costs. ^ 

reason of an acquittal by the petit jury, such prisoner shall notg/l. ^. ifgi; 
be bound or liable to pay any charges which may have been ^^^•' ^^^' ^^- 
incurred in his apprehension, detention, or prosecution. 

Sec. 84. In all recognizances by any person for keeping the 
peace, or good behavior, or for appearing as a party, surety or Recognizances 
witness at any Court of criminal jurisdiction within the State, 0° the'state!"^ 
the sum or sums of money in which any such person shall be' g. s. 2659; 
bound shall be made payable to the State; and every suchy!, 13, '§ i; 
recognizance shall be good and effectual in law, provided it 450.' 
be signed by every party thereto in the presence of a Judge, 
Cl€rk of a Court of Common Pleas, Magistrate or Notary 
Public, who shall sign the same as a witness. 

Authorizes Clerk to take recognizance under order of the Judge. — State v. 
Satterwhite, 20 S. C, 540. 

Seal not necessary. — State v. Foot, 2 Mill, 123. 

Principal's duty to surety. — Reynolds v. Harral, 2 Strob., 87. 

Obligation of surety is that principal shall appear and abide judgment. — lb. 

In felonies the personal appearance is necessary. — State v. Rowe, 8 Rich., 17. 

Not invalid for mere irregularity. — lb. 

It cannot be executed by attorney. — State v. Ahrens, 12 Rich., 493. 

Sec. 85. Whenever such recognizance shall become forfeited 
by non-compliance with the condition theraDf, the At- 
torney General, or Solicitor, or other person acting 



252 CRIMINAL CODE 

A. D. 1002. ■ ■ 

'-^■v-'*^ for him, shall, without delay, issue a notice to sum- 
in ^a's°e'^ o^/ f"o? "^°^ every party bound in such forfeited recognizance to 
feiture of re- j^g ^^^^ aopcar at the next ensuing; Court of Sessions, to show 

cognizance. ^^ ° 

— G~~s~~266Ch cause, if any he has, why judgment should not be confirmed 
V ^is^^i Y^^' against him ; and if any person so bound fail to appear, or 
appearing, shall not give such reason for not performing the 
condition of such recognizance as the Court shall deem suf- 
ficient, then the judgment on such recognizance shall be con- 
firmed. 

Court of General Sessions may estreat by scire facias. — State v. Wilder, 13 
S. C, 344. Rule to show cause not appealable. — State v. McNinch, 13 S. C, 452. 

No lien on land until estreated. — State v. Morgan, 2 Bail., 601. 

Objections to validity of, too late after it has been estreated. — Barton v. 
Keith, 2 Hill, 537. 

Objection that paper, on its face, is not a recognizance, can be made ore tenus. — 
State V. Ahrens, 12 S. C, 493. -* 

Invalid if it does not appear to have been taken by one authorized to take 
recognizance. — lb. 

Sureties liable notwithstanding discharge of prisoner by U. S. Judge. — State v. 
Davis, 12 S. C, 528. 

Surety not estopped from disputing validity because another party has made 
payment thereon. — State v. Bright, 14 S. C, 7. 

May be estreated before trial where defendant fails to appear and plead. — 
State V. Minton, 19 S. C, 282. 

The dismission of a prosecution by a prosecuting officer, or the finding of no 
bill by a grand jury is not the legal termination of the prosecution. It must 
be terminated by order of Court discharging the defendant. — Whaley v. Lawton, 
57 S. C, 256; 35 S. E., 558; Smith v. Shackleford, i N. & McC, 36; O'DriscoU 
v. McBurney, 2 N. & McC, 54; Thomas v. DeGraffenreid, lb., 143; Teague v. 
Wilks, 3 McC, 46s; Heyward v. Cuthbert, 4 McC, 354; Tisdale v. Kingman, 34 
S. C, 326; 13 S. E., 547. 

Execution to Scc. 86. In cvcry case where any such recognizance shall 

issue for sale ,.,, .1., , ^ 

of estate of of- bc adjudged so forfeited, or where anv fine shall be imposed by 

fender, Sac. ... .,r^^. _ 

or recovered for the use of the State, m any Court or before 

G. S. 2661; . . ' - 

R. s. 86; lb. a Magistrate, if the party incurring such fine or forfeiture 
shall fail to pay down the same, with the costs of prosecution, 
then a writ, in the nature of an execution, shall issue, by virtue 
of which the Sheriff, or his deputy, shall sell (in the same 
manner as property is sold under execution in civil cases) 30 
much of such offender's estate, real or personal, as may be 
necessary to satisfy the fine or forfeiture, and also the costs 
of prosecution, and also the reasonable charges of taking, keep- 
ing, and selling such property, returning the overplus, if any, 
to the offender, together with a bill of the fine or forfeiture, 
with costs and charges, if he requires it. 
mid^e'TXnder Scc. 87. If the Sheriff, or his deputy, return on oath that 
mft^ed^lo Taii^ such offender refused to pay, or has not any property, or 

^1 not sufficient *vhereon to levy, then a writ of capias ad satis- 

R % §!';ib'^' f^^^^^'^^diuii shall issue, whereby he shall be committed to the 



OF SOUTH CAROLINA. 




common jail, until the forfeiture, costs, and charges shall be 
satisfied — entitled, however, to the privilege of insolvent 
debtors. 

Hursts V. Samuels, 29 S. C, 476; 7 S. E., 822. 

Sec. 88. If any person shall forfeit a recognizance from 
ignorance or unavoidable impediment, and not from wilful 
default, the Court of Sessions may, on affidavit stating the 57 
excuse or cause thereof, remit the whole or any part of the ^; ^'2 ^^' ^^" 



Court may- 
remit forfeit- 
ure in certain 
cases. 

2663; 



forfeiture, as may be deemed reasonable. 



CHAPTER VIII* 

Of the Writ of Habeas Corpus. 



Sec. 

89. Persons entitled to the benefit of 

this Chapter. 

90. Persons indicted for treason or 

felony shall be indicted the 
next term or let to bail. 

91. If not asked for two terms, &c. 

92. Judges to grant writs. 

93. Writs to be directed to whom. 

94. Service of writ. 

95. Prisoners to be brought up on 

payment of charges, &c. 

96. Time within which prisoner 

must be brought before 
Court. 

97. Proceedings upon hearing of the 

return. 



Sec. 

98. Notice to be given to Attorney 

General, &c. 

99. Granting of writs during ses- 

sions of Court. 

100. After adjournment. 

101. Persons discharged not to be 

rearrested. 

102. Two Magistrates to grant writ. 

103. Penalty on officers neglecting 

their duty. 

104. Penalties, how recovered. 

105. Persons not removed from one 

prison to another without 
cause. 

106. Penalty for signing warrants, 

&c. 

107. Appeals allowed. 



The protection intended by this Chapter against unlawful confinement goes no 
farther than the enlargement of the prisoner on bail, if the offense be bailable. — 
State V. Everett, Dud., 295. 

The writ of habeas corpus cannot be used as a substitute for a writ of error. — 
State V. Garlington, 56 S. C, 414; 34 S. E., 689; ex parte Bond, 9 S. C, 80; State 
V. Lunly, 19 S. C, 601; ex parte Williams, 32 S. C, 583; 10 S. E., 551. 

The prisoner himself can waive his presence at the return of the writ. — State 
V. Jones, 32 S. C, 583; 10 S. E., 577. 

Section 89. If any person or persons shall be or stand com- . Persons en- 

•' ^ ^ titled to benefit 

mitted or detained for any crime, unless for felony, (the pun- of this Ch apter 
ishment of which is death,) or treason, plainly expressed in g. s. 2322; it. 
the warrant of commitment, or unless charged as accessory c 2; i., ns. 

' *= -' 123, §§ 3 and 

before the fact to treason or felony, (the punishment of which 21 ; 1339,22, § a. 
felony is death,) or with suspicion thereof, or unless charged 
with suspicion of treason or felony, (which felony is pun- 
ishable with death,) which shall be plainly expressed in the 
warrant of commitment, they shall be entitled to the writ of 
habeas corpus: 



254 ' CRIMINAL CODE 

A. D. 1902. ■ — 



"^—^Y^*-^ Sec. 90. If any person committed for treason or felony, 
mSeTfor trS- P^^^^^y ^^^ Specially expressed in the warrant of commit- 
Ihaii be tdicl^^^^' ^Pon his prayer or petition in open Court, the first week 
tfrm *or let^to ^f the term, to be brought to his trial, shall not be indicted 
bail, &c. gQj„g |-jj^g jj^ ^j^g j^g^^ |.gj.j^ ^£|.gj. g^gj^ commitment, it shall 

R. %. ^bof^l:, ^^d may be lawful to and for the Judge of thfe Circuit Court, 
119, § 7. ^j^^ ]^g jg hej-eijy required, upon motion made in open Court 

the last day of the term, either by the prisoner or any one 
in his behalf, to set at liberty the prisoner upon bail, unless it 
appear to him, upon oath made, that the witnesses for the 
State could not be produced the same term ; and if any person 
committed as aforesaid, upon his prayer or petition in open 
Court, the first week of the term, to be brought to his trial, 
shall not be indicted and tried the second term after his com- 
mitment, or upon his trial shall be acquitted, he shall be dis- 
charged from his imprisonment. 

Bail refused while defendant is confined under sentence on plea of guilty of 
assault and battery. — State v. Jones, 36 S. C, 607; 15 S. E., 544. 

Form of order for bail under writ of habeas corpus. — In re Draher, 16 S. E., 
840; 38 S. C, 551. 

Prisoner not entitled to be set at liberty on bail when true bill was found 
against him for murder at the term during which he surrendered and demanded 
trial. — State v. Holmes, 3 Strob., 272. 

Prisoner committed for felony and demanding in open Court, during the first 
week of the term next succeeding his commitment, that he be brought to trial, 
has the right to bail if not then indicted. — State v. Williams, 35 S. C, 160; 14 
S. E., 309. Such prisoner must be discharged hereunder, if not indicted and tried 
within two terms after his commitment. — State v. Fasket, 5 Rich., 256; State v. 
Williams, 35 S. C, 160; 14 S. E., 309. But he is not entitled to such bail, nor 
such discharge, unless it appear that he is in custody. — State v. Williams, 35 S. C, 
160; 14 S. E., 309. And a person accused of forgery, and admitted to bail, is 
not entitled to his discharge from the prosecution at the second term. — State v. 
Buyck, 2 Bay, 563. See also Logan Ads. State, 3 Brev., 415; 2 Tr. Const., 
493. One discharged under habeas corpus act is not thereby protected from 
further prosecution on same charge. — State v. Fley, 2 Brev., 338. One tried at 
the first term for horse stealing and mistrial had, was not entitled to discharge 
upon continuance by State at second term. — State v. Spergin, i McC, 363- 

The jurisdiction of the Court over a person charged with violation of the law of 
this State is not affected by his being wrongfully brought into the State. — State v. 
Smith, I Bail., 283; 19 Am. Dec, 679. 

Transfer of cases to United States Court. — State v. Smalls, 11 S. C, 262; State 
v. Davis, 12 S. C, 528. Where day for execution of sentence has elapsed, 
prisoner is not entitled to discharge. — Ex parte Nixon, 2 S. C, 4. 

^Jf not asked Scc. 91. If any persou shall have wilfully neglected, by the 

^ space of two whole terms after his imprisonment, to pray a 

R^ |- 2324; //a,&^a.y corpus for his enlargement, such person, so wilfully 
§ *• 'neglecting, shall not have any habeas corpus to be granted in 

vacation time, in pursuance of this Chapter. 
Judges to Sec. 92. Any of the Judges of this State, in vacation time 

grant writs, ore. j j o 

—- g ^ggg. ^ and out of term, upon view of the copy or copies of the warrant 
s. 92; lb., 118, or warrants of commitment and detainer, or otherwise, upon 



OF SOUTH CAROLINA. 




oath made that such copy or copies were denied to be given 
by the person or persons in whose custody the prisoner or 
prisoners is or are detained, are hereby authorized and re- 
quired, upon request, made in writing, by such person or per- 
sons as are committed as aforesaid, or any on his, her, or their 
behalf, attested and subscribed by two witnesses who were 
present at the deHvery of the same, to award and grant a writ 
of habeas corpus, under the seal of such Court, whereof he 
shall be one of the Judges. 

Circuit Judge cannot hear application for writ outside of Circuit. — Ex parte 
Parker, 6 S. C, 472. 

Sec. 93. Such writ shall be directed to the officer or officers ^/'L*° ''t *^'" 

rected to whom 

in whose custody the party so committed or detained shall be, — -"^-2326"^ 
and shall be returned immediately, before the Judge issuing^- ^'^' ^^• 
the same. 

Sec. 94. The said writ shall be served upon the said officer, ^^f^ ^ "■ ^'"^^ °* 
or left at the jail or prison with any of the under-officers, q g. 2327- r 
under-keepers, or deputy of the said officers or keepers. %'2.^'' ^^" ^^'^' 

Sec. 95. The said officer or officers, his or their under-of- Prisoners to 
ficers, under-keepers, or deputies, shall, within three days after ^^ payment "of 
the service thereof, upon payment or tender of charges ofprovfs^o.' ^'^'' 
bringing the said prisoner, (to be ascertained by the Judge or q g. 2328; k 
Court that awarded the same, and endorsed upon the said xiy.', 406,^8! 
writ,) not exceeding ten cents per mile, and upon security 
given by his own bond to pay the charges of carrying back the 
prisoner, if he shall be remanded by the Court or Judge to 
which he shall be brought, and that he will not make any es- 
cape by the way, make return of such writ, and bring, or cause 
to be brought, the body of the party so committed or restrained, 
unto or before the Judge or Court from whence the said writ 
shall issue, or unto and before such other person or persons 
before whom the said writ is made returnable, according to 
the command thereof, and shall then certify the true cause of 
his detainer or imprisonment : Provided, however. That if any 
prisoner be not able to pay the said charges, the same shall 
be paid by the County wherein he is confined : Provided, fur- 
ther. That if such prisoner .shall be acquitted of the charge 
against him, or finally discharged on habeas corpus by the 
Judge or Court hearing the same, the expenses of the proceed- 
ings in habeas corpus shall be paid by the County in which the 
case is situated. 

Sec. 96. If the place of imprisonment of the said party be 
beyond the distance of twenty miles from the place where such 




CRIMINAL CODE 



Court is held, and not above one hundred miles, he shall be 
whiciT^ ^ison" brought before the Court, or the person or persons before 
brou"iit* before whom the writ is returnable, within the space of ten days, and if 

Cou^i. ^_ beyond the distance of one hundred miles, then within the 

s^'J- ^^^m' space of twenty days after the delivery of such writ, and not 
§ 2. longer. 

Proceedings Scc. 97. If, upou a hearing, the party shall be entitled to 

of the return, his discharge, then the Judge before whom he is brought shall, 

G. s. 2330; R. within two days after the party shall be brousfht before him, 

S. 97; lb., 118, 1-1 . r , • • • , • 

§ 3. discharge the said prisoner from his imprisonment, taking 

his recognizance, with one or more surety or sureties, in any 
sum according to his discretion, having regard to the nature 
of the oiTense, for his appearance in the Court of General 
Sessions, the term following, for such County where the of- 
fense was committed, or in the Court of such other County 
where the said offense is properly cognizable, as the case shall 
require, and then shall certify the said writ, with the return 
thereof, and the said recognizance or recognizances, into the 
said Court where such appearance is to be made ; but if no 
legal cause be shown for the imprisonment or restraint, the 
prisoner shall be discharged therefrom. 

Under this Chapter the Judge can neither let to bail nor discharge a prisoner 
committed for an offense not bailable. — State v. Everett, Dud., 295. The Judge 
can only discharge on bail, not absolutely. — State v. Jones, 32 S. C. 583; 10 S. E., 
577. But independently of this Chapter the Judge may, at chambers, let to bail 
for any offense whatever, and in making up his judgment may look beyond the 
commitment. — State v. Hill, 3 Brev., 89; State v. Everett, Dud., 295; State v. 
Arthur, I McM., 456. But party convicted of infamous crime cannot be bailed. — 
State V. Connor, 2 Bay, 34. As to discretionary power to bail. — State v. Hill, i 
Tr. Con. Rep., 242; State v. Golden, 2 McC, 5^4- 

.Notiw^o^be gec. 98. When it appears, from the return of the writ or 

n^ey tienerai, Q^}^gj-^jgg^ |-|-j^^ ^]^g party is imprisoucd on a criminal accusa- 

G~s 2331-^'^*^*^' b^ shall not be discharged until sufficient notice has been 

R. s. 9S. given to the Attorney General, or Circuit Solicitor, or other 

attorney acting for the State, that he may appear and object to 

such discharge, if he thinks fit. 

w ?[r* during Sec. 99. During the term of the Circuit Court for that County 

Court" °^ *^ where any prisoner is detained, no person shall be removed from 

g' s. 2332; R. the commou jail upon any writ of habeas corpus granted in pur- 

f 18.'^' ^^'' ^^^' suance of this Chapter, but, upon any such writ, shall be brought 

before the Circuit Judge, in open Court, who is thereupon to 

do what to justice shall appertain. 

A f t e r ad- gec. 100. After the Circuit Court adjourns, any person or 

journment. _ ■' ' j l 

2333- R Persons detained may have a writ of habeas corpus, according 
s. 100; I., 122, ^Q |-he direction and intention of thi= Chapter. 



OF SOUTH CAROLINA. 




Sec. 101. No person who shall be delivered or set at large 
upon any writ of habeas corpus shall, at any time, be again ^j^Per^ons^ dis- 
imprisoned or committed for the same offense by any person ^^ re-an-ested, 
or persons whatsover, other than by the legal order and process g g 2334- r. 
of such Court wherein he shall be bound by recognizance to|-g^°^' ^^•' ■^^^' 
appear, or other Court having jurisdiction of the cause; and 
if any other person or persons shall knowingly, contrary to this 
Chapter, re-commit or imprison, or knowingly procure or cause 
to be re-committed or imprisoned for the same offense, or 
pretended offense, any person delivered or set at large, as 
aforesaid, or be knowingly aiding or assisting therein, then he 
or they shall forfeit to the prisoner or party grieved the sum 
of two thousand five hundred dollars, any colorable pretence 
or variation in the warrant or warrants of commitment not- 
withstanding, to be recovered as aforesaid. 

Sec. 102. Any two Magistrates a,re authorized and required Two Magis- 



to grant the writ of habeas corpus as fully, effectually and law-^^rits oi habeas 

o L J ' . corpus. 

fully as may any Judge of the Court of Common Pleas and Gen--— —^^^7^ 

eral Sessions or Justice of the Supreme Court of this State, ex- S- 102; i'^i2 11, 
•^ -^ _ _ 400, s 1 ; icay, 

cept in cases of felony, the punishment for which is death or im- xi., 23, § 9. 

prisonment for life, in which cases Magistrates shall have no ju- 
risdiction in applications of habeas corpus. 

Two Magistrates cannot admit a person to bail who is charged with murder in tlie 
warrant. — State v. Arthur, i McM., 456. 

May do so on charge of passing counterfeit money.- — Barton v. Keith, 2 Hill, 537. 

Two Magistrates may discharge absolutely hereunder. — State v. Jones, 32 S. C, 
583; 10 S. E., 577. 

If one of the two Magistrates refuse to sign the writ, he is liable. — Ashe v. 
O'Driscoll, 2 Tr. Con. Rep., 698. 

An appeal from an order made by two Magistrates in habeas corpus proceedings 
must be to the Circuit Court and not directly to the Supreme Court. — State v. 
Duncan, 22 S. C, 8g. 

Sec. 103. Every person whatsoever to whom any power is ^Penalty on ^of- 
given, either judicial or ministerial, by this Chapter, and which, '"g ^^heir duty. 
by virtue hereof, he is required and commanded to do, who g^^ff^lf ' i\ 
shall wilfully neglect, refuse, or omit to do the same, when ii^^ 1,^5 ;^Y.''^' 
the same shall be legally requested and demanded, according 
to the directions herein, and when the person or persons so 
requesting and demanding the same are legally entitled to 
request or demand by the provisions of this Chapter, then and 
in such case such person, whether Magistrate or officer, wil- 
fully so refusing, neglecting, or omitting what this Chapter 
requires and commands, for each such wilful neglect, refusal, 
or omission, shall forfeit the sum of five hundred (500) dol- 



17.— C. P. 



258 CRIMINAL CODE 

A. D. 1902. ~ ' ~~~~ 

""^ — ' lars, and shall be thereafter incapable of holding or executing 
his office. 
Penalties, how gee. 104. The Said penalties may be recovered by the pris- 

recovered. -^ "^ . 

---r-T— „— r-oner or party grieved, his executors and administrators, agamst 
s. 104; I., 119, such offender, his executors or administrators, by action m 

§ 5. 

any Court of competent jurisdiction, wherein no protection, 
privilege, injunction, or stay of prosecution, shall be admitted 
or allowed. 
Persons not gee. 105. If any person or persons, citizens of this State, 

removed from -' -"^ -^ 

one prison to shall bc Committed to any prison, or in custody of any officer 

another with- j r > j j ^ ^ 

out cause. pr officcrs whatsocvcr, for any criminal or supposed criminal 
G. s 2338; R. jnatter, the said person shall not be removed from the said 

b. 105; i., IzU, ' ^ 

i 9- prison and custody, into the custody of any other officer or 

officers, unless it be by habeas corpus or some other legal writ, 
or where the prisoner is delivered to the Constable or other 
inferior officer, to carry such prisoner to some common jail, 
or where any person is sent, according to law, to any common 
work house of correction, or where the prisoner is removed 
from one place or prison to another within the said County, in 
order to his or her trial or discharge in due course of law, 
or in case of sudden fire or infection, or other necessity, or 
when brought into Court as a witness in some matter or cause 
as provided by law. 
Penalty for Scc. 106. If any pcrson or persons shall, after such com- 
rams? &a^ ^ "^ " mitment aforesaid, make out and sign or countersign any war- 
G. s. 2389; R. rant or warrants for such removal aforesaid, contrary to this 
. 106, J . Chapter, as well he that makes or signs or countersigns such 
warrant or warrants, as the officer or officers that obey or ex- 
ecute the same, shall suffer and incur the pains and forfeitures 
mentioned in Sections loi and 103 of this Chapter. 
Appeals ai- Sec. 107. An appeal from all final decisions rendered on 

°^^ ' applications for writs of habeas corpus shall be allowed as is 

s. 107! ' ' ' provided by law in civil actions. 



OF SOUTH CAROLINA. 



TITLE II. 

CRIMES AND MISDEMEANORS. 




Chapter 


IX. 


Chapter 


X. 


Chapter 


XL 


Chapter 


XII. 


Chapter 


XIII. 


Chapter 


XIV. 


Chapter 


XV. 


Chapter 


XVI. 



Chapter XVII. 



Chapter 


XVIII. 


Chapter 


XIX. 


Chapter 


XX. 


Chapter 


XXI. 


Chapter 


XXII. 


, Chapter 


XXIII. 


Chapter 


XXIV. 


Chapter 


XXV. 


Chapter 


XXVI. 


Chapter 


XXVII. 



Chapter XXVIII. 



Chapter XXIX. 



Chapter 
Chapter 



XXX. 
XXXI. 



Offenses Against the Person. 
. Offenses Against Property. 

Offenses Against Public Policy. 

Offenses Against Public Peace. 

Offenses Against Public Justice. 

Offenses Against Chastity, Morality and 
Decency. 

Offenses Against the Public Health. 

Offenses of Selling Property Under Lien, 
Violation of Contracts, and Regulation 
of Trade in Certain Cases, &c. 

Forgery and Offenses Against the Cur- 
rency. 

Offenses by Certain Officers. 

Violations of the Provisions Regulating 
the Establishing and Repairing of 
Highways. 

Offenses by Railroad Companies, their 
Agents and Employes. 

Violation of the Lazvs Regulating the 
Assessment and Collection of Taxes. 

Bastardy. 

Vagrancy. 

Non-observance of the Lord's Day and the 
Disturbance of Religious Worship. 

Gambling. 

Protection of Fish, Oysters, Animals, &c. 

Violations of Laws Relating the Sale of 
Spirituous Liquors. 

Violation of the License Laws by Insur- 
ance and Other Companies, Emigrant 
Agents, Owners of Shows, Persons Sell- 
ing Pistols, &c. 

Violation of the Law Concerning Sailors, 
Emigrants, &c. 

Cruelty to Animals. 

Felonies, Acessories, Aiders and Abettors. 




CRIMINAL CODE 



CHAPTER IX. 

Offenses Against the Person. 



Sec. 
108. 
109. 
110. 
111. 
112. 
113. 
114. 
115. 

116. 

117. 

118. 

119. 



120. 
121. 
122. 
123. 

124. 



125. 
126. 



Felonies Capital. Sec. 

127. 
Murder defined. 

Punishment. 128. 

Killing by stabbing, &c. 
Death from obstructing railroad. 129. 
Killing by poison. 

Killing in a duel. 130. 

Rape. 131. 

Carnal knowledge of a woman 

child under fourteen years. 132. 
Injuries within limits and death 

beyond limits of this State. 133. 
Injuries beyond limits and death 134. 

within limits of the State. 135. 

Where parties are in different 136. 

Counties. 
Where injury in one County and 137. 

death in another. 
Felonies Not Capital. 138. 

Manslaughter. 

Attempt to poison. 139. 

Causing abortion. 
Punishment for placing obstruc- 140. 

tion on railroads. 
Obstructing railroad without 141. 

death ensuing. 
Misdemeanors. 
Sending or accepting a challenge 142. 

to fight. 
Carrying or delivering challenge. 



Principal or second compellable 
to give testimony. 

Persons engaged in duel may be 
used as witnesses. 

Manufacture, sale and carrying 
of certain pistols prohibited. 

Carrying concealed weapons. 

Count as to concealed weapons 
in certain indictments. 

Assault, &c., with concealed 
Weapons. 

Kidnapping sailors. 

Kidnapping minors. 

Ill treating children. 

Punishment for cruelty to chil- 
dren. 

Unskillful management of steam- 
boats, &c. 

Willful neglect of railroad em- 
ployees. 

Administering or advising means 
to cause abortion. 

Punishment for the use of cer- 
tain means by women. 

As to testimony under the two 
preceding Sections and Sec- 
tion 122. 

Officer permitting prisoner to be 
lynched. 



Felonies Capital. 
Murder. 



Murder 
fined. 



de- 



S. 108; 
41S. 



1712,11, 



Section 108. Murder is the kiUing of any person with mahce 
gTs. 2453; eT aforcthought, either express or impHed. 

This Section does not make murder a statutory offense; it is still a common law 
crime. — State v. Coleman, 8 S. C, 2.-?7. 

Distinction between murder and manslaughter. — State v. Ferguson, 2 Hill, 619. 

Upon trial for the greater offense defendant may be found guilty of the less. — 
State v. Gaffney, Rice, 431. 

Principals — 

All present aiding and abetting are. — State v. Fley, 2 Brev., 33S; State v. Crank, 
2 Bail., 66: State v. Anthony, i McC, 285; State v. Arden, i Bay., 487; State v. 
Cannon, 49 S. C, 550; 27 S. E., 526; State v. Carson, 36 S. C, 524; 15 S. E., 588. 

Murder may be committed as the result of some illegal act; a formed design to 
take life is not necessary. — State v. Alexander, 30 S. C, 74; 8 S. E., 840. 

State v. Merriman, 34 S. C, 16; 12 S. E., 619. 

In attempting to commit felonious homicide, the killing of another is murder. — 
State V. Levelle, 34 S. C, 120; 13 S. E., 319. 

Malice is a term of art importing wickedness and excluding a just cause or ex- 
cuse. — State V. Doig, 2 Rich., 179. 

State v. Levelle, 34 S. C, 120; 13 S. E., 319. 

The fact that the killing was by a crowd engaged in a riot does not affect the 
degree of the homicide. — State v. Jenkins, 14 Rich., 215. 



OF SOUTH CAROLINA. 261 

A. D. 1902. 

Mere words can constitute no provocation. — State v. Workman, 39 S. C, 151; ^ -"^ v '^ ' 
17 S. E., 6. 

If the killing is proved and no more, the law implies malice. — State v. Jones, 29 
S. C, 201; 7 S. E., 296; State v. Alexander, 30 S. C, 74; 8 S. E., 440; State v. 
Mason, S4 S. C, 240; 32 S. E., 357; State v. Ariel, 38 S. C, 221; 16 S. E, 799. 

But where all the facts are proved the jury must say whether there was malice, 
and not imply it from the mere fact of killing. — State v. Alexander, 30 S. C, 74; 8 
S. E., 440. The State must prove it. — State v. Coleman, 6 S. C, 186; State v. 
Hopkins, 15 S. C, 157; State v. Jones, 29 S. C, 201; 7 S. E., 296. 

It may be presumed. — State v. Smith, 2 Strob., "jy. 

As from use of deadly weapon. — State v. Sisson, 3 Brev., 59; State v. Ferguson, 

2 Hill, 619; State v. Smith, 2 Strob., tj; State v. Levelle, 34 S. C, 120; 13 S. 
E., 319; State V. Jackson, 36 S. C, 487; iS S. E., 559; State v. Way, 38 S. C, 
333; 17 S. E., 39. 

Or from circumstances showing a depraved spirit. — State v. Smith, -2 Strob., tt, 
State v. Ford, i Spears, 146. 

Killing another, while attempting to commit suicide. — State v. Levelle, 34 S. C; 
120; 13 S. E., 319. 

Whipping slave of unknown owner to death, after pursuit and capture. — State 
V. Motley, 7 Rich., 327. 

Where the killing was in a quarrel and encounter, if the facts show that it 
arose out of his misconduct, malice on the part of the defendant might be in- 
ferred. — State V. Hammond, s Strob., loi. 

Killing of another when shooting at one to make his horse throw him presumes , 

malice and is murder. — State v. Smith, 2 Strob., "jy. 

Where one interferes in an affray to separate the combatants, and gives notice 
of his intent; and is slain by one of the combatants, it is rnurder. — State v. Fer- 
guson, 2 Hill, 619. 

Wherever there is a previously formed intention to kih, it cannot be excused by 
a provocation at time of the homicide. — State v. Sullivan, 43 S. C, 206; 21 S. E., 4. 

Indictment — 

No trial without sufficient and valid indictment; acquittal upon an invalid one 
no bar to second. — State v. Ray, Rice, i. 

Surplus words may be rejected. — State v. Fley, 2 Brev.. 338; State v. Huggins, 
12 Rich., 402; State v. Coleman, 8 S. C, 241. 

Not vitiated by concluding "against the peace and dignity of the same State 
aforesaid," instead of "against the peace and dignity of the State," as prescribed 
by the Constitution. — State v. Robinson, 2^ S. C, 615; 4 S. E., 570; State v. 
Mason, 54 S. C, 240; 32 S. E., 357. 

Party entitled to demand and to have copy of, three days before trial. — State v. 
Winningham, 10 Rich., 257. 

Too la*e to demand copy three days after arraignment and trial had commenced. 
— State v. Briggs, 2-j S. C, 80; 2 S. E., 854. 
Must state : 

That offense was committed in County where indictment is found. — State v. 
Fant, 2 Brev., 487; State v. Blakeney, 33 S. C, iii; 11 S. E., 637. 

When deceased died with certainty.— State v. Coleman, 8 S. C, 237. 

But it is alleged with sufficient certainty, if it appear by reference back to prior 
allegations. — State v. Coleman, 8 S. C, 237; State v. Stewart, 26, S. C, 125; 1 
S. E., 468. 

That death ensued in consequence of the act of prisoner.- — State v. Wimberly, 

3 McC, 190. 

What it is necessary to state in indictment for murder committed by a number 
of persons engaged in a riot. — State v. Jenkins, 14 Rich., 215. 

Counts for murder charging A as principal with pistol and B. as accessory, and 
charging B as principal with knife and A as accessory, properly joined. — State v. 
Norton, 28 S. C, 572; 6 S. E., 820. 

Must state place of death of deceased, and failure to do so cannot be amended. 
— State V. Blakeney, 33 S. C, iii; 11 S. E., 637. 

But sufficiently stated when, after stating time and place of wounding, it 
charges that defendant did then and there feloniously, etc., kill and murder de- 



262 CRIMINAL CODE 

A. D. 1902. 



ceased. — State v. Huggins, 12 Rich., 402; State v. Blakeney, 33 S. C, iii; 11 
S. E., 637. 

Good, if sufliciently certain in all respects. — State v. Turnage, 2 N. & McC., 158; 
State V. Freeman, i Speer, 65; State v. Green, 4 Strob., 133; State v. Huggins, 12 
Rich., 402. 

It need not charge those present aiding and abetting as being there with malice 
■ — State V. Rabon, 4 Rich., 260. 

What is suificient description of wound. — State v. Crank, 2 Bail., 60. 

In death from whipping. — State v. Chiles, 44 S. C, 338; 22 S. E., 339. 

As against principal and accomplice.^ — State v. Norton, 28 S. C, 572; 6 S. E., 820. 

Not necessary that it should state precise day or year of the alleged crime. — 
State V. Branham, 13 S. C, 380. 

Doubted whether Solicitor's signature to it is necessary. — State v. Coleman, 
8 S. C, 287. 

Venue — 

Prior to Constitution of 1895 motion for change of, could be made before -bill 
found; but it is better that it should be made after issue joined. — State v. Addison, 
2 S. C, 356. The Constitution of 1895 so requires. 

Notice thereof should be given to the Solicitor. — lb. 

The jury may find the venue from the facts in evidence. — State v. Sweat, 16 
S. C, 625; State v. Dent, 6 S. C, 383- 

Defense — 

Self-defense : 

Necessity to kill not a defense when defendant brought such necessity upon 
himself. — State v. Jacobs, 28 S. C, 29; 4 S. E., 799; State v. Murrell, 33 S. C, 83; 
II S. E., 682; State v. Becham, 24 S. C, 283; State v. Pletsch, 43 S. C, 132; 20 
S. E., 993; State v. Trammell, 40 S. C, 331; 18 S. E., 940; State v. Summer, 55 
S. C, 32; 32 S. E., 771. 

It is made out when jury is satisfied that prisoner really believed, as a man 
of ordinary reason and firmness, that there was necessity to kill to save himself 
from death or serious bodily harm; it is not necessary to show that there was no 
other means of escape. — State v. McGreer, 13 S. C, 464; State v. Turner, 29 
S. C, 44; 6 S. E., 891. State v. Jones, 29 S. C, 201; 4 S. E.. 799. State v. 
Jackson, 32 S. C, 27; 10 S. E., 769. State v. Wyse, 33 S. C, 582; 12 S. E., 5S6. 
State V. Bodie, 33 S. C, 117; 11 S. E., 624. State v. Littlejohn, 33 S. C, 599". 
II S. E., 638. State v. Merriman, 34 S. C, 16; 12 S. E., 619. State v. Symmes, 40 
S. C, 383; 19 S. E., 16. State v. Mcintosh, 40 S. C, 349! 18 S. E., 1033. State 
V. Sullivan, 42 S. C, 205; 21 S. E., 4. State v. Ariel, 38 S. C, 221; 16 S. E., 
799. State V. Corley, 43 S. C, 128; 20 S. E., 989. 

This may be shown by preponderance of testimony. — State v. Merriman, 34 S. C, 
16; 12 S. E., 619. State V. Brown, 34 S. C, 41; 12 S. E., 662. State v. Summers, 
36 S. C, 479; IS S. E., 369. 

But a witness testifying as to all the circumstances cannot give his opinion as 
to whether the prisoner's life was in danger from the deceased. — State v. Sum- 
mers, 36 S. C, 479; IS S. E., 369. 

But the bare fact that deceased was presenting a gun at defendant when he 
shot does not necessarily make the killing self-defense. — State v. Bodie, 33 S. C, 
117; II S. E., 624. 

Where deceased had some days before fired at prisoner and then threatened his 
life, it was not self-defense to kill unless deceased showed an intention to take his 
life. — State v. Jackson, 32 S. C, 27; 10 S. E., 769. 

Seeking or inciting provocation. — State v. Nance, 25 S. C, 168; State v. Rich- 
ardson, 47, S. C, 18; 24 S. E., 1028. 

Necessity of withdrawal.- — State v. Jacobs, 28 S. C, 29; 4 S. E., 799. 

Defense of habitation.^ — State v. Mcintosh, 40 S. C, 349; 18 S. E., 1033. State 
V. Cannon, 52 S. C, 453; 30 S. E., 589. 

Resisting unlawful arrest. — State v. Davis, 53 S. C, isi; 31 S. E., 62. 

Provocation is not an element in self-defense. — State v. Byrd, 52 S. C, 484; 
30 S. E., 482. 
Insanity : 

Moral insanity or acting under mere uncontrollable impulse is no defense. — 
State V. Alexander, 30 S. C, 74; 8 S. E., 440. State v. Levelle, 34 S. C, 120; 
13 S. E., 319. 



OF SOUTH CAROLINA. 263 

A. D. 1902. 



To be proved by preponderance of the evidence; not to be disproved beyond 
a reasonable doubt. — State v. Stark, i Strob., 479; State v. Paulk, 18 S. C, 515; 
State v. Coleman, 20 S. C, 441; State v. Bundy, 24 S. C, 439; State v. Alexander, 
30 S. C, 74; 8 S. E., 440. 

If there is reasonable doubt as to the capacity to commit the crime, the defend- 
ant must be acquitted. — State v. Coleman, 20 S. C, 441 ; State v. Bundy, 24 S. C, 
439. 

Voluntary drunkenness, of whatever degree, is no excuse for crime committed 
under its influence.— State v. Bundy, 24 S. C, 439. 

Intoxication no excuse for crime. — State v. Morgan, 40 S. C, 345; 18 S. E., 937; 
State V. Bundy, 24 S. C, 439: State v. Paulk, 18 S. C, 515. 

It must appear that defendant was unable to recognize that the act was either 
morally or legally wrong. — State v. Mcintosh, 39 S. C, 97; 17 S. E., 446. 

Rebutal of presumption as to insanity from committal to asylum. — State v. 
Davis, 4 S. E., 537. 
Alibi: 

Not necessary that it should be proved beyond all reasonable doubt; clear pre- 
ponderance of testimony sufficient. — State v. Jackson, 36 S. C, 487; 15 S. E., 559. 
Ignorance of Lazv: 

A disturber of the peace cannot excuse himself from the charge of murder by 
showing ignorance of the authority, under the law, of the officer whom he killed, 
knowing him to be an officer. — State v. Williams, 36 S. C, 493; 15 S. E., 554. 
Accident: 

Exercise of care. — State v. Morgan, 40 S. C., 345; 18 S. E., 937. 
Duress: 

"A mere threat by another to take one's life, with nothing more, does not 
amount to a sufficient excuse for such an one to commit homicide." — State v. 
Howard, 35 S. C, 197; 14 S. E., 481. 

Arraignment — 

Not necessary again after mistrial. — State v. Stewart, 26 S. C, 125; i S. E., 468. 

Challenges — 

A right of challenge is a right to reject, and not to select, a jury — State v. Wise, 
7 Rich., 412; State v. Prater, 26 S. C, 198; 2 S. E., 108; State v. Jacobs, 30 S. C, 
131; 8 S. E., 698; State v. Jackson, 32 S. C, 27; 10 S. E., 769; State v. Campbell, 
35 S. C, 28; 14 S. E., 292. 

But it is regarded as a sacred right never to be refused. — State v. Briggs, 27 
S. C, 80; 2 S. E., 854. 

To one jury not to be refused in part because some of the challenges had been 
made to another jury exhausted by challenges of several prisoners. — State v. Briggs, 
27 S. C, 80; 2 S. E., 854. 

Reduction of number of peremptory challenges by statute does not affect Con- 
stitutional right of trial by jury. — State v. Wyse, 32 S. C, 45; 10 S. E., 612. 

A juror rejected because not indifferent to one of the prisoners is no ground for 
complaint by the others. — State v. Prater, 26 S. C, 198; 2 S. E., 108. 

As to challenge to array.- — State v. Merriman, 34 S. C, 16; 12 S. E., 619; State 
V. Toland, 36 S. C, 515; 15 S. E., 599. 

Evidence — 

As to motive. — State v. Posey, 4 Strob., 142; State v. Coleman, 20 S. C, 441; 
State v. Aughtry, 49 S. C, 286; 26 S. E., 619. 

Motive need not be proved, intent is sufficient. — State v. Workman, 39 S. C, 
151; 17 S. E., 694. 

Of express malice makes the killing murder. — State v. Sisson, 3 Brev., 59. 

Law presumes malice, but where all the facts come out the State must prove it. 
— State v. Jones, 29 S. C, 202; 7 S. E., 296. 

What declarations of deceased are admissible. — State v. Freeman, i Speer, 57. 

When defendant proves declaration of deceased looking to suicide, the State can 
prove reasons assigned by him. — State v. Crank, 2 Bail., 66. 

Dying declarations are admissible. — State v. Ferguson, 2 Hill, 619; State v. 
Quick, 15 Rich., 342; State v. McEvoy, 9 S. C, 208; State v. Nance, 25 S. C, 168. 

Those of one of two killed by poison admissible against defendant on trial for 
murder of the other. — State v. Terrill, 12 Rich., 321. 



264 



CRIMINAL CODE 



A. D. 1902. 



Declarant must have no hope of life, and the circumstances of the death must 
be the subject of the declaration. — State v. McEvoy, 9 S. C, 212; State v. Wash- 
ington, 13 S. C, 458; State V. Gill, 14 S. C, 415; State v. Johnson, 26 S. C, 152; 

I S. E., 510; State v. Belton, 24 S. C, 185; State v. Nance, 25 S. C, 168; State v. 
Wyse, 32 S. C, 45; 10 S. E., 612; State v. Bradley, 34 S. C, 136; 13 S. E., 315; 
State V. Head, 60 S. C, 516; 39 S. E., 6; State v. Jaggers, 58 S. C, 41; 36 S. E., 
434; State V. Lee, 58 S. C, 335; 36 S. E., 706; State v. Faile, 43 S. C, 52; 20 
S. E., 798. 

Not inadmissible because under oath.- — State v. Talbert, 41 S. C, 526; 19 S. E., 
852. 

The whole declaration admitted. — State v. Petsch, 43 S. C, 132; 20 S. E., 993. 

The fact that physician did not think the declarant would die does not affect 
the testimony. — State v. Johnson, 20 S. C, 155. 

Declaration after wound, but not in face of death, not admissible. — State v. 
Bodie, 33 S. C, 117; II S. E., 624. 

Of wife, on trial of husband, for murder. — State v. Belcher, 13 S. C, 459. - 

Dying declaration cannot be impeached by proving other statements of the de- 
ceased made not under oath, nor shadow of impending death. — State v. Taylor, 
56 S. C, 372; 34 S. E., 939; State v. Bannister, 35 S. C, 290; 14 S. E., 678; 
State v. Stuckey, 56 S. C, 576; 35 S. E., 263. 

• Declaration as part of res gestae. — State v. Arnold, 47 S. C, 9; 24 S. E., 926. 
As to Character — 

Good character may be considered by jury. — State v. Barth, 25 S. C, 175; State 
V. Brown, 34 S. C, 41; 12 S. E., 662. 

Not limited in its effect to doubtful cases.- — State v. Barth, 25 S. C, 175. 

Of general bad character, not admissible. — State v. Smith, 12 Rich., 430; State 
V. Turner, 29 S. C, 34; 6 S. E., 891. 

Violence of character admissible if probably known to prisoner or there were 
sufficient reasons to suppose that they were known to him. — State v. Smith, 12 
Rich., 430; State v. Turner, 29 S. C, 34; 6 S. E., 891. 

Even particular acts of violence known to the prisoner and reasonably con- 
nected in point of time with the killing may be shown — State v. Smith, 12 Rich., 430. 
Reasonable Doubt: 

State must prove its case beyond a reasonable doubt. — State v. Senn, 32 S. C, 
392; II S. E., 292; State v. Bodle, 33 S. C, 117; 11 S. E., 624; State v. Merriman, 
34 S. C, 16; 12 S. E., 619. 

Defendant entitled to benefit of doubt upon the whole testimony. — State v. Bodie, 
33 S. C, 117; II S. E., 624. 

But it must be a well founded doubt. — State v. Bodie, 33 S. C, 117; 11 S. E., 624. 
Special Defense: 

Must be proved by preponderance of testimony. — State v. Bodie, 33 S. C., 117; 

II S. E., 624. 

Insanity : 

Physicians cannot give their opinions as to insanity from the testimony given, 
but can do so on similar case stated. — State v. Coleman, 20 S. C, 441. 

Standard authors on the subject may be read to the jury. — lb. 

Judge having fully instructed the jury as to the law of insanity and their duty 
to acquit the prisoner if insane when he committed the homicide, he did not err 
in refusing to instruct them that the Court was authorized to send the prisoner 
to the Asylum if found by them to be non compos. — State v. Robinson, 27 S. C, 
615; 4 S. E., 570. 

Circumstantial Evidence: 

Conviction on, is proper. But the circumstances should be proved to entire sat- 
isfaction of jury, and when established should point conclusively to the defendant 
as the guilty party, and must be inconsistent with any other reasonable hypothesis. 
— State v. Anderson, 20 S. C, 581; State v. Milling, 25 S. C, 16. 

Concealment of death of bastard child. — State v. Love, i Bay., 167. 
Confessions: 

Must be voluntary, not induced by fear or hope improperly excited. — State v. 
Howard, 35 S. C, 197; 14 S. E., 481; State v. Carson, 36 S. C, 524; 15 S. E., 
588; State V. Workman, 15 S. C, 540; State v. Moorman, 27 S. C, 22; 2 S. E., 621. 



OF SOUTH CAROLINA. 265 

A. D. 1902. 



No warning that it would be used against defendant is necessary to render it 
admissible. — State v. Baker, 58 S. C, iii; 36 S. E., 501. 

Corroboration of. — State v. Derrick, 44 S. C, 344; 22 S. E., 337. 

Confession of one cannot be used against other defendant. — State v. Anderson, 
24 S. C, 109. 

Two prisoners being tried for the same murder, their separate written statements 
so far as charging each the other with the homicide without implicating himself, 
was improperly received. — State v. Carson, 36 S. C, 524; 15 S. E., 588. 

Confessions generally.- — State v. Crank, 2 Bail., 66; State v. Kirby, i Strob., 
iSS; State v. Clark, 4 Strob., 311; State v. Veigneur, 5 Rich., 391; State v. 
Motley, 7 Rich., 327; State v. Gossett, 9 Rich., 428; State v. Clayton, n Rich., 
581; State V. Cook, 15 Rich., 29; State v. Branham, 13 S. C, 369; State v. Dodson, 
14 S. C, 628; State V. Workman, 15 S. C, 540; State v. Dodson, 16 S. C, 453. 
Confidential Communications: 

Where an accomplice testifies as State's witness, his confidential communications 
made by him to his attorney cannot be disclosed by the attorney as a witness. — 
State V. James, 34 S. C, 49; 12 S. E., 657. 

While husband cannot be compelled to disclose the confidential communications 
of his wife, yet having voluntarily told part of a communication he must disclo.se 
the whole. — State v. Turner, 36 S. C., 534; 15 S. E., 602. 
Expert Testimony: 

State V. Coleman, 20 S. C, 452; State v. Senn, 32 S. C, 392; 11 S. E., 292; 
State V. Bradley, 34 S. C, 136; 13 S. E., 315; State v. Milling, 35 S. C, 16; 14 
S. E., 284; State v. Foote, 58 S. C, 218; 36 S. E., 551. 
Threats: 

Threat reasonably connected in point of time with the killing may be received. — 
State V. Smith, 12 Rich., 430; State v. Jackson, 32 S. C, 27; 10 S. E., 769; State 
V. Campbell, 35 S. C, 28; 14 S. E., 292. 

Uncommunicated threats sometimes competent. — State v. Bodie, 33 S. C, 117; 
II S. E., 624. 

One month before killing considered reasonable time. — State v. Campbell, 35 
S. C, 29; 14 S. E., 292. 

But at the time of the homicide the deceased must have made some demonstra- 
tion of an intention to execute his threats. — State v. Jackson, 32 S. C, zy; 10 
S. E., 769. 

Improperly admitted as in reply. — State v. Jaggers, 58 S. C, 41; 36 S. E., 434. 

A mere threat no excuse for committing homicide. — State v. Howard, 35 S. C, 
197; 14 S. E., 481. 

Threats after homicide and bad blood between prisoner and family of deceased 
may be proved. — State v. Anderson, 26 S. C, 599; 2 S. E., 699. 
Prisoner as Witness: 

Subject to cross-examination like other witnesses. — State v. Merriman, 34 S. C, 
18; 12 S. E., 619; State v. Turner, 36 S. C, 534; 15 S. E., 602. 

Effect of good character considered. — State v. Edwards, 13 S. C, 32. 

His character may be impeached. — State v. Merriman, 34 S. C, 18; 12 S. E., 619. 

His contrary statement to others may be proved. — State v. Merriman, 34 S. C, 
18; 12 S. E., 619. 

Improper for Solicitor to comment on failure of defendant to testify, but not 
reviewable; error when Judge corrected the inference suggested. — State v. How- 
ard, 35 S. C, 197; 14 S. E., 481. 

Testimony at Coroner's inquest is inadmissible against the witness under a 
charge afterwards preferred against them of the murder of the deceased person. — 
State V. Senn, 32 S. C, 392; 11 S. E., 292. 

Acts and declarations of conspirators. — State v. James, 34 S. C, 49; 12 S. E., 657. 

Where only two of the rioters were indicted, proof that the fatal injury was 
inflicted by others of the rioters will sustain verdict against the two. — State v. 
Jenkins, 14 Rich., 215. 

Wife of father competent on separate trial to testify against the son indicted 
with him. — State v. Anthony, i McC, 285. 

So is wife of one not on trial competent witness against his accomplices. — State 
V. Drawdy, 14 Rich., 87. 



266 CRIMINAL CODE 

A. D. 1902. 



The Corpus Delicti does not embrace the identity of the person charged with 
agency causing the death. — State v. Taylor, 56 S. C, 376; 34 S. E., 939. 

It does embrace the identity of the victim, but this may be shown by circum- 
stantial evidence. — State v. Martin, 47 S. C, 70; 25 S. E., 113. 

A conviction may be based on the testimony of an accomplice. — State v. Green, 
48 S. C, 136; 26 S. E., 234. 

Trial— 

Judge may permit jury to disperse during trial. — State v. Belcher, 13 S. C, 46. 
Conduct of: 

Argument of counsel is restricted by general rules under control of the trial 
Judge, but if improper statements are made by counsel in a law case they can be 
reviewed in the Supreme Court only by appeal from some ruling of the Judge 
thereon. — State v. Turner, 36 S. C, S34> IS S. E., 602. 
Postponement: 

Irregular to postpone trial to another week before another jury when first jury 
was exhausted. — State v. Briggs, 27 S. C, 80; 2 S. E., 854. 
Charge to Jury: 

Judge must not allow his opinion as to the facts of the case, either inadvertently, 
intentionally or otherwise, to reach the jury. — State v. White, 15 S. C, 381; State 
V. Jenkins, 21 S. C, 585; State v. Addy, 28 S. C, 4; 4 S. E., 814; State v. Nor- 
ton, 28 S. C, 572; 6 S. E., 820; State v. James, 31 S. C, 281; 9 S. E., 844; State 
V. Williams, 31 S. C, 238; 9 S. E., 853; State v. Wyse, 32 S. C, 45; State v. 
Milling, 35 S. C, 16; 14 S. E., 284. 

As to what is a charge upon the facts. — State v. Summers, 19 S. C, 95; State 
V. Atterberry, 19 S. C, 597; State v. Jenkins, 21 S. C, 596; State v. James, 31 
S. C, 218; 9 S. E., 844; State v. Milling, 35 S. C, 16; 14 S. E., 284; State v. 
Jackson, 36 S. C, 487; 15 S. E., 559; State v. Turner, 36 S. C, 534; 15 S. E., 602. 

Generally Erroneous: To exclude from jury all questions of manslaughter. — 
State v. Kirkland, 14 Rich., 230; State v. Jenkins, 21 S. C., 596; State v. Norton, 
28 S. C., 572; 6 S. E., 820; State v. Turner, 29 S. C, 34; 6 S. E., 891; State v. 
Wyse, 32 S. C, 45; 10 S. E., 612. 

But if there be no testimony to raise the question of self-defense or manslaughter 
the Judge may so charge. — State v. Summers, 19 S. C, 94; State v. Nance, 25 S. C., 
168. 

But not material when verdict is "guilty of manslaughter." — State v. Jenkins, 
21 S. C., 596. 

Also erroneous to instruct jury that prisoner was guilty if he knew right from 
wrong, when insanity was not the only defense. — State v. Leonard, 32 S. C, 201; 
10 S. E., 1007. 

Also to charge that good character should have great weight. — State v. Brown, 
34 S. C., 41; 12 S. E., 622. 

An omission to charge any particular proposition of law unless requested is not 
a reversible error when the principle is otherwise substantially charged. — State v. 
Anderson, 24 S. C, 113; State v. Prater, 26 S. C., 198; 2 S. E., 108; State v. 
Turner, 29 S. C., 34; 6. S. E., 891; State v. Murrell, 33 S. C, 83; 11 S. E., 682; 
State V. Milling, 35 S. C., 16; 14 S. E., 284; State v. Chiles, 58 S. C, 47; 36 S. E., 
496; State V. Smith, 57 S. C, 489; 34 S. E., 657; 35 S. E., 727. 

Or to instruct the jury in the precise terms in which a request is presented. — • 
State V. Jacobs, 28 S. C, 29; 4 S. E., 799. 

No error to tell jury when asked by them that prisoner could be recommended to 
mercy, or in failing to instruct them that such recommendation could not affect 
sentence.— State v. Gill, 14 S. C, 415; State v. Murrell, 33 S. C, 83; 11 S. E., 682. 

No error to omit to instruct jury that the Court could commit to Asylum after 
verdict of non compos mentis. — State v. Robinson, 27 S. C, 615; 4 S. E., 570. 

Nor as to effect of recommendation to mercy where there is no request to do so. 
■ — State V. Owens, 44 S. C, 324; 22 S. E., 244. 

Verdict. 

May be referred to such of several counts as are supported by the evidence. — 
State V. Crank, 2 Bail., 66. 

Not inconsistent when it finds murder both by drowning and by beating, charged 
in separate counts. — State v. Posey, 4 Strob., 103. 

Some irregularity not suflScient to annul it. — State v. Coleman, 8 S. C, 237. 



OF SOUTH CAROLINA. 267 

A. D. 1902. 



Verdict against one under indictment against him and another jointly is good. — 
State V. Bradley, 9 Rich., 169. 

Foreman may correct in open Court a mere informality in verdict just rendered. 
— State V. Anderson, 24 S. C, 114. 

Prisoner may waive his right to be present at its rendition. — State v. Haines, 
36 S. C, 504; IS S. E., 555. 

New Trial — 

Power to grant, on questions of fact, lodged exclusively with the Circuit Judge. — 
State V. Nance, 25 S. C, 168; State v. Haines, 36 S. C, 504; 15 S. E., 555. 
Granted: 

For charge of Judge upon the facts. — State v. Norton, 28 S. C, 572; 6 S. E., 820. 

Upon sufficient demand of copy of indictment not being complied with. — State 
V. Winningham, 10 Rich., 257. 

Upon refusal to allow prisoner to cross-examine a witness before he leaves the 
stand. — State v. McNinch, 12 S. C, 89. 

Upon newly-discovered testimony. — State v. David, 14 S. C, 432; State v. Nance, 
25 S. C, 168. 

Supreme Court will not grant, where no errors of law are alleged. — State v. 
Clark, 15 S. C, 407; State v. Nance, 25 S. C, 168. 

Not granted on part of State. — State v. Reilly, 2 Brev., 444; State v. Wright, 
3 Brev., 421. 

Nor where there appears no reason to question sanity after fair trial. — State v. 
Stork, I Strob., 479. 

Refused where jury might well have convicted upon the evidence.- — State v. Mc- 
Lendon, 5 Strob., 85; State v. Prater, 26 S. C, 198; 2 S. E., 108. 

And where Judge's charge was humane. — State v. Hammond, 5 Strob., 91. 

And where guilt is clear, though no motive for the murder appears. — State v. 
Whitman, 14 Rich., 113. 

No necessity for presence of prisoner at hearing of motion for new trial, unless 
he claims Constitutional right of being heard in person. — State v. Jeffcoat, 20 S. 
C, 386. 

Sentence — 

Failure to ask prisoner "if he has anything to say why judgment should not be 
pronounced on him" is error, and he must be resentenced. — State v. Trezevant, 
20 S. C, 363; State V. Jeffcoat, 20 S. C, 383. 

Appeal stays sentence. — State v. Prater, 2"; S. C, 599; 4 S. E., 562. . 

Appeal does not operate as supersedeas of; only stays its execution. — State v. 
Prater, 27 S. C, 599; 4 S. E., 562. 

Arrested when conviction of murder is by a jury illegally drawn. — State v. 
Pratt, 15 Rich., 47; State v. Jennings, 15 Rich., 42. 

But the objections to such irregularity must be made before verdict. — State v. 
Coleman, 8 S. C, 241. 

But not because the indictment concludes against the statute. — State v. Cole- 
man, 8 S. C, 237. 

Nor when it fails to allege the time of the offense when there is enough in it 
to notify when the offense was committed. — lb. 

Where Supreme Court on motion in arrest of judgment orders a new trial, the 
second trial is on the same indictment. — State v. Stephens, 13 S. C, 287. 

Second Trial — • 

Defendant properly put on second trial when former conviction was simply re- 
versed by the Supreme Court. — State v. Stephens, 13 S. C, 285; State v. Wyse, 
33 S. C, 582; 12 S. E., 556. 

Constitution of 1868 exempted from second trial only where there had been 
an acquittal.^State v. Shirer, 20 S. C, 404; State v. Jenkins, 20 S. C, 353; 
State V. Briggs, 27 S. C, 80; 2 S. E., 854; State v. Wyse, 33 S. C, 582; 12 S. 
E., 556; otherwise under Constitution of 1895. 

Jeopardy of life defined. — State v. McKee, i Bail., 651. 

No discharge for, because one panel of jurors was exhausted and trial adjourne9 
over until next week.- — State v. Briggs, 27 S. C, 80; 2 S. E., 854. 

Assault and battery with intent to kill is a misdemeanor. — State v. Welsh, 29 
S. C, 4; 6 S. E., 894. 



268 CRIMINAL CODE 

A. D. 1002. ■ ■ 

-"-^/"^-^ Embraces all the elements of murder except the death. — State v. White, 21 S. C, 

597- 

By attempt to poison. — State v. Glover, 27 S. C, 602; 4 S. E., 564. 

Necessity of act, as a defense. — State v. McGreer, 13 S. C, 464; State v. Little- 
john, 33 S. C, 599; II S. E., 638. 

Charge containing declaration of law as to how far the law permits a husband to 
go in punishing a man committing adultery with his wife. — State v. Chiles, 58 S. C, 
47; 36 S. E., 496. 

Where the testimony for the State was such that the defendant relied upon it 
to show an alibi, and offered no testimony, it was error for the Judge to charge 
that the burden of proving the alibi was upon defendant. — State v. Atkins, 49 
S. C, 481; 27 S. E., 484. 

On indictment for assault and battery with intent to kill defendant may be con- 
victed of an assault of a high and aggravated nature. — State v. Robinson, 31 S. C, 
453; 10 S. E., loi; State v. Lightsey, 43 S. C, 113; 20 S. E., 975. 

What constitutes an assault. — Ih. 

f or murd^n^''* Sec. 109. Whocver is guilty of murder shall suffer the pun- 
Proviso. ishment of death : Provided, however. That in each case where 
G. s. 24.51; the prisoner is found guilty of murder, the jury may find a 
XIV,' 175! 'ism! special verdict recommending him or her to the mercy of the 
XXI., 78o. Court, whereupon the punishment shall be reduced to impris- 
onment in the Penitentiary with hard labor during the whole 
lifetime of the prisoner. 
Killing b y Sec. 110. Whoever shall stab or thrust anv person or persons 

stabbing, &c. ' \ ^ 

G s 9455 • R ^'^^^ ^^^ ^'-'^ ^^^^ ^"^' weapon drawn, or that has not then first 

%1'^X'V^'^''' ^^' stricken the party which shall so stab or thrust, so as the person 
or persons so stabbed or thrust shall thereof die within the 
space of six months then next following, although it cannot 
be proved that the same was done of malice aforethought, yet 
the party'so offending, and being thereof convicted, shall suffer 
death as in the case of wilful murder : Provided, That nothing 
herein contained shall extend to any person who shall kill any 
person or persons in self-defense, or by misfortune, or in any 
other manner than as aforesaid ; nor to any person who, in 
keeping and preserving the peace, shall chance to commit man- 
slaughter, so as the said manslaughter be not committed wit- 
tingly, willingly, and of purpose, under pretext and color of 
keeping the peace ; nor shall extend to any person who, in 
chastising or correcting his child, shall, besides his or their 
intent and purpose, chance to commit manslaughter. 
Death from Sec. 111. Where the death of any human being results from 

raUroad.'^ '^''''^ any obstruction placed upon a railroad, as described in Section 
G. s. 2456; R.' 124 of this Chapter, the person placing or causing to be placed 

xviri^'ioL^'^'such obstruction or impediment on said railroad shall be ad- 
judged guilty of murder, and shall suffer death. 



OF SOUTH CAROLINA. 




Killing by Poison. 

Sec. 112. All wilful killing by poisoning of any person shall p^j^^'^^ i'"^ ^^ 
be adjudged, taken, and deemed wilful murder, of malice pre- q § 2457. r 
pense; and the offender therein, his aiders, abettors, procurers, fj ^^\' ■^^■^^' 
and counsellors, shall suffer death, as in other cases of wilful 
murder. 

Killing in a Duel. 

Sec. 113. In case any person shall kill another in any duel Killing in a 
with a deadly weapon, or shall inflict a wound or wounds upon--— — -— r- 
any person in any duel, so as the person so wounded shall xVii^" 'so/^^'^' 
thereof die within the space of six months then next following, 
such person so killing another, or so wounding any person 
whereby such person so wounded shall die as aforesaid, being 
thereof convicted, shall suffer death, as in the case of wilful 
murder. 

Rape. 

See. 114. Whosoever shall ravish a woman, married, maid, ^^p^- 



or other, where she did not consent, either before or after, and '^\^- '^^2^^ ^■ 

' ' ' b. 114; 1(12,11, 

likewise where a man ravisheth a woman with force, although f!?' Jf?^- $LY' 

' o 1/5; 18(8, XVI, 

she consent after, he shall be deemed guilty of rape, and shall, ^^^' § ^■ 
upon conviction, suffer death by hanging, m the same form 
and manner as is now provided by law for wilful murder : 
Provided, hoivever, That in each case where a prisoner is 
found guilty, the jury may find a special verdict, recommending 
him to the mercy of the Court, whereupon the punishment shall 
be reduced to imprisonment in the Penitentiary with hard labor 
during the whole life-time of the prisoner. 

This is a different offense from that in Sec. 115; but under an indictment for 
rape at common law, it is competent to show the age of the victim on the issue of 
force or consent. — State v. Haddon, 49 S. C, 308; 27 S. E., 194. 

And the Constitution, Art. III., Sec. 33, furnishes the rule of evidence as to want 
of consent where the victim is under the age of fourteen years. 

Verdict of guilty of an assault with intent to ravish sustained on an indictment 
containing counts under both Sections 114 and 115, where no motion was made to 
elect. — State v. Gilchrist, 54 S. C, 160; 31 S. E., 866. 

Deposition of injured party since deceased, made for warrant and in absence of 
prisoner, not admissible. — State v. Hill, 2 Hill, 607. 

If defendant testifies in his own behalf, his general reputation for veracity may 
be assailed. — State v. Robertson, 26 S. C, 117; i S. E., 443. 

Admitting connection while denying the rape is not an affirmative defense, but 
leaves the burden of proof on the State. — State v. Taylor, 57 S. C, 483; 35 S. E., 
729. 

Testimony as to condition of victim; force used. — State v. Suddath, 52 S. C, 
488; 30 S. E., 488. 



270 CRIMINAL CODE 

A. D. 1902. 



'■^'•^v ' Sec. 115. If any person shall unlawfully and carnally know 
Carnal knowi- ^nd abusc any woman child under the agre of fourteen years, 

edge of woman -' & .; > 

'^earl a"fdon'^* cvery such uulawful and carnal knowledge shall be felony, 
G s 2460- R ^^"^ ^^^ offender thereof being duly convicted shall suffer as 
Sgii-5; "^"^I'^l' for a rape : Provided, however, That in any case where the 
Const \rt T'l woman or child is over the age of ten years and the prisoner 
33- is found guilty the jury may find a special verdict recom- 

mending him to the mercy of the Court, whereupon the punish- 
ment shall be reduced to imprisonment in the Penitentiary for 
a term not exceeding fourteen years at the discretion of the 
Court. 

This is a statutory offense, distinct from rape. — State v. Haddon, 49 S. C, 308; 
27 S. E., 194; State v. Coleman, 54 S. C, 162; 31 S. E., 866; and a boy between 
seven and fourteen years of a.e may be convicted of it, if the physical capacity 
be shown. — State v. Coleman, i^ upra. 

As to necessity to show the age of the woman child under this statute, see State 
V. Haddon, Supra. 

By the amendment of 1896, a different punishment is prescribed for this offense, 
where the jury recommends to mercy, from that provided in Sec. 114 for rape. — Ih. 

Place of Trial where Death results from certain Injuries. 

in^"/m[t^s ^and ^®^' ^^^' When any person shall be struck, wounded, poi- 
Hmi\'^ o^^^tMs ^°^^^' °^ otherwise injured or ill-treated, within the limits of 

^^^^^- this State, and shall die thereof beyond the limits of this State, 

s^' lie^^'^Vas^' whether on the high seas or elsewhere, the person so striking, 
XII., 822, § 1. wounding, poisoning, or otherwise causing death as aforesaid, 
shall be subject to indictment, trial, and punishment in the 
County in which said stroke, wound, poisoning, or other injury 
or ill-treatment was committed, in all respects the same as if 
the death had occurred in the said County. 
Injury beyond gee. 117. Where any person within the limits of this State 

Jimitsand j ir 

Hmite^of^tate" ^^^^^ inflict an injury on any person, who, at the time said 
G s 2462^ ^"J^^y ^^ inflicted, is beyond the limits of this State, or where 

S-jjiip, 1^5^, any person beyond the limits of this State shall inflict an injury 
on any person at the time within the limits of this State, and 
such injury shall cause the death of the person injured, in either 
case, the person causing such death shall be subject to be 
indicted, tried, and punished ; in the first case, in the County 
of this State where the person inflicting the injury was at the 
time when the same was inflicted ; and, in the second case, in 
the County in which it was received; and the procedure and 
punishment shall be in all respects the same as if both parties 
were within the said County at the time said injury was in- 
flicted, and the homicide had been in all respects completed in 
said County. 



OF SOUTH CAROLINA. 271 

A. D. 1902. 



Sec. 118. Where an injury is inflicted by any person within '^'^^"v ' 
the bounds of one County of this State on a person within the tjcs^arJ^jn P^f! 
bounds of another County, and death shall ensue therefrom, and tf^g^"* c o u n- 
the party dies within this State, indictment, trial, and punish-' q g 2^03- r. 
ment shall be the same as if the homicide had been committed \'^}^'' ^^-' ^^^' 
altogether within the County where the party dies ; and where 
the party dies without the jurisdiction of this State, indictment, 
trial and punishment shall be the same as if the homicide had 
been completed in the County where the injury causing death 
was received. 

Sec. 119. When any person shall be struck, wounded, poi- jury^'^^n^ o'ne 
soned, or otherwise injured in one County, and die thereof inde°tli"[/ ^an'^ 

another, any inquisition or indictment thereon found by jurors °'^^^^' 

of either County shall be as good and effectual in law as if s^' ii9^;^*^*]'8^; 
the stroke, wound, poisoning, or other injury had been com-'^^^^" ^^^' 
mitted and done in the County where the party shall die. And 
the person guilty of such striking, wounding, poisoning, or 
other injury, and every accessory thereto, either before or after 
the fact, shall be tried in the County where such indictment 
shall be found, and, if convicted, punished in the same mode, 
manner, and form, as if the deceased had suffered such strik- 
ing, wounding, poisoning, or other injury and death, in the 
County where such indictment shall be found. 

Does not apply to trial for murder from blows inflicted before its enactment. — ^ 
State V. Sweat, i6 S. C, 624. 

Felonies not Capital. 

Sec. 120. Manslaughter, or the unlawful killing of another ten ^"^^"^ ' 
without malice, express or implied, shall be punishable by hard g. s. 2465; R. 
labor in the Penitentiary, not exceeding thirty years nor less xiv.," 175, § 2! 
than two years. 

Manslaughter — 
Beiined: 

Is the taking the life of another in sudden heat and passion, under reasonable 
provocation, without premeditation or malice. — State v. Ferguson, 2 Hill, 619; 
State V. Smith, 10 Rich., 341; State v. Jacobs, 28 S. C, 29; 4 S. E., 799. 

The provocation must be such as to provoke a high degree of resentment, and 
ordinarily induce a great degree of violence when compared with those of a slight 
and trivial character from which a great degree of violence does not usually fal- 
low. — State V. Ferguson, 2 Hill, 619. 

No mere words, however, insulting, can excuse the killing and reduce the de- 
fense to manslaughter. — State v. Jacobs, 28 S. C, 29; 4 S. E., 799; State v. 
Levelle, 34 S. C, 120; 13 S. E., 319; State v. Davis, 50 S. C, 424; 27 S. E., 905. 

But no provocation, however grievous, will excuse from the crime of murder, 
where, from the weapons used or the manner of assault, an intention to kill or do 
some bodily harm is manifest. — State y. Ferguson, 2 Hill, 619; State v. Way, 38 
S. C, 333; 17 S. E., 39. 




CRIMINAL CODE 



Whether the killing was under sudden heat and passion, or from a settled, de- 
liberate purpose, must be concluded by the jury upon the facts of the case. — State 
V. Ford, I Speer 154; State v. Wyse, 32 S. C, 45; 10 S. E., 612. 

Where the original provocation, given shortly before the killing, was then suf- 
ficient to reduce the killing to manslaughter, the jury must inquire, not whether 
the suspension of reason under such sudden heat and passion continued down to 
the moment of the killing, but whether the prisoner did cool, or v/as there time, all 
circumstances being considered, for a man of ordinary reason to have cooled. — 
State V. McCants, i Speer, 389; State v. Jacobs, 28 S. C, 29; 4 S. E., 799. 

Any signs of deliberation or reflection would be evidence of cooling. — State v. 
McCants, i Speer, 389. 

Distinction between murder and manslaughter. — State v. Summer, 55 S. C, 34; 
32 S. E., 771. 

Manslaughter defined in Act of 1821 as the killing of a slave in sudden heat and 
passion, includes killing by, or under excessive correction. — State v. Fleming, 2 
Strob., 464. 

Charge — 

If error to charge that defendants could not under certain circumstances be con- 
victed of manslaughter onl}', not material when verdict was for manslaughter. — • 
State v. Jenkins, 21 S. C, 596. 

Where defendant is convicted of manslaughter, error in charging as to murder 
is eliminated.— State v. Stuckey, 56 S. C, 586; 35 S. E., 263; State v. Robertson, 
54 S. C, 147; 31 S. E., 868; State v. Richardson, 47 S. C, 18; 24 S. E., 1028. 

Sentence — 

If error only in sentence, defendant is not entitled to new trial. — State v. Ault- 
man, 23 S. C, 601. 

Persons aiding and abetting in the commission of manslaughter are guilty of the 
crime. — State v. Putman, 18 S. C, 177. 

Sentence postponed to allow application for pardon. — State v. Faink, i Bay., 168. 

ing o^r™ttenpt- Scc. 121. Whocver shall unlawfully and maliciously admin- 
istlr,^°p ofTo^n ister to, or attempt to administer to, or in any way aid or assist 
kiii\ felony. ''° therein, or cause to be taken by any person, any poison or 
G. s. 2466; other destructive thing, with intent to kill such person, every 
xiL,' 832; isos^ such offender, and every person counselling, aiding or abetting 
XXII., 812. s^cj-^ offender, shall be guilty of felony, and shall be punished 

by imprisonment in the Penitentiary not exceeding ten years 

nor less than two. 

This Section does not supersede the common law offense of assault and battery 
with intent to kill; and when a person, with intent to kill, administers to a little 
child a drug which he believes to be poisonous and of sufRcent quantity to destroy 
life, such common law offense is complete, even though the dose is insufficient for 
the purpose intended. — State v. Glover, z"/ S. C, 602; 4 S. E., 564. 

to'^cause^mfs^ ^^^' ■'■^^' ^"^^ pcrsou who shall administer to any woman 
tfo'n" w-'^'prema- "^^' ^^^ child, or prcscribc for any such woman, or suggest to 
ture labor. ^^ advisc or procurc her to take, any medicine, substance, drug 
188?" xv?ii ' o'" thing whatever, or who shall use or employ, or advise the 
^'^- use or employment of, any instrument or other means of force 

whatever, with intent thereby to cause or procure the mis- 
carriage or abortion or premature labor of any such woman, 
unless the same shall have been necessary to preserve her life, 
or the life of such child, shall, in case the death of such child 
or of such woman results in whole or in part therefrom, be 
deemed guilty of a felony, and, upon conviction thereof, shall 



OF SOUTH CAROLINA. 273 

A. D. 1902. 



be punished b}' imprisonment in the Penitentiary for a term '-^ ' 

not more than twenty years nor less than five years. But no . Punishment 

-' -' ' for using such 

conviction shall be had under the provisions of this Section ™^^"^- 
upon the uncorroborated evidence of such woman. 

Administering through innocent agents; sending by mail. — State v. Morrow, 
40 S. C, 221; 18 S. E., 453. Sent from another State. — lb. 

Sec. 123. If any person or persons shall by himself or others for p"acin™ob- 
place, or cause to be placed, on the track or other part of the railroads.^ 
passage way of any railroads on which steam engines or hand g. s. 1020I 
cars are used, any timber, stone, or other obstruction, withxvii., 109. "' 
intent to injure or impede the passage of any cars or means of 
conveyance, or shall in any other manner obstruct any engine 
or car passing upon such railroad, or endangers the safety of 
persons conveyed in or upon the same, or aids or assists there- 
in, such person or persons shall be deemed guilty of felony, 
and, on being thereof convicted by due course of law, shall be 
punished by imprisonment in the Penitentiary for not exceed- 
ing thirty years, and fined in the discretion of the Court, ex- 
cept w^here the death of some human being results from such 
impediment, and in that case the oflfender shall be adjudged 
guilty of murder and shall suffer death : Provided, That noth- 
ing herein shall in any manner take away any right of action 
for damages for injuries to the person or property of any 
person or body corporate caused by any injury, obstruction, or 
damage done to any railroad or its buildings, tracks, or con- 
structions. 

Sec. 124. Any person who shall wilfully and maliciously Obstructing 

, ,,,- ,^, ., railroad, with- 

place, or cause to be placed, on the track or other part 01 the out death en- 
passage way of any railroads, on which steam engines or hand 



. , , .... G. S. 2467; 

cars are used, any timber, stone, or obstruction, with intent to r. s. 124. 
injure or impede the passage of any cars or means of convey- 
ance, shall be deemed guilty of felony, and, on being convicted 
thereof, shall be punished by imprisonment in the Penitentiary 
for not less than one nor more than thirty years, and fined in 
the discretion of the Court. 

Misdemeanor. 
Sec. 125. Whoever shall challenge another to fight at sword. Sending or 

1 • 1 1 11 1 1 11 accepting chal- 

pistol, rapier, or any other deadly weapon, or who shall accept lenge to fight. 
any such challenge, shall, for every such offense, on conviction G. s. 2468; 
thereof, be deprived of the right of suffrage, and be disabled xVii., 501, §7.' 
from holding any office of honor or trust whatever in this 

18.— C. P. 



274 CRIMINAL CODE 

A. D. 1902. ^ 



'"""^^^''^^ State, and shall be imprisoned in the Penitentiary for a term 
not exceeding two years, at the discretion of the Court. 

Indictment — 

Will lie in this State for challenge to fight a duel in Georgia. — State v. Taylor, 
3 Brev., 243; State v. Cunningham, 2 Speer, 246. 

Or for a verbal challenge. — State v. Strickland, 2 N. & MtC, 181. 

Or against the principal who sends challenge or fights. — State v. Strickland, 2 
N. & McC, 181; State v. Dupont, 2 McC, 334. 

Or for any agreement to fight with loaded pistols and actually fighting. — State v. 
Heriot, I McM., 126. 

Sentence — ■ 

The disability to hold office, imposed by the Section, does not constitute a part 
of the sentence.- — State v. Dupont, 2 McC, 334. 

d iii^enn"chai^ ^^^' ^^^' Whoever shall willingly or knowingly carry or 

^g"g^- deliver any such challenge in writing, or verbally deliver any 

R s' 126- i88o'"^^^^^§^^ intended as, or purporting to be, such challenge, or 
xviL, 502, § 8 ^y]^Q shall be present at the fighting of any duel as a second, 
or who shall aid or give countenance thereto, shall, for every 
such offense, on conviction thereof, be forever disabled from 
holding any office of honor or trust in this State, and shall be 
imprisoned in the Penitentiary for a term not exceeding two 
years, at the discretion of the Court, and shall be fined in a 
sum not less than five hundred dollars nor more than one 
thousand. 
Principal or Scc. 127. Upou the trial of all indictments for duelling, any 

second compel- . . . . , , 

labie to give person conccrncd therem, either as principal or second, or as 

testimony. 

— —counselling, aiding, and abetting in such duel, shall and may 

R. s. 127; 1823', be Compelled to give evidence against the person or persons 
actually indicted, without criminating himself or subjecting or 
making himself liable to any prosecution, penalty, forfeiture, 
or punishment, on account of his agency in such duel. 

Person challenged may testify as to conversation with bearer of the challenge. — 
State V. Taylor, 3 Brev., 243. Declaration of second admissible against principal. — 
State V. Dupont, aMcC, 334. 

gaged*^ hi" duel Scc. 128. In evcry case where two or more persons 
S^witn^ess"^^*^ shall be charged in any indictment for fighting a duel, or being 
G. s. 2471- R. concerned therein, either of such persons may be used as a 
s. 128; lb. witness or witnesses in behalf of the State, by having his or 
their names stricken out of the indictment, or otherwise, at 
the discretion of the Attorney General or Solicitor, or other 
attorney acting for the State, conducting such prosecution, of 
which an entry shall immediately be made on the minutes of 
the Court ; and in case of any such person or persons so used as a 
witness or witnesses in behalf of the State, in any prosecution 
for fighting a duel, or for being concerned therein shall after- 
wards be indicted for the same offense, the fact of his or their 



OF SOUTH CAROLINA. 275 

' A. D. 1902. 



being used as a witness or witnesses in the former prosecution ^~-^~v 
for the same offense, shall and may be pleaded in bar to such 
subsequent indictment, and, on proof thereof, by competent evi- 
dence, such person or persons shall be thereof acquitted and dis- 
charged. 

Sec. 129. From and after the first day of July, 1902, it shall j^^^'^^g^ ^^Ye 
be unlawful for anyone to carry about the person, whether con- ^ " cei-S"^p?s° 
cealed or not, any pistol less than 20 inches long and 3 pounds ^°'^ prohibited. 
in weight. And it shall be unlawful for any person, firm oTj^I^^' ^^m- 
corporation to manufacture, sell or offer for sale, or transport 
for sale or use into this State, any pistol of less length and 
weight. Any violation of this Section shall be punished by a 
fine of not more than one hundred dollars, or imprisonment for 
not more than thirty days and in case of a violation by a firm 
or corporation it shall forfeit the sum of one hundred dollars 
to and for the use of the school fund of the County wherein 
the violation takes place, to be recovered as other fines and 
forfeitures : Provided^ This Section shall not apply to peace offi- 
cers in the actual discharge of their duties, or to persons while 
on their own premises. 

The fines and forfeitures above provided for, when collected, 
shall go to the school fund of the County where the violation 
occurred. 

In case it shall appear to the satisfaction of the presiding 
Judge or Magistrate before whom such offender is tried that 
the defendant had good reason to fear injury to the person or 
property and carried said weapon to protect himself or prop- 
erty, he may, in his discretion, suspend sentence. 

Sec. 130. Any person carrying a pistol, dirk, slingshot, metal Carrying con- 

111 1 1 11 11 1 r 1 cealed weapons 

knuckles, razor, or other deadly weapon usually used lor the a misdemeanor. 
infliction of personal injury, concealed about his person, shall g. s. 2472 

^ ■> ■" . . R- S. 129; 1880 

be guilty of a misdemeanor, and, upon conviction thereof before x v 1 1 . , 448 

*='•' ' > f 1894, XXI. 

a Court of competent jurisdiction, shall forfeit to the County §2 4; 1897 

^ •' ' -^^XXII., 423 

the weapon so carried concealed, and be fined in the sum of 1900, xxiii. 
not more than one hundred dollars and not less than twenty 
dollars, or imprisoned not more than thirty nor less than ten 
days, in the discretion of the Court. Nothing herein contained 
shall be construed to apply to persons carrying concealed 
weapons upon their own premises, or peace officers in the actual 
discharge of their duties as peace officers. 

It is necessary to conviction under this Section for carrying a concealed weapon 
for the State to prove that it was concealed about the person. — State v. Johnson, 
16 S. C, 187. 



2/6 CRIMINAL CODE 

A. D. 1902. 



^"-""v^^-^ To prove that it was so concealed as to be generally hidden from ordinary ob- 
servation completes the offense. — lb. 

ffr^f"cLes°'for ^cc. 131. In cvcry indictment for murder, manslaughter, 
™aught4r, ™ a^- assault and assault and battery of a high and aggravated nature, 
tlrl\ Ic^ ^^^' assault and assault and battery with intent to kill, and in every 
1897, XXII., case where the crime is charged to have been committed with a 
^^'^' deadly weapon of the character specified in Section 130, 

there shall be a special count in said indictment for carrying 
concealed weapons, and the jury shall be required to find a 
verdict on such special count; and all cases embraced in this 
Section, including the carrying of the weapons, shall be in the 
exclusive jurisdiction of the Court of General Sessions : Pro- 
vided, That one-half the fine shall go to the free school fund of 
the County and the other half to the pension fund of said 
County. 
wittf^conceSed ^®^- ^^^* ^^ ^^3" P^^sou bc couvictcd of assault, assault and 
weapon. battcrv. assault or assault and battery with intent to kill, or of 

s^iso'- z&^^'s^' manslaughter, and it shall appear upon the trial that the assault, 
assault and battery, assault or assault and battery with intent 
to kill, or manslaughter, shall have been committed with a 
deadly weapon of the character specified in Section 130, 
carried concealed upon the person of the defendant so 
convicted, the presiding Judge shall, in addition to the punish- 
ment provided by law for such assault, assault and battery, 
assault or assault and battery with intent to kill, or man- 
slaughter, inflict further punishment upon the person so con- 
victed, by confinement in the penitentiary for not less than three 
months, nor more than twelve months, with or without hard 
labor, or a fine of not less than two hundred dollars, or both 
fine and imprisonment, at the discretion of the said Judge. 

Under indictment for assault with pistol with intent to kill, where jury find a 
verdict of "guilty of an aggravated assault and battery," the words "and battery'* 
were stricken out as surplusage and the verdict was held good. — State v. Robinson, 
31 S. C, 453; ID S. E., loi. 

saifors'^"^^^'''" Sec. 133. Any attempt, by fraud or force, to ship, against his 

G s 2474- R will, any person as a seaman, on board any vessel in any port 

I'li.f 462, ^fi. of this State, is hereby declared a misdemeanor, to be punished 

by fine and imprisonment, at the discretion of the Court. 

minors "^^^'''^ Scc. 134. Any person who shall procure and carry without 

G. s. 2475; R. the limits of the State any minor or person under the age of 

xiv^.^^^e.'^^'^' twenty-one years, without the consent of the parent or guardian 

of such minor, shall, upon conviction thereof, be fined in a 

sum not less than one hundred nor more than five hundred 



OF SOUTH CAROLINA. 




dollass, or be imprisoned in the penitentiary of the State for a 
period of not more than one year. 

Sec. 135. Whoever, being legally liable, either as V3.rent, ^^^j^^'^^^^^^l^^^_ 
guardian, master, or mistress, to provide for any child or p'^^"tices, &c. 
children, apprentice or servant, idiot or helpless person, neces-s^' 133-'^^%^' 
sary food, clothing, or lodging, shall wilfully and without law- ■^^•' '^°*- 
ful excuse refuse or neglect to provide the same, or shall un- 
lawfully and maliciously do, or cause to be done, any bodily 
harm to any such child or children, apprentice, servant, idiot, 
or helpless person, so that the life of such child or children, ap- 
prentice, servant, idiot, or helpless person shall be endangered, 
or the health or comfort of such child or children, apprentice, 
servant, idiot, or helpless person shall have been, or is likely 
to be, permanently injured, shall be deemed guilty of a mis- 
demeanor, and, upon conviction thereof, shall be liable to a 
fine of not less than two hundred dollars nor more than one 
thousand dollars, or be imprisoned for any term not exceeding 
two years, with or without hard labor, one or both, at the dis- 
cretion of the Court. 

Sec. 136. Whoever tortures, torments, cruelly ill treats, or ^j^^^'j.^^e ity to 
whoever deprives of necessary sustenance or shelter, or who- 
ever inflicts unnecessary pain or suffering, upon any child, or 
whosoever causes the same to be done, whether such person be 
the parent^r guardian of such child, or have charge or custody 
of the same, shall for every such offense be deemed guilty of 
a misdemeanor, and be punished by imprisonment in jail not P"n'shment. 
exceeding thirty (30) days, or by fine not exceeding one hun- ^^^' -^^^•' ^• 
dred ($100) dollars. 

All the provisions of Chapter XXX. in reference to the pre-j^ade' afi^fa- 
vention of cruelty to animals shall be extended to the enforce- ^^^■ 
ment of this Section. 

Sec. 137. If any person within this State shall suffer injury Unskilful or 

■' r i J negligent man- 

to life or limb, by the explosion of any boiler of a steamboat, 1^.1^^™^!^"^ *^°^ 
or by reason of the unskilfulness, mismanagement, or negli- ^ g ^^^^, -^ 
gence of the persons having the charge or command of the|/j ^|^^' ^^^^' 
said boat, or her engine, or by reason of any defect in the said 
engine or boat, or by reason of the deficiency or want of any 
matter or thing necessary and proper for the management or 
seaworthiness of the said boat, the captain, master, or other 
person having the command or charge of such boat, shall, for 
every such injury, be deemed guilty of a misdemeanor, and, on 
conviction, shall be punished by fine or imprisonment, or both. 



278 CRI^IINAL CODE 

A. D. 1902. ■■ 



""^ ' " at the discretion of the Court before which such conviction shall 
be had : Provided, hozvever, That nothing contained in this Sec- 
tion shall be so construed as to prevent the defendant from 
showing, on the trial, that the injury arose from unavoidable 
accident, or without fault on his part, and that this Section 
shall not in any manner be construed to restrict the liability of 
any person to be indicted, tried, and punished under any law 
existing. 

Wilful ne- §qq 138. Any engineer or conductor of anv railroad- com- 

glect of rail- jo 

road employes, pany in the State, who shall wilfully neglect to observe, or 
s^' ise^^'^m^' ^^^^^ wilfully violate, any rule or regulation of the company 
XII., 634. -(-Q which such engineer or conductor may belong, whereby any 
person or persons shall sustain, or be in danger of sustaining, 
any bodily injury, such engineer or conductor shall be liable to 
be indicted for every such offense, and, upon conviction thereof, 
shall be fined two hundred dollars, and be imprisoned not ex- 
ceeding one year, at the discretion of the Judge before whom 
such case may be tried: Provided, hozvever. That nothing 
herein contained shall be so construed as to relieve such en- 
gineer or conductor from responsibility, in cases where the life 
of any person is destroyed, under the law as it now exists, 
f of c e r 'tTi'^n ^^^- 1^9. Any pcrson who shall administer to any woman 
vice°to wonfen '^'^'ith child, or prescribe or procure or provide for any such 
tion^&c! ^^°''' woman, or advise or procure any such woman to take, any medi- 
1882 XVIII. cine, drug, substance or thing whatever, or shall use or employ 
547; R. s. i3(. ^^ advisc the use or employment of, any instrument or other 
means of force whatever, with intent thereby to cause or pro- 
duce the miscarriage or abortion or premature labor of any such 
woman, shall, upon conviction thereof, be punished by imprison- 
ment in the penitentiary for a term not more than five years, 
or by fine not more than five thousand dollars, or by such fine 
convict^ m\i It and imprisonment both, at the discretion of the Court; but no 
ed. ''°"°''°"*' conviction shall be had under the provisions of this Section 

upon the uncorroborated evidence of such woman, 
as to^'the'uses Scc. 140. Any womau with child who shall apply to or so- 
means^ by ^v(> licit from any physician, druggist or other person whomsoever 

^^^' any medicine, drug, substance or thing whatever, or shall take 

1882,' xviii.', or administer the same, or shall submit to or perform upon 
herself any operation of any sort or character whatever, with 
intent thereby to cause or produce a miscarriage or abortion or 
premature labor, unless the same shall have been necessary to 
preserve her life or the life of such child, shall be deemed 



OF SOUTH CAROLINA. 279 

A. D. 1902. 



guilty of a misdemeanor, and upon conviction thereof shall be '^"^^'^ ' 
punished by imprisonment in the County jail or State peni- 
tentiary for a term not more than two years, or by fine not 
exceeding one thousand dollars, or by such fine and imprison- 
ment both, at the discretion of the Court. 

Sec. 141. In any preliminary examination, and on any in- As to testj- 

■^ -^ _ ^ _ ' mony for al- 

quiry before a grand jury, and on the trial of any indictment leged offenses 

^ •' o J y ' J under bections 

for any alleged offense under Sections 122, 139 and 140, no i-'^> isQ and i40. 
person shall be protected from testifying as a witness for the ^^^^' xviii., 
reason that the testimony of such witness would tend to crimi- 
nate or disgrace such witness : Provided, hoivever. That no tes- Proviso as 

o •" •" to certain tes- 

timony SO given of a character tending to criminate or disgrace timony. 

such witness shall ever be used in evidence in any action, prose- 
cution or proceeding, civil or criminal, against such witness, 
or against his or her representatives. 

All prosecutions under Sections 122, 1^9 and 140 shall be when prose- 

^ . 7 , cutions shall 

commenced within two years after the commission of the commence. 
ofifense. 

Sec. 142. In the case of any prisoner lawfully in the charge, Penalty to of- 
custody or control of any officer, State, County or municipal, whom a^^p^is- 
being seized and taken from said officer through his negli- ^^^^ ^^^.^ - 
gence, permission or connivance, by a mob or other unlawful 213, § 1. 
assemblage of persons, and at their hands suffering bodily vio- To be prose- 
lence or death, the said officer shall be deemed guilty of a mis- 
demeanor, and upon true bill found shall be deposed from his 
office pending his trial, and upon conviction shall forfeit his 
office, and shall, unless pardoned by the Governor, be ineligible 
to hold any office of trust or profit within this State. It shall 
be the duty of the prosecuting attorney within whose Circuit 
or County the offense may be committed to forthwith institute 
a prosecution against said officer, who shall be tried in such 
County in the same Circuit, other than the one in which the 
offense was committed, as the Attorney General may elect.- 
The fees and mileage of all material witnesses, both for the 
State and the defense, shall be paid by the State Treasurer 
on a certificate issued by the Clerk and signed by the presiding 
Judge, showing the amount of said fee due the witness. 




CRIMINAL CODE 



CHAPTER X. 

Offenses Against Property. 



Sec. 




Sec. 




Felonies. 


173. 


143. 


Arson. 




144. 


Burglary. 


174. 


145. 


House breaking in day time, &c. 




146. 


Dwelling house defined in case 
of burglary and arson. 


175. 


147. 


Stealing bonds, &c. 


176. 


148. 


Stealing or letting loose boats. 




149. 


Stealing live stock. 




150. 


Larceny of bicycles. 


177. 


151. 


Stealing bedding, &c., from lodg- 


178. 




ing. 


179. 


152. 


Stealing from the person. 


180. 


153. 


Restitution of stolen goods. 


181. 


154. 


Breach of trust with fraudulent 






intent. 


182. 


155. 


Firing turpentine farms. 




156. 


Interfering with police alarms, 
&c. 




157. 


Burning stacks of corn, &c., in 
the night time. 


183. 




Misdemeanors. 


184. 


158. 


Burning stacks of corn, &c., in 






the day time. 


185. 


159. 


Burning carts, wood, &c. 




160. 


Setting fire to grass. 


186. 


161. 


Carrying fire on lands of another 


187. 




without permit. 




162. 


Burning and cutting frames of 
timber and untenanted 


188. 




houses, &c. 


189. 


163. 


Entering house with intent to 


190. 




steal. 


191. 


164. 


Larceny of goods below twenty 


192. 




dollars. 


193. 


165. 


Buying and receiving stolen 


194. 




goods. 


195. 


166. 


Stealing melons and fruit from 
the field. 




167 


and 168. Obtaining property by 
false pretenses. 


196. 


169. 


Stealing grain or cotton from 






the field. 


197. 


170. 


Malicious injury to horses, &c. 




171. 


Malicious injury to trees, houses, 
&c. 


198. 


172. 


Prosecutor cannot have both 
criminal and civil action. 





Marking and branding larger 
animals. 

Marking and branding smaller 
animals. 

Using stock without owner's 
consent. 

Removing, destroying or leaving 
down fences, or letting stock 
run at large. 

Rescuing trespassing stock. 

Traveling outside of road. 

Satisfaction as a defense. 

Injuring and chasing stock. 

Obstructions of rivers and 
creeks. 

Cutting or floating trees, logs, 
&c., in river at night with- 
out suflicient light or men to 
prevent damage, &c. 

Certain obstructions of streams 
in certain Counties. 

Obstructions of streams in cer- 
tain Counties. 

Counties excepted from 183 and 
184; 

Entry on lands of another. 

Trespass on State House and 
grounds. 

Embezzling, stealing or damag- 
ing books in State Library. 

Injury to telegraph poles. 

Obstructing engine on railroad. 

Penalty for injury to railroad. 

Breaking into railroad cars. 

Injury to electric signals. 

Interferance with sewers. 

Failure to return boat, flat or 
tool used for mining phos- 
phate. 

Penalty for taking up and sell- 
ing drifted lumber without 
accounting for same. 

Penalty for stealing crude tur- 
pentine. 

Wilful injury to certain proper- 
ty by officers of corpora- 
tions, &c. 



Arson. 



G 
R. S 



S. 2480; 



Felonies Capital. 
Arso)i. 
Section 143. The wilful and malicious settine: fire to or burn- 



xivi/irJ/lf;' ii"'§' ^"y house, of whatever name or kind, within the curtilage or 
i|^'-^^^>j^\^' common inclosure of any house or room wherein persons 



290. 



OF SOUTH CAROLINA. 281 

A. D. 1902. 



habitually sleep, whereby any such dwelling- house or sleeping 
apartment shall be endangered; also, the wilful and malicious 
setting fire to or burning any court house or other public btnld- 
ing, whether owned by the State or a corporation, or a building 
owned by an individual or individuals, and kept or let for public 
meetings or exhibitions, barn, stable, coach house, gin house, 
store house, warehouse, grist or saw mill, railroad depot, coach 
or cotton factory, or other house used for manufacturing pur- 
poses, of whatever name or kind, or setting fire to or burning 
any house habitually used for public religious worship, shall be 
deemed arson, whether the setting fire to or burning be in the 
day or night-time ; and the person setting fire to or burning 
any such house as aforesaid, and the aiders, abettors, and ac- 
cessories before the fact, shall, upon conviction, suft"er death by 
hanging in the same form and manner as is now provided by 
law for wilful murder: Provided, hozvever, T-hat in each case 
where the prisoner is found guilty, the jury may find a special 
verdict, recommending him to the mercy of the Court, where- 
upon the punishment shall be reduced to imprisonment in the 
penitentiary with hard labor, for a term of not less than ten 
years. 

Soliciting another to commit arson, and bribing him and preparing him to do 
it, is an indictable offense. — State v. Bowers, 35 S. C, 262; 14 S. C, 488. 

Acquittal under charge of arson is not a good plea to indictment for statutory 
offense of burning an untenanted house. — State v. Jenkins, 20 S. C, 352. 

It is not arson to burn one's own house. — State v. Sarvis, 45 S. C, 668; 24 S. E., 
53- 

Arson is an offense against the possession rather than the property. — State v. 
Copeland, 46 S. C, 13; 23 S. E., 980. 

The house may be alleged as the property of either the owner or the occupant. — 
State V. Carter, 49 S. C, 265; 27 S. E., 106. 

It is not arson to burn a corn crib, not within the curtilage of the dwelling. — 
State V. Jeter, 47 S. C, 2; 24 S. E., 8S9. 

Indictment — 

Not fatally defective because it omits to state the Court House or other place 
v.'here crime was committed, when it names the County. — State v. Moore, 24 S. C, 
150. 

It is good practice to allege thet the crime was committed at Court House. — 
State V. Colclough, 31 S. C, 156; 9 S. E., 811. 

It need not allege location of stable or gin house burned, nor charge that it 
was within the curtilage. — State v. Gwinn, 24 S. C, 146; State v. Moore, 24 S. C, 
150. 

Defendant waived his right to copy of, three days before trial, when he had 
received it two days before, and went to trial without objection. — State v. Col- 
clough, 31 S. C, 156; 9 S. E., 811. 

Evidence — 

Of pecuniary condition, is irrelevant and incompetent. — State v. Moore, 24 S. C, 
ISO. 

Where one is on trial as accessory before the fact; conversations at and after 
fire inadmissible.^ — State v. Dukes, 19 S. E., 134; 40 S. C, 174. 

Confession of co-conspirator. — State v. Green, 40 S. C, 328; 18 S. E., 933. 



282 CRIMINAL CODE 

A. D. 1902. — 



^ ^~ Confessions must be shown to have been voluntary and free from inducement. — 

State V. Moorman, 27 S. C, 22; 2 S. E., 621. 
Burglary, pun- Charge. — State v. Rhodes, 44 S. C, 325; 22 S. E., 306. 

'- — « Sec. 144. Any person who shall commit the crime of burglary 

R. s'. ui; i883^at common law shall, upon conviction, be imprisoned in the 

XVIII., 290. „ T-.- • -11 111 1- 1111-r- 

btate remtentiary, with hard labor, durmg the whole lifetime 
of the prisoner: Provided, however, That in each case where 
the prisoner is found guilty, the jury may find a special verdict, 
recommending him to the mercy of the Court, whereupon the 
punishment shall be reduced to imprisonment in the Peniten- 
tiary, with hard labor, for a term of not less than five years. 

Burglary defined. — State v. Ginns, i N. & McC, 583; State v. Sampson, 12 
S. C, 567; State V. Clary, 24 S. C, 116. 

Cannot be committed in mill house, which was not a parcel of dwelling house 
and separated by public road.^ — State v. Sampson, 12 S. C, 567. 

Nor in a house, in which no one slept, near but not appurtenant to the dwelling 
house, used for storage. — State v. Anderson, 24 S. C, 109. 

Breaking into a dwelling house with intent to steal an article of less value than 
$20, is burglary. — Stjte v. Clary, 24 S. C, 116. 

Neither the Act of 1866, enlarging the limits within which burglary may be 
committed, nor the Act of 1878, increasing its punishment, repealed burglary at 
common law. — State v. Branham, 13 S. C, 389. 

Where party breaks out of a dwelling house at night, having committed a felony, 
no matter how he entered, it is burglary. — State v. Bee, 29 S. C, 81; 6 S. Ga., 911. 

Evidence that out house is separated by public road from the dwelling does not 
show it could not be appurtenant to the dwelling. — State v. Johnson, 45 S. C, 483; 
23 S. E., 619. 

Indictment — 

May join count for burglary with a count for receiving stolen goods. — State v. 
Strickland, 10 S. C, 192. 

Misnomer not fatal, unless objected to. — State v. Branham, 13 S. C, 389. 

Precise day or year need not be alleged, provided day named is anterior to bill. — • 
State v. Branham, 13 S. C, 389; State v. Dawkins, 32 S. C, 17; 10 S. E., ttz; 
State V. Howard, 32 S. C, 91; 10 S. E., 831. 

Ownership of house properly laid in wife, who had a separate estate when she 
leased it, and goods were hers. — State v. Trapp, 17 S. C, 470. 

It must allege that offense was committed in night time. — State v. Dawkins, 
32 S. C, 17; 10 S. E., TTz. 

It is not necessary to specify the particular chattels defendant intended to steal. 
— State V. Langford, 55 S. C, 327; 33 S. E., 370. 

Where two are indicted for burglary, if one be convicted only of larceny, the 
other cannot be convicted of burglary. — State v. Davis, 3 McC, 187. 

Allegation that out house was within the curtilage, how to be made. — State v. 
Evans, 18 S. C, 137. 

Evidence — 

Confession may be proved, though manner of officer was rude. — State v. Bran- 
ham, 13 S. C, 389. 

The false denial of a party charged, of an important fact, made voluntarily at 
preliminary hearing, may be proved by parol. — State v. Howard, 32 S. C, 91; 

10 S. E., 831. 

Prosecutor may testify that house was his. — State v. Brown, 33 S. C, 151; 

11 S. E., 641. 

Proof of acquittal of burglary in house of one no bar to conviction of burglary 
in house of another. — State v. Brown, 33 S. C, 151; 11 S. E., 641. 

Whether circumstances shown are sufficient to corroborate the testimony of an 
accomplice, must be left wholly to the jury.^State v. Robinson, 35 S. C, 340; 
14 S. E., 766. * 



OF SOUTH CAROLINA. -283 

A. D. 1902. 



Charge — ^-^^/^~-^ 

No error to decline to give legal definition of burglary when correct principles 
of law applicable had already been stated. — State v. Dawkins, 32 S. C, 17; 10 
S. E., 772. 

There being one count for burglary and another for larceny, upon conviction 
of burglary, error in charge as to larceny immaterial, and no ground for new trial. 
—lb. 

To effect that prisoner was a thief and was guilty, violates Article 4, Section 
26, of Constitution of 1868. — State v. Brown, 33 S. C, 151; 11 S. E., 641. 

Verdict — 

General verdict on indictment with three counts, one for burglary, one for an- 
other burglary, and third for petit larceny, is good. — State v. Nelson, 14 Rich., 169. 

Jury having published their verdict cannot afterwards reassemble and render a 
second verdict with recommendation to mercy. — State v. Dawkins, 32 S. C, 17; 
10 S. E., 772. 

New Trial — 

Must be granted if sentence was based upon second verdict, after first had been 
rendered.- — State v. Dawkins, 32 S. C, 17; 10 S. E., 772. 

When entire failure of proof as to the breaking, the only remedy is by motion 
for. — State v. Dawkins, 32 S. C, 17; 10 S. E., 772. 

Sec. 145. Every person who shall break and enter, or who ing^°whfcir^^s 
shall break with intent to enter, in the day time, any dwelling ""^ urgary. 
house or other house, or who shall break and enter, or shall r. s. ' iti] 
break with intent to enter, in the night time, any house, the xix.,' 792. 
breaking and entering of which would not constitute burglary, 
with intent to commit a felony or other crime of a lesser grade, 
shall be held guilty of a felony, and punishable at the discretion felony. 
of the Court by imprisonment in the County Jail or Peniten- Punishment. 
tiary for a term not exceeding one year. 

This Section creates two distinct offenses; both felonies, but committed at dif- 
ferent times, and where both are charged in the same indictment, the Solicitor 
may be required to elect upon which count he will go to trial. — State v. Bouknight, 
55 S. C, 354; 34 S. E., 451. As to form indictment for breaking and entering in 
the night time. — lb. Allegation as to character of house. — lb. 

Evidence — 

Letters purporting to be written by defendant. — State v. Head, 38 S. 
C, 258; 16 S. E., 892; State v. Weldon, 39 S. C, 318; 17 S. E., 688. Prior of- 
fenses. — lb. Competency of deaf mute. — lb. 

Sec. 146. With respect to the crimes of burglary and arson, d w e ii i ng 

. . cj ^ house defined 

and to all criminal offenses which are constituted or aggravated in case of 

. . , . . burglary and 

by being committed in a dwelling house, any house, out-house, arson. 

apartment, building, erection, shed, or box, in which there g. s. 2483; 

^ ' . ^' ' ' ' R. S. 143; 1866, 

sleeps a proprietor, tenant, watchman, clerk, laborer, or person xiii., 405, § 3. 
who lodges there with a view to the protection of property, 
shall be deemed a dwelling house ; and of such a dwelling house, 
or of any other dwelling house, all houses, out-houses, build- 
ings, sheds, and erections which are within two hundred yards 
of it, and are appurtenant to it, or to the same establishment of 
which it is an appurtenance, shall be deemed parcels. 

Indictment — 

Should have alleged that the house, in which burglary was committed, was within 



284 CRIMINAL CODE 

A. D. 1902. 



''^""^v^^-' two hundred yards of the dwelling house and appurtenant thereto. — State v. Evans, 
i8 S. C, 139; State v. Langford, 55 S. C, 327; 33 S. E., 370. So as to arson. — 
State V. Jeter, 47 S. C, 2; 24 S. E., 889. 

Evidence — 

Whether circumstances corroborate testimony of accomplice is a question for 
jury; Judge cannot so charge. — State v. Robinson, 35 S. C, 340; 14 S. E., 766. 

Charge — 

No error to refuse to charge a request that has no application, nor to neglect 
to charge, as requested, in the language of Supreme Court, when Judge has already 
charged the law correctly. — State v. Robinson, 35 S. C., 340; 14 S. E., 766. 

Appeal — 

Held on, that improper conviction under the Section could not be referred to the 
charge in the indictment of the higher offense of burglary at common law. — State 
V. Evans, 18 S. C, 139. 

Neither alleged error of fact by Judge in refusing motion for new trial,- nor 
testimonj' received without objection, can be considered by Supreme Court. — State 
v. Robinson, 35 S. C, 340; 14 S. E., 766. 

Construed not to be arson. — State v. Pope, 9 S. C, 273. 

Trial— 

Prisoner only entitled to five peremptory challenges. — State v. Pope, 9 S. C, 273. 

As to original Act. — State v. Bosse, 8 Rich., 276; State v. DeBruhl,' 10 Rich., 23. 

bonds!' &f. °^ ^^^' ^^'^' ^^^ Stealing, or taking by robbery, of any bond, 
^^-^^-^^ warrant, bill, or promissory note, for the payment, or securing 

ffi^'/^'g^^f'the payment, of any money, being the property of any other 
person, or of any corporation, notwithstanding any of the said 
particulars are termed in law a chose in action, shall be deemed 
and construed to be felony if of or above the value of twenty 
dollars, and a misdemeanor if below the value of twenty dol- 
lars; and such offender shall suffer such punishment as if he 
had stolen other goods of the like value with the moneys due 
on such bond, warrant, bill, or note, respectively, or secured 
thereby and remaining unsatisfied. 

The taking need not be by robbery. — State v. Cassados, 2 N. & McC, 91. 
Bank bills included in Statute. — Ih. 

Distinction between bank bills and notes defined. — State v. Wilson, 3 Brev., 243. 

At common law choses in action were not the subject of larceny; made so by 
the Act of 1737.— State v. Tillery, I N. & McC, 9. 

Indictment. — Sufficient, if it describe the bills as of a certain bank named; 
general description only required. — State v. Wilson, 3 Brev., 243; State v. Smart, 
4 Rich., 356; State v. Evans, 15 Rich., 31. 

Evidence. — Some necessary, that the bills were of value and genuine; but not 
such as would be necessary to recover the money due thereon, in proper action. — 
State V. Tillery, i N. & McC, 9; State v. Smart, 4 Rich., 356. 

But it is not necessary to prove a minute description of the bills or to show 
that the banks were incorporated. — State v. Smart, 4 Rich., 356. 

If it show that bills were taken from another source than that alleged in 
indictment, the variance is fatal. — State v. Waters, 3 Brev., 507. 

Charge. — Not error to charge that if jury believed the money was taken by 
surprise and defendant converted it to his own use, it was larceny. — State v. 
Watson, 7 S. C, 63; lb., 7 S. C, 67. 

Verdict. — "Guilty of larceny only," sufficient. — State v. Smart, 4 Rich., 356. 

New Trial. — Granted when evidence was suspicious. — State v. Smart, 4 Rich., 
356. 



Proviso. 



OF SOUTH CAROLINA. 285 

A. D. 1902. 

Sec. 148. Whoever shall steal, take away or let loose any ^~""^^^ 
boat, periauger or canoe, or steal or take away any grappling, 1^"^'"^ ^°^^^' 
painter, rope, sail or oar from any landing or place whatsoever g. s! 24S8; r! 
where the owners or persons in whose service or employ they li., ^toi l^^il 
were last had made fast or laid the same (except all boats or 122.^'^' ^"'^^^■' 
canoes as are let loose from another boat, canoe or vessel), 
shall be liable to such fine or fines as the Court of Sessions shall 
impose in its discretion if the matter of fact be felony or lar- 
ceny, and make good to the person or persons injured all dam- 
ages they shall sustain ; and in case the matter of fact be a in a trespass 

, , . . -the offenders 

trespass only, the person or persons committmg such oiiense shall pay dam- 
shall make good to the person injured all damages that may 
accrue thereby, and, moreover, forfeit and pay for every time 
he or they shall be found guilty thereof the sum of twenty 
dollars, one moiety thereof to be paid to the State Treasurer 
for the public use, the other moiety to him or them that will 
sue and prosecute for the same in any Court of competent 
jurisdiction in this State, beside his charges therein expended : 
Provided, That when the boat, periauger, canoe, grappling, 
painter, rope, sail or oar, or any or all of them so taken away, 
stolen or let loose, shall be of the value of twenty dollars or 
less, the offender, upon conviction before a Magistrate, shall 
be subject to a fine not to exceed one hundred dollars or im- 
prisonment not exceeding thirty days, in lieu of the penalties 
prescribed in the foregoing Section. 

Prior to the addition of the provision in 1897, Magistrates had no jurisdiction 
of this offense. — State v. Weeks, 14 S. C, 400. 

Sec. 149. Any person found guilty of the larceny of anyg^Q^|f^^'"= ^'"^ 
horse, mule, cow, hog, or any other live stock, shall suffer im-~^ g 2489; r. 
prisonment in the State Penitentiary at hard labor for a period xvl*%.2.^^'^^' 
of not less than one year nor more than ten years, and such 
fine as the Court, in its discretion, may see fit to impose. 

Larceny defined. — State v. Garvin, 48 S. C, 258; 26 S. E., 570. 

Construed. — As repealing all former Acts on the subject. — State v. Corley, 13 
S. C, I. It gives jurisdiction to Court of General Sessions for stealing cow 
below the value of $20. — lb. And provides punishment without regard to value. — 
State V. Moore, 30 S. C, 69; 8 S. E., 437. 

The Act of 1893, 21 Stats., 411, attempting to reduce the punishment where 
the property did not exceed a certain value, was held unconstitutional in State 
V. Crosby, 51 S. C, 248; 28 S. E., 529. 

Indictment. — For stealing a colt cannot be sustained, it seems, as colt is not 
the term used in the Section. — State v. Major, 14 Rich., 76. The word "mare" 
is included in the term "horse." — State v. Dunnovant, 3 Brev., 9. 

Property may be laid in one who has merely the lawful possession. — State v. 
Addington, i Bail., 310. 

Where horse is, stolen in one County and carried into and sold in another, the 
indictment may be in the latter County. — State v. Bryant, 9 Rich., 113. 



286 CRIMINAL CODE 

A. D. 1902. ■ 



^~--— "-v^-— An indictment cannot be quashed because the prosecution is barred by lapse 

of time. — State v. Howard, 15 Rich., 274. 

Indictment sufficient under Act of 1789. — State v. Hamlin, 4 S. C, i. 

Arraignment. — Is not necessary.- — State v. Moore, 30 S. C, 69; 8 S. E., 437. 

Where the value of the stock stolen is under twenty dollars, the State is only 
entitled to two peremptory challenges. — State v. Anderson, 59 S. C, 229; 37 
S. E., 820. 

Evidence. — Not necessary to prove the time as laid in the indictment. — State 
V. Porter, 10 Rich., 145. Any time prior to finding of indictment is sufficient. — 
State V. Anderson, 59 S. C, 229; 37 S. E., 820; State v. Reynolds, 48 S. C, 384; 
26 S. E., 679. 

Voluntary confession of prisoner in jail to prosecutor in presence of jailer 
admissible. — State v. Cook, 15 Rich., 29. 

The proof must sustain the allegation of ownership. — State v. Thomas, 14 
Rich., 163. 

Charge. — Illustrative of difference between stealing a horse, and riding one off 
without knowledge or consent of owner. — State v. Sanders, 56 S. C, 415; 35 
S. E., 133. 

Burden of proof as to alibi is on the defendant. — State v. Anderson, 59 S. C, 
229; 37 S. E., 820. 

Chasing and shooting hog, without removing it after it is shot, not larceny. — 
State v. Seagler, i Rich., 30. Proof of ownership. — State v. Washington, 15 Rich., 
39; State v. London, 3 S. C, 230; State v. Pitts, 12 S. C, 180; State v. Evans, 
23 S. C, 209; State V. Garvin, 48 S. C, 258; 26 S. E., 570. 

Rebuttal of presumption arising from possession of recently stolen goods. — 
State V. Garvin, 48 S. C, 258; 26 S. E., 570; State v. Wallace, 44 S. C, 357; 
22 S. E., 411. 

Sentence. — Without notification to counsel is not error of law. — State v. Moore, 
30 S. C, 69; 8 S. E., 437. 

Larceny of gec. 150. The larccny of any bicycle shall be punishable as 
-- yyjjj prescribed in the last preceding Section for the larceny of live 
749- ' ' stock. 

Stealing bed- gee. 151. Whoevcr shall take away, with intent to steal, 

ding, &c., from ■' , 

lodgings. embezzle, or purloin, any chattel, bedding, or furniture, which 

G. s. 2490; R.|3y contract or agreement he is to use, or shall be let to him 

S. 14i ; 3 & 4 -' *-> 

w. & M-, c 9 ; iQ use^ in or with lodging, such taking, embezzling, or purloin- 

1712 1 11*) uo^j 

§ 5. ing, shall be, to all intents and purposes, taken, reputed and 

adjudged to be larceny and felony, and the offender shall suffer 
as in case of felony. 

^j^steaHng^from ggg^ 152. The offeusc of privily stealing from the person 
G s 2491- R shall, in all cases, be deemed and adjudged grand larceny, and 

2' c^^V^ fyig' subject to the same punishment. 

yxT *E^l ^^^^' Evidence. — State not bound to prove that no force was used. — State v. Chavis, 
All., 706. o ^ c^ T- 

34 S. C, 132; 13 S. E., 317. 

Charge. — No error to further charge that the State need not show that the 

property was not taken by force, when Judge had already charged that it must 

have been secretly and privately taken from the person. — State v. Chavis, 34 

S. C, 132; 13 S. E., 317. 

Restitution ggg^ 153_ ^^7 felou who shall rob, or take away, any money, 

of stolen goods. -' j ^ j j ^ 

G s 2492- r" goods, or chattels, from any person, from their person or other- 
f ■ l^\-^^'vn2 wise, and be found guilty thereof, the party so robbed, or owner, 
li., 458. shall be restored to his said money, goods, and chattels ; and 



OF SOUTH CAROLINA. 287 

A. D. 1902. 

the Judge, before whom any such felon shall be found guilty, ^"-^^v 
shall award, from time to time, writs of restitution for the said 
money, goods, and chattels. 

Sec. 154. Any person committing a breach of trust with a-^j.^]^(.'"^^j^jj^j^g°^ 
fraudulent intention shall be held guilty of larceny; and so '^"'^'^'^ intent. 
shall any person who shall hire or counsel any other person to g^- fso^^^^'sefi' 
commit a breach of trust with a fraudulent intention. xiir., 406, § 6. 

Construed. — As applying not only to cases which the common law did not reach, 
but also to cases where a fraudulent appropriation did constitute larceny at 
common law.— State v. Shirer, 20 S. C, 392. Merely extends the crime of larceny 
at common law. — State v. Butler, 21 S. C, 353. 

Where an agent receives and retains money which he knows belongs to his prin- 
cipal, with intent to defraud his principal, he is guilty. — State v. Ezzard, 40 S. 
C, 313; 18 S. E., 1025. 

Indictment.- — Sufficient, if offense be so described that the defendant may know 
how to answer it, the Court what judgment to pronounce, and that a conviction 
or acquittal on it may be pleaded in bar to another indictment for same offense. — 
State V. Shirer, 20 S. C, 392; State v. Butler, 21 S. C, 353. 

Ownership of property must be alleged with the same accuracy and after same 
rule as in common law larceny. — State v. Shirer, 20 S. C, 392. 

Sufficient if it describe the money taken, in an amount of dollars of "lawful 
currency of the United States, of denomination and issue unknown," although 
the kind of currency is not charged. — lb. 

The motion to quash is not of right, but is addressed to the discretion of the 
Court, and generally his decision is not appealable. — State v. Shirer, 20 S. C, 392. 

Defense. — Not good, by way of plea of former acquittal, where, after mistrial, 
the first indictment was marked nolle prosequi, and a new bill found. — State v. 
Shirer, 20 S. C, 392. 

Evidence. — ^Vhere it shows the trust to consist in that which is different from 
that alleged in the indictment, it is fatal. — State v. Green, 5 S. C, 66. 

Charge. — Error in refusing to charge that there must be fraudulent intent, and 
that the mere fact of not paying over the money was not sufficient in itself to 
convict. — State v. Butler, 21 S. C, 353. 

Sec. 155. It shall be unlawful for any person to set fire to _^'j|^'^s^^t^u^r - 
any woods so near to any turpentine farm in this State as to (. g 2494"-"^ 
injure or burn any such farm; and whoever shall wilfully and|-yj^^^^j ^^'^'^' 
maliciously set fire to any woods at any time, whereby such 
farm or farms are injured and burned, shall be adjudged guilty 
of a felony, and liable to be punished at hard labor in the Peni- 
tentiary for the period of one year, or fined in the sum of five 
hundred dollars. 

Sec. 156. Any person or persons who shall wilfully and ^,jth'LlarmTnd 
maliciously interfere with, cut or injure, or who shall malic- ^I^I^^YeYoTy! 
iously attempt to interfere with, cut or injure any pole or poles, rT^sTI^ 
wire or wires, insulator or insulators, alarm box or alarm boxes, ^^^^' ^^' ^' 
of the police alarm and signal service of any city or other mu- 
nicipal corporation, or any of the appliances or apparatus con- 
nected therewith, shall be deemed guilty of a felony, and pun- Punishment, 
ished by fine or imprisonment, in the discretion of the Court. 

Sec. 157. Whoever shall in the night time maliciously, un- 




CRnilXAL CODE 



lawfully and wilfull}^ burn, or cause to be burned or destroyed, 
fof b u'r n'^^ng ^^y ^^^^^ or stacks of hay, straw or grain, or kilns, shall for 
knns^^&c.,^7u^^'^^3' such offense be punished by hard labor in the Peniten- 
mght-time. tJar}- for life or for a period not less than two years, according 
s^ifi;^22*'aifdto ^^^ aggravation of the offense. 

^i,~"'j-r ' ,p', 'i Different offense for arson. — State v. Pope, 9 S. C, 273. 

2; 'lS69,'' XIV., 
175, § 3; 1SS7, 

XIX., 793. Misdemeanors. 

o"'com,'\-c.! Sec. 158. Whoever shall maliciously, unlawfully, and wilfully 
m day time, bum, or causc to be burned or destroyed, any ricks or stacks 
s^' 155^ ^"fsisi of corn, or grain, or kilns, in the day-time, shall be adjudged 
VI., 061, § 1. guilty of a misdemeanor, and liable to be fined and imprisoned, 
in the discretion of the Court, for said offense. 

By construction of similar words in Stat. 22 and 23, Charles II., Chapter 7, it 
seems that the words "bum or caused to be burned or destroyed," in this Section 
mean that the property must be demolished or unfitted for its purpose, and that 
by the use of fire. — State v. DeBruhl, 10 Rich., 23. 

Burning carts, gee. 159. Whocvcr shall maliciouslv, wilfully, and unlaw- 

wood, &c. ' ' •' ' 

Q ^ ;^^ fully burn, or cause to be burned, any wain, cart, laden or to be 
R. s. 156. laden, with coals or any other goods or merchandise, of any 
other person or persons, or maliciously, wilfully and unlawfully 
do burn, or cause to be burned, any heap of wood of any other 
person, prepared, cut, and felled, or to be prepared, cut, or 
felled, for making of coals, billets, or talwood, shall not only 
lose and forfeit unto the party grieved treble damages for such 
offense, to be recovered by action, but also shall be punished 
b}- fine and imprisonment, in the discretion of the Court. 
for'SftntS Sec. 160. AA'hoever shall wilfully, maliciously or negligentlv 
firing grass, &c ^^^ ^^^ ^^ ^^ bum any grass, brush or other combustible matter, 
5^157'; 1787; v; SO as thereby any woods, fields, fences or marshes of any other 
eifj 1I91, xxi; person or persons be set on fire, or cause the same to be done, 
^^^^' or be thereunto aiding or assisting, shall, upon conviction there- 

of, be punished by a fine of not less than five nor more than 
one hundred dollars, or imprisonment of not more than thirty 
days in the County jail, and shall moreover be liable to the ac- 
tion of any person or persons who may have sustained dam- 
to ■^n°e^s^°o\v^i age thereby : Provided, That no person or persons shall be 
premises. prevented from firing woods, fields, lands or marshes within his 

own bounds, so that he suffer not the fire to get without the 
bounds of his lands and injure the woods, fences or grass of 
his neighbor or neighbors. 

Only one who willfully sets fire to his neighbor's grass or fence may be indicted 
under this Section. Prior to the amendment of 1891; it did not apply to cases 
of negligently suffering fire to so burn. — State v. Lewis, 10 Rich., 20. 



OF SOUTH CAROLINA. 289 

— '■ A. D. 1902. 



Sec. 161. It shall be unlawful for any person to carry a '^ v ' 
lighted torch, chunk, or coals of fire, in or under any mill or carryino- fire 
wooden building, or over and across any of the enclosed or un- °"hiT'v/ithoSt 

enclosed lands of another person at any time without the special p^'"""^- 

permit of the owner of such lands, mill or wooden building, ^g^- ^ ^^^' 
whether any damage result therefrom or not. 

Any person, upon conviction of a violation of the provisions Punishment. 
of this Section, shall be deemed guilty of a misdemeanor, and 
shall be subject to imprisonment in the County jail for a term 
not to exceed thirty days, or to a fine not to exceed one hundred 
dollars. 

Sec. 162. Whoever shall maliciously, unlawfully and wilfully ^i^^'^'^^JS' cut- 
burn or cause to be burned, cut or cause to be cut or destroyed, finished^ buiid'- 

any untenanted or unfinished house or building of any frame '"^^- 

or frames of timber of any other person, made and prepared, s^'ifii;^!^ 'il^ 

or hereafter to be made or prepared, for or towards the making %g^ ^^ 2^^^i8S7', 

of any house or houses, so that the same shall not be suitable ^^■^■' ''^^• 

for the purpose for which it was prepared; and any tenant or 

tenants at will, for years or for life, who shall wilfully and injury done 

maliciously cut, deface, mutilate, burn, destroy or otherwise ^^ tenants. 

injure any dwelling house, outhouse, erection, building or crops 

then in the possession of such tenant or tenants, shall be deemed 

guilty of a misdemeanor, and upon conviction thereof shall be 

punished by fine or imprisonment, or both, in the discretion of ^^^^^ ™^"*' 

the Court. 

Challenges. — Defendant only entitled to five peremptory.— State v. Workman, 
15 S. C, S40. 

Defense. — Not, upon trial for burning an untenanted house, that prisoner had 
been acquitted on trial for arson for same burning. — State v. Jenkins, 20 S. C, 351. 

Plea of autre fois acquit was properly overruled upon trial on a second in- 
dictment, when the first had been quashed, because it charged the offense to have 
been committed at a future day. — State v. Jenkins, 20 .S. C, 351. 

Evidence. — Whether a confession was free and voluntary depends upon circum- 
stances, and is a question for the Circuit Judge in his discretion to decide. — State 
v. Workman, 15 S. C, 540. 

Confession of one not testimony against his co-defendant; but it was not 
error to allow it in full, without suppression of name of co-defendant, the jury 
having been instructed that it was testimony only against the party who made 
it. — State V. Workman, 15 S. C, 540. 

Two men being tried jointly for same crime, wife of one not a competent wit- 
ness for her husband, nor, as to any common ground of defense, for the other. — 
State V. Workman, 15 S. C, 540. 

New Trial! — Motion for, on ground of after-discovered evidence, properly re- 
fused, where the affidavits did not show that it could not, by due diligence, have 
been discovered before trial. — State v. Workman, 15 S. C, 540. 

Indictment not sufficient under this Section. — State v. Jeter, 47 S. C, 2; 24 
S. E., 889. 

Sec. 163. Any person who shall enter, without breaking, or 
attempt to enter, any house whatsoever, with intent to steal or 

19.— C. P. 



290 CRIMINAL CODE 

A. D. 1902. 



^■"'^^'^^^ commit any other crime, or shall conceal himself or herself 
house ^without ^'^ ^^Y housc with like intent, shall be deemed guilty of a mis- 
intent"to' steaL dcmeanor, and, upon conviction thereof, shall be punished in the 

^ g ;^53. discretion of the Court. 

1887, XIX, 798. ggp_ ^Q^ ^^^ simple larceny of any article of goods, choses 

wiSiln'^ju/isdi'c^ i'^ action, bank bills, bills receivable, chattels, or any article of 

trates?* ^^^'^' personalty, of which by law larceny may be committed, and 

G. s. 2498^ of ^11 such fixtures and parts of the soil as were severed from 

xin, 407;' 1887; the soil by an unlawful act, below the value of twenty dollars, 

XIX., 820. shall be a misdemeanor and considered a petit larceny, and be 

punished by imprisonment in the County jail for not more than 

thirty days, or by a fine of not more than one hundred dollars. 

On indictment for grand larceny jury may find petit larceny. — State v. Wood, 
1 Mills Const., 29. But where two are jointly indicted one cannot be convicted 
of petit larceny and the other of grand larceny. — State v. Davis, 3 McC, 187. 
But verdict against only one of the defendants may be rendered. — State v. Lee, 
29 S. C, 11.-^; 7 S. E., 44. 

This offense being exclusively a statutory one, an indictment at common law 
will not lie; and the indictment, therefore, must conclude, "contrary to the form 
of the statute," &c. — State v. Gray, 14 Rich., 174. 

If article is of any value, the exact value need not be shown to sustain a con- 
viction for petit larceny. — State v. Stack, 1 Bail., 330. Sufficiency of description 
of money in indictment. — State v. Evans, 15 Rich., 31. An indictment for stealing 
chickens of the value of five dollars from fowl house charges only petit larceny. — 
State V. Johnson, 45 S. C, 483; 23 S. E., 619. 

Stealing a dog below the value of twenty dollars is petit larceny. — State v. 
Wheeler, 15 Rich., 362; State v. Langford, 55 S. C, 324; 33 S. E., 370. 

Petit larceny is not a felony, but only a misdemeanor. — Cherry v. McCants, 
7 S. C, 224. 

Only simple petit larceny is made a misdemeanor by this Section.— State v. 
Clary, 24 S. C, 116. Variance between proof and allegation as description of 
property. — State v. Cockfield, 15 Rich., 316. 

Prior to its amendment in 1887 (19 Stat., 819) Magistrates did not have juris- 
diction of petit larceny under this Section. — State v. Williams, 13 S. C, 546; 
State V. Jenkins, 26 S. C, 121; i S. E., 437. 

Since amendment of 1887, Magistrates have jurisdiction of such petit larceny. — 
State V. Cooler, 30 S. C, 105; 8 S. E., 692. Concurrently with the General Ses- 
sions. — State V. Langford, 55 S. C, 326; 33 S. E., 370. 

Even where the offense was committed before. — lb. 

This Section does not include stealing of live stock. — State v. Moore, 30 S. C, 
69; 8 S. E., 437. 

Larceny may be committed of goods obtained by delivery from owner, animo 
furandi. — State v. Gorman, 2 N. & McC, 90. So of goods taken and carried away 
without felonious intent, afterwards feloniously appropriated. — State v. Davenport, 
38 S. C, 348; 17 S. E., 37- 

Possession of recently stolen goods as evidence of larceny. — State v. Slack, i 
Bail., 330. 

stoknloods."^ Sec. 165. In all cases whatever, where any goods or chattels 
G. s. 25, 26a; or Other property, of which larceny may be committed, shall 
n.,^'643;' 176a; havc been feloniously taken or stolen by any person or persons, 
Sx.,TiL ^^'^^ every person who shall buy or receive any such goods or chat- 
tels, or other property, knowing the same to have been stolen, 
shall be held and deemed guilty of, and may be prosecuted 



OF SOUTH CAROLINA. 




for, a misdemeanor, and, upon conviction thereof, shall be pun- 
ished by imprisonment", although the principal felon or felons Guilty of 
be not previously convicted, and whether he, she or they is, or'"'®'^^™^^"°*'- 
are, amenable to justice or not: Provided, That when the chat- where prop- 
tel or other property stolen shall be of less value than twenty fg^J thin "^$20!^' 
dollars, the punishment shall not exceed imprisonment in the 
County jail for thirty days or a fine of not more than one hun- 
dred dollars. 

At common law, receiver was not an accessory. — State v. Butler, 3 McC, 383; 
State V. Council, Harp., 53. 

In an indictment for receiving stolen goods it is not necessary to state the name 
of principal felon, or, if stated, to prove it. — State v. Coppenberg, 2 Strob., 277. 
Nor the place where stolen, &c. — State v. Crawford, 39 S. C, 343; 17 S. E., 799. 

An indictment for buying and receiving stolen goods is good.— State v. Posey, 
7 Rich., 497. 

Where party received goods from servant and concealed them under circum- 
stances suiificient to indicate that servant had stolen them, he was held guilty 
of receiving stolen goods. — State v. Tiedman, 4 Strob., 303. 

One cannot be convicted for this offense under same indictment against him 
and others for burglary and grand larceny, and against him alone for this 
offense. — State v. Nelson, 14 Rich., 199. 

So receiving stolen goods above the value of twenty dollars, properly held to 
be a misdemeanor, and the defendants were only entitled to five challenges each. — 
State V. Jacob, 30 S. C, 131; 8 S. E., 698. 

The wife receiving stolen goods, knowing them to be stolen, jointly with her 
husband and under his coercion, her greater activity in consummating the offense 
will not, as matter of law, make her guilty. — State v. Houston, 29 S. C, 108; 
6 S. E., 943. 

When the defense was that the defendant had received the goods in payment 
of wages, it was error for Judge to charge that the goods were of more value 
than the services rendered. — lb. 

Allowing stolen goods to be shipped as part of one's baggage.— State v. Scovel, 
I Mills Const., 274. 

Sec. 166. Whoever shall steal from the premises of another J^^f^^.^t 
any melons or fruits, whether severed from the freehold or not, -,^ggg^ xH7, 
shall be deemed guilty of a misdemeanor, and, on conviction ^^^' ^- ^- ^^^• 
thereof, shall be punished by imprisonment for not more than Punishment, 
thirty days, or by fine of not more than fifty dollars. 

Sec. 167. Whoever shall, falsely and deceitfully, obtain org^^^J'^Vd'e? 
get into his or their hands or possession, any money, goods. ^^^^^ pretenses. 
chattels, jewels or other things, of any other person or persons, 824^f^ 33 ^\ 
by color and means of any false token or counterfeit letter ^^g^^-g 2!'^^' ^'^' 
made in any other man's name, every person or persons so 
offending, and being thereof lawfully convicted, shall suffer 
such imprisonment as the Court may adjudge : Provided, That 
when the money, goods, chattels and other things so obtained 
do not exceed in value twenty dollars, then the such offense 
shall be punished by a fine not to exceed one hundred dollars, or 
by imprisonment for a term not exceeding thirty days. 

Cheating by false token. — State v. Stroll, i Rich., 244. 



292 CRIMINAL CODE 

A. D. 1902. 



^"""^''^■"^ Sec. 168. Any person who shall, by any false pretence or 
perty^by^ false ^^P^^^^^^^^^°^' Obtain tlic signature of ahy person to any writ- 

pretense. ^^^ instrument, or shall obtain from any other person any 

s^' i62^^^^f87^' chattel, money, valuable security, or other property, real or 
xxi" 507'- 1894' P^^s*^"^^' "^^^h intent to cheat and defraud any person of the. 
lb., 824. same, shall be guilty of a misdemeanor, and shall, on con- 

viction, be sentenced to pay a fine not exceeding five hundred 
dollars, and undergo an imprisonment not exceeding three 
years : Provided, always. That if the sum in the written instru- 
ment or the value of the property so obtained does not exceed 
twenty dollars, the punishment shall be by fine not exceeding 
one hundred dollars or by imprisonment not exceeding thirty 
days : And provided, further, That if, upon the trial of any 
person indicted for such a misdemeanor, it shall be proved that 
he obtained the property in such a manner as to amount in law 
to larceny, he shall not, by reason thereof, be entitled to be 
acquitted of such misdemeanor; and no person tried for such 
misdemeanor shall be liable to be afterwards prosecuted for 
larceny upon the same facts. 

Construed. — False pretense is such a fraudulent representation of an existing 
or past fact, by one who knows it not to be true, as is adapted to induce the 
person to whom it is made to part with something of value. — A mere promise to 
do something in the future is not such a pretense. — State v. Haines, 23 S. C, 170. 

Obtaining goods by means of false representation as to the balance due on a 
note. — State v. Freeman, 43 S. C, 105; 20 S. E., 974. 

Indictment. — Should charge that the defendant made the false pretenses at the 
time, knowing them to be false. — lb. 

o?cott"nfrom ^cc. 169. Whosocvcr shall steal from the field any grain, 

^^g fig^'^- cotton or vegetables, whether severed from the freehold or not, 

gG- i64^*^\'g2^; shall be deemed guilty of a misdemeanor, and on conviction 
^] j'j 284j^ i|'^6, l-hereof shall be punished by imprisonment for not more than 
1885', xS^,"i46 five years or by a fine of not more than five hundred dollars. 

Corn growing in the field is included in this Section, though not severed from 
the soil. — State v. Stephenso