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The
University of South Carolina
Libraries
Coleman Karesh Law Lib,
rary
UNIVERSITY OF SOOTH CAROUNfc
SCHOOL OF uw umstt
Digitized by tine Internet Arciiive
in 2011 witii funding from
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http://www.archive.org/details/manualcontainingOOshan
A MANUAL
CONTAINING THK
CONSTITUTION
OF SOUTH CAROLINA,
THE
RULES OF COURT,
AND THE
P^EE BILL,
o r^ i^oiE^c^: ttuxj-^- ist, isas
With Notes and References, together with a
Mon(jgraph on Appeals to the Supreme Court.
BY R. W. SHAND,
STATE REPG'rTER.
CHARLESTON, S. C :
Walkek, Evans & Cogswell, Publishers.
Nos. 3 Broad and 109 East Bay Streets.
1882.
UNIVERSITY OF SOUTH CAROLINA
SCHOOL OF LAW
COLUMBIA, S. a
5^.
A
c^
<y'
UNIVERSITY OF SOUTH CAROLINA
SCHOOL OF LAW
COLUMBIA. & a
PREFACE
The Monograph, entitled, Appeals to the Supreme Court, was written
in April last with the purpose of publishin": it as a note in Fifteenth
South Carolina Reports. Upon the suggestion, coming from a high
source, that it would be more convenient if separately published in
connection with the Rules of the Supreme Court, and through the lib-
erality of Messrs. Walker, Evans & Cogswell, the note has grown to be
a little book. To give this little book a better size, and also to increase
its usefulness the amended rules of the Circuit and Probate Courts were
added, together with the Statutory Law upon the subject of costs, and
the Fee-bill now offeree. Finally, the Constitution was inserted for
the reason that it is not now to be found in any handy form. All of
these additions have been as carefully annotated as my other engage-
ments would permit.
My part of the work has been done for the convenience of the pro-
fession ; and I hope that the compilation will be to them a useful
manual. R. W. SHAND.
Union, S. C, July 1st, 1882.
JNIVERSITY OF SOUTH CAROLfNil
SCHOOL OF LAW
COLUMBIA, S. a
CONSTITUTION.
Preamble. — We, the People of the State of South Carolinn, in Coni^ention As-
sembled, Grateful to Almiuihty God for this opportunity, deliberately and
peaceably of entering into an explicit and solemn compact with each other
and forming a new Constitution of civil government for ourselves and
posterity, recognizing the necessity of the protection of the peoi)le in
all that pertains to their freedom, safety and tranquility, and imploring
the direction of the Great Legislator of the Universe, do agree upon,
ordain and establish the following
DECLARATION OF RIGHTS AND FOR]\[ OF GOVERXMENT AS
THE CONSTITUTION OF THE COMMONWEALTH OF SOUTH
CAROLINA.
[This Constitution was adopted by the Constitutional Convention
which met in the city»of Charleston, from January 14th to March iTth,
inclusive, in the year ISfi!^. It was submitted to a Vdte of the people at
an election held on April 14th, loth and Kith, of the same year, and
ratitied by a majority of the votes cast at such election. -^^Z
This Constitution is closely modelled after the Ohio CfinStitution of
185L Its general arrangement and man}' of its sections are certainly
copied from the Constitution of Ohin.
The Constitution as here printeil, is a literal and exact copy of the
only Constitution to be found in the Secretary of State's office in Colum-
bia, except that the side notes in black liave been added That Consti-
tution is preserved and recognized as the enrolled and original Consti-
tution of 1868, although not signed nor attested in an_v manner- To it is
prefixed the following statement :
Certificate. — "This is to certify that this Constitution was adopted
by a majority of votes by the Constitutional Convention of the
State of South Carolina, assembled under the Reconstruction Acts
of Congress, and which was held at Charleston, beginning on the
fourteenth day of January, and ending on the sixteenth day
of March, in the year <if our Lord, one thousand eight hun-
dred and sixty-eight, and in the ninety-second year of the Sovereignty
and Independence of the United States of America, and was ratified by
the votes of a majority of the qualified electors of the State, at an elec-
tion which was holden on the fourteenth, fifteenth and sixteenth days
of April in the same year."
This Constitution must be regarded as the fundamental law of the
State —Bond Debt Cases, 12 S. C, 200.
A decision of the Supreme Court on a Constitutional question must
be regarded as an autlioritative construction, binding in like cases.
Ibid, 202.
In its interpretation, on doubtful questions, weight is given to con-
temporary construction. Simpson vs. ^^'^llard, 14 S. C., 191.]
ARTICLE I.
DECLARATION OF RIGHTS.
[Many of the rights declared in this Article will be found to be more
■specifically provided for in subsequent Articles- Compare, for in-
stance, Section 20, with Article II, ^32; Section 27 with Article
II, |12; Section 34 with Article II, §4; Sections 31 and 32, with
Article VIII, ||2, 7 and 8, &c. See, too, remarks of McGowan, A.
J., in Pelzer, Eodgers & Co, vs. Campbell & Co., 15 S. C, 581.]
Equality of Men.— Section 1 All men are born free and equal —
endowed by their Creator with certain inalienable rights, among which
are the rights of enjoying and defending their lives and liberties, of ac-
quiring, possessing and protecting property, and of seeking and obtain-
ing their safety and happiness.
[This Section was not substantially amended on its passage, and pro-
voked no debate See Proceedings of (Jonstttntional Convention of 1868,
pp., 255, 267.]
Slavery Prohibited.— Sec. 2. Slavery shall never exist in this State ;
neither shall involuntary servitude, except as a punishment for crimej
whereof the party shall have been duly convicted.
[As reported by the committee, this Section read : "Slavery shall not
exist in this State, nor involuntary servitude, otherwise than for the
punishment of crime," t*«c, It was amended to read as it now stands.
Proceedings Convention, 276]
Political Power in People.— Sec. 3. All political power is vested in
and derived from the people only ; therefore they have the right, at all
times, to modify their form of j,uvernment in such manner as the}' may
deem expedient, when the public good demands
[This Section was not amended. Several substitutes and amend-
ments were proposed, but they were all rejected. The second clause of
the Section was the part objected to — Proceedings Convention, 269]
Paramount Allegiance.— Sec 4 Every citizen of this State owes
paramount allegiance to the Constitution and Government of the
United States, and no law or ordinance of this State in contravention
or subversion thereof, can have any binding force.
Union Indissoluble. — Sec. 5. This State shall ever remain a member
of the American Union, and all attempts, from whatsoever source, or
upon whatever pretext, to dissolve the said Union, shall be resisted with
the whole power of the State.
Petition and Discussion.— Sec. 6. The right of the people peaceably
to assemble, to consult for the common good, and to petition the gov-
ernment, or any department thereof, shall never be abridged.
Freedom of Speech and Press.— Sec 7. All persons may freely speak,
write and publish their sentiments on any subject, being responsible
for the abuse of that right; and no laws shall be enacted to restrain or
abridge the liberty of speech or of the press.
Prosecutions for Publications.— Libel.— Sec. 8. In prosectitions for
the publication of papers investi^^atinp the official conduct of officers or
men in public capacity, or when the matter published is proper for
public information, tlie truth thereof may be given in evidence ; and
in all indictments for libel, the jury shall be judges of the law and the
facts.
[After a long debate, the concluding words of this Section 'shall be
judges of the law and the fa(ts," were substituted for the words 'shall
determine the law under the direction of the Court," reported by the
Committee —P. C, 302.]
Liberty of Conscience.— Sec. 9 No person shall be deprived of the
right to worship God according to the dictates of his own conscience :
Provided, That the liberty of conscience hereby declared shall not justify
practices inconsistent with the peace and moral safety of society.
Religious Worship. — Sec. 10. No form of religion shall be established
by law ; but it shall be the duty of the General Assembly to pass suita-
ble laws to protect every religious denomination in the peaceable en-
joyment of its own mode of worship.
Trial by Jury. — Sec 11 The right of trial by jury shall remain
inviolate.
Personal Rights-— Sec. 12. No person shaU be disqualified as a wit-
ness, or be prevented from acquiring, holding and transmitting property,
or be hindered in acquiring education, or be liable to any other punish-
ment for any ofience, or be subjected in law to any other restraints
or disqualifications in regard to any personal rights than such as are
laid upon others under like circumstances.
Rights of Accused. — Sec. 13. No person shall be held to answer for
any crime or ofl'ence until the same is fully, fairly, plainlj', substantially
and formally described to him ; or be compelled to accuse <>r furnish
evidence against himself; and every person shall have a right to pro-
duce all proofs that may be favorable to him to meet the witnesses
against hitn face to face to have a speedy and public trial by an impar-
tial jury, and to be fully heard in his defence by himself or by his
counsel, or by both, as he may elect.
Protection of the Law — Expost Facto Laws.— Sec. 14. No person
shall be arrested, imprisoned despoiled or dispossessed of his property,
immunities or privileges, put out of the protection of the law, exiled or
deprived of his life, liberty, or estate, but by the judgment of his peers
or the law of the land. And the General Assembly shall not enact any
law that shall subject any person to punishment without trial by jury ;
nor shall he be punished but bj' virtue of a law already established or
promulgated prior to the ofl'ence, and legally applied.
[This Section is not violated by a Statute giving to a private per-
son a right of way to the nearest highway. — State vs. Stackhouse, 14
S. C, 41?:]
Courts Public. — Sec. 15. All Courts shall be public, and every person,
for any injury that he may receive in his lands, goods, person or repu-
8
tation, shall have remedy hy due course of law and justice administered
without unnecessary delay.
Bail — Corporal Punisliinent.— Sec. 16. All persons shall, before
conviction, be bailable by sufficient sureties, except for capital offences,
when the proof is evident or the presumption great ; and excessive bail
shall not. in any case, be required, nor corporal punishment inflicted.
Habeas Corpus. — Sec. 17. The privilege of the writ of Habeas Corpus
shall not be suspended, except when, in case of insurrection, rebellion
or invasion, the public safety may require it.
Not Tried Twice. — Sec 18. No person, after having been once acquitted
by a jury, shall again, for the same offence, be put in jeopardy of his
life or liberty.
[This Section was not violated where a prisoner was a second time
tried under the order of the Coui-t, granting a new trial on a motion
made in his behalf for an arrest of judgment — State ps •Stephenx, I'.i
S C., 28-5. Where defendant is acquitted in the Court of Sessions, the
State cannot appeal. — State vs. Gathers, 15 >. C., 370.]
Petit Crimes— Grand Jury. — Sec. 19. All offences less than felony,
and in which the punishment does not exceed a fine of one hundred
dollars, or imprisonment fur thirty days, shall be tried summarily before
a Justice of the Peace, or other officer authorized b\' law, on informa-
tion, under oath, without indictment or intervention of a Grand Jury,
saving to the defendant the right of appeal ; and no person shall be
. . . lield to answer for any higher crime or offence unless on presentment
*.':. ' of a Grand .Jury, except in cases arising in the land and naval service,
or in the militia when in actual service in time of war or j)ublic danger.
[The Committee reported the following as this Section : " Xo person
shall be prijceeded against criminally by information for any indictable
offense, except in cases arising in the land or naval service, or in the.
militia, when in actual service in time of war or pub ic danger, or by
leave of t'ourt, for oppression or misdemeanor in offit-e." The Section
as it finally passed was proposed as a substitute and adopted. It is
Section 11, in Article I, of the Constitution of Iowa. P. C. 31.5.
Under this Section, together with Art. IV., H, the Legislature njay
establish new tribunals for the trial of offences already committed. —
Stof^ vs. Shumpert, 1 S. C.,85.
The powers here given to Justices of the Peace may be conferred
upon Trial Justices.— .S<'/<^ vs. Fillehroini, 2 S C, 4it4. He is the " other
officer authorized by law." — Skite vs Harper, 6 S, C, 444. But he has no
jurisdiction in cases of petit \arceny .—rState vs. Williams, 13 S. C , 546,
(overruling a contrarv decision in Harper's ca.se, supra.) See Art.
IV , <c22.
This Section in connection with Art. IV., ??1 and 22, con.strued. —
State vs. Glenn, 14 S. C, 118.]
Imprisonment for Debt— Homestead.— Sec 20. Xo person shall be
imprisoned for debt, except in cases of fraud ; and a reasonable amount
of property, as a homestead, shall be exempted from seizure or sale for
the payment of any debts or liabilities, except for the payment of siich
obligations as are provided for in this Constitution.
C
9
[As reported, the words succeeding ''liabilitie^s' were "except for taxes,
that may be contracted after tlie adoption of this Constitution." It was
amended so as to read as above. Amendments proposing "seizure and
sale" for "seizure or .sale," and "except upon conviction of fraud," for
'"except in ca.ses of fraud," were rejected.
The homestead is delined and restricted in Art. II , ^32. — Duncan vs.
Bnrnett US C, 333.
The fir.st seven words of this Section d) not impair the obligation of
contracts made prior to 1868. — Ware vs. Miller, 9 S. C, 13 ]
Prohibited Laws. — Sec. 21. No bill of attainder, e.v post facto law, nor
any law impairing the obligation of contracts, .shall ever be enacted ;
and no conviction slui'l work corrupti<jn of blood or forfeiture of
estate.
[An Act to detenniue the value of contracts made in Confederate
States Notes or their e piivalent does not impair the obligation of con-
tracts. — Neelij vs. M.'Fidden, 2 S. C, 1IJ9 ; Harmon vs. Wallace, Ibid, 208,;
Jolinstone vs Crooks, 3 S. C, 200-]
Searches and Seizures— Warrants.— Sec. 22, All persons have a
right to be se^^ure frum unreasonable .searches or seizures of their per-
s )ns, houses, papers or possessions. All warrants shall be supported by
oath or attirmatiim, and the order of the warrant to a civil officer to
make search or seizure in suspected places, or to arre.st one or more
suspected persons, or to seize their property, shall be accompanied with
a speL'ial designation of 1?he persons or objects of search, arrest or
seizure ; and no warrant shall be is.sued but in the cases and with the
formalities prescribed by the laws.
[A warrant must be supported by oath, a statement in writing is not
surticient.— »S7o/t' v.i. Wuiibush, 9 S. C, 309.]
Private Property— Right of Way. — Sec 23. Private property shall
not be taken or applied for public use, or for the use of corporations, or
for private use, without the consent of the owner or a just compensation
l)eing uiade therefor : Provided, hoivever, Thi.t laws may be made secur-
ing to persons or corporations the right of way over the lands of either
persons or corporations, and, for works of internal improvement, the
right to establish depots, stations, turnouts, etc. ; but a just compensa-
tion shall, in all cases, be first made to the owner.
[The Committee recommended this Section as it reads, except that
the word " corporations," where it first occurs was followed by the
words " other than municipal," which were stricken out by the Con-
vention, and the word " or," in the third line, was " and" in the report,
P. C. 340.
The proviso to this Section does not afle 't a ritrht of way existing
before 18GS. — Guignard vs Kinder, 4 S. C, 330. This Section considered
in connection with the right of a county to open a new road. — State vs.
Brown, 14 S. C, 388. Not violated by the Statute giving a right of way to
the nearest highway. — State~vs. Stackhouse, Ibid. 417 J
Suspension of Laws.— Sec. 24. The power of suspending the laws,
or the execution of the laws, shall never be exercised but by the Gen-
10
eral Assembly, or by authority derived therefrom ; to be exercised in
such particular cases only as the General Assembly shall expressly pro-
vide for.
Martial Law. — Sec. 1J5. No person shall, in any case, be subject to
Martial Law, or to any pains or penalties by virtue of that law, except
those employed in the army or nav}^ of the United States, and except
the militia in actual service, but by authority of the General Assembly.
Departments Distinct.— Sec. 26. In the government of this Com-
monwealth, the Legislative, Executive and Judicial powers of the
(••overnment shall be forever separate and distinct from each other,
and no person or persons exercising the functions of one of said depart-
ments shall assume or discharge the duties of any other.
[See McLnughlin is. County Commissioners, 7 S.C, 375. Considered, and
construed not to prevent a mandaiuus to the Secretary of State to com-
pel him to do what the law re<juires. State ex rel Wallace vs. Hayne, 8
S. ('.,3(37.]
General Assembly — Sec- 27 The General Assembly ought fre-
quently to assemble for the redress of grievances and for making new
laws as the common good may require.
Right to Bear Arms— Military Subject to Civil.— Sec. 28. The
people have a right to keep and bear arms for the common defence.
As in times of peace, armies are dangerous to liberty, they ought *not to
be maintained without the consent of the General Assembly. The
military power ought always to be held in an exact subordination to .
the civil authority and be governed by it.
Quartering of Soldiers.— Sec. 29. In time of peace no soldier shall
be quartered in any house without the consent of the owner; and, in
time of war, such quarters shall not be made, but in a manner prescribed
by law.
Non-Combatants — Sec. 30. No person who conscientiouslj' scruples
to bear arms shall be compelled to do so, but he shall pay an equiva-
lent for personal seivice.
Elections Free — Sec. 31. All elections shall be free and open, and
every inhabitant of this Commonwealth possessing the qualifications
provided for in this Constitution, shall have an equal rig^it to elect
officers and be elected to fill public office.
[This Section does not authorize a person to hold two incompatible
offices. State vs. Bttttz, 9 S. C. 186.]
Qualification for Office — Duel. — Sec. 32. No property qualifications
shall be necessary for an election to or the holding of any office, and no
office shall be created, the appointment to which shall be for a longer
time than good behavior. After the adoption of this Constitution, any
person who shall fight a duel, or send or accept a challenge for that
purpose, or be an aider or abetter in fighting a duel, shall be deprived
of holding any office of honor or trust in this State, and shall be other-
wise punished as the law shall prescribe.
11
Suffrage. — Sec. 33. The right of suffrage shall be protected bylaws
regulating elections, and prohibiting, under adequate penalties, all
undue influences from power, bribery, tumult or improper conduct.
Representation. Sec. 34. Eepresentation shall be apportioned ac-
cording to population, and no person in this State shall be disfranchised
or deprived of any of the rights or privileges now enjoyed except by
the law of the land or the judgment of his peers.
Forfeiture of Residence. — Sec. 35. Temporary absence from the
State shall not forfeit a residence once obtained.
Taxation of Property— Personal Service.— Sec. ."6 All property
subject to taxation shall be taxed in proportion to its value. Each in-
dividual of society has a right to be protected in the enjoyment of life,
liberty and property, accoiding to standing laws. He should, therefore,
contribute his share to the expense of his protection and give his per-
sonal service when necessary.
[This Section comi^ared with Art. II, § 33, and considered. State m.
Hayne , 4 S. C, 422. A license tax on business is suppoi'ted by this
Section. Ibid.]
Subsidy, Imports &c. — Sec, 37. No subsidy, charge, impost tax or
duties shall be established, fixed laid or levied, under any pretext what-
soever, without the consent of the people or their representatives law-
fully assembled.
[Tliis Sei-tion compared with Article II, § 33, and considered. State
rs Hainie, 4 S. C, 422.]
Fines — Punishment. — Sec. 38. Excessive fines shall not be imposed,
nor cruel and unusual j)unishment inflicted, nor shall witnesses be un-
reasonably detained.
Titles of Nobility— Distinctions. — Sec. 39. No title of nobility or
hereditary emolument shall ever be granted in this State. Distinction
on account of race or color, in any case whatever, shall be prohibited,
and all classes of citizens shall enjoy equally all common, j)ublic, legal
and political privileges.
Navigable Waters— Shores and Wharves— Sec. 40. All navigable
waters shall remain forever public highways, free to the citizens of the
State and the United States, without tas, iuipost or toll imposed ; and
no tax, toll, impostor wharfage shall lie imposed, demanded or received
from the owner of any merchandise or commodity, for the use of the
shores or any wharf erected on the shores, or in or over the waters of
any navigable stream, unless the same be authorized by the General
Assembly.
[This is as it read in the original draft and as passed on its third
reading, but on its second reading, the words "the shores, or any wharf
erected on the shores, or in or over the waters of," seem to have been
stricken out. P. C, 356, 792.]
Reserved Rights. — Sec. 41. The enumeration of rights in this Con-
stitution shall not be construed to impair or deny others retained by
12
the people, and all powers not herein delegated remain with the
people.
[This does not reserve lepslatiA-e powers, for they are granted in
Art. II, ? 1— State vs. Hayne, 4 S. C, 420.
Several Sections in this and other Articles of tlie original draft of the
Constitution were stricken out, but they have no iniijortant bearing
upon the proper construction of the Sections retained.]
ARTICLE 2.
LEGISLATIVE DEPARTMENT.
[It is the duty of the Courts to so construe an Act of the Legislature,
if possible, that it will not come in conflict with the Constitution. Hayes
vs. Clintocaks, 9 S, C, 452.]
Legislative Power. — Section 1. The Legislative power of this State
shall be vested in two distinct branches, the one to be styled the
"Senate," and the other the ''House of Representatives," and both
together the "General Assembly of the State of South Carolina."
[Full Legislative power is here vested in the General Assembly, State
rs. Hayne, 4 S. C-, 420; which may not be riiminished by implication not
necessary. State vs. Gaillard, ll'^S. C , 312. This subject is fully dis-
cussed in Pelzer, Rodgers t(- Co. vs. Campbell & Co., 15 S. C, 581.]
House of Representatives — Sec. 2. The House of Representatives
shall be composed of members chosen by ballot every second year, by
the citizens of this State, qualified as in this Constitution is provided.
Counties— New Counties.— Sec. 3. The Judicial Districts shall here-
after be designated as Counties, and the boundaries of the several
Counties shall remain as they are now established, except the County
of Pickens, which is hereby divided into two Counties, by a line leaving
the southern boundary of the State of North Carolina where the Tax-
away River enters this State, and thence down the centre of said river,
by whatever names known, to Ravenel's Bridge, on Seneca River, and
thence along the centre of the road leading to Pendleton Village, until
it intersects the line of the County of Anderson; and the territory
lying east of said line shall be known as the County of Pickens; and
the territory lying west of said line shall be known as the County of
Oconee: Provided, That the General Assembly shall have the power at
any time to organize new Counties by changing the boundaries of any
of the old ones; but no new County shall be hereafter formed of less
extent than six hundred and twenty-five square miles, nor shall any
existing Counties be reduced to a less extent than six hundred and
twenty-five square miles. Each Count}' shall constitute one Election
District.
[In the original draft, this Section provided for a County of F.erkley,
and a County of Edisto, to be composed of portions of the old District of
Charleston, and did not provide for the County of Oconee. P. C, 387,
527. The word " Taxaway " was inserted by amendment in 1875. 15
13
.Stat., 494, 1014. In the Constitution as adopted in 1868, " White Water "
was the river designated as the initial boundary of Oconee. At the
extra session of the legislature which was adjourned July -Jth, 1SS2, the
follovvin'i amendment to this se ttion was dire:;ted to be submitted to
the qualified voters of the State at the general election to be held in
November, 1882 :
Strike out in Section 3, Article II, of the Constitution the words "but
no new county shall be hereafter formed of less extent than six hun-
dred and twenty-five square miles, nor shall any existing counties be
reduced to less extent than six hundred and twenty-five square miles,"
and insert in lieu thereof the following: " Provided, That no new coun-
ty shall be formed which has a population of less that one one-hundred
and twenty-fourth part of the whole number of inhabitants of the
State, and an area less than four hundred square miles, nor shall any
existing counties be reduced to a less area than four hundred square
miles."]
House — Membership— Census. — Sec. 4 The House of Representa-
tives shall consist of one hundred and twenty-four members, to be
apportioned among the several Counties according to the number of
inhabitants contained in each. An enumeration of the inhabitants, for
this purpose, shall be made in eighteen hundred and sixty-nine, and
again in eighteen hundred and seventy-five, and shall be made in the
course of every tenth year thereafter, in such manner as shall be by
law directed ; and Representatives shall be assigned to the different
Counties in the above mentioned proi)ortion, by Act of the General
Assembly at the session immediately succeeding every enumeration ;
Provided, That until the apportionment, which shall be made upon
the next enumeration shall take effect, the representation of the sev-
eral Counties, as herein constituted, shall be as follows:
Number of Members. — Abbeville five, Anderson three, Barnwell six,
Beaufort seven, Charleston eighteen, Chester three. Clarendon two,
Colleton five, Chesterfield two, Darlington four, Edgefield seven, Fair-
field three, Georgetown three, Greenville four, Horry two, Kershaw
three, Lancaster two, Laurens four, Lexington two, Marion four, Marl-
boro' two, Newberry three, Oconee two, Orangeburg five, Pickens one,
Richland four, Spartanburg four, Sumter four. Union three, Williams-
burg three, York four.
Census. — Sec. 5. If the enumeration herein directed shall not be
made in the course of the year appointed for the purpose, it shall be
the duty of the Governor to have it effected as soon thereafter as shall
be practicable.
House — Apportionment.— Sec. 6. In assigning Representatives to the
several Counties, the General Assembly shall allow one Representative
to every one hundred and twenty-fourth part of the whole number of
inhabitants in the State : Provided, That if in the apportionment of
Representatives any County shall appear not to be entitled, from its
population, to a Representative, such County shall nevertheless send
one Representative ; and if there be still a deficiency of the number of
Representatives required by Section fourth of this Article, such defi-
ciency shall be supplied by assigning Representatives to those Counties
having the largest surplus fractions.
%
^
14
When to take effect. — Skc. 7- No apportionment of Reju-esentatives
shall be conh^tnied to take eti'ect, in any manner, until the general
election which siuill succeed such apportionment.
Senate— Membership. — Sec. 8. The Senate shall be composed of one
member from each County, to be elected, for the term of four years, by
the qualified voters of the State, in the same manner in which mem-
bers of the House of Representatives are chosen; except the County
of Charleston, which shall be allowed two Senators.
[The provision for Charleston County was added by the Convention
on the second reading of this Section. At the time this amendment
was adopted it was supposed that the County of Charleston would
include only the Parishes of St Piiilip's and St. INIichael's. The chanire
in Section 3 was made seven days later. P. < '., o7o, ')3H. Several pro-
positions to make pojiulation the basis of representation in the Senate
were rejected.]
Senate— Classes. — Sec. 9. Upon the meeting of the first General
Assembly which shall be chosen under the provisions of this Consti-
tution, the Senators shall be divided, by lot, into two classes, as nearly
equal as may be ; the seats of the Senators of the first class to be vacated
at the expiration of two years after the Monday following the general
election, and of those of the second class at the expiration of four years ;
so that, except as above provided, one-half of the Senators maybe
chosen every second year.
[Compared with Act IV., ^2 —Simpson i-s. WiUard, 14 S. C, 198.]
Eligibility of Senators and Representatives —Sec. 10. No person
shall be eligible to a seat in the Senate or House of Representatives
who at the time of his election is not a citizen of thp United States ; nor
any one who has not been for one year next preceding his election a
resident of this State, and for three months next preceding his election
a resident of the county whence he may be chosen, nor any one who
has been convicted of an infamous crime. Senators shall be at least
twenty five, and Representatives at least twenty-one years of age.
Time of Election. — Sec. 11. The first election for Senators and Rep-
resentatives under the provisions of this Constitution shall be held on
the fourteenth, fifteenth and sixteenth days of April, of the present
year; and the second election shall be held on the third Wednesday in
October, eighteen hundred and seventy, and forever thereafter on the
first Tuesday following the first Monday in November, in every
second year, in such manner, and in such place, as the Legislature may
provide.
[The words " first Tuesdaj' following the first Monday in November,"
were substituted for the words " same day," by an amendment adopted
January 29, 1873. — 15 Stat.^ 288, 467. The following amendment to this
section will be submitted to the qualified voters of this State at the
general election in November, 1882 (See joint Resolution, July 5th,
1882.)
That Section 11, of Article II, of the Constitution of this State, as
amended, be, and is hereby, stricken out, and the following inserted in
lieu thereof; "The genei'al election for Senators and Repre.sentatives
15
shall be lield in ever}' second year, in siieii manner, at such time, and
at such places as the Legislature may provide."]
Capital —Sec. 12. The tirst Session of the General Assembly after the
ratification of this Constitution shall be convened on the second Tues-
day of May of the present year in the city of Columbia (which shall
remain the seat of government until otherwise determined by the con-
currence of two-thirds of both branches ot the whole representation),
and thereafter on the fourth Tuesday in November annually. Should
the casualties of war or contagious disease render it unsafe to meet at
the seat of government, then the Governor may, by proclamation, ap-
point a more sec'ure and convenient place of meeting.
Term of Office.— Sec. 13. The term of office of the Senators and Rep-
resentatives chosen at a general election, shall begin on the Monday fol-
lowing such election.
Election Returns, &c.— Quorum.— Sec. 14. Each House hall judge of
the election returns and qualifications of its own members ; and a ma-
jority of each House shall constitute a quorum to do business ; but a
smaller number may adjourn from day to day, and may compel the
attendance of absent members in such manner, and under such penal-
ties as may be provided by law.
[There must be sixty-three members to constitute a quorum. — State
ex rel. Wallace vs. Hayne, 8 S. C, 367.]
Officers— Rules— Expulsion.— Sec, 15. — Each House shall choose its
own officers, determine its rules of proceeding, punish its members for
disorderly behavior, and, with the concurrence of two-thirds, expel a
member, but not a second time for the same cause.
Right to Punish.— Sec. 16. Each House may punish by imprisonment,
during its sitting, any person not a member, who shall be guilty of dis-
respect to the House by any disorderly or contemptuous behavior in its
presence; or who, during the time of its sitting, shall threaten harm to
body or estate of any member for anything said or done in either
House, or who shall assault any of them therefor, or who shall assault
or arrest any witness or other person ordered to attend the House, in
his going thereto or returning therefrom, or who shall rescue any per-
son arrested by order of the House : Provided, That such time of im-
prisonment shall not in any case extend beyond the session of the
General Assenbly,
Privileges of Members —Sec. 17. The members of both Houses shall
be protected in their persons and estates during their attendance on,
going to, and returning from, the General Assembly, and ten days pre-
vious to the sitting, and ten days after the adjournment thereof. But
these privileges shall not be extended so as to protect any member who
shall be charged with treason, felony, or breach of the peace.
Bills for Revenue.— Sec. 18. Bills for raising a revenue shall originate
in the House of Representatives, but may be altered, amended or re-
jected by the Senate ; and all other bills may originate in either House,
and may be amended, altered or rejected by the other.
IG
^,
style of Laws- — '^ec. in. The style of all laws shall I)e " Be it enacted
bj' the Senate and House of Representatives of the State of S nith
Carolina, now met and sitting in General Assembly, and by the an-
thority of the same."
One Subject. — Sec. 20. Every Act or Resolution havin;; the force of
law shall relate to but one subject, and that shall be expressed in the
title.
[Construed. — Morton, Bliss & Co., vs. CumptroUer- General, 4 S. C, 430.
See, too — )State rs. County Treasurer, Ibid, 520 ; Bond Debt Cases, 12 S. C,
203]
Formalities of Act.— Sec. 21. Xo bill shall have the force of law
until it shall have been read three times, and on three several days, in
each House, has had the great seal of State affixed to it, and has been
signed in the Senate House, by the President of the Senate and the
Speaker of the House of Repre.sentatives.
[Every pa' t of a bill must pass through all the constitutional stages of
enactment before it becomes a ]aw.— State vs Piatt, 2 S. C, 150 ; Staters.
Hagood, 1-5 S C, 4i5.]
Money in Treasury. — Sec. 22 No IMoney shall be drawn from the
Treasury, but in pursuance of an appropriation made by law ; and a
regular statement and account of the receipts and expenditures of all
public moneys shall be published annually, in such manner as may be
by law directed.
Pay of Members. — Sec. 23. Each member of the first General Assem-
l>ly under this Constitution shall receive six dollars per diem while in
session ; and the further sum of twenty cents for every mile of the
ordinary route of travel in going to and returning from the place where
such session is held ; after which they shall receive such comjaensation
as shall be fixed by law ; but no General Assembly shall have the power
to increase the compensation of itsown members. And when convened
in extra session they shall receive the same mileage and per diem com-
pensation as are fixed by law for the regular session, and none other.
Voting to be Viva Voce. — Sec. 24. In all elections by the General
Assembly or either House thereof, the members shall vote "viva voce,"
and their votes, thus given, shall be entered upon the journal of the
House to which they respectively belong.
[As to recording on the journal, compare with Section 26, and with
Art. IX, 11.']
Adjournments. — Sec. 25. Xeither House during the session ot the
General Assembly, shall, without the consent of the other, adjourn for
more than three days, nor to any other place than that in which the
Assembly shall be at the time sitting.
Journals— Yeas and Nays — Dissent and Protest. — Sec 26. Each
House shall keep a journal of its own proceedings, and cause the same
to be published immediately after its adjournment, excepting such parts
as in its judgment may require secrecy; and the yeas and nays of the
A
^
17
members of either House, on any question, shall, at the desire of any
two members present, be entered on the journals. Any member of
either House shall have liberty to dissent from, and protest against, any
Act or Resolution which he may think injurious to the public or to an
individual, and have the reasons of his dissent entered on the journals .
[The journals of the Legislature may be resorted to to ascertain
whether an Act as enrolled, ratified and approved, was the Act as
passed, and if not the part affected is void. State vs. Piatt, 2 S. C, 150;
State vs. Hagood, 13 S. C., 46. The journals are the best evidence of the
pendency of a certain matter before the legislature at a time stated.
State vs. Smalls, 11 S. C, 262. Compare with Section 24, and with Art.
IX, ?7.]
Doors Open.— Sec. 27. The doors of each House shall be open, except
on such occasions as in the opinion of the House may require secrecy.
Disqualifying Offices. — Sec. 28. No person shall be eligible to a seat
in the General Assembly whilst he holds anj' office of profit or trust
under this State, the United States of America, or any of them, or under
any other power, except officers in the militia, magistrates, or Justices
of inferior Courts, while such Justices receive no salary. And if any
member shall accept or exercise any of the said disqualifying offices,
he shall vacate his seat : Provided, That this prohibition shall not ex-
tend to the members of the first General Assembly.
Vacancies.— Sec. 29. If any election district shall neglect to choose a
member or members on the day of election, or if any person chosen a
member of either House shall refuse to qualify and take his seat, or
shall resign, die, depart the State, accept any disqualifying office, or
become otherwise disqualified to hold his seat, a writ of election shall
be issued by the President af the Senate, or Speaker of the House of
Representatives, as the case may be, for the purpose of filling the vacancy
thereby occasioned, for the remainder of the term for which the person
so refusing to qualify, resigning, dying, departing the State, or becoming
disqualified, was elected to serve, or the defaulting election district
ought to have chosen a member or members.
Oath of Office. — Sec. 30. Members of the General Assembly, and all
officers before they enter upon the execution of the duties of their
respective offices, and all members of the bar, before they enter upon
the practice of their profession, shall take and subscribe the following
oath :
"I do solemnly swear (or affirm as the case may be) that I am duly
qualified according to the Constitution of the United States and of this
State to exercise the duties of the office to which I have been elected
(or appointed) and that I will faithfully discharge to the best of my
abilities the duties thereof ; that I recognize the supremacy of the Consti-
tution and laws of the United States, over the Constitution and laws of
any State ; and that I will support, protect and defend the Constitution
of the United States and the Constitution of South Carolina, as ratified
by the people on the sixteenth day of April 1868. So Help me God."
(And the President of this Convention is authorized to fill the blanks
2
18
in this Section whenever he shall receive satisfactory information of
the day on which this Constitution shall be ratified.)
Removal of Officers.— Sec. 31. Officers shall be removed for inca-
pacity, misconduct, or neglect of duty, in such manner as may be pro-
vided by law, when no mode of trial or removal is provided in this
Constitution.
Homestead —Sec. 32. The General Assembly shall enact such laws
as will exempt from attachment and sale under any mesne or final pro-
cess issued from any Court to the head of any family residing in this
State a homestead in lands, whether held in fee or any lesser estate,
not to exceed in value one thousand dollars, with the yearly products
thereof; and every head of a family residing in this State, whether en-
titled to a homestead exemption in lands or not, personal property not
to exceed in value the sum of five hundred dollars : Provided, That in
case any woman having a separate estate shall be married to the head
of a family wha has not of his own sufficient property to constitute a
homestead as hereinbefore provided, said married woman shall be enti-
tled to a like exemption as provided for the head of a family : Provided
further, That there shall not be an allowance of more than one thousand
dollars worth of real estate and more than five hundred dollars worth
of personal property to the husband and wife jointly: Provided, Th.a.i
no i>roperty shall be exempt from attachment, levy or sale for taxes, or
for payment of obligations contracted for the purchase of said home-
stead or the erection of improvements thereon : Provided further, That
the yearly products of said homestead shall not be exempt from attach-
ment, levy or sale, for the payment of obligations contracted in the
production of the same. It shall be the duty of the General Assembly
at their first session to enforce the provisions of this Section by suitable
legislation.
[This is Section 32, as amended December 13, 1880. 17 Stat , 213, 320.
By this amendment to the Constitution, it was provided: "That Section
32, Article 2, of the Constitution of this State be, and is hereby, stricken
out, and the following inserted in lieu thereof."
The Section thus stricken out was as follows : The family homestead
of the head of each family, residing in this State, such homestead con-
sisting of dwelling-h'juse, out-buildings and lands appurtenant, not to
exceed the value of one thousand dollars, and yearly product thereof,
shall be exempt from attachment, levy or sale on any mesne or final
process issued from any Court. To secure the full enjoyment of said
homestead exemption to the person entitled thereto, or to the head of
any family, the personal property of such person, of the following char-
acter, to wit : household furniture, beds and bedding, family librar}^
arms, carts, wagons, farming implements, tools, neat cattle, work ani-
mals, swine, goats, and sheep, not to exceed in value in the aggregate
the sum of five hundred dollars, shall be subject to like exemption as
said homestead and there shall be exempt in addition thereto all ,
necessary wearing apparel : Provided, That no property shall be exempt
from attachment, levy or sale, for taxes, or for payment of obligations
contracted for the purchase of said homestead, or the erection of im-
provements thereon : Provided further, that the yearly products of said
homestead shall be exempt from attachment, levy or sale, for the pay-
19
inent of obligations contracted in the production of the same. It sliall
be the duty of the General Assembly at their first session to enforce the
provisions of this Section by suitable legislation-
This original Section was a substitute for the section reported by the
committee, and was adopted as proposed, after being amended so as to
include the words " or to the head of any family," in the seventh line,
and the word " goats," in the eleventh line ; and the words " occupied
by such person as a homestead," after "appurtenant," in the third line
were stricken out- P. C. , 314, 452, 865, 880.
Section 32, as it now stands, has not yet been considered by the
Supreme Court. All the decisions have been made under this Section
as it was adopted in 1868 The Court at first sustained this provision
of the Constitution as against debts contracted, and even against judg-
ments entered, before its passage, holding that the obligation of con-
tracts was not thereby impaired In re. Kennedy, 2 <S'. C. 216, and also
2 S. C, 228, 229, 309. But in obedience to the decision of the Supreme
Court of the United States in Gunn vs. Barry, 15 Wall., 628, these oases
were overruled and the contrary doctrine asserted in Cochran vs. Darcy,
5 S. C, 125, and in Ex parte Hewett, Ibid, 409. As to pre-existing debts,
the exemptions of this Section are void. Btdl vs. Roive, 13 (S'. C 355, and
Ibid, 371, 376, 385. Homestead cannot be claimed against a mortgage
executed before the adoption of the Constitution, Shelor vs Ma'Son, 2
S. C, 233 ; and is also inoperative against a mortgage executed before
the assignment of homestead ; Homestead Association vs. Enslow, 7 S. C-,
1 ; Rosenberg vs. Lewi, Ibid, 344 ; and against debts due for improve-
ments erected prior to 1868 Allen vs. Harley, 3 S. C, 412. It cannot
be allowed against debts contracted for the purchase mone.y Calhoun
vs. Calhoun, 2 S- C, 283. Until assignment, the owner may sed or
encumber property in which he is entitled to an exemption. Smith
vs. Mallone, 10 S. C, 39. Personal property cannot be claimed as exemp-
ted by one who was not the head of a family at the time of levy.
Pender vs. Lancaster, 14 S. C, 25. Homestead is for the benefit of the
family of the debtor. Howzevs. Howze, 2 S. C, 229. There may be a
family without children ; a widow is herself the famil}'^ of her deceased
husband, and may demand homestead in his land ; Bradley vs. Rodel-
sperger, 3 S. C, 226 ; Moore vs. Parker, 13 S. C, 486 ; but not against his
mortgage. Calmes vs. McCracken, 8 S. C, 87. A bachelor with servants
and employees residing with him is not the head of a family. Garaty
6 Armstrong vs. Dubose, 5 S. C, 493. Only real estate subject to levy
and sale can be claimed as a homestead. Ibid. And, it seems, that it
should appear that the property was held as a homestead. Howze vs.
Howze, 2 S. C, 229. Lands adjoining residence may be claimed. Riley
vs. Gaines, 14 S. C., 454. A note given for money borrowed with which to
pay the purchase-money, is not an " obligation contracted for the pur-
chase." Calmes is. McCraakeh, 8 S- C, 87 See, too, Aynew vs. Adams,
15 S. C , 36. Rent is an obligation contracted in the production of the
crop. Prince vs. Nance, 7 S C, 351. The Legislature cannot exempt
articles of personalty not enumerated in the Constitution Duncan vs.
Barnett, 11 S. C , 33. Where no special mode of assigning homestead
is provided, the Circuit Court is competent to aff"ord relief Howze vs.
Howze, 2 S. C, 229. Where a mode is provided, the remedy must be
sought in the mode prescribed. Ex parte Lewis, MS., April, 1882 This
Section and Acts passed in pursuance thereof have been further con-
sidered in Keller vs. Myers, 5 S. C , 11 ; McKeown vs. Carroll, Ibid, 75 ; De-
LaHowe vs. Harper, Ibid, 470 ; Ryan vs. Pettigrew, 7 S C , 146 ; Choice vs.
Charles, Ibid, 171; Prince vs. Nance, Ibid, 351; Adger vs. BosUck, 12 S.
C , 64; Edivards vs. Edwards, 14 S. C, 11 ; Riley vs. Gaines, 14 S. C, 454 ;
Sheriff vs. Welborn, Ibid, 480 ; Vermillion vs. Mattison, Ibid, 625 ; Kerchner
vs. Singlelary, 15 S. C, 454.]
20
Assessments and Taxes.— Sec. 33. All taxes upon property, real or
personal, shall be laid upon the actual value of the property taxed, as
the same shall be ascertained by an assessment made for the purpose
of laying su'fch tax.
[This does not confine the Legislature to that mode of taxation, but
only prescribes the rule by which taxes on property shall be governed.
State vs. Hayne, 4 S. C, 421.]
ARTICLE 3.
EXECUTIVE DEPARTMENT.
Executive Authority. — Section 1. The Supreme Executive authority
of this State shall be vested in a CUiief Magistrate, who shall be styled
'' The Governor of the State of South Carolina."
Governor— Term— Election— State Officers.— Sec. 2. The Governor
shall be elected by the electors duly qualitied to vote for members of
the House of Representatives, and shall hold his office for two years,
and until his successor shall be chosen and qualified, and shall be re-
eligible. He shall be elected at the first general election held under
this Constitution for members of the General Assembly, and at each
general election thereafter, and shall be installed during the first ses-
sion of the said General Assembly after his election, on such day as
shall be provided for by law. The other State officers elect shall, at
the same time, enter upon the performance of their duties.
[If one claiming to be elected his own successor, takes the oath of
office for the new term, such act amounts to a resignation of the old
office, or at least estops him from afterwards claiming te hold over. Ex
parte Norris. 8 S. C, 408 ; Ex parte Smith, Ibid, 515. By taking the oath of
ofiice required in Section 20, the Governor elect has "qualified." Ibid,
519.]
Governor — Who Eligible. — Sec. 3. No person shall be eligible to the
office of Governor who denies the existence of the Supreme Being ; or
who at the time of such election has not attained the age of thirty
years, and who, except at the first election under this Constitution,
shall not have been a citizen of the United States and a citizen and re-
sident of this State for two years next preceding the day of election.
No person while Governor shall hold any other office or commission
(except in the militia) under this State, or any other power, at one and
the same time.
Election — How Declared. — Sec. 4. The returns of every election of
Governor shall be sealed up by the managers of elections in their
respective counties, and transmitted, by mail, to the seat of government,
directed to the Secretary of State,- who shall deliver them to the Speaker
of the House of Representatives at the next ensuing session of the
General Assembly, and a duplicate of said returns shall be filed with
the Clerks of the Court of said counties, whose duty it shall be to for-
21
ward to the Secretary cf State a certified copy thereof, upon being
notified that the returns previously forwarded by mail have not been
received at his office. It shall be the duty of the Secretary of State,
after the expiration of seven days from the day upon which the votes
have been counted, if the returns thereof from any county have not
been received, to notify the Clerk of the Court of said county, and order
a copy of the returns filed in his office to be forwarded forthwith.
The Secretary of State shall deliver the returns to the Speaker of the
House of Representatives, at the next ensuing session of the General
Assembly ; and during the first week of the session, or as soon as the
General Assembl}^ shall have organized by the election of the presiaing
officers of the two Houses, the Speaker shall open and publish them in
the presence of both Houses. The person having the highest number
of votes shall be the Governor ; but if two or more shall be equal, and
highest in votes, the General Assembly shall, during the same session,
in the House of Representatives choose one of them Governor viva
voce. Contested elections for Governor shall be determined by the Gen-
eral Assembly in such manner as shall be prescribed by law.
[This Section considered and construed. Ex parte Smith, 8 S. C, 516.]
Lieutenant-Governor. — Sec. 5. A Lieutenant-Governor shall be
chosen at the same time, in the same manner, continue in office for the
same period, and be possessed of the same qualifications as the Gover-
nor, and shall ex-officio be President of the Senate.
Vote in Senate- — Sec. 6. The Lieutenant-Governor, while presi-
ding in the Senate, shall have no vote, unless the Senate be equally
divided.
President Pro Tern. — Sec. 7. The Senate shall choose a President pro
tempore, to act in the absence of the Lieutenant-Governor, or when he
shall exercise the office of Governor.
Acting Governor — Sec. 8, A member of the Senate, or of the House
of Representatives, being chosen and acting as Governor or Lieutenant-
Governor, shall thereupon vacate his seat, and another person shall be
elected in his stead.
Who to Act. — Sec. 9. In case of the removal of the Governor from
his office, or his death, resignation, removal from the State, or inability
to discharge the powers and duties of the said office, the same shall de-
volve on the Lieutenant-Governor, and the General Assembly, at its
first session, after the ratification of this Constitution, shall, by law,
provide for the case of removal, death, resignation, or inability, both of
the Governor and Lieutenant-Governor, declaring what officer shall
then act as Governor, and such officer shall act accordingly, until such
disability shall have been removed, or a Governor shall have been
elected.
Commander-in-Chief.— Sec. 10. The Governor shall be Commander-
in-Chief of the militia of the State, except when tliey shall be called
into the actual service of the United States.
22
Pardons. — Sec. 11. He shall have power to grant reprieves and par-
don after conviction, (except in cases of impeachment,) in such manner,
on such terms, and under such restrictions as he shall think proper ;
and he shall have power to remit fines and forfeitures, unless otherwise
directed by law. It shall be his duty to report to the General Assem-
bly, at the next regular session thereafter, all pardons granted by him,
with a full statement of each case, and the reasons moving him
thereunto.
Execution of Laws.— Sec 12. He shall take care that the laws be
faithfully executed, in mercy.
Salary — Sec. 13. The Governor and Lieutenant-Governor shall, at
stated times, receive for their services a comi^ensation, which shall be
neither increased nor diminished during the period for which they
shall have been elected.
Officers to Report.— Sec 14. All officers in the Executive Depart-
ment shall, when required by the Governor, give him information
in writing upon any subject relating to the duties of their respective
offices.
Information to Legislature —Sec. 15. The Governor shall, from time
to time, give to the General Assembly information of the condition of
the State and recommend for their consideration such measures as he
shall judge necessary or expedient.
Extra Session— May Adjourn the Legislature.— Sec. 16. He may
on extraordinary occasions, convene the General Assembly; and should
either House remain without a quorum for five days, or in case of dis-
agreement between the two Houses with respect to the time of ad-
journment, may adjourn them to such time as he shall think proper; not
beyond the time of the annual,session then next ensuing.
Commissions.— Sec. 17. He shall commission all oflicers of the
State.
Seal of State. — Sec. 18. There shall be a seal of the State, for which
the General Assembly, at its first session, shall provide, and which
shall be used by the Governor officially, and shall be called "The Great
Seal of the State of South Carolina."
Grants and Commissions. — Sec. 19. All grants and commissions shall
be issued in the name and by the authority of the State of South Caro-
lina, sealed with the great seal, signed by the Governor and counter-
signed by the Secretary of State.
Oath.^SEC. 20. The Governor and the Lieutenant-Governor, before
entering upon the duties of their respective offices, shall take and sub-
scribe the oath of office as prescribed in Article two, Section thirty of
this Constitution
Eesidence-- Sec 21. The Governor shall reside at the capital of the
State ; but during the sittings of the General Assembly he shall reside
where its sessions are held, except in case of contagion.
Approval and Veto.— Sec. 22. Every bill or joint resolution which
shall have passed the General Assembly, except on a question of ad-
23
journment, shall, before it becomes a law, be presented to the Governor,
and, if he approve, he shall-sign it; if not, he shall return it, with his
objections to the House in which it shall have originated ; which shall
enter the objections at large on its journals, and proceed to reconsider
it. If, after such reconsideration, two-thirds of that House shall agree
to pass it, it shall be sent, together with the objections, to the other
House, by which it shall be reconsidered, and, if approved by two-thirds
of that House, it shall have the same effect as if it had been signed by
the Governor; but, in all such cases the vote of both Houses shall be
taken by yeas and nays, and the names of the persons voting for and
against the bill or joint resolution, shall be entered on the journals of
both Houses respectively. If a bill or joint resolution shall not be re-
turned by the Governor, within three days after it shall have been pre-
sented to him, Sundays excepted, it shall have the same force and
effect, as if he had signed it, unless the General Assembly, by their ad-
journment, prevent its return, in which case it shall not have such
force and effect unless returned within two days after their next
meeting.
[Every part of a bill must pass through all the constitutional stages of
enactment before it becomes a law. State vs. Piatt, 2 S. C, 150 ; State vs.
Hagood, 13 S. C , 46 The w^ord ''adjournment" in the last sentence
means the adjournment of both Houses by concurrent action. Corwin
vs. Comptroller- General, 6 S. C, 390. The bill may be returned to a House
in session without a quorum, and received by it, although it may not
be acted upon. Ibid. Quere : may it be transmitted to the officers of a
House which is not in session ? The three days should be computed by
excluding Sunday and the daj' on which presented to the Governor.
Ibid, 391. "Next meeting" means next regular annual session, and does
not refer to call sessions. Arnold vs. McKellar, 9 S. C, 335.]
Election of State Ofl&cers. — Sec. 23. There shall be elected by the
qualified voters of the State, a Comptroller-General, Secretary of State,
Treasurer, Attorney General, Adjutant and Inspector General, and
Superintendent of Education, who shall hold their respective offices for
the term of two years, and whose duties and compensation shall be
prescribed by law.
[Until 1875 this section provided for the election of a "Comptroller
General, a Treasurer and a ■''^ecretar}' of State" whose term of office was
four years ; otherwise the original Section read as above. This amend-
ment was ratified March 5, 1875, 15 Stat, 806, 1009.]
ARTICLE 4.
JUDICIAL DEPARTMENT.
Judicial Power— Other Courts — Sec. 1. The judicial power of this
State shall be vested in a Supreme Court, in two Circuit Courts, to wit :
A Court of Common Pleas, having civil jurisdiction, and a Court of Gen-
eral Sessions, with criminal jurisdiction only ; in Probate Courts, and
24
in Justices of the Peace. The General Assembly may also establish
such municipal and other inferior Courts as may be deemed necessary.
[District Courts in the report were stricken out. A motion to strike
out ''in Probate Courts and in Justices of the Peace" was lost. P. C,
513,595. The Court of General Sessions may by scire facias estreat a
recognizance. State vs. Wilder, 13 S. C, 344. Court of Justice of the
Peace is an inferior Court. State vs. FiUebroum, 2 S. C-, 404. The term
inferior Court in this Section is used in its technical sense. Ibid. Under
this Section, together with Art. I, §19, the General Assembly may create
the office of Trial Justice with the same powers intended by the con-
stitution for Justices of the Peace. Ihid ; Bhodes vs. Railroad Covipavy.
6 S. C, 385. It is within the competency of the General Assembly to
establish new tribunals for offences already committed. State rs. Shum-
peri, 1 S. C, 85. The legislature may confer upon trial justices all the
jurisdiction given to justices of the peace in Sections 22, 23. Sections
1 and 22 of this Article, and Section 19 of Article I, construed. State w.
Glenn, 14S. C, 118-]
Supreme Court.— Sec. 2. The Supreme Court, shall consist of a Chief
Justice and two Associate Justices, any two of whom shall constitute a
quorum. They shall be elected by joint vote of the General Assembly,
for the term of six years, and shall continue in office until their succes-
sors shall be elected and qualified. They shall be so classified that one
of the Justices shall go out of office every two years.
[A Chief Justice elected to fill a vacancy, holds only fortheimexpired
term of his predecessor. Simpson vs. Willard, 14 S- C 191. There being
a vacancy, the two remaining Justices constitute a valid Court. Com-
pare with Art. II, H- Sullivan vs. Sjieights, 14 S. C, 358.]
Justices' Term of Office. — Sec- 3 The Chief Justice elected under
this Constitution shall continue in office for six years, and the General
Assembly immediately after the said election shall determine which
of the two Associate Justices elect shall serve for the term of two years
and which for the term of four years; and having so determined the
same, it shall l>e the duty of the Governor to commission them accord-
ingly.
Jurisdiction. — Sec. 4. The Supreme Court shall have appellate juris-
diction only in cases of Chancery, and shall constitute a Court for the
correction of errors at law, under such regulations as the General As-
sembly may by law prescribe : Provided, The said Court shall always
have power to issue writs of injunction, mandamus, quo tvarranto, habeas
corpus, and such other original and remedial writs as may be necessary
to give it a general supervisory control over all other Courts in the
State.
[In cases of Chancery, this Court has appellate jurisdiction. Sullivan
rs. T/iomas. 3 S. C, 531. But cannot pass upon an alleged insufficiency
of proof in a criminal case- *SVa?f? rs. Waxhington, 18 S. C, 453; State vs.
Belcher, Ibid, 459 ; nor the findings of fact by a jury in a civil case,
Warren vs- Lagrone, 12 S- C, 51. And generall}\ in common law cases,
this Court can correct only errors of law, and has no appellate jurisdic-
tion. 12 S- C, 610. The Supreme Court has original jurisdiction in
mandamus. State vs. Mclver, 2 S. C, 25. But the legislature may deter-
mine in what cases mandamus shall issue, and may deprive this Court of
25
the power in a particular instance. State vs. Oaillard, 11 S. C, 309.
Original jurisdiction in quo varranto cannot be taken away by the legis-
lature, although the form of proceeding may be regulated by Statute.
Alexander vs. McKenzie, 2 S. C, 81. The words ''as may be necessary to
give it a general supervisory control over all other Courts in the State,"
limit only the next preceeding phrase, but do not limit the jurisdiction
in injunction, mandamus, quo warranto, and habeas corpus. State ex rel.
Wallace vs. Hayne, 8 S. C. , 367. The concluding clause considered and
construed ; it embraces the writ of certiorari when necessary to a super-
visory control over inferior Courts to keep them within bounds. Expqrle
67(i7rfs, 12 S. C, 111. And also the writ of prohibition in proper cases.
State vs. Railroad Company, 1 S. C. 46.]
Sessions. — Sec. 5. The Supreme Court shall be held at least once in
each year, at the seat of government, and at such other place or places
in the State as the General Assembly may direct.
Special Judges. — Sec 6. No Judge shall preside on the trial of any
cause in the event of which he may be interested, or where either of
the parties shall be connected with him by affinity or consanguinity,
within such degrees as may be prescribed bj^ law, or in which he may
have been counsel, or have presided in any inferior Court, except by con-
sent of all the parties. In case all or any of the Judges of the Supreme
Court shall be thus disqualified from presiding in any cause or causes,
the Court or the Judges thereof shall certify the same to the Governor
of the State, and he .shall immediately commission, specially, the
requisite number of men learned in the law for the trial and determin-
ation thereof. The same course shall be pursued in the Circuit and
inferior Courts as is prescribed in this section for cases of the Supreme
Court.
Reporter and Clerk. — Sec. 7. There shall be appointed by the Judges
of the Supreme Court a Reporter and Clerk of said Court, who shall
hold their offices for two years, and whose duties and compensation
shall be prescribed by law.
All Points to be Decided. — Sec. 8. When a judgment or decree is
reversed or affirmed by the Supreme Court, every point made and dis-
tinctly stated in writing in the cause, and fairly arising upon the record
of the case, shall be considered and decided ; and the reasons therefor
shall be concisely and briefly stated in writing, and preserved with the
records of the case.
Salary— Sec. 9. The Judges of the Supreme Court and Circuit Courts
shall, at stated times, receive a compensati >n for their services, to be
fixed by law, which shall not be diminished during their continuance
in office. They shall not be allowed any fees or perquisites of office,
nor shall they hold any other office of trust or profit under this State,
the United States, or any other power.
Eligibility. — Sec. 10. No person shall be eligible to the office of Judge
of the Supreme Court or Circuit Courts who is not at the time of his
election a citizen of the United States, and has not attained the age of
thirty years, and been a resident of this State for five years next pre-
ceding his election, or from the adoption of this Constitution.
26
Vacancies. — Sec. 11. All vacancies in the Supreme Court or other
inferior tribunals shall be filled by elections as herein prescribed :
Provided, That if the vmexpired term does not exceed one year, such
vacancy may be filled by executive appointment. All Judges, by vir-^
tue of their office, shall be conservators of the peace throughout the
State.
[A Circuit Judge elected to fill a vacancy holds under Section 13 for
full four years. WInpper va. Reed, 9 S. C, 5." The Governor cannot fill a
vacancy in the office of Judge of Probate, where the vacancy is for a
longer period than one year. Whitmlre vs. Langston, 11 S. C , 381. This
Section compared with Section 2 and construed. Simpson vs. Willard, 14
S. C, 194.]
Two Must Concur.— Sec 12 In all cases decided by the Supreme
Court, a concurrence of two of the Judges shall be necessary to a decision.
Circuit Judges.— Sec 13. The State shall be divided into convenient
Circuits, and for each Circuit a Judge shall be elected by joint ballot of
the General Assembly, who shall hold his office for a term of four years,
and during his continuance in office he shall reside in the Circuit of
which he is Judge.
[In the original draft, a Judge in each Circuit was to be elected "by
the qualified electors thereof." These words were stricken out and
the words "by the joint vote of the General Assembly" substituted in-
stead. P. C, (517. How "joint-vote" was changed to 'joint-ballot," does
not appear. Ibid, 854. Upon this term jomi fta/Zoi was based the decis-
ion in State vs. Shaw, S. C, 94, in which it was held, that a Circuit Judge
could not be elected viva voce under Art. II, §24.]
Interchange Circuits. — Sec. 14. Judges of the Circuit Court shall
interchange Circuits with each other in such manner as may be deter-
niined by law.
Common Pleas. — Sec. 15. The Courts of Common Pleas shall have
exclusive jurisdiction in all cases of divorce, and exclusive original
jurisdiction in all civil cases and actions ex delicto, which shall not be
cognizable before Justices of the Peace, and appellate jurisdiction in all
such cases as may be provided by law. They shall have power to issue
writs of mandamws, prohibition, scire facias, and all other writs which
may be necessarj' for carrying their powers fully into effect.
[They have concurrent jurisdiction in all civil cases cognizable before
Justices of the Peace Barge vs. Willis, 5 S. C, 212. -The Legislature
ma}' deprive these Courts of the power to issue the writ of prohibition
in a particular case. State vs. County Treasurers, 4 S. C, 520.]
Sessions — Equity. — Sec. 16. The Court of Common Pleas shall sit in
each Judicial District in this State at lea.st twice in every year, at such
stated times and places as maybe appointed by law. It shall have
jurisdiction in all matters of Equity, but the Courts heretofore estab-
lished for that purpose shall continue as now organized until the first
day of January one thousand eight hundred and sixty-nine for the
disposition of causes now pending therein, unless otherwise provided
by law.
27
[All jurisdiction belonging to the Court of Equity at the time this
Constitution was adopted, is here conferred upon Courts of Common
Pleas. Jordan vs. Moses, 10 S. C, 431.]
Equity Eecords— Decision in Sixty Days.— Sec. 17. The General
Assembly shall provide by law for the preservation of the records of
the Courts of Equity, and also for the transfer to the Court of Common
Pleas and Probate Courts for final decision of all causes that may
remain undetermined. It shall be the duty of the Judges of the Su-
preme and Circuit Courts to file their decision within sixty days from
the last day of the term of Court at which the causes were heard.
[As a substitute for this section, Mr. Rutland proposed in the Con-
vention that the Judges of the Courts of Common Pleas should be
invested with all the powers of Cliancellors, to hear and determine
equity causes; that the Courts of Equity should be held twice a year,
and that a Commissioner in Equity should be elected in every county.
P. C. 628. But this substitute was indefinitely postponed. Ibid., 684.
A judgment is valid, notwithstanding the Circuit Judge failed to file
it within the sixty days. Koon rs. Munro, 11 S- C, 140.]
General Sessions- — Sec. 18. The Court of General Sessions, shall have
exclusive jurisdiction over all criminal cases which shall not be other-
wise provided for by law. It shall sit in each county in the State at
least three times in each year, at such stated times and places as the
General Assembly may direct.
[This Court has no jurisdiction in mandamus which is '' otherwise
provided for by law." State vs. Mclcer, 2 S. C, 1 An offense which a
statute authorizes to be tried by tiie Intendant of a town, is not within
the exclusive jurisdiction of this Court State vs. Williams, 11 S. C 288.
A Trial Justice is an " other officer authorized by law," and jurisdiction
being given to him in cases of petit larcenj', the Court of General Ses-
sions has no jurisdiction. See Section 22. State vs. Harper. 6 S. C, 464.
But this case was overruled in State vs Williams, 13 S. C, 546, as the
punishment in petit larceny is not restricted within the limits declared
in Art. I, 'i 19. This Court has no jurisdiction of simple assaults, or of
assaults and batteries not of an aggravated character. State vs. McKet-
trick, 14 S. C, 346.]
County Commissioners. — Sec. 19. The qualified electors of each
County shall elect three persons for the terra of two years, who shall
constitute a Board of County Commissioners which shall have jurisdic-
tion over roads, highways, ferries, bridges, and in all matters relating
to taxes, disbursements of money for County purposes, and in every
other case that may be necessary to the internal improvement and
local concerns of the respective Counties: Provided, That in all cases
there shall be the right of appeal to the State Courts
[The words " Board of County Commissioners " were adopted as an
amendment for the words District Court. The word full before the word
"jurisdiction" on the third line was stricken out. A substitute, leaving
their duties and powers to the direction and control of the Legislature,
was rejected P. C, 629.
Compared with Art. IX, ^ 8, and considered State vs. Railroad Com-
pany, 13 S. C, 316. Does not prevent Legislature from directing a tax
levy to pay claim audited by the Board. McLaughlin vs. County Com-
misssoners, 7 S. C-, 375]
K'
28
Court of Probate.— Sec. 20. A Court of Probate shall be established
in each Count}^ with 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 persons 7ion compotes mentis.
The Judge of said Court shall be elected by the qualified electors of
the respective Counties for the term of two years.
[No jurisdiction by cestui que trust against trustee, not involving a
matter testamentary, Poole iis. Brown, 12 S- C, 556. And see Waller
vs. Cresswell, 4 S. C, 353 ; Caldwell vs. Little, 15 S. C, 236. Its jurisdiction
in cases of idiocy, lunacy, &c., is not exclusive, but concurrent with
Court of Common Pleas. Walker vs. Russell, 10 S C, 82. Questions
arising under an inquisition of lunacy requiring a trial by jury, may not
be determined in this Court. Ibid. As partition is not mentioned in
this grant of powers, the Legislature cannot confer upon Courts of Pro-
bate, jurisdiction in partition. Dtoenport vs. Caldwell, 10 S C, 317. A
Judge of Probate holds his office for only two years. Whitmire vs.
Langston, 11 S. C , .381.1 *
Justices of Peace. — Constables.-SEC, 21. A competent number of Jus-
tices of the Peace and Constables shall be chosen in each County by the
qualified electors thereof, in such manner as the General Assembly may
direct ;they shall hold their oflSces for a term of two years and until their
successors are elected and qualified. They shall reside in the County,
city or beat for which they are elected, and the Justices of the Peace
shall be commissioned by the Governor.
[There is no such officer in this State as a regular constable, no
direction having been yet given by the Legislature. State vs. Cohen,
13 S. C, 201 ]
Powers. — Sec. 22. Justices of the Peace, individually, or two or more
of them jointly, as the General Assembly may direct, shall have
original jurisdiction in cases of bastardy, and in all matters of contract,
and actions for the recovery of fines and forfeitures where the amount
claimed does not exceed one hundred dollars, and such jurisdiction as
may be provided by law in actions ex delicto, where the damages
claimed do not exceed one hundred dollars : and prosecutions for
assault and battery and other penal offences ie.ss than felony, punish-
able by fines only.
[See Sections 1 and 15, and Article I, ? 19. This same jurisdiction
may be conferred upon Trial Justices by the Legislature. State vs.
Glenn, 14 S. C, 118.]
In Criminal Matters. — Sec. 23. They may also sit as examining
Courts and commit, discharge, or recognize, (except in capital cases)
persons charged with' offences, subject to such regulations as the Gen-
eral Assembly may provide ; they shall also have power to bind over
to keep the peace, or for good behavior. For the foregoing purposes
they shall have power to issue all necessary processes.
Place of TriaL — Sec. 24. Every action cognizable before Justices of
the Peace instituted by summons or warrant, shall be brought before
some Justice of the Peace in the County or city where the defendant
29
resides, and in all such causes tried by them, the right of appeal shall
be secured under such rules and regulations as may be provided by
law.
Compensation of Officers- — Sec. 2p. The Judges of Probate, County
Commissioners, Justices of the Peace, and Constables, shall receive for
their services such compensation and fees as the General Assembly
may from time to time by law direct.
Charge on Facts. — Sec. 26. Judges shall not charge juries in respect
to matters of fact, but may state the testimony and declare the law.
[Considered in Fripp vs. Williams, 14 S. C , 502 ; Sullivan vs. Blythe,
Ibid, 621. Construed in State vs. Green, 5 S. C , 6-5 ; Redding vs. Railroad
Company, Ibid, 67 ; State vs. White, 15 S. C, 381. See, too, Flenniken vs.
Scruggs, Ibid, 88
Clerk. — Sec. 27. There shall be elected in each County, by the elec-
tors thereof, one Clerk for the Court of Common Pleas, who shall hold
his office for the term of four years, and until his successor shall be
elected and qualified. He shall, by virtue of his office, be Clerk of all
other Courts of Record held therein ; but the General Assembly may
provide by law for the elec-tion of a Clerk, with a like term of office,
for each or any other of the Courts of Record, and may authorize the
Judge of the Probate Court to perform the duties of Clerk for his Court,
under such regulations as the General Assembly may direct. Clerks of
Courts shall be removable for such cause, and in such manner as shall
be prescribed by law.
[A person can hold the office of Clerk only by election. One appoint-
ed by the Judge, discharges the duties only until an election, which
may be provided for by the Legislature to fill vacancies. Reister rs.
Hemphill, 2 S. C, 178. A Clerk of Court holds for four years from his
election, and not for the unexpired term of his predecessor. Wright vs.
Charles, 4 S. C, 178. This term commences to run from the election,
and not from the date of the commission or qualification. Macoy vs.
Curtis, 14 S. C, 367.]
Attorney-General — Sec. 28. There shall be an Attorney-General for
the State, who shall perform such duties as may be prescribed by law. He
shall be elected by the qualified electors of the .State for the term of
two years, and shall receive for his services such compensation as shall
be fixed by law.
[The term of office was four years, until 1875, when the amendment
to Art ni, ^ 23, went into eflect, by which it was provided that the
term of the office of the Attorney-General shoud be two years. 15
Stat , 806, 1,009.]
Solicitor. — Sec 29. There shall be one Solicitor for each Circuit,
who shall reside therein, to be elected by the qualified electors of the
Circuit, who shall hold his office for the term of four years, and shall
receive for his services such compensation as shall be fixed by law. In
all cases where an Attorney for the State, of any Circuit, fails to attend
and prosecute, according to law, the Court shall have power to appoint
an Attorney pro tempore.
30
[The last sentence considered, and quere ; could the legislature em-
power a Solicitor to appoint a deputy. State vs. Buttz, 9 S. C , 186 ]
Sheriff and Coroner —Sec. 30. The qualified electors of each County
shall elect a Sheriff and a Coroner, for the term of four years, and until
their successors are elected and qualified ; they shall reside in their
respective Counties during their continuance in office, and be disquali-
fied for the ofiice a second time, if it should appear that they or either
of them are in default for money collected by virtue of their resijective
offices.
Writs and Processes. — Sec. 31. All writs and processes shall run,
and all prosecutions shall be conducted in the name of the State of
South Carolina; all writs shall be attested by the Clerk of the Court
from which they shall be issued ; and all indictments shall conclude
" against the peace and dignity of the State."
Decisions of Supreme Court.— Sec. 32. The General Assembly shall
provide hy law for the speedj' publication of the decisions of the Su-
preme Court made under this Constitution.
Fourteenth Amendment— Sec 33. The first General Assembly con-
vened under this Constitution, at their first se.ssion. immediately after
their permanent organization, shall ratify the amendment to the Con-
stitution of the United States, known as the Fourteenth Article, pro-
posed by the Thirty-Ninth Congress.
[This Section was adopted as a part of Article XIV. It was probably
put here by the Committee on Revision. P. C, 905.]
Slave Contracts. — Sec. 34. All contracts, whether under seal or not,
the consideration of which were for the purchase of slaves, are hereby
declared null and void, and of no effect, and no suit, either at law or
equity, shall be commenced or prosecuted for the enforcement of such
contracts, and all proceedings to enforce satisfaction or payment on
judgments or decrees, rendered, recorded enrolled or entered upon
such contracts, in any Court of this State, are hereby prohibited, and
all orders heretofore made in this State, in relation to such contracts,
whereby property is held subject to decision as to the validity of such
contracts, are also hfereby declared null and void, and of no effect.
[This Section, and also Ordinance of January 30th, 1868, to same
effect are void under the Constitution of the United States. Calhoun vs.
Calhoun, 2 S. C, 283.]
ARTICLE 5.
JURISPRUDENCE.
Arbitrators.— Sec. 1. The General Assembly shall pass such laws as
may be necessary and proper, to decide differences by arbitrators, to
be appointed by the parties who may choose that summary mode of
adjustment. ^
31
Change of Venue.— Sec. 2. It shall be the duty of the General As-
sembly to pass the necessary laws for the change of venue in all cases,
civil and criminal, over which the Circuit Courts have original jurisdic-
tion, upon a proper showing, supported by affidavit, that a fair and im-
partial trial cannot be had in the county where such trial or prosecu-
tion was commenced.
Digest of Laws — Sec. 3. The General Assembly, at its first session
after the adoption of this Con.stitution, shall make provision to revise,
digest, and arrange, under proper heads, the body of our laws, civil and
criminal, and form a penal code, founded upon principles of reforma-
tion, and have the same promulgated in such manner as they may di-
rect ; and a like revision, digest and promulgation shall be made
within every subsequent period of ten years. . That justice may be ad-
ministered in a uniform mocfe of pleading without distinction between
law and equity,, they shall provide for abolishing the distinct forms of
action, and for that purpose shall appoint some suitable person or per-
sons, whose duty it shall be to revise, simplify, and abridge the
rules, practice, pleadings, and forms of the Courts now in use in this
State.
ARTICLE 6.
EMINENT DOMAIN.
<
Boundary and Navigable Waters —Section 1. The State shall have
concurrent jurisdiction on all rivers bordering on this State, so far as
such rivers shall form a common boundary to this and any other State
bounded by the same ; and they, together with all other navigable
waters within the limits of the State shall be common highways, and
forever free, as well to the inhabitants of this State as to the citizens
of the United States, without any tax or impost therefor, unless the
same be expressly provided for by the General Assembly.
[A motion was made in the Convention to amend this Section so that
it would read, " The Legislature shall have such control over all rivers
and other streams as may be necessary to keep them open and clean,
and for drainage purposes ;" but the motion was lost. P.C., 652.]
State Lands.— Sec. 2. The title to all lands and other property, which
have heretofore accrued to this State by grant, gift, purchase, forfeiture,
escheats, or otherwise, shall vest in the State of South Carolina'the same
as though no change had taken place.
Escheat. — Sec 3. The people of the State are declared to possess the
ultimate property in and to all lands within the jurisdiction of the State;
and all lands, the title to which shall fail from defect of heirs, shall re-
vert or escheat to the people.
[ In their right of sovereignty, after word " State," in the first line, were
stricken out. P. "C, 653.]
32
ARTICLE 7.
IMPEACHMENTS.
Power of Impeachment.— Section 1. The House of Representatives
shall have the sole power of impeachment. A vote of two-thirds of all
the members elected shall be requiredfor an impeachment, and any offi-
cer impeached, shall thereby be suspended from office until judgment iu
the case shall have been pronounced.
Trial- — Sec. 2. All impeachments shall be tried by the Senate, and
when sitting for that purpose, they shall be under oath or affirmation.
No person shall be convicted except by vote of two-thirds of all the
members elected. When the Governor is impeached, the Chief Justice
of the Supreme Court or the Senior Judge, shall preside, with a casting
vote in all preliminary questions.
Who May Be. — Sec. 3. The Governor and all other executive and
judicial officers, shall be liable to impeachment ; but judgment in such
case shall not extend further than removal from office. The person
convicted, shall nevertheless be liable to indictment, trial and punish-
ment according to law.
Removal on Address. — Sec. 4. For any wilful neglect of duty, or other
reasonable cause which shall not be sufiicient ground of impeachment,
the Governor shall remove any executive or judicial officer on the ad-
dress of two-thirds of each House of the General Assembly. Provided,
That the cause, or causes, for which said removal may be required, shall
be stated at length in such address, and entered on the journals of each
House. And provided further, That the officer intended to be removed
shall be notified of such cause or causes, and shall be admitted to a
hearing in his own defence, before any vote for such address ; and in all
cases, the vote shall be taken by yeas and nays, and be entered on the
journals of each House respectively.
ARTICLE 8.
« RIGHT OP SUFFRAGE.
Ballot. — Section 1. In all elections by the people the electors shall
vote by ballot.
Qualification of Electors. — Sec 2. Every male citizen of the United
States, of the age of twenty-one years and upwards, not laboring under
the disabilities named in this Constitution, without distinction of race,
color, or former condition, who shall be a resident of this State at the
time of the adoption of this Constitution, or who shall thereafter reside
in this State one year, and in the county in which he offers to vote,
sixty days next preceding any election, shall be entitled to vote for all
officers that are now, or hereafter may be, elected by the people, and
upon all questions submitted to the electors at any elections. Provided,
33
That no person shall be allowed to vote or hold office who is now or
hereafter may be disqualified therefor by the Constitution of the United
States, until such disqualification shall be removed by the Congress of
the United States. Provided further, That no person, while kept in any
alms-house or asylum, or of unsound mind, or confined in any public
prison, shall be allowed to vote or hold office.
[The followina; additional proviso, recommended by the Committee,
was stricken out by a very large majority : "Provided, That every person
coming of age after the year 1875, to be entitled to the privilege of an
elec ion, shall be able to read and write; but this qualification shall
not apply to any person prevented by physical disability from comply-
ing therewith." P. C., 824 ]
Registration.— Sec. 3. It shall be the duty of the General Assembly
to provide from time to time for the registration of all electors.
Loss of Residence. — Sec. 4. For the purpose of voting no person
shall be deemed to have lost his residence by reason of absence while
employed in the service of the United States, nor while engaged upon
the waters of this State or the United States, or of the high seas, nor
while temporarily absent from the State.
Soldiers and Sailors. — Sec. 5. No soldier, seaman or marine in the
army or navy of the United States shall be deemed a resident of this
State in consequence of having been stationed therein.
Privileges of Electors.— Sec. 6. Electors shall, in all cases, except
treason, felony or breach of the peace, be privileged from arrest and
civil process during their attendance at elections, and in going to and
returning from the same.
Eligibility to Office. — Sec. 7. Every person entitled to vote at any
election shall be eligible to any office which now is or hereafter shall
be elective by the people in the County where he shall have resided
sixty days previous to such election, except as otherwise provided in
this Constitution or the Constitution and laws of the United States.
[Considered and construed ; and held not to authorize one who
accepts the office of member of Congress to be a circuit solicitor. State
r.s. Buttz, 9 S. C, 156 ]
Disqualifying Crimes. — Sec. 8. The General Assembly shall never
pass any law that will deprive any of the citizens of this State of the
right of suffrage except for treason, murder, robbery, or duelling,
whereof the persons shall have been duly tried and convicted.
[By Joint Resolution approved February 9th, 1882 (17 Stat., 1156), an
amendment to this Section of the Constitution will be submitted to the
qualified voters of the State at the general election to be held in No-
vember, 1882. If this amendment is adopted, the Section will then
read as follows :
Section 8. The General Assembly shall never pass any law that will
deprive any of the citizens of this State of the right of suffrage, except
for treason, murder, burglary, larceny, • perjury, forgery, or any other
infamous crime, or duelling, whereof the person shall have been duly
tried and convicted. 1
3
34
Presidential Electors.— Sec 9. Presidential electors &liall he elected
by the people.
Who Elected — Sec. 10. In all elections held by the people under this
Constitution, the person or persons who shall receive the highest num-
ber of votes shall be declared elected.
[Considered in Ex parte Smith, 8 S. C, 515, and Ex parte Norris, Ibid,
485.]
First Election.— Sec. 11. The provision of this Constitution concern-
ing the term of residence necessary to enable persons to hold certain
offices therein mentidned, shall not be held to apply to officers chosen
by the people at the first election, or by the General Assembly at its
first session.
Crimes by Slave. — Sec. 12. No person shall be disfranchised for
felony, or other crimes committed while such person was a slave.
ARTICLE 9.
FINANCE AND TAXATION.
[There is nothing in the Constitution that prevents the Legislature
from furnishing the data by which taxes are to be levied, and then
directing a ministerial officer to fix the per centum. Morton, Bliss & Co.
vs. CompiroUer-GenercU, 4 «. C, 431.]
Assessment and Taxation. — Section 1. The General Assembly shall
provide by law fur a uniform and ecjual rate of assessment and taxation,
and shall prescribe such regulations as shall secure a just valuation for
taxation of all property, real, personal and possessory, except mines
and mining claims, the proceeds of which alone shall be taxed ; and
also excepting such property as may be exempted by law for municipal,
educational, literarj^ scientific, religious or charitable purposes.
[This does not inhibit other taxes than those on property and the
poll tax. The Section construed. State vs. Hayne, 4 S. C, 423.]
Poll Tax. — Sec. 2. The General Assembly may provide annually
for a poll tax not to exceed one dollar on each poll, which shall be
applied exclusively to the public school fund. And no additional poll
tax shall be levied by any municipal corporation.
[Does not prevent a license tax on business. State vs. Hayne, 4 S. C,
424. See Article X, ^ 5.]
Ordinary Expenses.— Sec. 3. The General Assembly shall provide
for an annual tax sufficient to defray the estimated expenses of the
State for each year ; and whenever it shall happen that such ordinary
expenses of the State for any year shall exceed the income of the State
for such year, the General Assembly shall provide for levying a tax for
the ensuing year sufficient, with other sources of income, to pay the
deficiency of the preceding year, together with the estimated expenses
of the ensuing year.
?5
[Does not prevent a license tax on business. State vs Hayne, 4 S. C.,
424. The appropriation of an unexpended balance in the treasury at
the end of a tiscal year does not violate this Section. State vs- Leaphart,
11 S. C, 459.]
Object. — Sec. 4. No tax shall be levied except in pursuance of a law,
which shall distinctly state the object of the same ; to which object such
tax shall be ajipiied.
[See State vs. Cardoza, 5 S. C. 311. This Section is an appropriation
made by law of money raised by taxation to pay interest on a public
debt, and the duty so imposed upon the State Treasurer may be en-
forced by the Courts Morton, Bliss & Co. vs. Comptroller-General, 4 S. C,
520. Meaning of word "object" considered. State vs. Leaphart, 11
S. C, 459.]
Exemptions. — Sec. 5. It shall be the duty of the General Assembly
to enact laws for the exemption from taxation of all public schools,
colleges, and institutions of learning, all charitable institutions in the
nature of asylums for the infirm, deaf and dumb, blind, idiotic and in-
digent persons, all public libraries, churches and burying grounds ; but
property of associations and societies, although connected with chari-
table objects, shall not be exempt from State, County or municipal tax-
ation : Provided, That this exemption shall not extend beyond the
buildings and premises actually occupied by such schools, colleges, in-
stitutions of learning, asylums, libraries, churches and burial grounds,
although connected with charitable objects.
Time of Valuation. — Sec. 6. The General Assembly shall provide for
the valuation and assessment of all lands and the improvements thereon
prior to the assembling of the General Assembly of one thousand
eight hundred and seventy, and thereafter on every fifth year.
[Sections 5 and 6 do not prevent the legislature from imposing a
license tax on business. Stcde rs. Hayne, 4 S. C, 424 ]
Extraordinary Expenditures. — Sec. 7. For the purpose of defraying
extraordinary expenditures, the State may contract public debts ; but
such debts shall be authorized by law for some single object, to be dis-
tinctly specified therein ; and no such law shall take eff'ect until it shall
have been passed by a vote of two-thirds of the members of each bra^ich
of the General Assembly, to be recorded by yeas and nays on the
journals of each House respectively ; and every such law shall levy a
tax annually sufficient to pay the annual interest of such debt.
[This Section so far as it authorizes a public debt to be created by the
action of the General Assembly alone, has been repealed by the amend-
ment to the Constitution known as Article XVI, which see. This Sec-
tion does not prevent a license tax on business, State vs. Hayne, 4 S
C, 424. This Section is exhaustively considered and construed in the
two cases of Morton, Bliss & Co., vs. Comptroller- General, 4 S. C. 430, and
the Bond Debt Cases, 12 S. C , 202. The two-thirds vote here required
means two-thirds of a quorum, and not of the entire membeiship. Ibid.
The two-thirds vote must afiirmatively appear on the journals, but if it
so appear on the final passage, it is sutticient. Bond Debt Cases, 12 S. C ,
203. The appropriation of an unexpended balance in the treasury at
36
the end of a fiscal year does not violate this Section. State vs. Leaphart,
11 S. C, 459. Compare this fc^ection with Art II, ^^24, 26.]
Counties, Cities, &c.— Sec. 8. The corporate authorities of Counties,
Townships, School Districts, Cities, Towns and Villages may be vested
with power to assess and collect taxes for corporate purposes ; such
taxes to be uniform in respect to persons and property within the juris-
diction of the body imposing the same And the General Assembly
shall require that all the property, except that heretofore exempted
within the limits of municipal corporations, shall be taxed for the pay-
ment of debts contracted under authority of law.
[See Art. IV, ^19. "Heretofore" in this Section means hereinbefore.
Hose vs. Charleston, 3 S. C, 3fiy, This Section authorizes a license tax
on business, and does not require such license to be the same for the
several avocations taxed. The phrase "uniform with respect to persons
and property" construed. State vs. L'olnmbia, 6 S C, 1.]
Incorporation of Cities, &c. — Sec. 9. The General Assembly shall
provide for the incorporation and organization of cities and towns,
and shall restrict their powers of taxation, borrowing money, contract-
ing debts, and loaning their credit.
Scrip &C.-SEC. 10. ]S'o scrip, certificate,or other evidence of State indebt-
edness shall be issued, except for the redemption of stock, bonds, or other
evidences of indebtedness previously issued, or for such debts as are
expressly authorized in this Constitution.
[Section 10 does not prohibit the legisUiture from issuing certificates
of indebtedness in payment of claims against the State for printing.
State vs. Cardoza, 5 S. C, 297, 317.]
Annual Statement.— Sec. 11. An accurate statement of the receipt
and expenditures of the public money shall be published with the laws
of each regular sessionoftheGeneral Assembly in such manner as may,
by law, be directed.
Appropriation. — Sec 12. No money shall be drawn from the Treasury
but in pursuance of appropriations made by law.
[Money once paid into the Treasury cannot be withdrawn except "in
pursuance of appropriations made bylaw." State vs. Balduin, 14: S. C,
138.]
Fiscal Year. — Sec. 13. The fiscal year shall commence on the first day
of November in each year.
Debts — Registry. — Sec. 14. Any debt contracted by the State shall
be by loan on State bonds, of amounts not less than fifty dollars each,
on interest, payable within twenty years after the final passage of the
law authorizing such debt. A correct registry of all bonds shall be
kept by the Treasurer in numerical order, so as always to exhibit the
number and amount unpaid, and to whom severally made paj'able
[The registry here required is not a condition precedent to their issue
and validity. Band Dtbt Cases, 12 H.C, 203. The appropriation of an
unexpended balance in the Treasury at the end of a fiscal year does
not violate this Section. State vs. Leaphart, 11 S. C, 459.]
37
Keeping and Disbursement of Public Funds- — Src. 15. Suitable laws
shall be passed by tlie General Assembly for the safe keeping, transfer
and disbursement of the State, County and School funds, and all officers
and other persons charged with the same, shall keep an accurate entry
of each sum received, and of each payment and transfer ; and shall give
such security for the faithful discharge of such duties as the General
Assembly may provide. And it shall be the duty of the General As-
sembly to pass laws making embezzlement of such funds a felony pun-
ishable b}" fine and imprisonment proportioned to the amount of defi-
ciency or embezzlement, and the party convicted of such felony, shall
be disqualified from ever holding any office of honor or emolument in
this State : Provided, however, That the General Assembly, by a two-
third vote, may remove the disability upon payment in full of the prin-
cipal and interest of the sum embezzled.
Rebel Debt. — Sec. 16. No debt contracted by this State in behalf of
the late rebellion, in whole or in part, shall ever be paid.
ARTICLE 10.
EDUCATION.
Superintendent of Education.— Section 1. The supervision of public
instruction shall be vested in a State Superintendent of Education, who
shall be elected by the qualified electors of the State in such manner
and at sach time as the other State officers are elected ; his powers,
duties, term of office and compensation shall be defined by the General
Assembly.
[The term of office is now two years. See Art. Ill, §23.]
School Commissioner— State Board.— Sec. 2. There shall be elected
biennially, in each County by the qualified electors thereof, one School
Commissioner, said Commissioners to constitute a State Board of Edu-
cation, of which the State Superintendent shall, by virtue of his office,
be Chairman ; the powers, duties, and compensation of the members of
said Board shall be determined by law.
Free Schools. — Sec. 3. The General Assembly shall, as soon as prac-
ticable after tlie adoption of this Constitution, provide for a liberal and
uniform system of free public schools throughout the State, and shall
also make provision for the division of the State into suitable School
Districts. There shall be kept open at least six months in each year
one or more schools in each School District.
Compulsory Attendance. — Sec. 4. It shall be the duty of the Gener-
al Assembly to provide for the compulsory attendance, at either public
or private schools, of all children between the ages of six and sixteen
years, not physically or mentally disabled, for a term equivalent to
twenty -four months at least : Provided, That no law to that effect shall
38
be passed until a system of public schools has been thoroughly and
completely organized and facilities afforded to all the inhabitants of
the State for the free education of their children.
School Tax. — Sec. 5. The Boards of County Commissioners of the
several Counties shall levy an annual tax of not less than two mills
on the dollar upon all the taxable property in their respective Counties,
which levy shall not be increased unless by special enactment of the
General Assembly, for the support of the public schools in their respec-
tive Counties, which tax shall be collected at the same time and by the
same officers as the other taxes for the same year, and shall be held in the
County Treasuries of the respective Counties, and paid out exclusively for
the support of the public schools as provided by law. There shall be
assessed on all taxable polls in the State an annual tax of one dollar on
each poll, the proceeds of which tax shall be applied solely to educa-
tional purposes : Provided, That no person shall ever be deprived of
the right of suffrage for the non-payment of said tax. No other poll
or capitation tax shall be levied in the State, nor shall the amount as-
sessed on each poll exceed the limit given in this Section. The school
tax shall be distributed among the several school districts of the Coun-
ties in proportion to the respective number of pupils attending the
public schools. No religious sect or sects shall have exclusive right to,
or control of any part of the school funds of the State, nor shall secta-
rian principles be taught in the public schools.
[This Section was amended in 1878, to read as above. 15 Statute, 1,025
and 16 Statute, 640. When first adopted, this Section read as it now
reads, except the first sentence, which was as follows:
The General Assembly shall levy at each regular session after the
adoption of this Constitution an annual tax on all taxable property
throughout the State for the support of public schools, which tax shall
be collected at the same time and by the same agents as the general
State levy, and shall be paid into the Treasury of the State.
Upon the subject of the poll lax, see Article IX, | 2.]
State Normal School — Sec- 6. Within five years after the first
regular session of the General Assembly, following the adoption of this
Constitution, it shall be the duty of the General Assembly to provide
for the establishment and support of a State Normal School, which
shall be open to all persons who may wish to become teachers.
Benevolent Institutions. — Sec. 7. Educational institutions for the
benefit of all the blind, deaf and dumb, and such other benevolent in-
stitutions, as the public good may require, shall be established and
supported by the State, subject to such regulations as may be prescribed
by law.
State Reform School. — Sec. 8. Provisions shall be made by law, as
soon as practicable, for the establishment and maintenance of a State
Reform School for juvenile offenders.
State University, Agricultural College.— Sec. 9. The General
Assembly shall provide for the maintenance of the State University,
and as soon as practicable, provide for the establishment of an Agricul-
39
tural College, and shall appropriate land given to this State, for the
support of such a college, by the Act of Congress, passed July second,
one thousand eight hundred and sixty-two, or the money or scrip, as
the case may be arising from the sale of said lands, or any lands which
may hereafter be given or appropriated for such purpose, for the sup-
port and maintenance of such college, and may make the same a branch
of the State University, for instruction in Agriculture, the Mechanic
Arts, and the Natural Sciences connected therewith
State Schools Open to All— Sec. 10. All the public schools, colleges,
and universities of this State, supported in whole or in part by the pub-
lic funds, shall be free and open to all the children and youths of the
State, without regard to race or color.
State School Fund. — Sej. U. The proceeds of all lands that have
been or hereafter may be given by the United States to this State for
educational purposes, and not otherwise appropriated by this State or
the United States, and of all lands or other property given by individ-
uals, or appropriated by the State for like purpose, and of all estates of
deceased persons who have died without leaving a will or heir, shall
be securely invested and sacredly preserved as a State School Fund,
and the annual interest and income of said fund, together with such
other means as the General Assembly may provide, shall be faithfully
appropriated for the purpose of establishing and maintaining free pub-
lic schools, and for no other purposes or uses whatever.
ARTICLE 11.
CHARITABLE AND PENAL INSTITUTIONS.
To be Supported- — Section 1. Institutions for the benefit of the
insane, blind, deaf and dumb, and the poor, shall always be fostered
and supported by this State, and shall be subject to such regulations as
the General Assembly may enact.
Penitentiary, — Sec. 2. The Directors of the Penitentiary shall be
elected or appointed, as the General Assembly may direct.
Directors of Institutions. — Sec. 3. The Directors of the benevolent
and other State institutions, such as may be hereafter created, shall be
appointed by the Governor, by and with the consent of the Senate ; and
upon all nominations made by the Governor, the question shall be
taken by yeas and nays, and entered upon the journals.
Vacancies. — Sec. 4. The Governor shall have power to fill all vacan-
cies that may occur in the offices aforesaid, until the next session of
the General Assembly, and until a successor or successors shall be ap-
pointed and confirmed.
Poor and Infirm. — Sec. 5. The respective Counties of this State shall
make such provision, as may be determined by law, for all those inha-
bitants who by reason of age, and infirmities or misfortunes, may have
a claim upon the sympathy and aid of society.
40
Lunatic Asylum. — Sec. G. The Physician of the Lunatic Asyhim,
who sliall be Superintendent of the same, shall be appointed by the
Governor, with the advice and consent of the Senate. All other
necessary officers and employees shall be appointed by the Governor.
ARTICLE 12.
CORPORATIONS.
General Laws. — Section 1. Corporations may be formed under
general laws ; but all such laws may from time to time be altered or
repealed.
[In the original draft, this Section was Section 2. Section 1, in the
report of the committee was stricken out. It read as follows: "The
General Assembly shall pass no special Act conferring corporate
powers." P. C, 754.]
Subject to Taxation. — Sec. 2. The property of corporations now
existing or hereafter ci-eated, shall be subject to taxation, except in
cases otherwise provided for in this Constitution.
Right of Way. — Sec. 3. No right of way shall be appropriated to the
use of any corporation until full compensation therefor shall be first
made, or secured by a deposit of money to the owner, irrespective of
any benefit from any improvement proposed by such corporation,
which compensation shall be ascertained by a jury of twelve men, in a
Court of Record, as shall be prescribed by law.
Dues. — Sec. 4. Dues from corporations shall be secured by such
individual liability of the stockholders and other means, as may be
prescribed by law.
Liability of Stockholders. — Sex:. 5. All general laws and special acts
passed pursuant to this section, shall make provisions therein for fixing
the personal liability of stockholders under proper limitations ; and
shall prevent and punish fraudulent misrepresentations as to the capi-
tal property and resources of such corporations; and shall also regulate
the public use of all franchises which have heretofore been, or here-
after may be created or granted, by or under the authority of this
State, and shall limit all tolls, imposts, and other charges and demands
under such laws.
Banking Corporations. — Sec. 6. The General Assembly shall grant
no charter for banking purposes, nor renew any banking corporations
now in existence, except upon the condition that the stockholders shall
be liable to the amount of their respective share or shares of stock
in such banking institution, for all its debts and liabilities, upon note,
bill, or otherwise ; and upon the further condition that no director or
other officer of said corporation shall borrow any money from said cor-
poration ; and if any director or other officer shall be convicted upon
indictment of directly or indirectly violating this Section, he shall be
41
punished by fine or imprisonment, at the discretion of the Court. The
books, papers, and accounts of all banks shall be open to inspection,
under such regulations as may be prescribed by law.
ARTICLE 13
Of Whom Composed. — Sec 1. The Militia of this State shall consist
of all able-bodied male citizens of the State between the ages of eigh-
teen and forty-five years, except such persons as are now, or may here-
after be, exempted by the laws of the United States, or who may be
adverse to bearing arms, as provided for in this Constitution ; and shall
be organized, armed, equipped and disciplined as the General Assem-
bly may by law provide.
[The words "or who may be adverse to bearing arms as provided for
in this Constitution" were substituted in the Convention for the words
or of this State, which were in the original draft. P. C 751 ]
Call Out. — Sec. 2. The Governor shall have power to call out the
militia to execute the laws, repel invasion, repress insurrection, and
preserve the public peace.
Adjutant and Inspector General— Staff.— Sec. 3. There shall be an
Adjutant and Inspector General elected by the qualified electors of the
State, at the same time and in the same manner as other State officers,
who shall rank as a Brigadier General, and whose duties and compensa-
tion shall be prescribed by law. The Governor shall appoint, by and
with the advice and consent of the Senate, such other .staff officers as
the Genei'al Assembly may direct.
[The term of office of the Adjutant and Inspector General is fixed in
Art III, 12^.-]
ARTICLE 14.
MISCELLANEOUS.
Officer. — Sec. 1. No t>erson shall be elected or appointed to any
office in this State, unless he possess the qualifications of an elector.
Lotteries. — Sec- 2. Lotteries, and the sale of lottery tickets, for any
purpose whatever, are prohibited, and the General Assembly shall pre-
vent the same by penal laws.
Library. — Sec. 3. The State Library shall be subject to such regula-
tions e,s the General Assembly may prescribe.
Claims Against State. — Sec 4. The General Assembly may direct,
by law, in what manner claims against the State may be established
and adjusted.
42
[Instance of a tribunal created under the authority of this Section
may be found in the Court of Claims Ex parte Ghilds, 12 S. C-, lll.J
Divorces. — Sec. 5. Divorces from the bands of matrimony shall not
be allowed but by the judgment of a Court, as shall be prescribed by
law.
Supreme Being- — Sec 6. No person who denies the existence of the
Supreme Being shall hold any office under this Constitution.
Printing. — Sec. 7. The printing of the laws, journals, bills, legislative
documents and papers for each branch of the General Assembly, with
the printing required for the Executive and other departments of State,
shall be let, on contract, in such manner as shall be prescribed by law.
Married Women's Property — Sec. 8. The real and personal
property of a woman, held at the time of her marriage, or that which
she may thereafter acquire, either by gift, grant, inheritance, devise, or
otherwise, shall not be subject to levy and sale for her husband's debts ;
but shall be held as her separate property and may be bequeathed,
devised, or alienated by her the same as if she were unmarried : Pro-
vided, That no gift or grant from the husband to the wife shall be detri-
mental to the just claims of his creditors.
[This Section could not and did not act retrospectively, so as to im-
pair the vested rights of a husband. Nor did it operate as a settlement
upon the wife of lands then owned by her. Bouknight vn- Epting. 11
S. C , 71. A wife may acquire property directly from her husband, but
such acquisition is not established by proof of tbe use by the wife of
property purchased by the husband. State vs Pitts, 12 S. C, 180. A
married woman has the right to alienate stock held by her as her sepa-
rate property at the time of the adoption of the Constitution. Witsell
vs. Charleston, 7 S. C.,8S. And may pledge it as security for her hus-
band's debts Ibid This Section may be considered in construing
acts done by married women prior to 1868. Oliver vs. Grimball, 14 S. C,
556 But does not affect rights vested prior to 1868. Withers vs. Jenkins,
14 S. C, 597; Shuler vs. Bull 15 S. C, 421.- Considered and construed.
Ex parte Dial, 14 S. C, 586 ; and very fully in Pelzer, Rodgers & Co. vs.
Campbell & Co., 15 S. C , 581.]
Removal of Causes. — Sec. 9. The General Assembly shall provide
for the removal of all causes, which may be pending when this Consti-
tution goes into effect, to Courts created by the same.
Time of Election. — Sec. 10. The election for all State officers shall
take place at the same time as is provided for that of members of the
General Assembly, and the election for those officers whose terms of
service are for four years, shall be held at the time of each alternate
general election.
ARTICLE 15,
amendment and revision of the constitution.
Amendments — How Made. — Sec. 1. Any amendment or amend-
ments to this Constitution, may be proposed in the Senate or House of
Representatives. If the same be agreed to by two-thirds of the mem-
45
bers elected to each House, such amenchiient or amendments shall be
entered on the journals respectively, with the yeas and nays taken
thereon ; and the same shall be submitted to the qualified electors of
the State, at the next general election thereafter for Representatives,
and if a majority of the electors qualified to vote for members of the
General Assembly, votinij; thereon, shall vote in favor of such amend-
ment or amendments, and two-thirds of each branch of the next Gen-
eral Assembly shall, after such an election, and before another, ratify
the same amendment or amendments, by yeas and nays, the same shall
become part of the Constitution : Provided, That such amendment or
amendments shall have been read three times, on three several days
in each House.
Two or More- — Sec. 2. If Wo or more amendments shall be sub-
mitted at the same time, they shall be submitted in such manner that
the electors shall vote for or against each of such amendments
separately.
Convention. — Sec 3. Whenever two-thirds of the members elected to
each branch of the General Assembly shall think it necesst.ry to call a
Convention to revise, amend, or change this Constitution, they shall
recommend to the electors to vote at the next election for representa-
tives, for or against a Convention and if a majority of all the electors
voting at said election shall have voted for a Convention, the General
A.ssembly shall, at their next session, provide by law for calling the
same ; and such Convention shall consist of a number of members, not
less than that of the most numerous branch of the General Assembly.
ARTICLE 16.
Public Debt — Vote of People. — To the end that the public debt of
South Carolina may not hereafter be increased, without the due con-
sideration and free consent of the people of the State, the General
Assembly is hereby forbidden to create any further debt or obligation,
either by the loan of the credit of the State, by guaranty, endorsement,
or otherwise, except for the ordinary and current business of the State,
without first submitting the question as to the creation of any such new
debt, guaranty, endorsement, or loan of its credit, to the people of this
State at a general State election ; and, unless two-thirds of the qualified
voters of this State, voting on the question, shall be in favor of a fur-
ther debt, guaranty, endorsement, or loan of its credit, none such shall
be created or made.
[This Article is an amendment adopted in 1873 — 15 Stat., 295 and
466. All other amendments were made as changes to the existing sec-
tions and will be found incorporated in the text. — See Art. II, 'i'i 3, 11,
and 32 ; Art. Ill, § 23 : Art. VIII. § 8 ; Art. X, ^5.]
RULES OF THE SUPREME COURT,
IN FORCE JULY 1, 1882.
I. Return— When Piled— Dismissal of Appeal for Default— Motion
to Restore. — For the purpose of an appeal to this Court the appellant
shall cause the return to be made and filed with the C'lerk of this Court
within forty days after the record constituting said return has been
completed. If he fail to do so within the time prescribed by this Rule,
the appellant shall be deemed to have waived the appeal, and upon an
affidavit to that effect, and the certificate of the Clerk of this Court that
no return has been filed as above required, the respondent may obtain
from the Clerk of this Court an order dismissing the appeal for want of
prosecution, with costs, and the Court below may thereupon proceed as
though there had been no notice of appeal : Provided, howener, that it
being made to appear to the satisfaction of this Court that such default
on the part of the appellant has arisen from unavoidable causes, he
may, on motion, upon at least eight days' notice, apply to this Court for
an order reinstating the appeal.
II. Return — What to Contain. — When the appeal is from a judgment,
the return spoken of in the foregoing Rule shall consist of copies of the
judgment roll, the notice of appeal and exceptions, certified to by the
Clerk of the Court below. When the appeal is from an order, as
allowed by the eleventh section of the Code of Procedure, the return
shall consist of copies of the order appealed from, with the papers on
which the Court below acted in granting the order, together with the
notice of appeal and the exceptions : Provided, however, If the parties agree
upon a statement of the case, as allowed by an Act entitled " An Act to
facilitate and save expenses in appeals," approved March 25, 1875, such
statement, with the notice of appeal and exceptions, shall constitute
the return.
III. Returns— Remedy for Defects- — If said return shall be defective,
either party may, on affidavit specifying the defect, and after eight days'
notice to the opposite party, apply to one of the Justices of this Court
for an order that the appellant cause a further return to be made with-
out delay.
IV. Attorneys and Guardians ad Litem— Representatives of De-
ceased Parties. — The attorneys and guardians ad litem of the respective
parties in the Court below, shall be deemed the attorneys and guard-
ians of the same parties respectively in this Court, until others shall be
45
retained or appointed, and notice thereof shall be served on the adverse
party. When any party to a judgment, brought by appeal into this
Court, shall die pending such appeal, any party in interest shall be en-
titled to move the Court for an order making the proper representative
of such deceased person a party to such appeal ; and when, by reason
of such decease, the proper parties appellant are not before the Court,
and due means to have the proper parties represented on the record of
this Court are not taken at the next ensuing term, the respondent shall
be entitled, on due proof of such fact, to move this Court to dismiss
such appeal.
V. Case or Brief— What to Contain.— The "case" required to be
served by the Second Section of the Act in relation to appeals, approved
December 9, 1878, shall set forth the following particulars :
1. The title of the action
2. The time of commencement of action.
3. The names of all parties to the action, designating which of them
are appellants and which are respondents.
4. The general nature and character of the pleadings, specifying such
defendants as answered or demurred, and the general nature of each
answer when several answers are filed.
5. When issues of fact are settled, the order settling the same.
6 The mode in which the case was tried, whether by the Court, by a
jury, or by referees.
7. When error of law is alleged, the facts or conclusions of fact to
which such error relates.
8. When error of fact is alleged, the evidence or fact on which the
determination complained of was based.
9. The judgment, order, finding, ruling or decision complained of.
10. If error is alleged in the charge to the jury, the request to charge
the charge and exceptions.
It. When the question to be determined involves the construction of
any pleading, judgment, order, c-harge or instrument, the whole matter
thereof shall be set forth, but if only some matter constituting a distinct
and separate part thereof is involved in such construction, only such dis-
tinct and separate part need be stated in full, and the residue thereof
may be brieHy stated according to its general nature and effect.
12. All changes in parties.
13. The date of the judgment or order appealed from.
14. Copy of the exceptions :
Provided, however, If the parties agree upon a "statement of the case,''
as allowed by an Act entitled " An Act to facilitate and save expenses
in appeals," approved March 5, 1875, such statement shall constitute
said "case." If the case is voluminous, an index to the pleadings, ex-
hibits, depositions and other principal matters shall be added.
Exceptions to Decree. — An exception, for the purpose of an appeal
must contain a statement of the proposition of the law or fact which it
is desired to review, and a mere reference to an exception taken to the
46
report of the master or a referee, or to the dacree of a judo;e of probate,
will not be sufficient, and an exception so taken will not be considered.
Amendments to be Incorporated in Case — In the preparation of
the case for argument in this Court, where amenihnents have been pro-
posed and allowed, the case must be printed, or in a case where print-
ing is dispensed with, must be written, as it would read after the
amendments allowed are incorporated, and it will not be sufficient to
set out the proposed amendments with a statement as to which of them
have been allowed.
These amendments shall not apply to any appeal taken before the 1st
day of July, 1882.
[See Circuit Court Rules, No. 50.]
VI Printed Papers— How Prepared. — All papers printed for the
use of the Court shall be on white writing paper, in book form, and
each case or other paper comprising more than two leaves shall be
stitched or bound. Such printed matter shall conform, as to external
form and dimensions, and as to dimensions of printed page, to the vol-
umes of the current series of the South Carolina Reports.
Small pica solid is the smallest and most compact mode of composi-
tion allowed. The folio (of one hundred words), numbering from the
commencement to the end of the case, shall be printed on the outer
margin of the page.
Title — Effect of Non-Compliance. — Each separate paper printed for
the use of the Court shall, instead of being endorsed, set forth on the
first page, or, if covered, on the first page of the cover, the following
particulars : The style of the Court, the title of the cause, which, in
case of appeal, shall stand as it stood in the Circuit Court, without further
change than adding the words " Appellant" and '' Respondent," so as
to indicate the i:)arties appealing to this Court, the nature of the paper,
and the names of the attorneys. No charge for printing the papers
mentioned in this rule shall be allowed as a disbursement in a cause,
unless the foregoing requirements shall be shown, by affidavit, to have
been complied with in all papers hereafter printed, nor where the brief
sl^all be held by the Court to be insufficient.
VII. Case or Brief— Service of —Effect of Non-Compliance —Within
twenty days after the " case " has been settled or agreed upon, the ap-
pellant shall serve three printed copies of the case or brief, as prepared
for argument, on the attorney of the adverse party. If he fail to do so,
the respondent may, by notice in writing, require the service of such
copies within ten days after the service of the notice ; and if the copies
be not served in pursuance of such notice, the appellant shall be
deemed to have waived the appeal ; and on an affidavit proving the
default and the service of such notice, the respondent may enter an
order with the Clerk, dismissing the appeal for want of prosecution
with costs ; and the Court below may, thereupon, proceed as though
there had been no appeal.
47
VIII Case or Brief and Points Furnislied. — Three days previous
to the commencement of the ar<rument of any case, the counsel for the
appellant shall deliver to the Clerk of the Court six copies of the case
or brief, which shall be disposed of as follows : one copy to each of the
Judges, one for the Clerk, one for the Eeporter, and one for the Library
of the Supreme Court ; and, at the same time, each party shall deliver
to the Clerk eight copies of the points, as required by Kule IX, six
copies to be disposed of as above stated, and the remaining two
copies to be delivered to the counsel of the other party on demand.
Parties failing to furnish points, will be confined to the discussion of
questions that arise upon such points as shall be furnished by other
parties to the cause, in accordance with this rule.
IX. Points and Authorities— Statements— What Facts Considered.—
The points referred to in Rule VIII shall be preceded by a urief state-
ment of the nature of the action and defences, and the nature of the
questions brought up by appeal, and shall set forth the propositions of
law and fact relied on, and a note of the authorities and reference by
folio to the evidence when an examination of the evidence is necessary.
At the opening of the case such statement shall be first read, after
which counsel may read such portions of the record as they maj' deem
necessary for a proper understanding of the points made. But this
Court will not consider any fact which does not appear in the " case "
as prepared for argument in this Court ; and, therefore, it is altogether
useless for counsel to embody in their arguments or in the statements
of facts preceding the points and authorities required by this rule any
fact which does not appear in the " case" as agreed upon or settled.
Nor will any fact stated in the exceptions or grounds of appeal which
does not appear in the " case " be considered by the Court. If counsel
desire to add any facts to those stated in the '' case " they must either
obtain the written consent of opposing counsel to the insertion of such
additional facts, or they must, upon due notice move this Court, before
the argument commences, to recommit the " case " to the Circuit Court
for amendment.
X. Docketing Causes— Order of Docket— By Consent.— I^pon tl
filing of the return of the Court below, in conformity with the rules
this Court, the cause will be docketed by the Clerk. Causes will
placed upon the docket according to the respective Circuits in whic
they originally depended, and in the order in W'hich the returns were
filed. Every cause shall be docketed before the first day of each term,
and not afterwards, except by consent of the opposing party. #
[On a second and each subsequent appeal, or upon its restoT-ation to
the docket when dismissed for defect or irregularity, the cause shall be
placed upon the calendar as of the time of filing the first appeal. Code,
03.]
XI Default of Appearance— Order Upon.— If, on the call of a cause,
either party fail to appear, or shall neglect to furnish and deliver the
papers required by rule VIII, the opposite party may proceed a^ fol-
;re ^^r
48
lows: the appellant may argue or submit the cause in his behalf, the
respondent may have an order dismissing the appeal. When neither
jiarty appear to argue on the call of a cause, it will stahd continued at
the first term.
XII Criminal Causes— Order of Hearing — Criminal causes shall
have a preference, and may be moved, on behalf of the State, out of
their order.
[In Section 13 of the ( 'ode of Procedure, it is provided that whenever
the State, or any State officer, or any Board of State officers, is or are
sole plaintift" or defendant, the appeal in such case shall have preference
in the Supreme Court, and may be moved by either party out of the
order on the calendar j
XIII. Counsel Limited in Number and Time. — Unless before the
argument begins, special leave of the Court be obtained, not more than
two counsel shall be heard in argument on either side in a cause before
the Supreme Court, each side being limited to two hours.
[See Revised Code, §21G6.]
XIV. Members ot the Bar and Officers of the Court not to sign as
Sureties. — -No meuiber of the Bar or officer of the Court shall sign, as
surety, any bond or other obligation which may be required by any
order of this Court, under pain of being in contempt.
XV. Members of the Bar— Dress. — No member of the Bar will be
heard unless wearing a black coat.
XVI. Attorneys— Affidavits Before.— No affidavit will be considered
by the Court which has been sworn to before an attorney engaged
in the cause, or matter, or before any party interested therein.
XVII. No Argument After Decision — Counsel shall not attempt to
argue or explain a case, or any matter arising therein, after he has been
heard, and the opinion of the Court has been pronounced.
XVIII. Consent Must be in Writing. — No private agreement or con-
sent between the parties or their attorneys, in respect to the proceed-
ings in a cause shall be binding, unless the same shall have been
reduced to the form of an order by consent and entered ; or, unless the
evidence thereof shall be in writing, subscribed by the party against
whom the same shall be alleged, or by his attorney or counsel.
XIX. Special Motions— When Heard.— Motions, other than those
that arise on the call of a cause, will be heard at the opening of the
Court on the morning of the day fixed for the call of causes from the
circuit to which they appertain, and not afterwards, without the
special leave of the Court.
Notice. — When a party intends to move the Cburt that an appeal
be dismissed, or the cause stricken from the docket, for any irregularity
in the taking of the appeal, or in the record filed in this Court, such
motion must be made at the time assigned by this Rule for the hearing
of special motions. All motions, whether made before the Court, or a
Justice at Chambers, as to all matters of fact involved, not appearing on
49
the record filed in this Court, and not appertaining to the class of which
this Court takes judicial notice, must be made on atfidavits, copies of
which must be served on the opposite party with notice of the motion,
in conformity with Chap. XI., Title 12, Second Part of the Code of
Procedure, at least eight days before the day on which such motion
may be heard.
XX. Remittitur— Form of— When to be sent to Court Below— In
cases of Default. — The remittitur shall contain a copy of the judgment
of the Court, and shall be sealed with the seal and signed by the Clerk
of the Court, and shall not be sent to the Court below until ten days
alter the final determination, unless this Court shall otherwise direct.
When a decree or order shall be aflirmed or an appeal dismissed by
default of appearance by the appellant, the remittitur shall not be sent
to the Court below, unless this Court shall otherwise direct, until ten
days after notice of the affirmance or dismissal shall have been served
on the attorney of the party in default. Service of notice shall be
proved to the Clerk, by affidavit, or by written admission of the attor-
ney on whom it was served-
Stay Of. — On application, showing sufficient cause, either of the Jus-
tices at Chambers, may by order, require the remittitur to be further re-
tained for such time as he may deem proper, not beyond the third day
of the ensuing term, subject to the order of the Court.
XXI Order for Extension of Time or Stay of Proceedings by a Single
Justice — The time prescribed by these rules for doing any act may be
enlarged by the Court or by either of the Justices thereof ; and either
of the Justices may make orders in any cause pending in this Court to
stay proceedings, which, when served, with the papers on which it was
made, shall stay the proceedings, according to the terms of the order.
Any order may be revoked or modified by the Justice who made it,
or in case of his absence or inability to act, by either of the other
Justices.
XXII. Orders— Service of— Cases of Contempt.— To make the ser-
vice of an ex parte order, or rule to show cause effectual, a copy of the
affidavits, or other proofs on which it was granted, must be served with
a copy of such order or rule ; and in order to bring any person into
contempt for the disobedience of an order, the original order must be
exhibited to such person, and a copy thereof left with him. When any
jierson avoids the service of an order, on application to this Court, or
to one of the Justices thereof, making proof of such fact, special direc-
tions will be given as to the service thereof.
XXIII. Admission to the Bar. — Applicants for admission to practice
as attoi-neys and counsellors in this Court who are entitled to examina-
tion shall be examined in open Court at a regular term thereof, and no
private examination shall be permitted. Such applications shall be in
writing, accompanied by the proofs required by law, and shall be filed
on or before the second Tuesday of each regular term. After the peti-
4
50
tions are filed, a day for the examination will be appointed, of which
due notice will be given.
In pursuance of an Act entitled " An Act to enable citizens of this
State to apply for admission to the Bar," approved 23d December, 1879,
the following course of stud}'^ is hereby prescribed for persons wishing
t9 apply for admission to practice in the Courts of thi^State, viz :
I I Bl«^)k«tofle'*-Go«iuientaries,} Kont'a Commcnt-ft i't oSf Pai«onsr-©n <3oti-
tntffe" or-O hlU.r " qw" "€) (mt»wwjt s, DamoV-e n' -Negotiable lostramente or
\ Ghitty orn"-B!tlsy \¥inin^rTtfii aa . J-iwrnt>€^6, SlWBPi*l9eHt;e, Pe^meroy-on
^ftemedies, Greenleaf on "TJvidience, ife teiiy'o n E ciuity jurisprudence,
Adanre'S'-EqiHty. Daniel's Chancery Pleading and rnutii e. Bishop on .
Criminal iaw, (Bishop— en -Criminal ProcedureiiGonstituti<m of the
United States, Constitution of South Carolina, General Statutes of South
Carolina, and ^11 Acts of a public nature which have been passed since
the adoption of the General Statutes, Rules of Supreme, Circuit and
Probate Courts.
[Any graduate of a recognized law school, or any attorney who has
been admitted to practice in any Court of record in any of the States of
this Union, or in any United States Court, may be admitted on motion-
— Revised Code, Sect. 2160. The original diploma or license should be
exhibited, as it is the best evidence of the fact.]
XXIV Motions— Will Not be Heard on Written Application —
No motion will be heard by the Court, or by either of the Justices at
Chambers, on written application. If the counsel of record cannot
attend, the motion must be submitted by counsel reiiresenting them.
XXV. Rules— When to Take Effect— Former Rules —These Rules,
as hereby amended and republished, shall take effect on the first day of
July, 1879, from which time all rules inconsistent herewith are abro-
gated, except so far as it may be necessary to follow them in cases
where causes are already prepared for argument, and except, also, that
all cases not herein provided for are governed by the existing rules
and practice of this Court and of the late Court of Appeals, so far as
such rules and practice are conformable to existing laws.
[Several of these rules have been amended since July 1st, 1879, but
the amendments are incorporated into the text as here printed, and
the date of the changes are not important.]
APPEALS TO THE SUPREME COURT.
This monograph treats only of matters of practice, under the law as
it now exists, without any attempt at an historical investigation. It is
intended to aid the nractitioner, by directing his attention to the Statute
law, the rules of Court, and the decisions of the Supreme Court, regu-
lating appeals from the Circuit Courts. When to appeal and how to
appeal, when and how in the progress of a cause to take the necessary
ttteps to make an appeal available, how and in what time to perfect the
appeal through its several stages and bring it to a hearing, and what
are the points of practice afi'ecting the cause in this Court after decision
rendered and until it has been remitted to the jurisdiction of the Cir-
cuit Court — are the questions here considered.
51
Exceptions. — Technically speaking, grounds of appeal, as in the
former practice of the Court of Appeals, are not now required. A sim-
ple notice of intention to appeal, with the subsequent perfection of the
appeal papers, and a tiling of the return with the Clerk of this Court,
brings the cause into the Supreme Court for review ; and any matter
properly appealable may then be argued and will here be considered
to which due and timely exception was taken, as appears by the record.
Sullivan v^. Thomas, 3 S. C, 548.
It is very important, therefore, to take exceptions at the proper time
and to have those exceptions noted or served, as the case may be ; for
this Court will not consider points made on appeal, unless they rest
upon exceptions duly taken. Shelton vs. Maybin, 4 S. C, 541 ; Fox vs.
Railroad Company, Ibid, 544 ; Winsmith vs. Walker, 5 Ibid, 473 ; Railroad
Company vs. Railroad ('ompuny, 7 Ibid, 410 ; Clarke vs. Harper, 8 Ibid, 256 ;
State ex. rel. Cason vs. Colem'^n, 11 Ibid, 392; Lawrence vs. Grambling, 13
Ibid, 120 ; JoJinson vs. Clarke, 15 S. C, 72 ; Careton vs. Dargan, MS., Dec,
Oct. 6, 1881, not yet reported. A mere reference to exceptions taken
to the report of a Referee or Master or to a decree of the Probate Judge,
is not sufficient, and will not be considered. Ride 5 of the Supreme
Court. An objection is not an exception ; and while this Court will
consider matters which the Circuit Judge at the time was apprised that
the appellant would rely upon as exceptions to his rulings, the better
and the only safe practice is to use the tet-hnical word except. Crotwell
vs. Boozer, 1 S. C , 272 ; Railroad Company vs. Railroad Company, 7 Ibid,
410; Coleman vs. Heller, 13 Jfc/d, 491. In some exceptional cases the
appellant may be permitted to take positions not covered by his ex-
ceptions, or they may be taken by the Court of its own motion ; but
the rule requires the appellant in every case to show by his brief that
the point discussed was duly excepted to and (as we shall hereafter see)
in proper time ; and a disregard of this rule is risky. The exceptional
cases are, where objection is to the jurisdiction of the Court, Code, p 169;'
Poole vs. Brown, 12 S. C, 556 ; Ex parte Lewis, MS., Dec , April 17, 1882,
not yet reported ; where the question arises out of the construction of a
public statute, Farrar & Miller vs. Nunnamaker, 5 Rich., 489 ; where in a
capital case the errors are apparent on the record, and atfect the sub-
stantial rights of the prisoner. Slate vs. McNinch, 12 S, C , 89 ; State vs.
Washington, 13 Ibid, 455; State vs. t>odson, MS., Dec, Feb. 21, 1882; and
possibly, where the objection is that the complaint does not state facts
siifficient to constitute a cause of action. Code, I 169. In this connection
see Elliott vs. Rhett, 5 Rich., 417.
When to Except. — In trials by jury, objection to a juror must be
made before the trial. Revised Code, I 2265 ; State vs. Stephens, 11 S. C,
319, Irregularity in the writ of venire facias, or in the drawing, sum-
moning, returning, or empanelling of jurors, will not be sufficient to set
aside a verdict unless the party making the objection was injured by
the irregularity, or unless the objection was made before the returning
of the verdict. Revised Code I 2266; State vs. Stephens, 11 S. C, 319.
Objection to the excusing of a juror comes too late after verdict, unless
appellant was injured thereby. State vs. Gill, 14 S. C, 410. And in
every case where an objection is taken and the objection is overruled,
exception to such ruling should be noted; otherwise the party cannot
renew the objection in this Court as of right. Thompson vs. Brannon,
14 S. C , 542
Objection to "the competency of a witness must be taken before he
gives his testimony. Bollman vs. Bollman, 6 S. C, 44. Evidence received
without objection cannot be excepted to afterwards. Burris vs Whitner,
* Thi.'i refers to the new numbering of the sections of the Code, as re-enacted
in tlie Revised Code or General Statutes of 1882.
52
3 iS. C, 510 ; Means i;s. FmMer, 4 Ihid, 249 ; Powers vs. McEachern, 7 It/id,
290 ; Lawrence vs. Grambling, 13 J^uZ, 120; Fripp vs. Williams, Birnie & Co.,
14: Ibid, 502; Cooke vs. Pevirivgton, 15 Ibid, 185?-^ Objection should be
made at the time, or tiie evidence is competent ; and if the objection is
overruled, exception should be taken at once and noted by the pre-
siding Judge. By so doing, a faihire to serve upon the Circuit Judge
and respondent, exceptions to these rulings within ten days after the
rising of the Court, will not be fatal. Coleman vs. Heller, 13 S. C, 491 ;
Buttz vs. Campbell, 15 S. C, GOO- If not noted at the time, however, the
language of the Act of 1878 (16 Stat., 698) seems to be broad enough to
permit exceptions to the rulings upon such objections to be taken and
served within ten days after the Court adjourns. But the Revised Code
having limited the first section of the Act of 1878 to cases tried by a
jury, in all other cases exceptions to rulings had better be taken at the
time, (ode Proc, , ^ 345. If improper testimony is received after ob-
jection, this Court will not disturb the judgment if the testimony was
immaterial. Thompson vs. Brannon, 14 S. C, 542.
The next point to be considered is the judge's charge in cases tried by
a jury. Recjuests to cliarge must be submitted in writing to tlie Court
at the close of the argument. liule 11 of Circuit Court. Care should be
taken to exclude questions of fact, and not to assume the existence of
any fact which is at all disputed ; or the requests will be properly re-
fused, Bamberg vs. Railroad Compavy, 9 S. C, 61. Each separate I'e-
quest should be confined to a single proposition of laAv; for if correct in
part, but incorrect in part, the judge is uf>t bound to divide the propo-
sitions — he may properly refuse the whole of the request in which such
incorrect principle is asserted. Gunter vs. GranUeville 3Iaaufactnring Co.
15 S C, 444. And they ought, of course, to be free from all possible
anibiquity. Blake vs. DeLiessline, 4 Mi-C, 496 The requests to charge
should contain every letral proposition deemed material ; for a number
of cases have established the rule that no error of law is committed by
the neglect to charge upon matters not brought sj)ecially to the atten-
tion of the trial Judge at the time, by a request to charge them. Mads- -
den vs. Fltwnix Co., 1 S. (;., 24 ; Abrahams vx. Kelly & Barrett, 2 Ibid, 23H ;
Fox vs. Railroad Company, 4 Ibid, 544 ; Clarke vs. Harper, 8 Ibid, 256 ;
Sullivan vs. Jones, 14 Ibid, 584; Ancrum rs. Wehmann, 15 S. C, 118; State
vs. Dodson, MS Dec. Feby, 21, 1882. Misstatements of law, it was held
in 1871, should be called to the attention of the presiding Judge at the
time. Abrahams vs. Kelly & Barrett, 2 S. C, 238. It may be that this is
not necessary now, but it would be safer to invite attention at the time
of the charge to mere inaccuracies or misstatements ; and it has been
held since the Act of 1878, that an ernr of the Circuit Judge in submit-
ting to the jury a question which he should have himself decided, will
not Ije corrected unless he was reminded at the time of the error. A
general charge is not error, where specific instructions were not asked
Covgdon, Hazard & Co. vs. Morgan, 13 S. C. 191; Norton vs. Lhringston,
14 S C, 177...rAppellant cannot raise and discuss in this Court a legal
point waived oh Circuit. Gatewood vs. Moses, 5 Rich, 244.
■» There can be no exceptions to a verdict or notice of intention to
api^eal therefrom. Winsmith vs- Walker, 5 S. C , 473 ; Bank vs. Gary,
14 Ibid, 571, and see Boylston vs. Crews, 2 S C, 420.
The proper practice of motions for new trial on the minutes or other-
wise, is not within the scope of this article. Such motion is not neces-
sary to entitle the party against whom is the verdict, to bring his case
before the Supreme Court to have his exceptions considered and ajudi-
cated. Detheridge vs. Ear'e, 3 S. C, 396 ; Redding vs. Railroad Company,
5 Ibid, 67 ; Brice vs. Hamilton, 12 Ibid, 32.
V\ ithin ten days after the adjournment of the Circuit Court at which
the cause was tried, the appellant must serve upon the respondent's
53
attornej' and furnish to the presidincjjud'^e, exceptions to every mat-
ter which it is desired to brin,; before this Court as error in tlie rulings
of the presidinsj judije at the trial, except such as have been already
duly excepted to. Act of 1878, ^1, 16 Stat., 608. This section of the Act
of 1878, had been construed to include orders, judgments and decrees
rendered durinp; term time, Rogers vs. Nash, 12 S. C, 560 ; Ex parte Clyde
14 lb., 385 ; (which in its head notes 8 and 4 is unaccountably inaccurate
in using the words "notice of his intention to appeal" instead of the
words his exceptions:) In re.. Fifty-four first 'onorlgage bonds, 15 S. C,
304 ; but in its re-enactment in the Revised Code, which went into effect
May 1st, 1882, this Section is limited to cases tried by a jury. Code Pro-
cedure, ^^Sio. The effect of this change in the law would seem to be,
that in cases not tried by jury, exceptions to rulin2;s, orders, decrees or
judgments rendered during term time, must be taken under Se(;tion 2
of the Act of 1878, and Judd. 2 of Section 315 of the Code, within thirty
days after notice of intention to appeal, and that a copy need not be
furnished to the presiding Judge. Until the point is adjudicated, how-
ever, the safer practice as to mere rulings (which a.re not mentioned in
the second Section) is to follow the old law as laid down in Rule 50 of
the Circuit ("ourt.
- No exceptions can be considered by this Court unless properly noted
during the trial, or duly taken afterwards within the prescribed time.
These are Statutory requirements and therefore obligator}' upon the
Courts Bell vs. Wheeler, 6 S- C, 104; Weatherly vs. Jackson, Ibid, 228;
^Sprntt rs. Pier son, 4 Ibid, 308 ; Kibler vs. Mcllwain, 12 Ibid, boo ; Rogers vs.
Na>th, Ibid, 559 ; Sallivan vs Speights, Ibid, 561 ; Ex parte, Clyde, 14 Ibid,
385; Blakely & Copeland vs Frazier, lb fi C.,600- Agreement as to what
papers shall constitute the appeal record is not waiver of due service of
exceptions where respondent was ignorant of the failure to serve them.
Ex parte Clyde, 14 S. C, 385.
Exceptions to an order, decree or judgment other than in cases tried
by jury must betaken within thirty days after giving notice of inten-
tion to appeal therefrom, which will be considered presently— 16 Stat.,
698, and Code Procedure ^345. It is not necessary to furnish the pre-
siding judge with a copy of exceptions in such case. Godbold vs. Vance,
14 S.C , 458.
It is not necessary in any case to serve a copy of the exceptions or of
the notice of intention to appeal upon the Clerk Crane, Boylston & Co.
vs. Moses, 13 S. C, 43. Exceptions in the words 'that the verdict, (or
decree, &c.,) is contrary to the law and the evidence,' or 'that his honor
erred throughout his whole charge thereby causing the jury to bring in
a verdict contrary to the law and the evidence,' are of too general and
indefinite a character, charge no specific error and will not be consid-
ered. State vs. Branham, 13 S. C, 389 ; Norton vs. Livingston, 14 Ibid, 177 ;
State ex rel. Detheridge vs. Gilreath, MS. Dec, Oct 3, 1881. All exceptions
should distinctly state the error complained of. Blake vs. DeLiessline, 4
McC , 491.
Time within which to serve exceptions may be extended, and errors
of omission or inadvertence in their service corrected, under the Act of
1880, 17 Stat., 368, in the same way as in the service of the case — matters
Avhich are considered hereafter.
Exceptions should be taken within the proper time as above indi-
cated, although the purpose is not to prosecute the appeal until after
further proceedings had in the Circuit Court. While this is not in all
cases necessary, it is the safer practice ; it may be too late afterwards.
Jones vs. Massey, 14 S. C, 292 ; Kerchner vs. Singletary, 15 S C, 537.
Where an interlocutory decree was' filed at Chambers, in the main
adverse to defendants, but which ordered a reference whose results
might protect the interests of the defendants, and the plaintiffs ap-
54
pealed and obtained a reversal of so much of the interlocutory decree
as ordered the reference, it was held that the defendants might after-
wards except to the tinal decree and thereby raise objections to so
much of the interlocutory decree as may have led to or afi'ected the
tinal judgment. Hyatt vs.. McBurney, MS. Dec, April 17, 1882. This
decision is based upon the proviso to subdivision 1, of Section 11 of the
Code. See too, Section 341. In such case it could have done the de-
fendants no harm if they had duly excepted to the interlocutory decree,
and in like cases such a course will avoid the discussion of what may
prove to be nice distinctions.
A party satisfied with the result of an interlocutory decree may
properly except to points which, in his judgment, were erroneously
decided against him, and put his exceptions upon the record. But there
should be no exceptions to a final judgment in his favor, no matter
what the grounds are by which the resist is reached. The proper
course in such case, if the other party appeals, will be noticed
hereafter.
Notice of AppEAL^kThis notice is sufficient if in the words of the
Act : " Take notice tnat the plaintifl' intends to appeal to the Supreme
Court from the judgment rendered in the above stated case on the
day of last." Where, however, the appeal is from an order
granting a new trial, the notice "f appeal must contain an assent on the
part of the appellant, that if the order be affirmed, judgment absolute
shall be rendered against him. Code, IW, subd. 2. Without this he
loses his appeal. Castonvs- Brock. 14 S. C, 104.
Only the party prejudiced by a decision may appeal therefrom. Rodger
r.s. >Smith, MS. Dec, 1866 If, however, the losing party appeals, the
respondent may ask the Supreme Court to sustain the result of the
judgment appealed from upon grounds other than those upon which
the Circuit Judge has placed it. Southern Porcelain Man. Co. vs. Thew,
5 vS. C, 5. Positions overruled by the Circuit Judge, and even grounds
not taken in the Lourt below may be urged here to support the judg-
ment Wiengesvs. Cash, 15 S. C, 44 The party in whose favor is the
decree or judgment, cannot appeal from it, but he should give notice to
the appellant that if this Court should find itself unable to sustain the
judgment below on the grounds upon which it is rested by the Circuit
Judge, that he would then insist that said judgment should be sustained
on grounds specified in such notice. Ibid. The rule does not fix the
time when such notice should be given. Reasonable time is sufficient,
but it should be before the perfection of the appeal record, so that it
may be included in the return, and so that appellant may have the op-
portunity of incorporating into the record the facts bearing upon those
points. If, however, the brief is sufficient for the purpose, it is prob-
able that this Court would consider a point in support of the Circuit
decree, although raised for the first time in argument here.
A defendant convicted in the Court of General Sessions can take his
appeal only from the sentence. State I's. McKettrick, 13 S. C, 439.
From every appealable rudng, order, decree or judgment, made,
granted or rendered during term time, the party intending to appeal
must, within ten days after the rising of the Court, give notice to the
opposite party, or his attorney, of the intention to appeal. Act of 1878,
16 Stat,, 698. If lodged with the sheriff' within the ten days, for service,
it is sufficient. Carter vs Evans, Minutes of Supreme Court, April 19,
1882. The Act of 1878, with its amendments, having been held to cover
the whole ground of appeals {Godbold vs. Vance, 14 S. C, 458), it was
not considered necessary under that Act that the notice should be in
writing. Bank vs. Gary, 14 S. C, 571. But the Revised Code re-enacts
the Act of 1878 (Code Proc, | 345), and at the same time Section 339 of
the Code, which requires every notice • of appeal to any Court to be in
writing. \
.^
55
-\-If the appeal be from a final judgment, notice within ten days aftef
entry of judgment of intention to appeal would seem to be sufficient.
Bank vs Gary, 14 S. C, 571. If the prevailino: party refuses or neglects
to enter up his judgment, the losing party may demand of him to do
so, and ujion his refusal, obtain leave, upon motion on notice, to enter
up the judgment and then appeal from such judgment. Johnson vs.
Henagan, 11 S. C, 94.
From every order made, or decree or judgment rendered, in vacation
or at Chainbers, the appellant must give his notice ot intention to
appeal within ten days after w^ritten notice served upon him of the
filing of such order, decree or judgment. This notice must be given to
the opposite partv, or his attorney'^ Act of 1878, | 2, (16 Stat., 6'.t8) ; Code
Proc, ^ 345. And should be in writing. Code Proc , f. 339. If notice
of appeal in any case is not served in the time prescribed by statute,
the appeal is waived. Act of 1878, ^ 4 ; Code Proc. I 345.
The notice above referred to, of the filing of an order, decree or judg-
ment in vacation or at Chambers, to be given in writing, means notice
from the adverse party : until then, the time for giving notice of appeal
does not commence to run. Where attorney for defendant read^ the r*S
decree in the clerk's office, procured a copy, and gave notice of its filing » \
to counsel of the other party, it was held not to be the notice to defend- p«^
ant of the decree contemplated in the Act, from which would commence ^^
to run his time for giving notice of appeal. Lake vs Moore, 12 S. C,
563 But adtnission of notice of filing endorsed on the original decree, ;
will give currency to the time for notice of appeal. McElwee vs. McElwee, \
14 S. C, 623. It is not nece.ssary to give to the presiding Judge notice i,
of intention to appeal. It is not necessary to serve such notice upon i ^^
the Clerk of the Circuit Court in anv case. Crane, Boylston & Co. vs. \
Moses, 13 S. C, 43. ' ■ .
Where there is a final judgment, or where there is an order which in
effect determines the action, appeal should be at once taken and per-
fected. Code, ^1 From an intermediate judgment, order or decree
involving the merits, an appeal may be taken at once, or the appeal
may be delayed until final judgment If there is a doubt whether the
judgment is final, it is better to go on with the appeal. If one party
carries the cause on appeal to the Supreme Court, and the other party
is dissatisfied with any part of the judgment, and has excepted, it would
be the better practice to carry the whole case up, so that all exceptions
may be considered at once. This is not necessary Hyatt vs. McBurney,
MS. Dec. y\pril 17, 1882 ; but advisable, Austin vs. Kinsman, 1 S. C, 100 ;
Kirkpatrick vs. Atkinson. 4 S. C, 126 ; Pringle vs Sizer, 7 S. C, 132.
Application to amend notice of agpeal should be made in writing
and on due notice. Caston vs. Brock, li S. C, 104. Due notice means
notice in writing served upon the opposite Counsel not less than eight
days before the day named for the hearing of the motion. Rule 19 of
Supreme Court.
Prepar.\tiox and Settlement of Case. — AVithin thirty days from,
the serving of the. notice of appeal, the appellant must prepare and
serve his " case," or his appeal will be deemed to have been waived,
unless the time has been extended. Code, | 348 ; Rogers vs Nash, 12
S. C. 559 ; Scurry vs Coleman, i4 lb , 166. An agreed statement of the
case will be a sufficient record for the Supreme C(j«rt, and a sufficient
brief for the hearintr of the appeal — at least in civil causes. Code, ^ 345,
subd. 5. Whether it would be so in criminal causes is doubtful. State
vs. Pitts, 12 S. C, 180. In criminal causes the appeal will be heard on
the report of the Judge. Ibid If there is no report, but the Solicitor
waives the irregularity, this Court may hear the appeal State vs.
McGre.er, 12 S. C, 465. Or, human life being involved, time may be
given to procure the report. State vt- Dodson, 14 S. C, 619. The rule is,
56
not to go outside of the report of the Jndcre for the facts of the case.
Salley vs. Gunter, 13 Rich., 72. But facts submitted to the Judge and not
corrected by him, were assumed to be true in »S'to<e vs. Harden, 118. C,
360. It is therefore suggested that in every appeal from the Court of
General Sessions, the appellant should request from the Presiding
Judge a report of the case directing attention to the points involved in
the appeal and covered by the exceptions, with a statement of appel-
lant's recollection of those points, and asking for the notes of evidence
bearing on them ; let this jjaper be submitted to the Solicitor within
thirty days from the time notice of apreal was given, for his amend-
ments or suggestions, and then forward both of them to the Presiding
Judge ; or if the Solicitor suggests no amendments within ten days after
the service upcm him, let the appellant's paper be forwarded alone.
The case should contain the Judge's report, with exceptions and notice
of appeal and, if necessary, a copy of the indictment.
In civil causes a statement of the case prepared and agreed upon by
the attorneys of record will constitute a sufficient return Code, ^ 345,
subd. 5. If no agreed statement is adopted, the appellant must prepare
a case, or exceptions, or case containing exceptions, according to the
directions of Rule 50 of the Circuit Court. Justice Willarcl defines
these terms in the leading case of Sullivan vs. Thomas, 3 S. C, 548, and
again in Caston vs. Brock, 14 lb., 108. But an exact definition is un-
necessary. This Court in the administration of its own rules will not
permit form to override substance. Ex parte Clyde, 14 S. C, 285. A
clear and intelligible history of all proceedings important to a review of
the cause is all that can be insisted upon. Sullivan vs. Thomas, 3 S. C,
548. But the case in connection with the pleadings should certainly
contain no less than the matters required by Rule 5 of the Supreme
Court to be inserted in the brief prepared for argument. Every fact
deemed at all material to the points involved in the apiaeal, should be
clearly stated. As the brief is to be based upon the record, all that is
necessary to a proper brief, as below stated, is of course necessary to
the record ; and the case is that statement of the cause which, when
added to the ordinary judgment roil, makes a record complete for the
appeal Court. Code. ^ 302.
The case as prepared should be written on paper with the pages
numbered and also the lines, and the copy served should be made to
conform line by line with the original. A neglect of this rule has caused
confusion in some instances, as the auiendments are generally desig-
nated by the page and line of the copy served This case must be
served upon respondent's attorney within thirty days from the service
of the notice of appeal. Code, § 345, Subd., 2 ; but the Judge who heard
the cause, or one of the Justices of the Supreme Court, may extend the
time on motion, four days' notice of such motion being first given to
the opposite party. Act of 1S80, 17 Sfat.,_ 368; Code, 'i 348. This motion
must be made before the time has expired ; it is too late afterwards.
Scurry vs. Coleman, 14 S. C, 160 ; Wheeler vs. Broadaway, Minutes, Dec. 19,
1881. If made before a Circuit Judge, it must be the Judge who tried
the cause, if still in office; and his ruling on the motion is not appeal-
able. Stribling vs. Johns, MS., Dec, Oct. 8, 1881. From August 2d to
September 2d is not within time, it being thirty-one days. Whitmire
vs. ^'^^estfield. Minutes, June 2d, 1881.
If the proposed case is not served within the thirty days, the appeal
will be deeuied to have been waived. 16 *SVo<., 698 ; Code, § 345, Subd.,
4 ; Rogers vs. Na.sh, 12 S. C, 559. But the appeal being bona fide and the
notice of intention to appeal having been duly given, if any party shall
omit through mistake or inadvertence to do any act necessary to perfect
the appeal or stay proceedings, the Supreme Court may, in their dis-
cretion, permit such act to be done at any time to perfect the appeal on
57
such terms as may be just. 17 Stat., 368 ; Code, ? 349 ; and see Section
339, wSubd., 2, to which Sections direct reference is made in Section 345,
Subd , 4. These two Sections of the Code made b}' their re-enactment
of equal force are not necessarily inconsistent ; the latter provision is
more comprehensive than the former, and the two being found in the
same Act, the word Court in Section 339 will probably be construed to
mean the Appellate Court. The Supreme Court will not grunt relief
under this second Section of the Act of 1880 (Code, § 349), unless the
applicant can show to the Court that the omission was the result of
mistake or inadvertence. Wheeler i^s. Broadaivay, Minutes, Dec. 19, 1881.
Failure from press of business is not a sufficient excuse. Symmes vs.
Symmes, Minutes, May 19, 1882.
If the respondent desires any amendments to the proposed case, he
must serve on appellant notit-e of his proposed amendments within ten
days after the service upon him of the proposed case, or he will be
deemed to have agreed to 'he case as proposed. Rules 47, 50 and 51 of
Circuit Court. Rut it would seem that, within the ten days, the time
might be extended under Section 1 of the Act of 1880 (Code, | 348), and
afterwards, under Section 2 of the same Act (Code, ^ 349), if there wa's
shown to have been mistake or inadvertence. 17 Stat., 368.
If the proposed amendments are duly served, the appellant must,
within four daj's thereafter, serve upon respondent a notice that the
proposed case and amendments will be submitted, at a time and place
to be specified in the notice, to the Judge before whom the cause was
tried, for settlement, or the ai'pellant will be deemed to have accepted
the proposed amendments. Rule 51 of Circidt Court. The failure of the
respondent to appear before the Judge will not be considered an aban-
donment of his proposed amendments. Chalk r.s. Patterson, 4 S. C, 98.
If the Judge who tried the cause is out of office, the case may be settled
by his successor, or probably other Circuit Judge upon affidavits and
other proof Jbid
As ab'eady noticed, this Court cannot disregard statutory provisions
regulating the practice on appeals; but where the requirements are
prescribed only by rules of Court, it is within the power of the Court to
relieve a party of his default. The rules of Court, however, are neces-
sary for the orderly conduct of business, and they should not be lightly
disregarded. Any irregularity in the preparation, service or settlement
of a case, or other papers not violating statute regulations, may be cor-
rected. Application for leave to correct must be on notice and affida-
vits. If the application is made before the cause has been removed
from the jurisdiction of the Circuit Court by the filing with the clerk of
this Court of the return or agreed statement as hereafter stated, then it
must be made to the Circuit Judge, as all the papers in the cause are
records of the Circuit Court and subject to its control until removed
here. Sullivan vs. Thomas, 3 S. C, 548; Gibson vs. Gibson, 1 lb., 356.
After the cause is transferred to the jurisdiction of the Supreme Court,
the Circuit Court loses its jurisdiction for the time, and all motions
affecting the appeal must be made here, as we shall presently see.
But it would seem to follow from the decision in Hammond rs . Port
Royal Railroad Company, 15 S. C, 10, that an appeal from an order over-
ruling a demurrer to one cause of action stated in the complaint sus-
pends further proceedings under that cause of action, but does not
prevent a trial of the other ; and see too Code Proc, ^353.
The proposed case is settled when ten days have expired after its
service upon respondent without amendments proposed, or amend-
Inents being proposed when amendments are accepted ; or, the case
being submitted to the Circuit Judge when he returns it with his rul-
ings upon the proposed amendments and his settlement of it, or in
criminal causes, from the filing of the Judge's report Within ten days
58
after the case is settled by any of these modes, the appellant shall pro-
cure the same to be filed with the clerk of the Circuit Court, or the ap-
peal will be deemed abandoned Rule 49 of Circuit Courts. The case
when filed becomes a part of the judgment roll. Code, ?302
Return. When the parties agree upon a statement of the case for a
hearin.2 of .the appeal, such agreed statement constitutes both return
and brief. 15 Stat , 862 ; Code, p45, subd. 5. In other cases the return
and brief may or may not be identical. Where there is an agreed
statement itshould be filed, it would seem, with the clerk of the (Jircuit
Court, and a certified copy must be sent by him to the clerk of the
Supreme Court. Ibid. In practice it is usual to have the agreed state-
ment printed, and one copy (wherein the agreement is signed by the
attorneys in their own handwriting) filed with the clerk of the Circuit
Court, who certifies on the fly-leaf of another copy that that is a true
copy of the agreed statement signed by counsel and on file in his office,
and such certified copy is then transmitted to the clerk of this Court.
Attorneys who send a printed agreed statement to the clerk of this
Court for docket without filing the original with the clerk below and
obtaining his certificate, overlook what seems to be the requirement of
the Act of March, 1875, supra.
Where a statement for the hearing of the appeal is not agreed upon,
and the appeal is from a judgment, the return shall consist of certifieci
copies of the notice of appeal, exceptions, case and all papers constitu-
ting a part of the judgment roll. Rule 2 of Supreme Court ; Sullivan vs-
Thomas, 3 S. C, 548. If the appeal is from an order as allowed by Sec-
tion 11 of the Code, the return shall consist of certified copies of the
notice of appeal, the order appealed from, and the papers on which the
Court below acted in making the order. Ibid. In criminal causes it
should consist of indictment, sentence, notice of appeal, exceptions
and judge's report. The appellant shall procure the return, whether it
be an agreed statement or otherwise, from the clerk of the Circuit Court,
and cause it to be filed with the clerk of this Court within forty days
after the record constituting the return has been completed. Rule 1 of
Supreme Court. If appellant fails to do so, the respondent may cause
such return to be transmitted to the clerk of this Court, Code, ^340; or
he may deem the appeal waived and obtain an order from the clerk of
this Court dismissing the appeal for want of prosecution. Rule 1,
supra.
If the return shall be defective, either party may, on affidavit specify-
ing the defect, and after eight days' notice to the opposite party, ai)ply
to one of the Justices of this Court for an order that the appellant cause
a further return to be made without delay. Rule 3.
The return being properly filed here, the cause is then docketed by
the clerk of this Court for the term next succeeding the day of filing.
After the first cbiy of a term, a cause may be docketed for that term,
only by consent. Rule 10.
After the return has been filed with the clerk of this Court this
Court acquires jurisdiction of the cause, and the authority and jurisdic-
tion of the Circuit Court over it, is suspended, as to the matters involved
in the appeal- Ex parte Whaley, 8 S. C, 344. But the Court below may
proceed upon any other matter included in the action and not aff"ected
*by the judgment appealed from. Code, \ 353. Further action in the
Circuit Court may be had however by order of this Court. Thus, argu-
ment on appeal was stayed until petition for rehearing could be
presented. Tomlinson vs. Tomlinson, 10 Rich. Eq , 300. Hearing of ap-
peal was suspended to enable appellant to move the Circuit Court (not-
withstanding the pendanc}' of the appeal) for a rehearing ofthe case upon
the ground of after-discovered evidence Tarrard v<. Gilletsou, 14 S. C,
620 ; Coleman vs. Smith MS. Dec, Dec. 8, 1879. But this will not be done
59
^vhere such evidence would not authorize the Circuit Court to grant the
motion for new trial. 3fars vs. Va Ins. Co., MS. Dec, May 24, 1882.
Where the amount in a case in Chancery was large and appellants sub-
mitted affidavit showing that they Avere misled by the allegations of
the complaint as to the proof necessary on their part, and asked for
leave to sustain their allegations, this Court seeing no bad faith re-
manded the case to enable such proof to be made Fraser tfc Dill vs.
Charleston, 8 S. C, 338.
Brief. — As already suggested, the brief or case for argument is not
necessarily a co])y of the return. Where there is a statement agreed
upon by counsel for the hearing of the appeal, such statement consti-
tutes the return and also the brief for this Court. Code, § 345, subd. 5.
But where the return consists of the entire record, the brief shall then
set forth the particulars enumerated in Kule o of the Supreme Court,
and in addition thereto, (it is suggested,) "the Judge who tried the
cause, the county in which and the term at which, it was heard:"
Provided, The brief be printed and served in the manner provided in
Rules 6 and 7. In those cases where the return is not the judgment
roll, the brief must consist of a co-^y of the return, and the reasons of
the Court below for its judgment if the same can be procured. The
brief must incorporate the amendments allowed into the body of the
case, so that it will read as amended ; it will not be sufficient to set out
the amendments proposed with a statement as to which of them were
allowed.
In preparing the brief two precautions should be observed : ' Be sure
not to put in too much ; be sure not to put in too little. In matters of
doubt, redundancy is better than omission : for while much money is
spent every year in printing matter wholly unnecessary, the appeal
may be dismissed if the brief is not in compliance with the rules, and
does not furnish information enough to enable this Court to understand
the points presented Shumate vs. Poivell, 5 S. C, 286. Questions to be
discussed before this Court should be raised with precision and care,
and all the necessary elements of the question should be brought to
view clearly and succinctly. Charles vs. Jacobs, 6 S. C, 73. The bearing
on the issues of the questions of law presented should be made clearly
to appear and nothing left to surmise. Ibid. Detached portions of a
charge to a jury are not sufficient ; this Court must see the whole charge,
or at least so much of it as embraces fullv the error complained of.
Shaiv vs. Cunningham. MS Dec, March 7, 1882. And every fact which
is deemed material must appear in the brief. Facts stated only in^
argument of counsel, or in the statement of facts preceding their points
and authorities, Hornesby vs. Burdell. 9 S. C, 306 ; State vs Wilder, 13
S. C , 346 ; State vs. Scott, 15 S. C, 437 ; or in exceptions taken, will not
be considered as facts in the cause. Thompson vs. Thompson, 6 S. C,
279; Sheriff vs. Welhorn,\^ //>., 480 ; Ride 9 of Supreme Court. Matters
most apt to be omitted are the facts so well known to counsel and jury,
that they are accepted in the Circuit Court without question.
The brief must be printed ip accordance with the requirements of
Rule 6; otherwise, or where the brief is held by this Court to be in-
sufficient, no charge for printing it shall be allowed as a disbursement
in the cause. But if the party makes, and files with the Clerk of the
Supreme Court, an affidavit that he is unable to pay for such i)rinting,
the copies of the brief may be in manuscript. Code, | 343 ; 15 Stat., 500.
Within twenty days after the case has been settled or agreed upon
in the Circuit Court, the appellant shall serve three copies of this printed
brief on the attorney of the adverse party. It appellant fail to do so,
the respondent may by notice in writing require the service of such
copies within ten days thereafter, and if not so served, the appellant
will be deemed to have waived his appeal. Rule 7. .
60
If counsel find in any case that there have been omitted from the brief
facts that are necessary to the disi-nssion of questions involved which
they deem imjjortant, the proper practice is to obtain the consent of
the counsel on the other side, before the argument has commenced,
to the amendment of the brief by the insertion of such facts, or if such
consent cannot be obtained, to move the Court upon athdavits sub-
mitted to recommit the record of the Circuit Court for amendment.
State vs. Wilder, 13 S. C, 346; and see Rule 9 Where, however, the
facts appear in tlie return on file in this Court, but are omitted from the
brief, the necessary correction of the brief could be made by this Court,
without recommitting the record Objections to the brief come too
late at the hearing ; they should be on notice and motion to correct or
amend. Sullivan vs. Thomas, 3 8. C, 548; Redding vs. Railroad Company,
5 Ih., t)7 ; Green vs. Railroad Company, (i lb., 342.
Death of Party. — When a party to the cause dies while the appeal
is pending, any party in interest will be entitled to move the Court for
an order making the proper representative of such decreased person a
jiarty to the appeal ; and if means be not taken at the term next en-
suing the decease of a party to have his representative brought in, the
respondent will be entitled on due proof of such fact to move this
Court to dismiss such appeal. Rule 4
Hearing — Appellant and respondent must prepare a statement of
the points which the\' desire to bring to the attention of this Court, or
the propositions of law and fact relied on, followed as to every one, by
the authorities cited to sustain them, and a reference by folio to the
evidence, when an examination of the evidence is neces.sary- Ride 9.
Instead of a mere statement of the points and authorities, counsel may,
and generally do, submit a full argument ; but no rule requires it. The
points and authorities, or the argument, as the case maj' be, must be
])receded by a brief statement of the nature of the action and defences,
and the nature of the questions brought up by the appeal. At the
opening of the cause such statement shall be first read, after which
counsel may read such portions of the brief as they may deem neces-
sary for a proper understanding of the points made. Ibid. There is
no rule which requires the points and authorities to be printed, but if
printed, they must conform to the requirements of Rule 6. See Dethe-
ridae vs. Gilreath, 14 S. C , (iKJ.
Three days previous to the commencement of the argument of any
cause, the counsel for the appellant shall deliver to the clerk of this
Court six copies ot the brief; and at the same time all the counsel shall
deliver to the clerk eight copies of the points and authorities, two of
which are to be delivered by the clerk to the counsel of the other party
on demand. Rule 8. Parties failing to furnish points will be confined
to a discussion of questions that appear upon such points as shall be
furnished by other parties to the cause, in accordance with this rule.
Ibid. This provision has been recently enforced in this Court.
The cause being called on the docket of the Supreme Court, neither
party may enforce a hearing against the consent of the other, unless the
cause was docketed before the commencement of the term. Whaley vs.
Keitt. IMinutes, Jan'y 23, 1882. If either party fail to appear or neglect
to furnish and deliver the lirief and points and authorities as required
by Ride 8, the opposite party may proceed as follows : the appellant
may argue or submit the cause in his behalf, the respondent may have
an order dismissing the appeal Rule II. This rule was enforced on
respondent's demand in Scott vs- Carpenter, 13 8. C, 44. When neither
party appears to argue on the call of a cause at the first term, it will
stand (continued. Rule 11.
M'tion to docket and submit will not be entertained where the Cir-
cuit to which it belongs has been passed for the term Hellams vs. Aber-
61
crombie, Minutes, Jan'y 27, 1880. If a cause is submitted and either
party fails to file his points and authorities within the time limited by
the order, the Court will proceed to render judp;ment on the brief and
points which are on file. Clark vs Porcelain Manfg Co. 8 S- C, 43. Unless
before the ars^ument begins special leave of the Court be obtained, not
more than two counsel shall be heard in argument on either side, each
side being limited to two hours. Rule i;>. Argument in reply may be
submitted in print by apj^ellant at the hearintr, without his having
served copies upon the respondent ; and this applies not only to the
points raised by appellant on his appeal, but also to the additional
grounds taken by respondent in support of the Circuit judgment. Ash
ley vs. Holman, 15 S C, 103.
Motions. Motions other than those that arise on the call of a cause
will be heard at the opening of the Court on the morning of the day
fixed for the call of causes from tiie circuit to which they appertain, and
not afterwards, without the special leave of the Court. This includes
motions to dismiss appeals. All motions w^hether made before the
Court or a Justice at Chambers, as to all matters of fact involved, not
appearing on the record filed in this Court, and not appertaining to
the class of which this Court takes judicial notice, must be made on
affidavits, copies of which must be served on the opposite party, with
notice of the motion in conformity with Chapter XI., Title 12, second
part of the Code of Procedure, at least eighty days before the day on
which such motion is to be made. Rule 19.
Motion to dismiss appeal may be entertained on the proper day, although
the case is not ready to be docketed Lecy fs. Williams, 9 S. C'., 153.
When an appeal has been waived, it is nevertheless competent to ask
this Court for an order dismissing the appeal. Rogers vs. Nash. 12 S. C,
559. It would involve much repetition to repeat all the grounds upon
which an appeal may be dismissed ; it must suHice to say that a failure
to comply with any of the several steps hereinabove stated to be neces-
sary, entitles the respondent to his motion to dismiss. But where an
application to dismiss an appeal is made on technical grounds, the
respondent must be technically right himself. The respondent will
not be heard unless he has complied with the practice prescribed for
such motions by the rules of Court. Ware vs. Miller, 9 S. C., 13. \\ here
seven days' notice was given of a motion to be made on the day before
the Circuit was called, the motion was not entertained. Fripp vs.
Williams, Birnie cfe Co., 14 S. C , 502. P'ailure to file the return with the
clerk as required by Rule 1, and failure to serve three copies of the
brief after notice, as required by Rule 7, amount to a waiver of the
appeal ; and upon the proper proof furnished to the clerk of this Court,
he may, without notice to ai)pellant, dismiss the appeal. tStokes rs
Greenville, 14 S. C, 629. j For all other defaults entitling respondent to
have the appeal dismissed, application must be made to the Supreme
Court under Ride 19 ; except that under Ride 49 of the Circuit Court,
it would seem that an order declaring the appeal abandoned ma}^ be
made by that Court, where the case is not filed with the clerk of the
Circuit Court within ten days after settlement, or to use the exact words
" more than ten days" having elapsed
When an appeal is dismissed by the clerk of this Court for failure
to file return, application may be made to this Court on eight days'
notice for an order reinstating the appeal ; and if it appear to the satis-
faction of this Court that the delay arose froui unavoidable causes, the
motion will be granted- Rule i of Supreme Court. The motion should
be made promptly, and must be supported by affidavits. Stokes vs.
Greenville, 14 S. C. 629. There is no reason why the same motion should
not be entertained where an appeal is dismissed by the clerk for failure
to serve the briefs. This was done in Duncan, Malony & Co. vs. Brown,
14 S. C , 631, and recognized in Hogg vs. Pinckney, 15 S. C, 600.
»«»»
62
Remittitvr.— The Court files its judgment in the clerk's office. Ten
days thereafter liavin^r expired, it is tlie duty of the Clerk to send a
remittitur to the Court below, after which this Court loses all jurisdic-
tion over the cause. Pringle vs. Sizer, 3 S. C, 335 ; Whaley vs. Bank, 5 Ibid,
2H2 ; Ex parte Dial, \ilb. 584. If the remittitur is sent by the clerk of
this Court, the jurisdiction of tliis Court then ceases, although the.
clerk of the Circuit Court fails to file it. Ex parte Dunnovant, MS. Dec,
Nov. 21, 1881 Clerical errors in the title of the case,"or a misspelling
of the word remittitur are immaterial. Ibid. Filing a full copy of the
opinion with the clerk of the Circuit Court will cause this Court to lose
its jurisdiction, even though no remittitur had i.ssued. Ibid. There-
fore this Court cannot entertain a petition for a rehearing after the
remittitur has been sent down Sullivan vs. Speights, 14 S. C, 358. The
Court may order the remittitur sent down within the ten days, if they
deem it proper.
When an order or decree is affirmed, or an appeal dismissed, by de-
fault of appearance of appellant, the remittitur will not be sent to the
Court below, unless this Court otherwise direct, until ten days after
notice of the order of this Court has been served upon the attorney in
default. Rule 20. In all other cases, notice to the attorneys is unneces-
sary. Broun v. Bnttz, Jan. 30, 1882.
Petition for Keiiearixg.— At any time, however, before the re-
mittitur is sent down by the clerk, application may be made to either
of the Justices of this Court for a stay of remittitur, which may be
granted, on sufficient cause shown, for such time as the Justice may
deem proper, not beyond the third day of the ensuing term. Rule 20
of Supreme Court. The Court, within the time limited may further ex-
tend the stay, and has never refused a motion to do so, to enable a
party to pre.sent a petition for rehearing. The petition should be ready
by the third day of the term, unless counsel agree to a later day. If a
later day is agreed upon, order must be taken staying remittitur
meantime. Motions to stay remittitur and petitions for rehearing are
generally ex parte and not on notice. But the mere tiling of a petition
for rehearing cannot have the efl'ect of staying the remittitur without
an order to stay it. Ex parte Dunnovant, MS. Dec, Nov. 21, 1881.
Petition for rehearing must be certified to as meritorious by two at-
torneys, one of whom has no connection with the cause. Ex parte
Terry, Rice's Ch. 1.
The practice is. to receive it when presented, and to consider and
pass upon it without argument. It will not be entertained to allow
coun.sel to submit additional grounds and authorities. Knox & Gill vs.
Railroad Company, 5 vS C , 73. Nor generally, to reopen argument upon
the points considered and determined, or properly left undetermined
because immaterial. Otherwise, the business of this Court would be
greatly increased It is believed that only one petition for rehearing
has been granted since 18fi8, and there it was done to permit argument
upon a question of jurisdiction upon which the Court had based its
judgment at the first hearing ; and in that case the first decision was
affirmed in the second judgment
ExD OF THE Appeal. — When the remittitur is sent down, the Circuit
Court resumes its jurisdiction of the cause. Where no remittitur had
been sent down, but a party gave notice of trial in the Circuit Court
after the judgment of this Court had been rendered, and brought the
cause on to trial, such party cannot afterwards object that the Circuit
Court was without jurisdiction because no remittitur had been issued.
Pringle vs. Sizer, 3 S. C, 335.
iSECURiTY FOR CosTS. — The Supreme Court cannot require security for
costs from appellant who had since the trial below removed to another
State Railroad vs Earle, 13 S. C, 44. Nor, it would seem, in any case.
RULES Ox^ PRACTICE
OF THE
CIRCUIT COURTS,
OF FORCE JULY i, i88
[Rules do not make law, but they regulate practice and should be
enforced Eice vs. Mahaffey. 9 S. CJ., 283. In the adoption and adminis-
tration of its own rules, while a proper regard will always be had to
forms of procedure, in so far at least as to prevent uncertainty and con-
fusion in the conduct of causes before the Court, yet, as far as practi-
cable, the Court will always see to it that mere forms shall not override
substance. Ex parte Clyde, 14 S. C.,389.]
CLEEK.
I. Statutes and Rules. — Every clerk of the Circuit Court who can-
not produce the Statutes at Large, and the Eules of Count, when re-
quired, shall be fined ten dollars for each default-
II. Clerk to keep Books.— The several clerks of the Circuit Courts
shall keep, in their respective offices, in addition to the judgment book
required to be kept by Section 300 [303], of the Code of Procedure, and by
Rule XXXIX., a book, properly indexed, in which shall be entered
the titles of all civil papers filed, the orders made, and the steps taken
therein, with the dates of the several proceedings ; also, an index of all
undertakings filed in the office, stating, in appropriate columns, the
title of the cause, or proceeding, in which it is given, (with a general
statement of its condition,) or a reference to the Statute under which
it is given, ihe date, when and before whom approved, and when filed,
with a statement of any disposition or order made of, or concerning it ;
and such other books, properly indexed, as may be necessary to enter
the Minutes of the Court, docket judgments, enter orders, and all neces-
sary matters and proceedings.
III. Entry of Judgment.— The clerk shall not enter, without spe-
cial leave of the Court, any judgment until the expiration of five days
after the Court has adjourned for the term.
SHERIFF.
IV. Sheriff to file Affidavits on Arrest— The sheriff shall file with
the clerk the affidavits on which an arrest is made, within five days
after the arrest
V. Sheriff compelled to return Process.— At any time after the day
when it is the duty of the sherifl", or other officer, to return or deliver
or file any process, undertaking, orders, or other papers, by the pro-
64
visions of the Code of Procedure, any party entitled to have such act
done, raay serve on the officer a notice to return, deliver or file such
process, undertaking, order, or other paper, as the case may be, within
ten days ; or show cause, at a time to be designated in said notice, why
an attachment should not issue against him.
[A proceeding by rule to compel the sheriff to return a process is in
the nature of a special proceeding, and the final order thereon is a judg-
ment. Emory vs. Davis, 4 S. C, 33.]
GUARDIAN AD LITEM.
VI. Who may be Guardian ad litem.— No person other than the
general guardian of an infant, shall be appointed guardian ad litem,
either on the application of the infant or otherwise, who is not lully
competent to understand and protect the rights of the infant ; who has
any interest adverse to that of the infant, or who is connected in busi-
ness with the attorney or counsel of the adverse party.
ATTORNEYS AND OFFICERS.
VII. Change of Attorney. — An attorney may be clianged by con-
sent, or ujion cause shown, and upon such terms as shall be just, upon
the application of the client, by order of the Circuit Judge, and not
otherwise.
VII r. Dress.— The habit of the Bar and of the officers of the Court
shall be black coats, and no gentleman of the Bar shall he heard unless
so habited, and it shall be the duty of the Sheriff to attend to the
execution of this rule.
IX. Attorneys and other Officers not to be Sureties. — No attorney
or other officer of the Court, shall become surety upon any recognizance
in the Court of General Sessions, or upon any undertaking of the Court
of Common Pleas.
SECURITY FOR COSTS.
X. Security for Oosts. — If plaintiff resides beyond the State, secu-
rity for costs may be required. Whenever the plaintiff shall be required
to give security for costs, the security shall be taken in the form follow-
ing ; and no other security for costs shall be regarded as a compliance
with the order; but nothing in this rule shall be construed to prevent
the plaintiff from depositing a sufficient sum of money with the clerk
to pay the costs :
THE STATE OF SOUTH CAROLINA,
County.
A. B ; 1
C. D.
- Complaint for.
I (or we, as the case may be) acknowledge myself (or ourselves) liable
for the costs of this case, and consent that, if the plaintiff fail to recover,
65
the defendant may have execution for his costs against me (or us, aa
the case may be).
Given under hands, this day of ,
18....
E. F (F G )
[This rule applies to Circuit Courts. Tliere is no original jurisdiction
in the Supreme Court to require from an appellant, who has removed
tr^another State, security for the costs of his appeal. Railroad Company vs.
^ar/e, 13 S. C, 44, There i-^ no authority- for requiring such security
from an absent defendant to an action of interpleader. 1 bid. If security
for costs is ordered to be furnished by a time stated but no penalty is
imposed for noncompliance, asucceeding Judge may permit the security
to be furnished after the time fixed in the first order. Williams, Black
& t'o. vs 'Connor, 14 S. C, 621. Otherwise, where the order imposes the
penalty of dismissal. Burke r.s. DiUingltam, 8 Rich , 256. Security en-
dorsed on the declaration before the order was passed, is not a com-
pliance with the rule. Willis vs. Potter, 9 Rich., 411. Order concerning;
security for costs is not final, nor does it involve the merits, and there-
fore is not appealable, McMillan vs. McL'all 2 S, C, 31)0. A judgment
against the surety without any proceeding against him, is void. Earle
vs. Cureton, 13 S. "C, 19. But see Stuckey vs. Croswell, 12 Rich., 273. The
Attorney-General or Circuit Judge may require security for costs from
a relator, in whose behalf the Attorney-General bringsan action under
the Code of Procedure, in the nature of scire facias, quo warranto, &c.
Code, § 430; Tharin vs Seabrook, 6 S. C, 114.]
• CONCERNING COUNSEL.
XI. Argument. — Counsel shall not attempt to argue or explain a
case, or any matter arising therein, after he has teen heard, and the
opinion of the Court has been pronounced.
ReCLUests to Charge — And all reque.sts for instructions to the jury
shall be submitted to the Court, in writing, without comment by coun-
sel on either side, at the close of the arguments,
[Counsel are limited to two hours in their argument unless by special
permission of the Court first obtained Revised Code, 'i 2166. There
is no error in failing to charge what was not requested. Abrahams &
Son vs. Kelly & Barrett, 2 S. C, 235 ; Fox vs. Railroad. Company, 4. S. C,
543. See further ante, page 52.]
PAPERS — now PREPARED.
XII. Manner of Preparing Papers.— All pleadings and other pro-
ceedings shall be written on each side of legal cap paper (with a mar-
gin of one and one-half inch on the left). If more than two pages are
use.d, they shall be fastened at the top so as to be read continuously.
Papers shall be folded from the bottom in four equal folds, and en-
dorsed with the style of the Court, the names of the parties, the nature
of the paper, and the name of the attorney.
XIII. Pleadings to be Legibly Written and Endorsed.— All
pleadings and other proceedings and copies thereof shall be fairly and
legibly written, and endorsed with the title of the cause, and if not so
written and endorsed, the Clerk shall not file the same, nor will the
Court hear anv motion, or application founded thereon.
5
6R
CONSENT ORDERS.
XIV. Consent Must be in Writing.— No private agreement or con-
sent between the parties or their attorneys, in respect to the proceed-
ings in a cause, shall be binding, unless the same shall have been
reduced to the form of an order by consent and entered; or unless the
evidence thereof shall be in writing, subscribed by .the party against
whom the same shall be alleged, or by his attorney or counsel.
DEFAULT ORDERS.
XV. Orders by Default to be Endorsed by Counsel.— When any
order is obtained by default, the counsel obtaining the same shall en-
dorse his name, as counsel, on the paper containing theproof of notice ;
and the Clerk, in entering the order, shall specify the name of such
counsel.
PROOF OF SERVICE.
XVI. Affidavit of Serving Summons.— Where the service of sum-
mons, and of the complaint or notice accompanying the same, if any,
shall be made by any person other than the Sheriff, it shall be neces-
sary for such person to state, in his affidavit of service, when and at
what particular place he served the same, and that he knew the person
served to be the person mentioned and described in the summons as
defendant therein ; and also to state that he left with the defendant
a copy of the papers so served ; and when the service is made by the
Sheriff in person, his certificate shall state the time and place of
service.
APPEARANCE.
XVII. What to be Deemed an Appearance. — Service of notice of
an appearance or retainer generally, by an attorney for the* defendant,
shall, in all cases, be deemed an appearance ; and the plaintiff, on filing
such notice, at any time thereafter, with proof of service thereof, may
have the appearance of the defendant entered as of the time when such
notice Was served.
PLEADINCiS.
XVIII. Numbering Causes of Action or Grounds of Defence.— In
.all cases of more than one distinct cause of action, defence, counter
claim, or reply, each shall be separately stated and numbered ; and,
where the defendant intends to set up a counter claim, it shall be dis-
tinctly entitled and designated as such.
[See Hammond vs. Railroad Company, 15 S. C, 10.]
Demurrer. — A demurrer must, in every case, be accompanied by a
certificate of the counsel filing it, that it is meritorious, and not in-
tended merely for delay.
XIX. Extending Time to Answer. — No order extending the time
to answer or demur to a complaint shall be granted, unless the party
applying for such order shall present to the Judge, to whom the appli-
67
cation shall be made, a certificate of tlie attorney or counsel retained to
defend the action, that, from the statement of the case in the action,
made to him bj' the defendant, he verily believes that the defendant
has a good and substantial defence ujjon the merits to the cause of
action set forth in the complaint, or to some part thereof And if any
extention of time to answer or demur has been previouslj^ granted, by
stipulation or order, the fact shall be stated in the certificate.
XX. Motions to Correct Pleadings. — Motions to strike out of any
pleading matter alleged to be irrelevant or redundant, and motions to
correct a pleading on the ground of its being "so indefinite or uncertain
that the precise nature of th^ charge or defence is not apparent," must
be noticed before demurring or answering the pleading, and within
twenty days from the service thereof
[See State ex r el. Van Wyck vs. Norris, 15 S- C, 242. This rule in its
spirit includes motions to strike out a i)art of defendant's answer as in-
consistent, contradictorv^ or for other cause. CoJirs vs. Fraser, 5 8. (J.,
351.]
XXI. Defence of Plene Administravit. — The defence of plene ad-
mi7uVraui7 shall not be effectual, unless tlie party making such defence
shall file with the pleading, on oath, a full and particular account of
the administration of the estate, with a certified copy of the inventory
and appraisement ; or, if the party be charged as executor of his own
wrong, a full statement, on oath, of all the assets which have come into
his posse.ssion, and the value thereof, and an account showing the man-
ner in which the same may have been disposed of.
Real Owner Admitted to Defend Action against Tenant.— XXII.
Where a tenant is sued for land of which he is in possession, the real
oW'Uer may, on motion, be admitted as a, defendant to the action, and
shall be entitled to the service of a copy of the complaint, and to answer
or demur thereto, as if he had been the original defendant.
XXIII. Venire and Summons for Jurors— What to State.— To all
writs of venire for jurors, the Sheriff and his deputies shall make a
return, on oath, before the Clerk of the Court from which the venire
issues, including in one class, the names of those who have been sum-
moned personally; in the second class, of those for whom summonses
have been left at their houses ; and in the third class, of those who could
not be found. The summons for each juror shall state the day, the
hour, and the Court, at which he is to appear, the penalty for default,
and, also, whether he is to serve as a grand or petit juror.
XXIV. Defaulting Jurors. — If any juror, in attendance upon the
Court, shall refuse or neglect to attend punctually, and to answer to his
name whenever the same shall be called, the Clerk shall note such
default, and the defa Iter shall forthwith be served with a rule to show
cause why he should not be fined therefor. Upon the adjournment of
each term of the Court, the Clerk shall cause to be served by the Sheriff,
6S
on each and every juror noted for non-attendance at that Court, a
noti-ce, requiring him to show cause, by affidavit, at ten o'clock, on the
Arst day of the next regular term, why he should not be fined according
to law, for failing to attend and serve as a grand or petit juror, as the
case may be.
Judgment Against. — And on or before the first day of the next reg-
ular term, the Sheritl' shall make return of all such notices to the Clerk,
who shall, after entering the same on the Contingent Docket, deliver
them to the Attorney-General or Solicitor, and the Attorney-General
or Solicitor shall, upon the call of the docket, move for the judgment of
the Court thereon-
XXV. Jury in Criminal Cases- — In the empanelling of a jury in
criminal cases, where the right of peremptory challenge is claimed and
allowed, a child under ten years of age shall, in the presence' of the
Court, ciraw^ one from the names of all the jurors in attendance, which
one, having answered, shall be presented to the accused ; and so on
until, in regular course, the panel be exhausted, or a jury formed.
[The proper mode of empanelling a jury in criminal cases is con-
siclered in tState vs. Cardozn, 11 S. C, Kifi.
Where the jury were drawn by a child over ten years of age, but who
at the time was supposed to be within that age, the Supreme Court
refused to arrest the judgment. State vs. White , 15 S. C, 381.]
CALENDARS.
XXVI. Common Pleas Calendar. — The Clerk in preparing the Cal-
endar for the Court of Common Pleas, shall arrange the cases in six
classes, as follows :
1. In the first class he shall include all cases, not excepting appeals,
in which there is an issue of fact to be tried by a jury.
2. In the second class, all cases, including appeals, in which all the
issues of fact are to be tried by the Court-
3. In the third class, all cases, including appeals, in Avhich there are
issues of law only.
4. In the fourth class, all supplementary and special proceedings,
rules to show cause, and other motions set down for argument.
5. In the fifth class, all cases in which orders are to be taken in
administration of the judgment, and all cases on final apjjeal to the
Supreme Court.
6. In the sixth class, all default cases, whether for money demand or
for relief
The respective classes shall be arranged each in a separate docket,
properly numbered.
No case shall be on more than one Calendar at the same time, except
in cases in which some of the defendants have pleaded, and others have
made default-
Where an issue has been settled by an order of the Court, the Clerk
shall give it place on the Calendar according to the date of the order.
69
The Clerk shall preserve the Calendar as a record of the Court He
shall not only number the causes thereon, but shall indicate the num-
ber of terms they may have been at issue ; and he shall also, in a sepa-
rate column, copy the memoranda of the disposition of the case at the
previous term.
During the daily sessions of the Court, the Calendar shall not be sub-
ject to the inspection of the Bar ; but it shall be the duty of the Clerk
to make a- copy thereof, for the use of the Bar.
[Default cases may be docketed at any time before the Court of Com-
mon Pleas is actually opened. McComb vs. Woodbury, 13 S. C, 479.]
CONTINUANCE.
XXVII. Motions for Continuance. — No motion for the postpone-
ment of trial beyond the term, either in the Common Pleas or General
Sessions, shall be granted on account of the absence of a witness, with-
out the oath of the party, his counsel or agent, to the following effect,
to wit : that the testimony of the witness is material to support the
action or defence of the party moving ; that the motion is not intended
for delay, but is made solely because he cannot go safely to trial with-
out such testimony ; that he has made use of due diligence to procure
the testimony of the witness; or of such other circumstances as will
satisfy the Court that his motion is not intended merely for delay. In
all such cases where a writ of subpoena has been issued, the original
shall be produced with proof of service, or the reason why not served
endorsed thereon, or attached thereto; or if lost, the same proof shall
be offered, with additional proof of the loss of the original subpcena.
After the first term, a party applying for such postponement on account
of the absence of a witness, shall set forth, in addition to the foregoing
matters, what he believes the witness, if present, would pi-ove.
[Where no ground is stated for the Judge's refusal to grant a con-
tinuance, the Supreme Court cannot grant a new trial. Bowden d- Earle
vs. Winsmith, 11 S C, 409.]
TRIAL.
XXVIII. Issue to a Jury — How Settled.— In cases where the trial
of issues of fact is not provided for in Sections 274 [276] of the Coile, if
either party shall desire a trial by jury, such party shall, within ten days
after issue joined, give notice of a special motion to be made upon the
pleadings that the whole issue, or any specific questions of fact involved
therein, be tried by a jury With the notice of motion, shall be served
a copy of the questions of fact proposed to be submitted to the jury for
trial, and in proper form to be incorporated in the order ; and the
Court or Judge may settle the issues, or may refer it to the Referee to
settle the issues. Such issues must be settled in the form prescribed in
Sections 92 [95] of the Code of Procedure.
[To entitle himself to a jury trial in cases triable by the Court, under
Section 275 of the Code, the party must comply with this rule. Lucken
vs Wichman. 5 S. C-, 412. If the issue of fact referred to the jury be in a
Chancery case, the verdict of the jury is only for the purpose of en-
lightening the conscience of the judge, who must give his own inde-
pendent judgment upon the iacts of the case as well as upon the law.
No judgment can be entered upon the verdict of the jurv in such case.
Flinn&Hart vs. Broicv,6S C„ 209 ; Gadsden vs. WhaleT/, d Ibid, 147 ; Ivy
vs. Clawson, 14 S. C, 273, and cases cited.]
XXIX. Calling Plaintiff— Submitting to Non-Suit.— It shall not be
necessary to call the plaintiff when the jury return to the Bar to deliver
their verdict, and the plaintiff shall have no right to submit to a non-
suit, after the jury have gone from the Bar to consider of their
verdict.
XXX. Submitting to Non-Suit or Dismissal before a Master or
Referee.— On a hearing before a Master or Eeferee, the plaintiff may
submit to a non-suit or dismissal of his complaint, or may be non-
suited, or his complaint be dismissed, in like manner as upon a trial, at
any time before the cause has been finally submitted to the Master or
Referee for his decision ; in which case, the Master or Referee shall
report according to the fact, and judgment may thereupon be pei'fected
by the defendant.
Form of Report on all Issues.— Upon a trial by a Master or Referee
he shall, in his decision or report, state the facts found by him, and
his conclusions of law separately, a copy of which shall be sierved with
notice of the judgment ; and the time within which exceptions
may be taken to the report shall be computed from the time of such
service.
In other Cases. — In references other than for the trial of the issues
in an action, upon the coming in of the report of the Master or Referee,
the same shall be filed, and a note of the day of the filing shall be en-
tered by the Clerk in the proper book, under the title of the cause or
proceeding; and the said report shall become absolute, and stand as in
all things confirmed, unless exceptions thereto are filed and served
within ten days after service of notice of the filing of the same. If ex-
ceptions are filed and served within such time, the same may be
brought to a hearing on the notice of any party interested therein.
[The Supreme Court will not disturb a Circuit decree which confirms
a Referee's report in a particular not excepted to. Careton vs. Mills, 13
5 C, 410 The provision that a Referee or Master shall state the facts
found by him and his conclusions of law separately, is directory and not
mandatory. If the Referee or Master fail to do so, the proper practice
is a motion to recommit for such separate findings. Bollman vs. Bollman,
6 Ibid, 30. The matter is fully considered and a report set aside for a
failure in this regard in Moore vs. Johnson, 7 Ibid. 303.]
XXXI. Examination of Witnesses— How Conducted— Only Two
Counsel. — On the trial of issues of fact, one counsel only on each side
shall examine or cross-examine a witness, and not more than two
counsel on each side shall sum up or be heard in any cause ; and
during such examination, the examining counsel shall stand ;' and the
testimony, if taken down in wnting, shall be written by some other
person than the examining counsel ; but the Judge who holds the Court
may otherwise order, or may dispense with this requirement.
COPT — PAPERS.
XXXII. Papers to be Furnished. — The papers to be furnished on
motion shall be a copy of the pleadings, when the question arises on
the pleadings, or any part thereof, or of such parts olily as relate to the
question raised by the demurrer ; a copy of the special verdict, return,
or other papers on which the question arises.
Penalty for Failure- — The party whose duty it is to furnish the pa-
pers, shall serve a copy on the opposite party (except upon trial of issues
of law) at least four days before the time the matter may be noticed for
argument. If the party whose duty it is to furnish the papers shall
neglect to do so, the opposite party shall be entitled to move, on affi-
davit and notice of motion, that the cause be stricken from the Calen-
dar, (whichever party may have noticed it for argument,) and that judg-
ment may be rendered in his favor : Provided, however, that in mort-
age and partition cases, where the plaintiff's rights are not contested,
no copies of pleadings need be furnished the Court.
By whom. — The jiapers shall be furnished by the plaintiff, when the
question arises on special verdict, and by the party demurring, in cases
of demurrer, and in all other cases by the party making the motion.
CHANGE OP VENUE.
XXXIII. Order to stay with view to change Venue-— No order to
stay proceedings for the purpose of moving to change the place of trial
shall be granted, unless it shall appear from the papers that the party
moving has used due diligence in preparing the motion for the earliest
practicable day after issue joined. Such order shall not stay the plaintiff
from taking any steps except subpoenaing witnesses for the trial, with-
out a special clause to that effect.
[For the cases in which the Court may change the place of trial, see
Constitution, Art. V., ^ 2; Code, ^ 147, and Revised Code, 'i 2114- Mo-
tion for change of venue is not appealable unless a que.stion of juris-
diction be involved. Parker & Co. vs. Grimes & Co., 9 S. C , 284. See
further, as to change of venue, State vs. Addi'^on, 2 S. C, 3.3(7; Lebeschultz
t>s. Magrath, 9 Ibid, 276 ; Blakely & Copeland vs. Frazier, 11 S. C , 122.]
COMMISSIONS TO TAKE TESTIMONY.
XXXIV. Commissions to take Testimony — When Opened.— Com-
missions when executed shall be sealed up by the Commissioners who
shall have executed the same, and directed to the Clerk of the Court
from which they were issued. Upon the envelope shall appear the
names of the Commissioners, written by themselves across the seals,
the title of the cause, and, when sent by mail, the proper postmark.
Commissions shall not be opened, but upon motion, in open Court, or
before a Master, or Referee, or Referees, hearing the cause, or by con-
72
sent of the parties, in writing, or by the Clerk or Master, or Referee,
upon request of any of tlie parties, and eight days' notice to all parties
of the time and place of such opening.
[Commission may be opened and read by the Commissioner in
Equity, to whom it was referred to report on the facts. Leaphart vs.
Leaphart, 1 S. C, 199. Where the witness resided abroad, it is no ob-
jection to the Commission that it bore the postmark of a foreign office.
Ibid.-]
TKIAL IN GENERAL SESSIONS.
XXXV. Presence of the Accused on Trial— Dock. -No person
shall be tried on an indictment unless personally present, except for
misdemeanors, and upon the trial of any person charged with an oflence
for which the law requires that he should be arraigned, the prisoner
shall be placed in the dock.
SURVEYS.
XXXVI. Surveys. — Surveys of lands in any quantity of two hun-
dred acres or less, shall be laid down by a scale of ten chains to the
inch ; all over that quantity, by a scale of twenty chains to the inch.
Notice of. — No survey made under an order of the Court shall be
received in evidence, unless it appear that at least ten days' notice of
the time and place of commencing such survey ha3 been given to the
parties.
Particulars Required. — Every surveyor shall represent in his plat,
as nearly as he can, the different enclosures of the parties, and the
extent or boundaries within which each party may have exercised acts
of ownership. He shall also represent a fence, buildings, or the like,
by a mark in due proportion in size, according to the scale of the plat
He shall, by some small but distinct letter or figure, distinguish every
corner, station, blazed tree, or other point which is likely to be the
subject of dispute. He shall take care not to render the plat confused
or indistinct by crowding too much upon it ; but he shall rather refer
the letters or figures to a table. (which may contain the courses and dis-
tances of lines, the marks at corners, stations and noted points, expla-
nations and remarks,) than attempt to write much on the lines, or near
to points on the plat. He shall also make two drafts or duplicate-^ of
the plat, so that on the trial there may be one for the use of the Judge,
and the other for the parties in Court.
Objections to Survey.— After a cause has gone to a jury, and any '
evidence has been heard on it, neither party shall be allowed to make
any objection to the order of survey, or the manner in which it may
have been obtained, or the survey executed.
Copy of Rule, for Surveyor. — A copy of this Rule shall be appended
to every order of survey served on a surveyor.
.JUDGMENT AND EXECUTION.
XXXVII. Judgment on failure to Answer— Where to be applied
for. — When the plaintiff in the action is entitled to judgment, upon
the failure of the defendant to answer the complaint, and the relief
73
demanded requires application to be made to the Court, such appli-
cation must be made to the Circuit Court in tlie County in which the
action is triable.
Judgment after Service by Publication— AflB.davit— Undertaking.
XXXVIII. In actions for the recovery of money only, when the sum-
mons has been served by publication, under Section 156 [lo8] of the Code,
and the defendant is a non-resident of the State, no judgment shall be
entered, unle.ss the plaintiff, at the time of making the application for
judgment, shall show, by affidavit, that an attachment has been issued
in the action, and levied upon property belonging to the defendant ;
which affidavit shall contain a specific description of such property, and
a statement of its value, and shall be attached to, and filed with the
affidavit of publication ; nor, unless the plaintiff shall, at the same
time, produce and file with tlie Clerk an undertaking with two sureties
to be approved by the Court, or the Clerk thereof, that the plaintifl!"
will 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 restitutiim of any money that may be collected
under or b\- virtue of such judgment, in case the defendant, or his rep-
resentative shall apply, and be admitted to defend the action, and
shall succeed in such defence.
XXXIX. Recording Judgments. — The Clerk shall record in the
Judgment Book, at length, all judgments entered in his office, with the
names of all parties, plaintiff'or defendant, who have appeared or been
served with a summons therein, and the name of the attorneys, with
the time and place of the rendition of such judgment, and the number
of the roll; and when, by any judgment, any matter shall be adjudged,
or act or thing commanded other than the payment of money, space
sufficient shall be left after the entry thereof, for the entering of such
proceedings as may be thereafter had for the enforcement or satisfac-
tion of such judgment.
Abstract of Judgments. — When any judgment shall require the
payment of money, either as damages or costs, it shall be noted in an
Abstract of Judgment, which abstract shall be in'tabular form, and con-
tain in separate columns the following matters : First, the names of all
parties bound to discharge such payment. Second, the nam,es of the
parties having the right to enforce such payment. Third, the date of
the judgment. Fourth, the amount adjudged to be paid. Fifth, the
costs. SiMh, the aggregate of the amount and costs. Seventh, the issue-
ing of execution, with the date thereof. EiglitJi, the return to such exe-
cution.
XL. Recording Judgments of the Supreme Court — Adjudging
Costs Thereon.— AVhen a judgment, rendered by the Supreme Court,
shall be certified to the Circuit Court, it shall be the duty of the Clerk
of the Circuit Court to adjust the costs and disbursements in the
Supreme Court to which any party may be entitled, upon due notice, as
provided in the case of the adjustment of costs in the Circuit Court;
74
and he shall record such judgment, and enter an abstract thereof in
like manner as is provided in the case of judgments rendered by the
Circuit Court. At the foot of such record a reference shall be made to
the page at which the judgment appealed from is recorded, and a like
reference shall be entered at the foot of the entry of the original judg-
ment to the page at which the judgment on appeal is recorded.
SALE OF LANDS
XLI. Sale of Lands at Auction. — When lands are directed to be
sold at auction, notice of the sale shall be given for the same time, and
in the same manner, as is required by law on sales of real estate by
Sheriffs on execution.
infants' money.
XLII. Greneral Guardian— Security.— After the appointment of the
general guardian of an infant, he shall not be entit'ed to receive any
money or other property to which the ward shall thereafter become
entitled, until the Court is satisfied, upon due inquiry, that he has
given a good and sufficient bond to account therefor.
DISCOVERY OF BOOKS AND PAPERS.
XLIIl. Application for Discovery— How Made.— Applications may
be made in the manner provided by law to compel the production and
discovery of b >oks, papers, and documents relating to the merits of any
civil action pending in this Couri, or of any defence in such action, in
the following cases :
1. By the plaintiff, to compel the discovery of books, papers or docu-
ments in the possession or under the control of the defendant which
may be necessary to enable the plaintiff to frame his complaint, or to
answer any pleading of the defendant.
2. The plaintiff may be compelled to make the like discovery of
books, papers or documents, when the same shall be necessary to enable
the defendant to answer any pleadings of the plaintiff.
3. Either party may be compelled to make discovery, as provided by
Section 390 [405] of the Code.
XLI V. Moving Papers— What to State. — The moving papers, upon
application for such discovery, shall state the facts and circumstances
on which the same is claimed, and shall be verified by affidavit, stating
that the books, papers and documents whereof discovery is sought, are
not in the possession nor under the control of the party applying there-
for. The party applying shall show, to the satisfaction of the Court or
Judge, the materiality and necessity of the discovery sought, and the
particular information which he requires.
XLV. Order for Discovery-— Discovery may be compelled by re-
quiring the party to produce and deposit the matters to be discovered
with the Clerk for the County in which the trial is to be had, or by re-
quiring him to deliver sworn copies thereof to tlie moving party, or in
such other manner as may be directed by ihe Court. The order there-
for shall specify the mode of making the discovery, and the time within
7-3
which it is to be made; and, when papers are required to be deposited,
the order shall specify the time that the deposit shall continue.
XLVI. Order for Discovery to Operate as a Stay of Proceedings.
The order directing the discovery of books, papers, or documents, shall
operate as a stay of all other proceedings in the cause, until such
order shall have been complied with or vacated ; and the party obtain-
ing such order, after the same is complied with or vacated, shall have
the time to prepare his complaint, answer, reply, or demurrer to which
he was entitled at the making of the order, but the judge in granting
the order may limit its effect, by declaring how far it shall operate as
a stay of proceedings.
NEW TRIAL, AND APPEALS.
XLVir. Settling Cases and Objections.— Whenever it shall be in-
tended to move the Circuit Court for a new trial (except for irregularity,
surprise, or on the minutes of the Judge), in an action tried by a jury, a
case, or exceptions, or case containing exceptions, as may be proper and
the party may elect, shall be prepared by the part}>^ intending to make
the motion or to review the trial, and a copy thereof shall be served on
the opposite party within ten days after trial, if by a jury, or Avithin ten
days after written notice of the filing of the decision, if the trial be by
referees ; and the party served may, within ten days thereafter, propose
amendments thereto, and serve a copy on the party proposing the case
or exceptions, who may then, within four days thereafter, serve the oppo-
site party with a notice that the case or exceptions , with the proposed
amendments, will be submitted at a time and place to be specified in
the notice, to the Judge, or Referee, before whom the cause was tried,
for settlement. The Judge, or Referee, shall thereupon correct and
settle the case as he shall deem to consist with the truth of the facts-
The time for settling the case must be specified in the notice, and it
shall not be less than four, nor more than twenty, days after service of
such notice. The lines of the case shall be so numbered that each copy
shall correspond. Cases reserved for argument and special verdicts,
shall be settled in the same manner.
[ " Case or exceptions, or case containing exceptions ;" these terms
defined. SulUran r.s. Thomas, 3 S C. 547 ;• and see, too, Casfon vs. Brock,
14 S. C, 104. The respondent ne.ed not appear before the Circuit Judge
at the time of settlement; his non-appearance will not be deemed an
abandonment of his proposed amendments. Chalk vs. Patterson, 4 vS. C,
98. If the trial, judge is out of office, it may be settled, it would seem,
upon affidavits and other proof, by another judge. Ibid- See Code,
^345, subd. 2.]
XLVIII. Exceptions —What to Contain-— Exceptions, shall only
contain so much of the evidence as maj^ be necessary to present the
questions of law upon which the same were taken on the trial ; and it
shall be the duty of the Judge, upon settlement, to strike out all the
evidence and other matters not necessarily inserted-
Amendments. — Whenever amendments to a case or exceptions are
proposed, the party proposing such case or exceptions shall, before sub-
76
mitting the same to the judge for settlement, mark upon the several
amendments his proposed allowance or disallowance thereof.
XLIX. Filing Case or Exceptions. — Where a party makes a case or
exceptions, he shall procure the same to be filed within ten days
after the same shall be settled, or it shall be deemed abandoned.
Order Declaring Case Abandoned. — And on filing affidavit that such
case or exceptions have not been filed, and showing the time of the set-
tlement tliereof, and that more than ten days have elapsed from the
time of such settlement, an order of course may be entered declaring
the same abandoned, and the party may proceed as if no case or excep-
tions had been made.
L. Mode of Preparing a Case on Appeal to the Supreme Court.—
In every apjieal to the Supreme Court from matter appealable, the
appellant, or his attorney, shall, within ten days after written notice of
the filing of such matter appealable, or if filed within term time, within
ten days after the rising of the Circuit Court, give written notice to the
opposite party, or his attorney, of his intention to appeal therefrom,
and within thirty (30) days after such notice the appellant or his attor-
ney, shall prepare a case or exceptions, or a case containing exceptions
(which exceptions shall have been taken and served within the time
prescribed by law,) and serve them on the opposite i)arty, or his attor-
ney, or within such further time as upon ten (10) days' notice to the
opposite party, or his attorney, the Judge who tried the cause may for
good cause grant. But should the parties, within the times above
named, be unable to agree upon a case, then the proposed case, with
the proposed amendments and allowances and disallowances, shall be
within ten days after failing to agree, referred for settlement to the
Cii'cuit Judge who heard the cause, who shall settle the same within
the time and in the manner provided for settling a case in Rule
XLVJI
Conform to Rules. — The parties, if they agree on a case, or the Cir-
cuit Judge who may settle the same, must see that the case shall, as to
the matter it contains, conform to the requirements of the Rules of the
Supreme Court in regard to the form and substance of a case for hearing
before that Court.
(See Supreme Court Rules, No. 5, and Code of Procedure, ^§ 345, 348,
349, as to time within which to serve e.tceptions. See Godbold vs.
Vance, 14 S. C, 458, in connection with Code, ^ 345.)
LI. Case— How Waived and When Deemed Settled — If the party
shall omit to make a case or exceptions, or statement of facts, within
the times above limited, he shall be deemed to have waived his right
thereto ; and when the same is made, and the parties ahall omit,
within the several times above limited, the one party to propose amend-
ments, and the other to notify an appearance before the Judge, Master
or Referee, they shall respectively be deemed, the former to have agreed
to the case as proposed, and the latter to have agreed to the amend-
ments as proposed.
foreclosi:re.
LII. Reference to Compute Amount due on Mortgage— Other Facts.
If, in action to foreclose a mortgage, the defendant fails to answer
within the time allowed for>that purpose, or the right of the plaintiff,
as stated in the complaint is admitted by the answ^er, the plaintiff may
have an order referring it to the Clerk, or to some suitable person, as
Eeferee, to compute the amount due to the plaintiff, and to such of the
defendants as are prior incumbrancers of the mortgaged premises, and
to examine and report whether the mortgaged premises can be sold in
parcels, if the whole amount secured by the mortgage has not become
due. If the defendant is an infant, and has put in a genera! answer by
his guardian, or if any of the defendants are absentees, the order of
reference shall also direct the person to whom it is referred, to take
proof of the facts and circumstances stated in the complaint and to ex-
amine the plaintiff, or his agent on oath, as to any payments which
have been made, and to compute the amount due on the mortgage,
preparatory to the application for judgment of foreclosure and sa'e.
Further Proof to Obtain Judgment— The plaintiff in such case,
when he moves for judgment, must show, by affidavit or otherwise,
whether any of the defendants who have not appeared are absentees ;
and, if so, he must produce the report as to the proof of the facts and
circumstances stated in the complaint, and of the examination of the
plaintiff or his agent, on oath, as to any payments which have been
made. And, in all foreclosure cases, the plaintiff, when he moves for
judgment, must show by affidavit, or by the certificate of the Clerk for
the county in which the mortgaged premises are situated, that a notice
of the pendency of the action containing the names of the parties
thereto, the object of the action and a description of the property in
that county affected thereby, the date of the mortgage, and the time
and place of recording the same, has been filed at least t^yenty days
before such app'ication for judgment, and at or after the tim6 6f filing
the complaint, as required by Section 153 [155] of the Code of the
Procedure.
LIII. Judgment for sale of Mortgaged Premises— Application of
Proceeds— Unle.ss otherwise specially ordered by the Court, the judg-
ment shall direct that the mortgaged premises, or so much thereof as
majf be sufficient to raise the amount due to the plaintiff, for principal,
interest, and costs, and which may be sold separately without material
injury to the parties interested, be sold by or under the direction of the
Sheriff of the County, or the Clerk or Master; and that the plaintiff, or
any other party, may become a purchaser on such sale ; that the officer
making the sale execute a deed to the purchaser ; that out of the pro-
ceeds of the sale he pay the plaintiff or his attorney, the amount of his
debt, interests and costs, or so much as the purchase money will pay of
the same, and that he take the receipt of the plaintiff, or his attorney,,
for the amount so paid, and file the same with his report of sale, and
78
that the purchaser, at such sale, be let into jiossession of the premises
on production of the deed.
Surplus.— All surplus moneys arising from the sale of mortgaged
premises under any judgment, shall be paid or deposited by the Sheriff
or other officer making the sale within five days after the same shall
be received, in the manner provided by law for the securing of moneys
in the custody of this Court.
[Attachment to require surrender of possession may not be before
confirmation of sale. CrotweU vs. Boozer, 1 S. C, 271. W rit of lictbere facias
2JOSsessionem is not proper mode of putting into possession apurchaser at a
sale under decree in foreclosure. Armstrong vs. Humplirci/, 5 S, C, 128.
Purchaser of property under decree of foreclosure against mortgagor is
entitled to be let into possession under rule against the widow of the
mortgagor, who died after decree and before sale. Trenholm vs. Wilson.
13 S. C, 174.]
LIV. Claims for Surplus Money— Notice of Application.— On filing
the report of the sale, any party to the action, or any person who had a
lien on the mortgaged premises at the time of the sale, upon filing with
the Clerk where the report of sale is filed, a notice, stating that he is
entitled to such surplus money or some part thereof, and the nature
and extent of his claim, may have an order of reference to ascertain and
report the amount due to him, or to any other person, which is a lien
upon such surplus mone3's, and to ascertain the j^riorities of the several
liens thereon ; to the end, that, on the coming in and confirmation of
the report on such reference, such further order may be made for the
distribution of such surplus moneys as may be just. Every party who
appeared in the cause, or who shall have filed such notice with the
Clerk previous to the entry of the order of reference, shall be entitled
to service of a notice of the application for the order of reference, and
to attend on such reference, and to the usual notices of subsequent pro-
ceedings relative to such surplus- But if such claimant has not appeared
or made his claiin by an attorney of this Court, the notice may be served
by putting the same into the postotfice, directed to the claimant at his
place cf residence, as stated in the notice of his claim.
PARTITION.
LV. Partition of Intestate's Lands— Debts. — No partition of the
real estate of an intestate shall be had unless it be made to appear to
the Court that the debts of the intestate are paid, or that the personal
estate in the hands of the administrator is sufficient for the purpose,
or unless in the decree of partition due provision is made for the pay-
ment of the del>ts.
One Action.— Infants — Where several tracts or parcels of land, lying
in this State, are owned by the same persons in common, no separate
action for a partition of a part thei'eof only, shall be brought, without
the consent of all the parties interested therein ; or, if brought without
such consent, the share of the plaintiff" may be charged with the whole
i
79
costs of the proceeding. And, when infants are interested, it shall be
stated whether the parties own any other lands in common.
[Lands in several counties may be partitioned in one proceeding, but
there should be separate writs for each county. Daniels vs. Moses, VI
S. C, 130.]
LVI. Reference as to title, where no Defence is Interposed.— "Where
the rights and interests of the several parties, as stated in the complaint
are not denieu or controverted, if any of the defendants are infants
or absentees, or unknown, the plaintiff, on an affidavit of the fact, and
notice to such of the parties as have appeared, may apply for an order
of reference, to take proof of the plaintiff 's title and interest in the
premises, and of the several matters set forth ; and to ascertain and re-
port the rights and interests of the several parties in the premises, and
an abstract of the conveyances by which the same are he'd.
MOTIONS AND ORDERS.
LVII. Arguments and Motions — How Noticed, and Defaults
Thereon— Irregularities to be Stated.— All questions for argument,
and all motions, sliall be brought before the Court on a notice, or by an
order to show cause, under Section 403 [418] of the Code ; and, if the
opposite part^' shall not appear to oppose, the party making the motion
or obtaining the order, shall be entitled to the rule or judgment moved
for, on proof of due service of the notice, or order, and papers, required
to be served by him, unless the Court shall otherwise direct.
Order to Show Cause — Such order to show cause shall only be granted
when a special reason for a notice, less than four days, appears on the
papers presented ; and the party shall, in his affidavit, state the present
condition of the action, and whether at issue.
Irregularities — And when the motion is for irregularity, the notice
or order shall specify the irregularity complained of.
[A party desiring to have an irregularity corrected must proceed at
the first opportunity or offer a reasonable excuse for not having done
SO- Smith & Melton vs. Walker, 6 S- C , 169. Csee too. Green vs. Railroad
Company, Ibid, 344.]
LVIII. Points on Motions— Discussion on Facts.— In all calendar
motions, each party shall briefly state upon his points the leading facts
which he deems established, with a reference to their folios, where the
evidence of such facts may be found ; and the Court will not hear an
extended discussion on a mere question of fact.
OPENING AND REPLY.
LIX. Argument and Reply.— On all rules to show cause, where a
party failing to answer would be in contempt, the party called on shall
begin and end his cause ; and on all motions or special matters, either
springing out of a cause or otherwise, the actor or party submitting the
same to the Court, shall, in like manner, begin and close ; and so shall
the defendant, where he admits the plaintiff's cause by the pleadings,
and takes upon himself the burthen of proof, have the like privilege.
80
The party having the opening in an argument, shall disclose his en-
tire case ; and, on his closing, shall be confined strictly to a reply to the
points made and the authorities cited by the opposite party.
[Where answer admits the plaintiff's case and pleads counterclaim,
the defendant is entitled to open and ruply. B own vs. Kirkpatrirk, 5
S. C, 269. Who is entitled to open and rej^ly depends upon the plead-
ings as they exist when made up. Ihid The defendant must admit
the plaintiff's cause of action as prescribed by this rule, to entitle him-
self to the reply. Davis vs. Winsmilh, [bid, 335. On appeal by defendant
from a trial justice's Court, and a trial de novo in the Circuit Court, the
plaintiff is entitled to open and reply. Bennett vs. Sandifer, 15 S. C 418 J
MISCELLANEOUS.
LX. Costs of a former Suit. — Where a party has suffered a non-
suit, or discontinuance, or has otherwise let fall his action, ail proceed-
ings in any new action for the same cause shall be suspended until the
costs of such former action have been paid.
[Unpaid costs of action against testator cannot stay suit against execu-
tor on same cause of action. Blnkely & Copelund vs. Frazier, 11 S C. 123.
The enforcement of this rule must, to a large extent, be left to the dis-
cretion of the Circuit Judge, and his order in this matter would not,
ordinarily, be the subject of appeal Daniels vs. Moses, 12 S. C-, 130. A
motion to stay, made for the first time after the case has been called
for trial, comes too late. Ibid. A second action (especially if it is for
the recovery of a debt) should not be stayed to await the payment of
costs in the former action, where the latter was not tried upon its merits,
unless the Court is satisfied that tlie second action i« vexatious. Ibid.
Where the Court of Probate refused to stay an action for dower, until
the costs of a former action in the Court of Equity, which had been
stricken from the docket, were paid, the Supreme Court declined to
interfere. Tibbeits vs. Langley Manf'g Co., Ibid, 466.]
LXI. Subsequent application for Order after a Refusal.— If any
application for an order be made to any Judge, and such order be
refused, in wdiole or in part, or be granted conditionally, or on terms,
no subsequent application, upon the same state of facts, shall be made
to any other Judge ; and if, upon such subsequent application, any
order be made, it shall be revoked ; and in the affidavit for such order,
the party, or his attorney, shall state whether any previous application
for such order has been made
LXII Affidavit in Mitigation— How Submitted. — In the Court of
General Sessions, the defendant, after verdict against him, shall not be
permitted to submit any affidavit to the * "ourt which goes to deny mat-
ters of fact ; but he may submit affidavits as to matters in extenuation
or mitigation : Provided, they are filed so as to allow the Attorney-
General, or Solicitor, a reasonable time to answer them.
LXIII. Time for Complying with Orders. — In all cases where a
motion shall be granted on payment of costs, or on the performance of
any condition, or where the order shall require such payment or per-
formance, the party whose duty it shall be to comply therewith shall
have twenty days for that purpose, unless otherwise directed in the
order; but, where costs to be adjusted are to be paid, the party shall
have fifteen daj^s to comply with the order, after the costs shall have
been adjusted by the clerk on notice, unless otherwise ordered.
LXrv. Orders on Petitions— For Payment of Money to be En-
rolled. — Orders granted on petitions, or relating thereto, shall refer to
such petitions by the name and description of the petitioners ; and the
date of the petitions, if the same be dated, without reciting or setting forth
the tenor or substance thereof unnecessarily. Any order or judgment
directing the payment of money, or affecting the title to property, if
founded on petition, where no complaint is filed, may, at the request of
any party interested, be enrolled and docketed as other judgments.
LXV. Staying Sale in Foreclosure or Partition.— No order to
stay a sale, under a judgment in partition, or for the foreclosure of a
mortgage, shall be granted or made by a Judge out of Court, except
upon notice of at least four days to the plaintiff, or his attorney.
[This rule was recognized and enforced in Rice vs. Mahaffey, 9 S. C,
281.]
SURETIES.
LXVI. Sureties to Justify— Undertakings to be Acknowledged.—
Whenever a Justice, or other officer, approves of the security to be
given in any case or reports upon its sufficiency, it shall be his duty
to require personal sureties to justify. And all bonds and undertakings
shall be duly proved by a subscribing witness, or acknowledged in like
manner as deeds of real estate, before the same shall be received or
filed.
LXVII. Bail — Where to Justify. — Wherever sureties are required
to justify, they shall justify within the County where the defendant
shall have been arrested, or where the sureties reside.
FILING PAPERS.
LXVIII. Where Papers to be Filed— Change of Venue— Papers
shall be filed in the County specified in the complaint as the place of
trial, or in the County to which the place of trial has been changed.
And in case the place of trial is changed, for the reason that the proper
County is not specified, papers on file at the time of the order making
such change, shall be transferred to the County specified in such order;
and all other papers in the cause shall be filed in the County so
specified.
LXIX. Undertakings and Affidavits to be Filed.— It shall be the
duty of the plaintift^'s attorney, forthwith to file with the Clerk for the
proper County, all undertakings given upon procuring an order of
arrest, an injunction order, or an attachment, with the approval of the
Judge taking the same endorsed thereon ; and in case such undertak-
ings shall not be filed within five days after the order for arrest, of
injunction, or attachment has been granted, the defendant shall be at
liberty to move the Court to vacate the proceedings, for irregularity,
"with costs, as if no undertaking had been given. It shall also be the
6
82
duty of the attorney to file, within the same time, and under the like
pehalty, the affidavits upon which an injunction or attachment has been
granted, and also the affidavit upon which an order for the service of a
summons by publication, or an order for a substituted service of a sum-
mons has been granted, together with the order for such service.
RECEIVERS.
LXX. Powers of Receiver of Debtor's Estate— When to have
Costs — Sale of Claims. — Every receiver of the property and effects of
the debtor shall, unless restricted by the special order of the Court,
have general power and authority to sue for and collect all the debts,
demands, and rents, belonging to such debtor, and to compromise and
settle such as are unsafe and of a doubtful character. He may, also,
Bue in the name of a debtor where it is necessary or proper for him to
do so ; and he may apply for and obtain an order of course that the
tenants of any real estate belonging to the debtor, or of which he is
entitled to the rents and profits, attorn to such receiver, and pay their
rents to him. He shall also be permitted to make leases from time to
time, as may be necessary, for terms not exceeding one year. And it
shall be his duty, without any unreasonable delay, to convert all the per-
sonal estate and efl'ects into money ; but he shall not sell any real estate
of the debtor, without the special order of the Court, until after judg-
ment in the cause He is not to be allowed for the cost of any suit
brought by him against an insolvent, from whom he is unable to col-
lect his costs, unless such suit is brought by order of the Court, or by
the consent of all the parties interested in the funds in his hands- But
he may, by leave of the Court, sell such desperate debts, and all other
doubtful claims to personal property, at public auction, giving at least
ten days' public notice of the time and place of such sale.
[See Code, ? 265, as to cases where receivers may be appointed ]
LXXI. Repeal of former Rules— Former Practice. — All Rules here-
tofore adopted for the government of the practice of the Circuit Courts
of this State shall be, and they are hereby repealed. In cases where no
provision is made by Statute, or by these Rules, the proceedings shall
be according to the practice as it has heretofore existed in the Courts
of Law and Equity of this State, in cases not provided for by Statute, or
the written Rules of the Court.
[The rules of \Yestminster which were made of force by Rule 87 in
Miller's Compilation (p. 46) are such rules as are consistent with our
rules and in harmony with our laws — matters within the scope of their
provisions and probably overlooked. Brown vs. Dunlap, 3 S, C, 101,]
. RULES OF PRACTICE
FOR THE
COURTS OF PROBUTE^
OF THE
STATE OF SOUTH CAROLINA.
IN FORCE JULY i, 1882.
THE STATE OF SOUTH CAROLINA,)
y April Term, 1879.
In the Supreme Court. J
At a Session of the Supreme Court, held on the thirtieth day of
May, one thousand eight hundred and seventy nine, the following
Eules of Practice for the several Courts of Probate in this State, were
adopted, viz :
I. Books. — The Judge of Probate shall, in addition to the books re-
quired by law, keep a book, properly indexed, in which shall be entered
the titles of all oases instituted in his Court, with proper entries under
each, denoting the papers filed, the orders made, and the steps taken
therein, with the dates of the several proceedings. Also, a calendar of
all cases which are pending in his Court, until the same shall be dis-
posed of by a final decree or order.
II. Sheriff Compelled to Return Process.— At any time after the day
when it is the duty of the Sheriff" or other officer to return, deliver, or
file any process, undertaking, order or other paper, by the provisions
of the ('ode of Procedure, any party entitled to have such act done,
may serve on the officer a notice to return, deliver, or file such process,
undertaking, order or other paper, as the case may be, within ten days ;
or show cause, at a time to be designated in said notice, why an attach-
ment should not issue against him.
III. Guardian ad litem. — Decree against Infants.— -No person other
than the general guardian of an infant shall be appointed guardian ad
litem, either on the application of the infant or otherwise, who is not
fully competent to understand and protect the rights of the infant, who
has an interest adverse to that of the infant, or who is connected in
business with the attorney or counsel of the adverse party ; and no
84
decree against an infant or other jjerson not niii juris shall be made,
except upon proof of the facts necessary to support such decree.
IV. Duty of Guardian ad litem.— It shall be the dutj' of every
attorney or other officer of this Court to act as the guardian ad litem of
any infant defendant, in any suit or proceeding, whenever appointed
for that purpose by an order of the Court. And it shall l)e the duty of
the guardian nd litem to examine into the circumstances of the case, so
far as to enable him to make the proper defence for the protection of
the rights of the infant.
V. Summons — After a petition or complaint has been filed, it shall
be the duty of the Judge of Probate to issue his summons, directed to
each of the defendants named in said petition or complaint, notifying
them of the filing of such petition or complaint, and that unless they
plead thereto within twenty days from the time of service of such sum-
mons, judgment will be rendered against them for the relief demanded.
Such summons shall be served in the same manner and according to
the same rules as are prescribed by law in the case of a summons in the
Court of Common Pleas
Publication. — And, in case any of the parties defendant are absent
irom or reside beyond the limits of the State, or whose residence is un-
known, upon such fact being made to appear to the satisfaction of the
Judge of Probate, by affidavit, such summons shall be published, in the
same manner as required by law, in the case of the publication of a sum-
mons for an absent defendant in the Court of Common Pleas.
Personal service. — Personal service on any absent party, under an
order of the Court, shall be deemed sufficient without publication.
VI. Pleadings. — Time of Trial. All pleadings in the Court of Pro-
bate must be in writing ; and the only pleading necessary on the part
of the defendant shall be an answer, in which issues both of law and
fact may be raised.
When the petition or complaint is verified, the answer must also be
verified.
Each case shall stand for trial at the session commencing on the first
Monday in the month, after the day on which the time for answering
shall expire ; but may, on just cause shown, be continued to such other
day as may be appointed by the Probate Judge.
Provided, however, that the case may be tried on any day after the
time to answer has expired, with the consent of all parties interested,
or their attorneys.
VII. No argument after decision. — Counsel shall not attempt to
argue or explain a case, or any matter arising therein, after he has been
heard, and the opinion of the Court has been pronounced.
VIII. Manner of preparing papers. — All pleadings and other pro-
ceedings shall be written on each page of legal cap paper. If more than
two pages are used, they shall be fastened at t!ie top, so as to be read
continuously. Papers shall be folded from the bottom, in four equal
folds, and endorsed with the style of the Court, the names of the par-
ties, tlie nature of the paper, and the name of the attorney.
85
IX. Consent must be in Writing. — No private agreement or consent
between the parties or their attorneys, in respect to the proceedings in
a cause, shall be binding, unless the same shall have been reduced to
the form of an order by consent, and entered; or unless the evidence
thereof shall be in writing, subscribed by the party against whom the
same shall be alleged, or by his attorney or counsel.
X. Proof of Service. — "Where the service of the summons, or notice
accompanying the same, if any, shall be made by any person other than
the Sheriff, it shall be necessary for such person to state in his atfidavit
of service, when and at what particular place he served the same, and
that he knew the person served to be the person mentioned and de-
scribed in the summons as defendant therein ; and also to state that he
left with the defendant a copy of the paper so served.
XI Extension of Time to Answer. — No order extending the time
to answer shall be granted, unless the party applying for such order
shall satisfy the Judge of Probate, by affidavit, that there are just grounds
therefor; unless such extension of time has been agreed upon, in writ-
ing, or orally in open Court, by all the parties interested, or their
attorneys.
XII Motion to Correct Pleadings.— Motions to strike out of any
pleading matter alleged to be irrelevant or redundant, and motions to
correct a pleading on the ground of its being "so indefinite or uncer-
tain, that the precise nature of the charge or defence is not apparent,'
must be noticed before answering the pleadings.
XIII. Judgment of Appellate Court — When a judgment rendered in
the Circuit Court or in the Supreme Court, upon an appeal from the
Judge of Probate, is certified to the Judge of Probate, the same shall
be recorded with other judgments of the Probate Court, with proper
references made to the judgment appealed from.
XIV. Orders after Issue Joined. — After issue has been joined in
any case in the Court of Probate, no order shall be granted therein ex-
cept at the time appointed for the hearing thereof, unless two days'
notice, in writing, has been given to the parties to be affected thereby,
or their attorneys, where they reside in the same county ; but where
they reside in different counties, four days' notice shall be given.
X\'. Rules of Circuit Court to Govern — In all cases not provided
for by any of the foregoing Rules, the Rules of the Circuit Court, so far
as they can be made applicable, shall govern
XVI. When to take Effect. — These Rules shall go into operation on
the first day of July, A. D., 1879.
COSTS AND FEES,
OF FORCE JULY ist, 1882.
[The Sections referred to are Sections of the Revised Code except
"where otherwise stated.]
Costs to Follow Event of Action— Except in Chancery Cases —
Section 2425. In every civil action commenced or prosecuted in the
Courts of Record of this State (except cases in Chancery) the attorneys
of plaintiif or defendant sliall be entitled to recover costs'of the adverse
party as prescribed in this Chapter ; such costs to be allowed as of course
to the attorneys of plaintiff or defendant, and all officer^ of the Court
thereto entitled, accordingly as the action may terminate, and to be in-
serted in the judgment against the losing party to such action. In cases
in Chancery the same rule as to costs shall prevail unless otherwise
ordered by the Court ; Provided, that wherever in an action for assault
and battery, false imprisonment, libel, slander, malicious prosecution,
criminal conversation, or seduction, the amount recovered shall be less
than one hundred dollars, the total amount of costs and disbursements
shall not exceed the amount so recovered in the action.
[It will be observed that the attorneys' fee bill, which immediately
follows this Section, applies only to civil actions in Courts of Record ; it
does not give costs to attorneys in special proceedings. Columbia Water
Power Company vs. Columbia, 4 S. C., 388. The provision as to costs in
cases in Chancery is a statutory enactment of an established rule in
Courts of Equity. Cooke vs. Pennington, 15 S C, 185; Ibid, 611, 612.
See, too. Mars vs. Conner, 9 S. C, 79.]
Title 10, Part 11, of the Code of Procedure treats "of the costs in civil
actions" and is as follows:
Sec. 323. [This Section is the same as Section 2425, of the Revised
Code, supra.]
Officers May Take out Execution for Costs.— Sec. 324. Whenever a
case may be settled or determined at the mutual costs of parties, or dis-
continued or settled by plaintiff, or the judgment shall be for defend-
ant, or the execution against defendant shall be returned nidla 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.
Interest on Verdict or Report — [§336].— Sec. 325. When the judgment
is for the recovery of money, interest from the time of the verdict or
87
report, until judgment be finally entered, shall be computed by th e
clerk, and added to the costs of the party entitled tliereto.
Costs; How to be Inserted in Judsment— [|337].— Seo.326. The clerk
shall insert in the entry of jud'^ment on the application of the prevail-
ing party, upon five days' notice to the other, except when the attorneys
reside in the same city, village, or town, and then, upon two days' no-
tice, the sum of the allowances for costs, and disbursements as provided
by law, the necessary disbursements, including the fees of oflEicers al-
lowed by law, the fees of witnesses, the reasonable compensation of
commissioners in taking depositions, the fees of referees, and the ex-
pense of printing the papers for any hearing, when required by a rule
of the Court. The disbursements 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.
Interlocutory Costs — Whenever it shall be necessary to adjust costs
in any interlocutory proceeding in an action, or in any special proceed-
ings, the same shall be adjusted by* the Judge before whom the same
may be heard, or the Court before which the same may be decided or
pending, or in such other manner as the Judge or Court may direct.
Costs on Postponement of Trial— [?340].— Sec. 327. When an applica-
tion shall be made to a Court or referee to postpone a trial, the payment
to the adverse party of a sum not exceeding ten dollars, besides the
fees of witnesses, may be imposed, as the condition of granting the
postponement.
Cost on a Motion— [?341].— Sec. 328. Costs may be allowed on a motion
in the discretion of the Court or Judge, not exceeding ten dollars, and
may be absolute or directed to abide the event of the action.
Costs Against an Infant Plaintiff— [?342].— Sec. 329. When costs are
adjudged against an infant plaintiff", the guardian by wliom he appeared
in the action shall be responsible therefor, and payment thereof may
be enforced by attachment.
Costs in Action by or Against an Executor or Administrator, Etc.
[|343]. — -Sec. 330. In an action prosecuted or defended by an executor,
administrator, trustee of an express trust, or a person expressly author-
ized by statute, costs shall be recovered, as in an action by and against a
person prosecuting or defending in his own right ; but such costs
shall be chargeable only upon, or collected of the estate, fund, or party
represented, unless the Court shall direct the same to be paid by the
plaintiff or defendant personally, for mismanagement or bad faith in
such action or defence. [See Revised Code, ?2185 ]
Costs on Review of a Decision of an Inferior Court in a Special Pro-
ceeding — [?344] . — Sec. 331. When the decision of a Court of inferior juris-
diction in a special proceeding, including appeals from Probate Courts,
shall be brought before the Circuit Court for review, such proceeding
shall, for all purposes of costs, be deemed an action at issue, on a ques-
tion of law, from the time the same shall be brought into Court, and
costs thereon shall be awarded and collected as provided by law.
y
88
Costs in an Action by the State— [|,345] .—Sec. 332. In all civil actions
prosecuted in the name of the State, by an officer duly authorized for
that purpose, the State shall be liable for 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 de-
fendant's costs, which shall not be recovered of the State till after exe-
cution issued therefor against such private party and return unsatis-
fied.
The Like— [?346]. — Sec. 333. In an action prosecuted in the name of
the State, for the recovery of money or property, or to establish a right
or claim for the benefit of any County, city, town, village, corporation,
or person, costs awarded against the plaintiff shall be a charge against
the party for whose benefit the action was prosecuted, and not against
the State.
Costs Against Assignee after Action Brought— [2347]. — Sec, 334.
In actions in which the cause of action shall by assignment after the
commencement of the action, or in any other manner, become the
property of a person not a party to the action, such person shall be
liable for the costs and disbursements in the same manner as if he
were a party, and payment thereof may be enforced by attachment.
[Other provisions of the law governing the allowance of costs gener-
ally, and in particular cases are to be found in the Revised Code, and
are substantially as f(.illows :
Where a party is damaged by a defective highway or bridge, the
County Commissioners may tender damages and costs to the party
injured before he commences his action; if he afterwards recover no
greater sum for his damages, the County shall recover the costs of the
action. §1088.
Where money is lent at usurious interest the lender shall not have
the costs of his action on the debt. §1288.
' In cases of appeal from the determination of valuation and assess-
ment made in behalf of a drainage corporation, under Chapter XLI, of
the Revised Code, full costs shall be allowed. § 1568.
Where damages of two dollars or more are recovered from the owner
of a dog for sheep killed, full costs shall be had. § 1702-
Costs incurred for violations of the Act for prevention of cruelty to
animals, [17 Stat., 573, §8] shall be a lien upon the animals cruelly
used. § 1710.
For proceedings in Courts of Common Pleas to examine action of trial
justices in terminating a lease where the tenant has deserted the prem-
ises, the tenant, if successful, shall have his costs, and if unsuccessful
shall pay twenty-five dollars for his appeal, §1816.
Costs of all proceedings for the appointment of a public guardian
shall be the same as for similar proceedings in the Court of Probate.
§ 2057.
Costs are allowed to persons making returns to writs of prohibition and
mandamus, when they prevail, and also costs are allowed to plaintiffs
in such proceeding where there is a verdict in their favor, or they have
judgment by default or for want of replication, or other pleading, or on
demurrer, §2344. In other cases, there are no costs in these proceed-
ings. Stale ex rel. Bull vs. County Treasurer, 10 S. C, 40. The second
part of the Code of Procedure does not affect proceedings in prohibition
and mandamus. Code Proc., § 452.
89
Where a creditor petitions to enforce his lien on buildings or lands,
but has commenced his action prematurely, and another creditor car-
ries it on, he shall not be allowed his costs, and may be required to pay
the debtor's costs. ^2385. In all other respects the costs of these pro-
ceedings shall be subject to the discretion of the Court, ? 2386.
Costs allowed by implication in proceedings to enforce lien on ships
arid vessels, §2396.
If appellant fails to prosecute his appeal from the Probate Court, the
Circuit Court shall ?,ffirm the proceedings and may allow costs against
the appellant. Code Proc, §61.
For special proceedings as to costs where action before a trial justice
is transferred to the Circuit Court because title to real i^roperty is in-
volved, see C'ode Proc, §§81-85.
Where variance between allesration and proof is not material, the
judge may order an amendment without costs- Code Proc, §191.
In supplementary proceedings the judge may allow the judgment
debtor, or other party examined, witness fees and disbursements, and a
fi.xed sum in addition, not exceeding thirty dollars, as costs. Code
Proc, §321
Where controversy is submitted without action, there are no costs
prior to the trial Code Proc. §375.
A party put to the expense of proving the genuineness of a paper
after requesting from the adverse party an admission of it in writing,
which was refused within four days, may recover the expense of proving
it, unless the judge is satisfied that there were good reasons for the re-
fusal. Code Proc, §389.
For special provisions relating to costs on appeal from a trial justice,
see Code Proc, §§368, sub. 5, 370, 372.
For special provisions relating to costs on offer of judgment or com-
promise, see Code Proc, §§ 386-388.
Security for costs. See rules of Circuit Court, No. 10, ante p. 64.
Clerk of Circuit Court is to adjust the costs of an appeal, /iid, 40,
ante p. 73.
Costs of former action. See Ibid, 60, ante p. 80.
Time within which to pay costs. See Ibid 63, ante p. 80.
Costs of several actions for partition where one w'ould suffice. Se^
Ibid 55, ante p. 78.
The decisions of the Court of Last Resort in this State, since 1848,
have been as follows :
Costs are governed by the fee bill of force at the time of the verdict,
not at the time of taxation. Kapp vs. Hothschild & Loyns, 13 S. C. 288.
Otherwise, as to disbursements, Lewis vs- Brown, 16 S. V., 65. Costs
of appeal should be taxed under the fee bill in force when the ap-
peal was dismissed, and not by subsequent Act in force at the time of
their adjustment on Circuit. Winsmith vs. Dewberry, 14 Ibid, 554. If
taxed under wrong fee bill, it is binding if not appealed from Thomp-
son vs. Thomson, 10 S. C, 279-
Costs are in the nature ofa penalty and subject to strict construction.
State ex rel. Ball vs. County Treasurer, 10 S. C, 40. Counsel fees and ex-
penses not provided for by the fee bill are not required to be paid un-
der an equity decree directing the payment of all costs. Palmer vs.
Thomson, 4 Rich., 607.
Appeal lies to the Supreme Court from taxation of costs. Stegallvs.
BoU,n S.C., 522.
Sheriff must collect costs as taxed ; errors should be corrected on mo-
tion, or on exceptions. Prince vs. Sutherland, 12 S. C, 109.
Where defendant prevails in his appeal which was rendered neces-
sary by the defective pleadings of the plaintiff, the defendant should
have the costs of his appeal. Cleveland vs. Cohrs, 13 S. C, 398. Where
90
an executor is required to pay costs, be'^anse of his bad pleading, he
cannot be reimbursed out of his estate- Thomson vs. Palmer, 3 Rich.
Eq., 139.
Where suit in equity is by one for the benefit of a class, or for the
benefit of persons who cannot contract for tliemselves, costs should be
paid out of the fund in Court. Nimmons vs. Stewart. 13 S.C., 445.
Costs may be ordered by the Circuit Judge as a condition of answer-
ingafter overruling demurrer to complaint. E. R Co. vs. White, 14
S. C, 52.
Where a party is improperly joined as plaintiff, each party should
pay their own costs, where the dismissal has not put the defendant to
costs or inconvenience Roberts vs. Johns, lO S. C . 108.
Where creditors enjoined from suing an insolvent estate, neverthe-
less brought suit, they were required to pay their own costs and those of
the executor. Thomson vs. Palmer, 3 Rich. Eq., 139.
On bill by remiindermju to obtain an inventory, the plaintiffs
were allowed their costs. Aaron vs. Beck, 9 Rich. Eq 411.
If p'aintiff recovers judgment against several defendants for an aggre-
gate amount wliich carries costs, he is entitled to them, althouy:h the
damages are apportioned amongst the defendants. Boon vs. Horn, 3
Strob., 160
On scire facias to revive a judgment, plaintiff is entitled to the costs of
that proceeding, which should be endorsed on, but not included in the
fi.fa. Parnell vs. James 6 Rich,, 374.
Where a vendor sues for specific performance, he may perfect his title
at any time before decree ; but if the vendee resists solely on account
ot such defect, in such case the vendor must pay costs, but if the vendee
resists on other grounds, he should pay the costs. Lyles vs. Kirkpatrick,
9 S. C., 265
It is not the duty of a referee to determine the costs. The proper
practice is prescribed by Section 326 of the Code of Procedure ; if the
action of the clerk is objected to, the matter should be brought before
the Circuit Court, on motion to correct the taxation. Bradley vs.
Rodelsperger, 6 S. C, 290. But where all issues of law and fact are re-
ferred to arbitrators, they have power to award who shall pay the costs.
Bollman vs Boibnan, 6. S. C, 30.
There is no right to recover costs of plaintiff until return of nulla bona
on his execution against defendant. Harllee & Pressley, vs Ward, 15
Rich., 231.
FEE BILL.
Plaintiff's Attorney's Costs, |§ 2,426, 2,428.
At Law.— Rule on Sheriff or other ofiicer of the Court $ 3 00
Issuing Summons 4 00
Issuing Comphiint 4 00
Where Special Bail is required 1 00
Renewal of Execution 1 00
Demurrer, or joinder in Demurrer 3 00
For issuing Writ of Partition 8 00
All proceedings in Dower, from beginning to end 20 00
Cases in attachment in addition to common costs 10 00
Examination of a party or witness before trial 3 00
In Equity. — Issuing summons and Complaint on Equity side of
Court, and necessary exhibits v.. .$20 00
If for the partition of real estate valued or sold at
$1,000, or less, only 10 00
Appointment of guardian, or guardians ad litem for
infants 10 00
One Attorney representing all the infants to charge
$10 for all
For every commission to examine witnesses or cross
interrogatories, or for issuing writ of partition 8 00
In all Cases. — For proceedings in cases where the summons is
served by publication. 4 00
Every necessary copy-complaint served, where
more than one defendant 2 00
Defendant's Attorney's Costs, H 2,427, 2,428.
At Law. — Notice of appearance when necessary $ 4 00
Answer 6r demurrer 4 00
In Equity. — Answer and necessary exhibits 20 00
Plaintiff's and Defendant's, H 2,426—8.
At Law. — Entering up Judgment and issuing Execution $ 3 00
Subpoena Writ and Ticket 1 00
Motion for New Trial, when granted 5 00
Trial of the cause in the Circuit Court 5 00
Proceedings before Trial on Appeal from Trial Justice
Court 3 00
Trial of the cause 5 00
When the amount sued for is under $20 2 50
For the Jury in each case tried 1 00
Commission to examine witnesses, or filing cross in-
terrogatories 8 00
92
[Costs not allowed on a commisS|ion where the testimony is irrelevant.
Teague v^ R. R Co., 8 Rich., 156 Nor where witness attends and is
sworn in open Court. R. R Co. vs. Choice, 7 Ibid, 44.
In Equity.— Briefs for Circuit Judge $ 5 00
Special matter and argument on trial in Circuit 5 00
Exceptions to Clerk's, Master's or Referee's Report.. 5 00
Attending reference before Clerk, Master or Referee,
each day 5 00
[Attorneys are allowed fees for attending reference before the Mas-
ter to tax costs, only where the taxation has been referred to the Mas-
ter by order of Court. Gnignard vs- Harley, 11 Rich. Eq., 1.]
In all Cases.— flaking and serving a case, or case containing ex-
ceptions 10 00
Procuring Order of Injunction 5 00
Appeal to Supreme Court 15 00
Argument in Supreme Court 20 00
On motion, in discretion of Judge, not exceeding
(Code Proc, I ^2S,ante.) 10 00
[Attorney can get fees for copy opinion of Supreme Court only when
such copy is necessary. Gnignard vs Harley, 11 Rich. Eq., 1. They
cannot charge as a disbursement for money paid to have copy of case
prepared for printer. Elder dt Co. vs. R. R. Co., 15 S. C, 600 But may
for the printing of three points and authorities, where three counsel
were heard, and the Clerk allowed the item as a necessary disburse-
ment, Ibid.]
Sec. 2,429. The several officers hereinafter named, shall be entitled
to receive and recover the fees and costs prescribed by this chapter,
and none other, for the services herein enumerated.
Secretary of State, | 2.430.
For every search $ 14
For a commission fora place of profit 3 21
For entering satisfaction on a mortgage 21
For recording a mark or brand 21
For recording or copying any writing, for every copy sheet con-
taining 90 words 09
For making out a grant of lands, recording and fixing the great
seal 2 14
For a testimonial with the great seal 1 07
For certificate of incorporation under a charter granted by the
legislature, {? 1384) 5 00
For registering the certificate of a person becoming a denizen 25
For a family not exceeding 3 50
For a family exceeding 3 1 00
[All fees of this office are paid into the State Treasury. ? 482.]
Clerks of Circuit Court, f 2431
Signing and Sealing Summons 50
Filing Complaint ... 50
93
I
Filing each Answer, Demurrer or Joinder in Demurrer $ 25
Signing and Sealing Subpoena Writ 50
Docketing a Cause, one charge only at each Term ... 15
Attending Trial of Cause, Civil or Criminal, and Swearing Wit-
nesses , 50
Entering Verdict or other Order for final judgment on Minutes of
Court 25
Special Order for Bail 50
Filing and Entering on Journal Every Rule or Order for Arbitra-
tion 25
Filing Affidavits for Continuance when ordered by the Judge 25
Signing, Entering and Enrolling Judgment 75
Signing and Sealing First Execution 50
Signing and Sealing each Renewal of Execution 25
Entering Satisfaction on judgment 25
For filing transcript 25
Taking Security for Costs, Entering Order therefor if made 50
RecordingJudgments 1 50
Recording Decrees of Foreclosure, Partition and Reports, per Copy
Sheet of ninety words 09
Administering Oath other than on Trial of Cause, Proof of Service
on Sherift's Return, Oath to Jurors, or by Order of Court 15
Taking and Filing Bonds in Attachment, Trover or in other
Cases 1 00
Signing and Sealing Commission to Examine Witnesses 75
For each witness examined before trial, under § 2212 1 00
Exemplification of Proceeding or other Office Copy per Copy Sheet
of ninety words 09
Recording Plat of Land under order of Court or Copying same 50
RuleofSurvey 50
Each Official Certificate under Seal of Court not herein specified- 50
Issuing Writ of Attachment for Contempt or other Special Writ.. 1 00
Signing and Sealing Writ of Hab. Fac. Possessionem 50
Receiving and Paying over Money Officially ; if under $300 two
per cent., if over that sum two per cent, for the first §300, and
one per cent for the balance.
Every Appeal from Trial Justice, all services inclusive, except for
Entering up Judgment and Issuing Execution therein 1 00
On Bill nol pros, before given out 1 00
On Bill thrown out by Grand Jury, or found and nol pros'd, abated,
discontinued or struck ofi" 2 00
On Bill found and Verdict by Petit Jury 3 00
All Oi'ders for Bastardy and taking Recognizances 1 00
Issuing Bench Warrant, Writ of Habeas Corpus, Scire Facias, and
each Execution in Sessions 1 50
Issuing VVarrants, Taking Recognizances or other Services in the
Sessions as Trial Justice, ex off., same fees as allowed that
officer.
94
Recognizance of prosecutor or witness discliarged under Sections
2625 and 2626, without security, (? 2628) $1 00
Each writ of Venire Facias, inchiding all services incident to Sum-
moning Juries 2 00
Preparing and Issuing Certificates for Grand and Petit Jurors
and Constables, and furnishing Returns to County Commis-
sioners for each Term of Court of Common Pleas and General
Sessions 5 00
Filing Petition and Signing Writ de lunatico inquirendo 1 00
Furnishing advertisements in Cases of Escheat, exclusive of prin-
ter's bill 1 00
Recording whole proceedings therein 2 00
For License to an Attorney, all services included 5 00
Filing and entering Notice of Alien's Intention to become a citizen 1 00
Filing and recording Report of Alien 1 00
For administering Oath of Intention 1 00
Filing and entering Application to become a citizen, and admin-
istering Oath 2 00
For giving Certificate (over Seal of Office) of Citizenship 1 00
For taking a Renunciation of Dower or Inheritance 2 00
Every search for a paper found (not to be charged to parties or
Attorneys when for papers in a case pending) 15
Ever}'- search necessary for a Certificate that a paper is not to be
found in office 25
Swearing a Trial Justice or Constable in Office, taking Constable's
Bonds and giving Certificates thereof 1 00
For every Probate in Writing 25
Signing and Sealing i)erfi'??M(s Fotestatem 1 00
OfBcial Certificate to Exemplification of Record 1 00
Official Certificates, without the Seal 25
Each day engaged in holding Reference 1 00
Making up, and Returning Report, but no more than One Report
in each case 3 00
Deed of Conveyance or Mortgage 2 00
Official Record of Estray and Filing Papers 1 00
Recording and copying Deeds or other Papers, per copy sheet of
ninety words 09
Entering Satisfaction on Mortgage 25
Recording or copying Plats of not more than six corners 1 00
For every corner over six 10
Granting Charter of Incorporation (§ 1384) 2 00
Granting Charter to Church (? 1384) 1 00
Proceedings to obtain right of w^ay under Chapter XL, for all
charges prior to appeal, except cost of advertising (^ 1560) 10 00
All charges of Appeal (| 1560) 2 00
In proceedings to obtain Homestead (? 2004) 5 00
Certificate of Order for change of name (§ 2069) 5 00
For taking Confession of Judgment (Code Proc.,''§385) 5 00
95
[See Register of Mesne Conveyance, post. Each County shall pay fees of
Clerks m State cases and for all other services. | 622. Clerk must
attach itemized bill of costs to every execution, and on application of
defendant shall tax all costs which shall accrue to the Sheriff for
services on such execution. ^ 757.]
Referees, §2432.
For every day occupied in the business of a reference $ 3 00
But the parties may agree in writing upon any other rate of compen-
sation.
[Where there is no such written agreement his costs must be taxed
at $3 a day. TJiompson vs. Thompson, 6 S. C, 279.]
Masters, § 2433.
For every summons 37J
For every day spent in the business of a Reference § 3 00
(But the parties may agree in writing on any other rate of com-
pensation.)
Making and filing each report in a cause 3 00
Swearing and taking testimony, each witness 25
For each appointment of guardian ad litem 2 00
Making and certifying any order 2 00
Taking, transcribing and filing bond of Guardian, Receiver, or
Trustee, or any other injunction or ne exeat bond 3 00
Examining and auditing account of Guardian, Receiver, or Trus-
tee 1 00
Commission to take testimony of witnesses, or answers of absent
defendants 1 00
Every Deed or Mortgage prepared or executed 3 00
On all Moneys passing through his hands, same Commissions as
allowed to Sheriff
Proceedings on petition for Homestead (? 2004) 5 00
[Master may charge for summons where he serves parties with notice
of day for examination of witnesses. Guignard vs. Hurley, 11 Rich. Eq., 1 .
And for copy of decree furnished to the appellee. Jbid.]
Registers of Mesxe Conveyance, § 2434.
For recording and copying deed, and other papers, per copy sheet
of 100 words 10
For entering satisfaction on mortgage 25
For recording or copying plats of not more than six corners .' 1 00
And for every corner more than six 6
For every probate in writing 25
For every certificate 25
For every search (in Charleston County only) 10
For indexing lien on crops (? 2399) 15
For indexing chattel mortgages of not exceeding |100 (17 Stat.,
1053)...: 15
96
Probate Judges, ^ 2435.
Citation $ 50
Qualifying Executor, Administrator or Guardian, Issuing Letters
to either and Recording same 2 50
Taking Bond of Administrator or Guardian and Recording same.. 1 00
Issuing Warrant of Appraisement and Oath .- 50
Proving a Will in Common Form, and Filing and Certifying
same 1 00
Proving a Will in Solemn Form, and Filing and Certifying
same, 5 00
Recording Will, Probate and Certificate, i^er Copy Sheet of ninety
words 09
Filing and Entering Renunciation of Executor 50
For Dedimus Potestatem to Prove Will or Qualify an Executor 1 00
Recording each Inventory and Appraisement of Sales, each figure
counting for a word, per Copy Sheet of ninety words 09
Receiving, Examining and Filing the Annual or Final Accounts
of each Administrator, Executor or Guardian, for first year... 3 00
Each succeeding year 1 CO
Recording said Accounts, per Copy Sheet of ninety words 09
Hearing and Filing Petition for Sale of Personal Estate and
Order 100
Hearing and Filing Petition for Guardianship, and Appointment
of Guardian, or Guardian ad Uie7n 1 00
Entering Caveat or Withdrawing same 50
Hearing every Litigated Case, for each day, but not to exceed in
any case $12 3 00
Swearing and Examining each Witness 15
Certifying Copy of any Paper on File in his OQice "... 60
Copying such Paper, per Copy Sheet of ninety words 09
Every Rule issued against Defaulting Witness, or party failing to
account 2 00
Every Attachment Issued on Return of such Rule 1 00
Furnishing and Certifying Copy of Proceedings in Case of Apj^eal, 3 00
For every Search 15
Every Certificate not hereinbefore specified 25
Hearing Petition to Sell Real Estate in aid of Assets, and Grant-
ing Order therefor (&« m/ra.) 2 00
Taking Administrator's or Executor's Bond in each case 1 00
Final Discharge of Executor, Administrator, or Guardian 2 00
For Proceedings in Dower, inclusive of all charges, where the
amount is under 1200 ...; 5 00
Where over $200 10 00
Proceedings in Lunacy 10 00
Provided, where Proceedings in Lunacy are only had by Certifi-
cate of Physician 3 00
Proceedings and Services Setting off Homestead, including Titles, 5 00
97
But where the amount of the estate in the Probate Court does
not exceed $250, costs shall not exceed one-half of above
amount.
Receiving and Paying over Money, two per cent, if under $300 ;
if over that sum, two per cent, on first $300, and one per cent.
on balance.
For all proceedings for sale of land in aid of assets (^ 1939 ;
and see supra) $ 5 00
[Probate Judge may issue execution for costs. Code Proc, ^69.]
Trial Justices, | 2436.
Oath and Warrant in Criminal Case 40
Each Recognizance 40
Each Commitment and Release 20
Administering and Certifying Oath in Writing other than above, 30
Issuing Writ of Habeas Corpus to the two Trial Justices Jointly... 1 50
Issuing Summons and Copy for Defendant in Civil Cases 35
Issuing Summons for Witnesses in any Civil Case 20
Taking Examination of Witnesses in writing in any case as
prescribed by law 50
Giving Judgment on hearing Litigated Case 25
Giving Judgment in case not defended 20
Giving Execution or Renewal 25
Report of Case and taking Bond to Appeal 60
Issuing Attachment returnable to Court of Trial Justice, including
all Notices 1 00
Filing Return of Garnishee and Order thereon 15
Proceeding on behalf of Landlord or Lessor against Tenant or
Lessee, to the two Trial Justices 6 00
Proceedings on Certifying Indenture of Apprentice or Assign-
ment 1 00
Trial of any Criminal Case inclusive of all costs except for issuing
papers 1 00
Preliminary Examination of any Criminal Case 50
Proceedings on Coroner's Inquest as prescribed by law 8 50
Proceedings on Estray of Horse or Mule 50
Proceedings on all other Estrays, each 15
Taking and Certifying Renunciation of Dower 2 00
Granting Order for Special Bail 50
Qualifying each Appraiser in Setting off Homestead, besides five
cents per mile for all travel actually necessary. See iiifra 25
Issuing Summons for Jurors in a Criminal Case 21
Proceedings to dispossess Tenant on three days notice, (^ 1819)... 50
Qualifying Homestead Appraisers, besiides mileage of five cents,
to be paid out of debtor's property, but may be demanded in
advance (? 2004). See supra 76
Rule on Constable and hearing return (?860) 35
7
98
For dividing crop between employer and laborer— a reasonable
compensation (| 2082)
For taking Confession of Judgment. (Code Proc, | 385) $ 5 00
[For special provisions as to how costs are to be paid in cases where
the action terminates because of title to real property being involveci,
see Code Proc, ^^ 81-85. All fees and accounts of trial justices and
other officers for criminal proceedings, including cases of vagrancy,
when not recovered from the defendant or party complaining at the
rates allowed by law, shall be paid by the county wherein the ofi'ence
shall have been committed Provided, Said fees and accounts do not
exceed the sum of five hundred dollars per annum, and all accounts
rendered for such' proceedings shall state when such offence was com-
mitted. Provided further, That the provisions of this Section shall not
apply to the counties, where, by special legislation, such fees and ac-
counts have been otherwise provided for. Rev. Code, § G22. As to how
claims against the county shall be approved, see 17 Stat., 891. No ac-
count of a trial justice in a criminal cause, shall be paid, unless he
declare, on oath, that the costs were not and could not have been paid
by the defendant, and that he has paid over to the county treasurer all
fines and penalties collected by him ?8t)l.
A trial justice shall be compelled to furnish a party paying costs, with
an itemized statement, and such party is not compelled to pay any costs
unless such account is furnished. ^ 854.
In trial justice's courts of the city of Charleston, there is a docket
fee to be charged among the costs of the case. (? 846, O.)
Where amount claimed is $20 or less 25
Where more than $20 and less than $50 60
Where $50 or over 75
And the clerk of said court shall be entitled, except in state cases,
to twenty-five cents for entering up judgment, to be paid by the party
having the judgment entered, to be charged as part of the costs.
^846, I.]
Sheriffs, ? 2437.
For entering every Writ, Summons, Process, Execition, or other
Paper, and making necessary endorsements thereon $ 25
Serving every Writ, Summons, Notice, or Rule, not otherwise
herein specified, besides Mileage 1 00
Mileage Irom Court House to Defendant's or Witness' residence
orplace where found, going but not returning, per mile 05
Commitment and Release of Prisoner, each 50
Issuing each T'enire for Grand Jury 15 00
Serving each T'e?iire for Petit Jurors 25 00
Serving Subpoena — Writ, and Mileage, on each Ticket 50
Serving Bench or other Warrant, Scir e Facicis from the Court of
Sessions, or Writ of Attachment for Contempt, besides
Mileage 1 50
Search for Persons or Goods not found, and return on the execu-
tion of N. E. I., or N. B 50
Each Execution returned to Clerk's Office on Schedule 25
Levying Executions or Attachments, besides Mileage 1 00
Dieting Prisoner in Jail, per day 35
99
Executing Convict, including all charges and expenses $20 00
Bringing up Prisoner under Habeas Corpus, to be paid by Prisoner,
if able, f if not, by County,) besides Mileage and necessary
expenses — 1 00
Conveying Prisoner from one place to another, for every mile
going and returning, besides necessary expenses 06
Commissions on all Moneys collected ; under $300, 2 per cent.,
if over that sum, 2 per cent, for first $300, and 1 per cent, for
tlie balance, and 5 of 1 per cent, on all sums paid to Plaintiff,
as Agent or Attorney on Execution lodged with the Sheriff.
Execution Lodged to Bind with Order not to Levy 50
Advertising Defendant's Property, in addition to Printer's Bill-.. 1 00
Drawing and Executing a Deed of Conveyance, or taking Mort-
gage
2 00
Drawing and Executing each Bill of Sale when required by pur-
chaser 2 00
No Sheriff shall charge more than one Bill of Sale for property
bought at the same sale by the same party.
Executing Writ of Sab. Fac. Possessionem, besides Mileage... 1 00
Transferring Money, Bonds or other Securities for Money to
party i of 1 per cent.
Selling Land under Decree of Court, in lieu of Commissions and
all other charges, except for advertising. (See infra.) 2 00
Serving notice on each set of Managers of Election, besides
Mileage 1 00
Summoning Freeholders to try Suggestions of Fraud (§ 2417) 5 00
Every fine paid before levy 50
Every fine paid after levy and before sale 1 00
For moneys turned over to his S'lccessor, the old and new Sherifl"
shall receive, each, one-half of the commissions. (§695.)
For the service of notice or other papers in proceedings to acquire
right of way under Ch XL., besides Mileage, at five cents,
(§ 1560) 1 00
For summoning jurors in same, the same fee as in Circuit Courts
(§1560).
For all charges in setting off homestead, exclusive of necessary
disbursements. (§ 2004) 5 00
Proceedings to disposses tenant on three days notice. (^ 1819.)... 1 00
[Section 692 provides that the Sheriff shall receive for sales under
order of Court, the same fees as for sales under execution ; which pro-
vision seems to conflict with the item above stated, " Selling land un-
der decree of Court," etc. For all processes under sales of land by Pro-
bate Court in aid of assets, the Sheriff shall receive the same fees as are
allowed by law for similar services. (|1940.)
For executing process under the militia law, he shall have like fees
as for similar services in civil and criminal cases. (§ 398.)
Each County shall pay the fees of Sheriffs in State cases, dieting fees
to be paid monthly. (§692.) As to how claims are to be presented
against the County, see 17 Stat., 891. For maintaining insolvent debtors
100
in jail, Sheriffs shall receive the usual dieting fees, to be paid weekly
in advance by the party causino; the arrest. ^ 2423. Sheriff' or other
ofl!ioer bringinfr up prisoner under writ of Habeas Corpus shall be entitled
to his charges in advance, to be ascertained by the Court or Judge and
endorsed on the writ, not exceeding ten cents a mile, to be paid by the
prisoner, if able, or otherwise by the County. I 2328.]
Constables. §2438.
Summoning Coroner's Jury and Witnesses, to be paid by County. ..$2 GO
Summoning Witness in Civil Case 20
Summoning Freeholders to Try Question before Trial Justice be-
tween Landlord and Tenant, to be paid by unsuccessful party. 3 00
Serving Summons, Rule of Notice by a Trial Justice in Civil Case, ^
1 no mileage to beallowedl^^.t.U..r-|..Vy.../ULU...!-l}^"li' ..'i'5r':<V/ 50
Serving Attachment on Persmis Absconding or about to Abscond, ^
and making Inventory and Return, besides five percent, com-
mission on sale of effects, but no mileage 1 00
Selling Estray, five per cent, on Proceeds.
Levying Execution, Advertising Sale and Paying over Proceeds,
besides Commissions of five per cent, on amount Collected,
but no Mileage, to be paid by Defendant in Execution 20
Every day in Search of Stolen Goods to be paid by party complain-
ing 1 00
Serving Warrant in any Criminal Case, besides five cents a mile
for each mile necessarily travelled 1 00
Conveying Prisoner to the County Jail, going and returning, per
mile 05
Prvoided, That the Constable be reimbursed for necessary ferriage.
For services under Proceedings to dispossess tenant, on three days'
notice. (§1819) 1 00
Attending Court by order of Sheriff", each day, (§871) 1 50
[For executing process under the militia law they shall have like fees
as for similar services in civil or criminal cases. §398. As to how claims
against the County shall be presented and approved, see 17 Stat., 891.]
Jury Commissioners §2439.
For every day's actual service in performing his duties, such num-
ber of days not to exceed number of days the Court for the
County shall be in Session, together with five days to complete
the list and draw the Juries, and five cents per mile for all
necessary travel going and returning $3 00
Notaries Public. §2440.
Taking deposition and swearing witnesses, per copy sheet 25
Every protest 2 00
Duplicate of deposition, protest and certificate, per copy sheet of
100 words ". 10
Each attendance on any person to prove any matter or thing, and
certify the same 50
101
Every notarial certificate with seal $ 50
Administering oath on affidavit 25
Taking renunciation of dower or inheritance 2 00
Coroners. ?2-1:41
Every inquisition 10 00
Recording proceedings in each inquisition in his book, per copy
sheet, 100 words 10
Performing duty of SheriflT, same fees as allowed Sheriff for like ser-
vices.
[Coroner for Charleston County has salary in lieu of all fees. Each
County shall pay the fees of C:»roner.s |G22. H )w their accounts are
to be presented and approved. 17 Stat., 891.]
Physicians. §2442.
Pos< 3/or<fm Examination where death was by violence, and no
dissection required 5 00
Where dissection is necessary, and body not interred 10 00
Same after one or more days' interment 30 00
Same when chemical analysis is required, a sum not exceeding $50,
with expenses of analysis, and mileage for every mile travelled.
Provided, Where chemical analysis has been made, the Phj'sician who
makes it shall furnish to the County Commissioners, with his account
a full statement of analysis.
And, Provided, every such account must have certificate of Coroner
or acting Coroner
[Each County shall pay the fees of physicians and surgeons testifying
as experts at Coroner's inquests, or at the Circuit Court, after a post
mortem examination, and five cents per mile for actual and necessary
travel. §622. How accounts against the County are to be presented
and approved. 17 Stat., 891.]
Deputy Surveyors. §2443.
For surveying every acre of Land 01
For making out a fair plat, certifying, signing and returning same.. 2 14
For running old lines for any person, or between parties, or by or-
der of Court, while on the survey, per daj' 3 00
In Homestead cases, not exceeding. (§2004) 10 00
[Fees of Survevor in partition are part of the costs. Ervin vs. Epps,
15 Rich., 223. See Circuit Court Rules, No 36, ante p 72.]
County Auditors. |2444.
For every entry and endorsement on any deed of conveyance of
real property recorded in his office 25
[In cases of escheat, the County Auditor, as ex-officio Escheator, shall
have 2t per cent commissions on all moneys paid into the State treas-
ury. And where there shall appear any one to make title to property
after office found, the Court may assess such reasonable costs as the
Escheator has sustained, if he has not alreadj' received his commissions.
§2320.]
102
Appkaisers. ^2445.
To appraise estate of deceased persons, per day. (§1922.) ...$1 00
To set out homestead, per day, and 5 cents for every mile necessa-
rily travelled. (§2004.) 2 00
Freeholders summoned to survey rice lands, per day, (and 5 cents
per mile going and returning) (§1173.) 1 50
Section 2446. If any officer herein [i.e. hereinabove] named shall
charge any other fee or fees for any services herein recited, such officer
shall be liable to forfeit ten times the amount as improperly charged, to
be recovered by suit in the Court of Common Pleas, or attachment or
by sale when the penalty does not exceed twenty dollars. In any case
in which the Clerk of the Court of Common Pleas, or Trial Justice, shall
issue an execution, he shall attach thereto a bill of each item of costs
therein charged, and shall on application of defendant in execution, tax
all costs which accrue to the Sheriff for services on such execution.
[Nearly all of the above items to which is added a reference to the
Revised Code, are to be found in these Sections only, and not in this
Chapter ; and therefore are not atfected by this penalty. Where a con-
stable stated the amount of his costs to the Trial Justice, who issued his
execution therefor, and the Constable collected such costs, which were
in excess of those allowed by law, the Constable was held liable for ten
times the amount of such excess. Tindey vs. Kirby, 8 S. C, 113.]
To this Fee-bill in Chapter 98, should be added the fees allowed to
other officers and persons, in other parts of the Revised Code.
Jurors.
Per day, besides mileage, at 5 cents per mile, going and returning.
(§2269.) 1 50
In Trial Justice Courts, for each case tried, and mileage as above.
(§2269.) ' 25
For every verdict in Court of Common Pleas, to be paid by party
in whose favor rendered, and taxed as costs. (§2270.) 1 00
[In proceedings to obtain right of way under Chapter XL, Jurors
shall receive the same fees as in the Circuit Courts, to be paid by the
party or corporation demanding the right of way. §1560. Each, County
shall pay the fees of jurors in the Circuit Courts. §622.]
Witnesses.
In Courts of Common Pleas and Probate, per day, besides mileage
at 5 cents per mile, going and returning. (§2195.) 1 00
Provided, That in no case, except in cases of felonies, where Witneses
for the defence are bound over, shall the State be liable to pay defend-
ant's witnesses.
In General Sessions, where certified by the Judge to be material,
besides mileage at 5 cents, one way, per day. (§2197.) 60
In Trial Justice Courts, in civil cases, besides mileage at 5 cents
going and returning, per day, (§2196) 50
In no bill of costs, shall there be allowed the charge of more than
three witnesses to the proof of any particular fact. (§2192.)
103
[Witnesses examined under commission, shall receive the same fees
as in the Circuit Courts and also ferriage. ^^ 2205, 2208. Each county
shall pay witness fees in State cases for actual attendance on Circuit
and Trial Justice Courts, ^622. But in Section 21U7, it is declared
" That in Courts of Trial Justices, they shall receive no fees or compen-
sation, whatever for attendance in criminal causes." Witness out of the
county is entitled to one dollar for every thirty miles he travels going
and returning. Speigner vs. Cooner, 9 Rich., 122. Where Notary certi-
fied to proof of witnesses' service and mileage it was sufficient for the
clerk to act upon, although not signed by the witness. Wimmith vs.
Dewberry, 14 S. C, 554. A sheriff being sued for the recovery of cotton
levied upon as the property cf another, the plaintiff in the execution is
entitled to his fees as a witness Ibid]
Prixteks.
For official advertisements, the charge shall not be more than the
charge to individuals for like space, in no case, however, to exceed one
dollar per square for the first insertion, and fifty cents for each subse-
quent one. 12424.
In application for homestead, the charge shall not exceed five dollars.
^2004.
For printing advertisement of estray, to be paid by the owner, or out
of proceeds of sale. (^1614), $1.00.
Circuit Solicitors.
They shall have no costs in any case ; all costs collected by them are
to be paid to the County Treasurer for the use of the State. §511.
Stenographer,
Of first circuit, for copy furnished per one hundred words. (Code
Proc, 1278) 10
Clerk op Supreme Court.
For certified copies of records shall receive the fees prescribed by
law. ^2110.
City Court of Charleston.
The charges and fees shall be the same as in the Circuit Court in like
cases |2143.
Arbitration of Mercantile Disputes.
The clerk of this Court shall receive in each case, five dollars, and
also such further sum as may be allowed him, ^2154. Witnesses shall
receive the same costs as in Courts of record. §2157.
Marshals of Courts Martial
For every day actually employed, (§397) $ 1 00
For executing process, the same fees as sherifts.
Miscellaneous
A party committed to jail by a Trial Justice for any ofl'ence or misde-
meanor shall bear the expense of his sending to the jail, if able to
defray them. ^2654. When sent to jail after his conviction in the
Court of General Sessions, the Court may order the sheriff or other
officer to sell so much of the prisoners goods and chattels as will pay
the expense of c immitting him to jail. §2655. A prisoner discharged
or acquitted, is not liable for any of the charges incurred in his appre-
hension, detention or prosecution. §2658,
INDEX TO THE CONSTITUTION.
ARTICLES.
I. — Declaration of Rights 6
II. — Legislative Department 12
III. — Executive Department 20
IV. — Judicial Department 23
V. — Jurisprudence 30
VI. — Eminent Domain 31
VII. — Impeachments 32
VIII.— Eight of Suffrage 32
IX. — Finance and Taxation 34
X. — Education 37
XI. — Charitable and Penal Institutions 39
XII. — Corporations 40
XIIL— Militia 41
XIV. — Miscellaneous 41
XV. — Amendment and Revision of Constitution 42
XVI.— Increase of Public Debt 43
GENERAL INDEX..
Absence, temporary, does not forfeit residence
Acquitted once not to be tried again •
Act shall relate to one subject to be expressed in title-
Adjutant and Inspector-General, term of office duties,
&c
time of election, tank, &c
Agricultural College to be established
Amendments to Constitution, how made
American Union, this State shall remain a member of..
Appeal allowed from County Commissioners
Justices of the Peace
Appropriation, money only to be drawn in pursuance of
to same effect
Arbitrators, disputes may be settled by
Arms, people have the right to keep and bear
not compelled to bear, against conscience
Arrested, only by law of the land
Assault and Battery to be tried by Justices of the Peace
Assessment at uniform rate to be provided for
of all lands, ttc, every fifth year
Associate Justices to be elected for six years
classified at first election
compensation to be fixed
Attorney-General, term of office, duties, &c
how elected, compensation, &c
Ayes and Noes to be called if desired by two members
taken on vote after veto
recorded on bill to create a public
debt
taken in Senate on nominations..
Bail, excessive, shall not be required
Ballot, Circuit Judges to be elected by
all elections by the people shall be by viii
Banking Corporations, Stockholders liable for debts of
Directors shall not borrow from
Bastardy, Justices of the Peace have jurisdiction of....
Benevolent institutions to be supported by State
ART.
SEC.
PAGE
I
35
11
I
18
8
II
20
16
III
23
23
XIII
3
41
X
9
38
XV
1,2
42
I
5
6
IV
19
27
IV
24
28
II
22
16
IX
12
36
V
1
30
I
28
10
I
30
10
I
14
7
IV
22
28
IX
1
34
IX
6
35
IV
2
'24
IV
3
24
IV
9
25
III
23
23
IV
28
29
II
26
16
III
22
22
IX
7
35
XI
3
39
I
16
8
IV
13
26
VIII
1
32
XII
6
40
XII
6
40
IV
22
28
X
7
38
ART.
SEC.
PAGE.
II
21
9
II
18
15
II
18
15
I
21
9
I
6
X
7
38
XI
1
39
IV
19
27
X
5
38
106
Bill, its several stages necessary to become a law
to raise revenue must originate in House
may be amended, &c., in Senate
of attainder shall never be enacted
J of Rights
Blind, Institutions for, to be established and supported
to be fostered
Board of County Commissioners, terra, duties, &c.
to levy school tax
Breach of Peace, Member of the Legislature not exempt
from arrest, (fee, for ii 17 15
Electors not exempt from arrest, &c.,
for viii 6 33
Bribery, the right of suffrage to be protected from i 33 11
Capital of the State, Columbia to be ii 12 15
Governor shall reside at in 21 22
Census to be taken in 1875, and every tenth year ii 4 13
if not taken at proper time, Governor to effect
it II 5 13
Certificates of Indebtedness, not to be issued except, &c. ix 10 36
Change of Venue, General Assembly to provide for v 2 31
Charitable and Penal Institutions xi 39
Chief Justice, how elected and terra of office iv 2 24
to continue in office six years iv 3 24
compensation, and not to be diminished, iv 9 25
who eligible to office of iv 10 25
to preside at impeachment of Governor. vii 2 32
Circuit Courts, Judicial power vested in iv 1 23
where Judge of, cannot sit, Governor to
substitute iv 6 ' 25
change of Venue in to be provided for.. v 2 31
Judges of, to receive fixed compensa-
tion IV 9 25
eligibility of iv 10 25
vacancies in, how filled iv 11 26
terra of office of iv 13 26
how elected, and residence iv 13 26
may interchange iv 14 26
to file decisions in sixty days iv 17 27
Cities, may be vested with power to assess and collect
taxes IX 8 36
may be incorporated with restricted powers of
taxation, borrowing, &c ix
Claims against the State, how adjusted xiv
Clerk of Dourt, election, term of office, powers, &c iv
Supreme Court, to be appointed by the Judges iv
9
36
4
41
27
29
7
25
EC.
PAGE.
3
31
10
39
39
11
12
15
17
22
19
22
23
23
21
28
25
29
107
AKT.
Codification of laws to be made in every ten years v
Colleges supported by public funds open to all x
Color, distinction on account of, prohibited i
Columbia to be the seat of government ii
Commissions of all officers to be by Governor iii
to be in name of State, sealed, &c iii
Comptroller-General, term of office, duties, &c iir
Constables to be chosen by electors in each County,
term of office, &c iv
compensation of iv
Constitution of United States, paramount allegiance
due to I
14th Amendment to
be ratified. iv
Convention of People, how called xv
Conviction not to work corruption or forfeiture i
Coroner, election, term of office, &c iv
Corporal punishment prohibited i
Corporate purposes, taxes may be authorized for ix
Corporations xii
Corporations, municipal, may be provided by legisla-
tion IX
Corporations may be formed under general laws xii
property of, subject to taxation. xii
right of way to, onlj' upon compensation xii
dues from, to be secured by liability of
Stockholders, &c xii 4 40
to be regulated, embezzlement pun-
ished, &C XII
for Banking purposes xii
Counties, and formation of new Counties • ■•• ii
apportionment of representatives to ii
shall make provision for infirm, &c xi
County Commissioners, jurisdiction term, &c. iv
compensation iv
Funds, provisions for safe keeping of ix
Courts shall be open and public i
Supreme Court to have supervisory control over
all IV
Of Common Pleas, established • iv
jurisdiction of iv
sessions and equity powers iv
transfer of causes to iv
General Sessions, established iv
jurisdiction and Sessions iv
may appoint Solicitor j:>j-o<eTO. iv
Probate, See Probate Court.
33
30
3
43
21
9
30
30
16
8
8
36
40
9
36
1
40
2
40
3
40
5
40
6
40
3
12
6
13
5
39
19
27
25
29
15
37
15
7
4
24
1
23
15
26
16
26
17
27
1
23
18
27
29
29
ins
ART, SKC. PAGE.
Crime, involuntary servitude shall not exist, except as
punishment for i 2 6
no one to answer for, until described fully &c... i 13 7
high crime, except on
presentment of Grand
Jury I 19 8
committed by slave not to disfranchise viii 12 34
Deaf and Dumb, Institutions for, to be established x 7 38
to be fostered xi 1 39
Debt, imprisonment for, prohibited - i 20 8
contracted by State shall be by loan and regis-
tered IX 14 3r>
in behalf of rebellion never to be paid ix 16 37
Decisions of Supreme Court to be published iv 32' 30
Declaration of Rights i 6
Deficiencies to be provided for by taxation ix 3 34
Departments of government to be distinct i 26 10
Directors of Penitentiary to be elected by Legislature,, xi 2 39
other institutions to be appointed by the
Governor xi 3 39
of banks shall not borrow from xii 6 40
Disfranchised only by law of land i 34 11
not for acts done by a slave viii 12 34
Disqualifications to be impartial i 12 7
Distinctions on account of race and color, prohibited... i 39 11
Divorce, Common Pleas to have jurisdiction of iv 15 26
only by judgment of Court xiv 5 42
Duel, persons engaged in to be deprived of holding
office I 32 10
of right of sufi"rage via 8 33
Duties to be laid and levied only by consent of people. i 37 11
Education — x 37
Education to be impartially offered i 12 7
superintendence and direction of. x 1 37
Elections, to be free and open to all i 31 10
no property qualification necessary i 32 10
to be protected from undue influences i 33 11
apportionment to take eff'ect at succeeding ... ii 7 14
time of, for Senators and Representatives-.. ii 11 1^
of Governor and Lieutenant, how deter-
mined and declared Ill 4 20
voting at, to be by ballot viii 1 32
who may vote at viii 2 32
registration for, to be provided for viii 3 33
109
ART. SEC. PAGE.
Elections, temporary absence not to forfeit residence... viii 4 33
person attending, privileged from process — viii 6 33
no one to be disfranchised except for trea-
son, &c VIII 8 33
of Presidential Electors to be by people viii 9 34
those who receive most votes at, elected viii 10 34
term of residence not necessary at first viii 11 34
of State officers, time of xiv 10 42
Embezzlement of funds to be made a felony ix 15 37
Eminent Domain vi 31
Enumeration of rights does not impair others. i 41 11
of inhabitants every ten years ii 4 13
Governor to effect ii 5 13
Equality of all men declared i 1 <>
Equity, Common Pleas to have jurisdiction in. iv 16 26
causes to be transferred to other Courts iv 17 27
Escheat, lands to which there are no heirs, shall vi 3 31
Estate not to be taken without due process of law. • . i 14 7
Evidence against himself, no one to furnish i 13 7
Excessive fines not to be imposed i 38 11
Executive Department m 20
distinct from others. i 26 10
officers of to give information... iii 14 22
printing for, to be let on contract xiv 7 42
officers liable to impeachment vii 3 32
Exemptions— See Homestead— Taxation.
Expenditures of public moneys, statement to be pub-
lished II 22 16
how published ix 11 36
Expost facto laws prohibited..: i 14 7
shall never be enacted i 21 9
Extraordinary expenditures, public debts may be con-
tracted for IX 7 35
Felony, offences less than, how tried
member of Legislature may be arrested for ....
electors at elections may be arrested for viii
while a slave, not to disfranchise viii
embezzlement of public funds, a
Finance and taxation
Fiscal year commences November 1st
Forfeiture of estate, conviction not to work.
Fourteenth Amendment, shall be ratified
Fraud, no imprisonment for debt except for
Free School — See^PutZic Schools.
Funds — See Fublic Moneyg.
I
19
8
II
17
15
III
6
33
III
12
34
IX
15
37
IX
34
IX
13
36
I
21
9
IV
33
30
I
20
8
110
ART. sh;c. page.
General Assembly shall protect religious denomina-
tions. I 10 7
alone have power to suspend
laws I 24 9
to subject
persons to
martial law i 25 10
to maintain
army i 28 10
frequently assemble i 27 10
enforce homestead provision... ii 32 18
provide seal of State iii 18 22
provide for records of Court of
Equity and transfer of causes iv 17 27
provide for publication of law
reports iv 32 30
ratify 14th Amendment iv 33 30
provide for arbitrations v 1 30
change of venue.... v 2 31
codification of laws v 3 31
registration viii 3 33
assessment and
taxation ix 1,6 34
sufficient annual
tax IX 3 34
certain exemptions
from taxation.. ix 5 35
payment of mu-
nicipal debt IX 8 36
incorporation of
cities, &c., and
restrict their pow-
ers IX 9 36
public funds ix 15 37
compulsory attend-
ance at school x 4 37
state Normal School x 6 38
state University and
Agricultural Col-
lege X 9 38
removal of causes... xiv 9 42
prevent lotteries xiv 2 41
shall not subject persons to
punishment without trial... i 14 7
deprive electors of
right of suff'rage,
except, &c VIII 8 33
Ill
ART. SEC. PAGE.
General Assembly shall not contract public debt ex-
cept by approval
of people XVI 1 43
may establish inferior Courts. iv 1 23
direct session of Supreme
Court IV 5 25
how claims against the State are
to be adjusted xiv 4 41
provide for election of Clerks of
Courts of Eecord.. iv 27 29
members of, number ii 6 13
qualifications of, how
determined ii 14 15
may be punished ii 15 15
protected in persons
and estates ii 17 15
pay of II 23 16
to vote viva voce ii 24 IG
who maybe ii 28 17
oath of. II 30 17
at the first session viii 11 34
possess Legislative powers ii 1 12
where held ii 12 15
quorum of ii 14 15
chose its own officers, punish its
members ii 15 15
bills to raise revenue, regulated ii 18 15
style of laws of ii 19 16
bills to be read three times, <&c ii 21 16
to relate to one subject ex-
pressed in its title II 20 16
adjournment of either House of..... ii 25 16
journal to be kept in both Houses.. ii 26 16
doors to be kept open. ii 27 17
vacancies, how filled ii 29 17
may be convened in Extra Session.. iii 16 22
how to act on vetoed Act iii 22 22
printing for, to be by contract xiv 7 42
General Sessions, See Court of General Sessions.
Government may be modified by the people... i 3 6
people may petition i 6 6
departments of, to be distinct i 26 10
of United States, paramount allegiance
due to I 4 6
Governor, Supreme Executive, authority vested in iii 1 20
who may be iii 3 20
112
AKT. SEC. PAGE.
Governor, when and how elected and installed
returns of election for
may not hold seat in Senate or House
in case of removal of, who to be
Commander-in-Chief of Militia
may grant pardons, and make report
shall see that the laws are executed in
mercy
compensation of —
shall give information to the Legislature
may call extra sessions
shall commission all officers
shall use the great seal officially
shall sign all grants
shall take the constitutional oath
shall reside at the capital
how to approve or veto an Act
shall appoint Judges for special cases
shall fill vacancies injudicial tribunals
shall commission Justices of the Peace
may be impeached
Chief Justice to preside...
may remove officer on address of Legisla-
ture
to appoint directors of institutions
and fill vacancies in same
to appoint physician and officers, &c., of the
asylum
may call out militia
shall appoint staff officers
Grand jury presentment necessary in graver crimes
Grants, how issued and executed
Great Seal of State to be provided
to be used by the Governor
Habeas corpus, not to be suspended except in invasion,
&c
Supreme Court has jurisdiction in
Homestead directed to be exempted ■....
and exemption declared
House of Representatives, a branch of General Assem-
bly
how composed and chosen...
number and apportionment..
bills for revenue to originate
in
in
III
III
III
III
III
III
III
III
III
III
III
III
III
IV
IV
IV
VII
VII
XI
XIII
XIII
I
III
III
III
9
10
III 11
12
13
15
16
17
19
18
19
?0
III 21
III 22
6
11
21
3
2
VII 4
XI 3
XI 4
6
2
a
19
19
18
19
20
20
21
21
21
22
22
22
22
22
22
22
22
22
22
22
22
25
2G
28
32
32
32
39
39
40
4!
41
8
22
22
22
8-
24
I 17
IV 4
I ?0 8
II 32 18
II 1 12
II 2 12
II 4 13
II 18
15
113
AliT. SEC. PAGE.
House of Representatives has sole power of impeach-
ment VII 1 32
Husband, gifts from, to wife, not to prejudice creditors, xiv 8 42
Impeachment of officers vii 32
may be by House on two-thirds vote vii 1 32
to be tried by Senate ; vote necessary to
convict rii 2 32
Chief Justice to preside at trial of Gov-
ernor VII 2 32
who liable to, and penalties vii 3 32
Impost tax not to be laid without consent of people.... i 37 11
Imprisonment })ermitted only by law of the land i 14 7
for debt, except in cases of fraud, pro-
hibited I 20 8
of strangers, may be direc;ted by each
house II Irt 15
Incapacity, officers may be removed for ii 31 18
Incorporations — See Corporations.
Increase of Public Debt .\vi 4.".
Indictments for libel, jury judge of law and facts i 8 7
necessary in higher crimes i 1'.' 8
how to conclude iv 31 oO
Inferior Courts, justices of, receiving no salary, eligible
to General Assembly ii 28 17
General Assembly may establish iv 1 23
Informations permitted for smaller offences i lU 8
Injunction, Supreme Court may issue writs of iv 4 23
Insane, institutions for, to be fostered ^ xi 1 39
Institutions for deaf, dumb, blind, insane, poor, to be
fostered xi i 39
Internal improvement, works of, authorized i 23 9
of counties ; with whom . iv 19 27
Journals, ayes and noes to be entered, in elections ii 24 1(5
each house to keep, and record ayes and noes ii 26 16
dissent and protests of members to be enter-
ed on II 26 16
ayes and noes to be recorded on, in vote to
create a public debt ix 7 35
of Senate to contain vote on nominations... xi 3 39
Judicial Department iv 23
to be distinct from others i 26 10
districts to be called counties and to be co-ex-
tensive with election districts II 3 12
power vested in certain Courts iv 1 23
8
lU
AKT. SEC. PAGE.
Judges not to sit wliere interested, c*ic iv 6 25
compensation, not to be diminished, nor hold
other office iv !) 25
who may be iv 10 25
conservators of peace — vacancies, how filled... iv 11 2(i
to file decisions in sixty days iv 17 27
circuit, election, residence and term of office... iv 13 2(5
shall interchange circuits iv 1-4 2(j
shall not charge on the facts iv 26 2i)
Judge of Probate — See Probate Judge.
Jurisdiction of the several Courts > iv 1 23
Supreme Court iv 4 24
Court of Common Pleas iv 15 26
" IV 16 26
General Sessions iv 18 27
Probate iv 20 28
County Commissioners iv 19 27
Justices of Peace iv 22 28
Jurisprudence v 30
Jury to be judges of law and fact in liljel i 8 7
right of trial by, to remain inviolate i 11 7
persons accused to have speedy trial by i 13 7
Judges not to charge, on facts iv 26 29
Justice to be administered without delay i 15 7
of peace, offences less than felony to be tried by i 19 8
Judicial power vested in iv 1 23
how chosen, residence and term of
office IV 21 28
jurisdiction of iv 22 28
powers of iv 23 28
actions before, how commenced iv 24 28
compensation iv 25 2!)
Justices of Supreme Court — See Chief Justice and disso-
ciate Justices.
Legislative Department ii 12
to be distinct from others i 26 10
Legislature — See General Assembly.
Libel, juries to be judges of law and fact i 8 7
Liberty, no one to be deprived of, but by law of land... i 14 7
each individual to be protected in enjoyment
of. 1 36 11^
of conscience not to justify immoral conduct .. i 9 7
of speech and press not to be abridged i 7 6
Lieutenant-Governor, qualifications, term of office, i*tc.. in 5 21
t'.r-Oj'/'fr/o, President of Senate iii 5 21
lly
ART. SEC. PAGE.
Lieutenant-Govei-nor no vote in Senate, unless a tie iii <) 21
member of Legislature acting
as, vacates his seat iii 8 21
when to be the Governor in 9 21
compensation, and not to be
diminished in 13 22
shall take the constitutional
oath Ill 20 22
Life, right to the protection of i 36 11
Lotteries, prohibited xiv 2 41
i/fmcZa^/iMs, Supreme Court has jurisdiction in iv • 4 24
Court of Common Please may issue writs of iv 15 26
Married women to hold property as separate xiv 8 42
Martial law, persons subject to i 25 10
Members of Legislature — See General Assembly.
Militia xiii 41
in actual service, tried without grand jury i 19 8
may be subject to martial law i 25 10
officers in, may be members of Legislature ii 28 17
governor commander-in-chief of •• m 10 21
of whom to consist, how organized, &c xiii 1 41
when and by whom to be called out xiii 2 41
Military power subject to civil authority i 28 10
Mines, how taxed ix 1 34
Miscellaneous article xiv 41
Municipal Courts may be established iv 1 23
Murder, persons convicted of, may ue disfranchised viii 8 33
Navigable waters, freedom of i 40 11
to be common highway vi 1 31
Normal Schools, State, to be established x 6 38
Oath of office for all officers ii 30 17
Obligation of contract not to he impaii-ed i 21 9
Otfence, no person to be tried twice for same i 18 8
less than felony, how tried i 19 8
justice of peace may try iv 22 1'8
Office, persons possessing qualifications, entitled to hold i 31 10
shall not be longer than during good behavior... i 32 10
lectors eligible to viii 7 33
and none others xiv 1 41
persons denying Supreme Being shall not hold., xiv 6 42
Officers to take prescribed oath ii 30 17
may be removed for incapacity, &c ii 31 18
to be commissioned by Governor in 17 22
impeached, suspended from office vii 1 32
election of, when to be held xiv 10 42
116
ART. SKC. PAGK.
Pardons, (Jovernor may grant
Penitentiar}^, directors of, how chosen
People, all political power vested in
have the right to assemble and petition
to keep and bear arms
powers not delegated, remain with
possess the ultimate property in lands
Petition, right of
Physician of Asylum to be sui)erintendent, and ap-
pointed
Political rights of all the people
the same to all classes
Poll tax, to be provided for, and how a])plied
hxed at one dollar
Poor, institutions for, to be fostered
Power, undue influences from, prohibited
Presidential electors to be chosen by the people viii
President of Senate to order election to fill vacancy..
Lieutenant-Governor to be
pro tempore to be elected
Printing, public, to be let on contract xiv
Probate Courts to be established — their jurisdiction
judicial power vested in
equity causes to be removed to
Judge, to be elected for two year.s
compensation of
may be authorized to act as clerk
Prohibition, Coui't of Common Pleas may issue writs of
Property, private, not to be taken fur public use
qualification for ofiice, not necessary
to be taxed in proportion to value '.....
on actual value
certain, to be exempt from taxation
Prosecutions for publications, truth may be given in
evidence
to be in name of State
Public Debt, increase of xvi
Public Debt, how contracted
to be by loan, &c., and registered
vote of people necessary to creation of-...
Y.oneys, account of, to be published
published with laws
General Assembly to provide for keep-
ing, &c
Schools, to be provided
tax to be levied for — how apportioned.
in
2
20
XI
o
39
I
3
(i
I
6
l>
I
28
10
I
11
]1
VI
3
31
I
B
6
XI
G
40
I
1
li
I
39
11
IX
2
34
X
5
38
XI
1
39
I
33
11
VIII
9
34
II
29
17
III
5
21
III
7
21
XIV
7
42
IV
20
28
IV
1
23
IV
17
27
IV
20
28
IV
25
29
IV
27
29
IV
15
26
I
23
9
I
32
10
I
36
11
II
33
20
IX
1
34
I
8
7
IV
31
30
XVI
43
IX
1
35
IX
14
3(i
XVI
1
43
II
22
16
IX
11
36 ^
IX
15
37
X
3
37
X
5
38
117
AKT. SEC PAGE.
rublie Schools to be free and open to all x 10 39
lands given or escheated to State, to be
f()r X 11 3!)
Punishment, n)ay only follow trial by jury,an(l under
law previously enacted i 14 7
corporal, prohibited i 16 S
cruel and excessive, sluill not be in-
flicted 1 38 11
Qualification, property, not necessary to office ... i 32 10
of Members to be determined by each
House n 14 15
Quorum, majority of each House to constitute ii 14 15
Quo Warranto, Supreme Courts may issue writs of. iv 4 24
Race, distinctions on account of, prohibited r 39 11
Rebellion, debts in aid of, not to be paid ix 16 37
Registration of Electors, provided viii 3 33
Religion, no form of, shall be established i 10 7
Religious sects shall not have school funds x 5 38
Reporter, to be appointed by Judges of Supreme Court. iv 7 25
Representation, apportioned to population i 34 11
Representatives, number, and how apportioned.. ii 4 13
how apportioned ., ii 6 13
apportionment, when to take effect. .. ii 7 14
who eligible to office of ii lo 14
when to be elected ii 11 14
term of office ii 13 15
to be protected during session n 17 15
vacancies, and how filled... ii 29 17
Resolution must relate to one subject, expressed in
the title ii 20 16
Right of Suffrage viii 32
Right of Suffrage to be protected.. i 33 11
Way may be secured to persons.. i 23 9
full compensation to be paid xii 3 40
to worship, no one shall be deprived of r 9 7
Rolibery, person maj' be disfranchised for viii 8 33
Sailor in Navy, not a resident viii 5 33
Schools. See Public Schools.
Attendance, to be required x 4 37
School Commissioner to be elected in each County x 2 37
Districts, State to be divided into x 3 37
Funds, Legislature to provide for keeping of ix 15 37
*S'c»re i'ar/os, Court of Common Pleas may issue writs of. iv 15 26
118
ART. SEC. PAGE.
Scrip not to be issued cxcejit for debts contracted ix 10 36
Seal of State. See Great Seal.
Searches, what necessary to warrants for ■•• i 22 9
Secession to be resisted by the State i 5 (5
Secretary of State to countersign grants and commis-
sions Ill 19 22
term of office, and compensation .... iii 23 23
Senate a branch of the General assembly ii 1 12
of what members composed ii 8 14
may amend or reject bills for revenue ii 18 15
shall choose a president pro te??i iii 7 21
Lieutenant-Governor president of. iii 5 21
Senators, two from Charleston, one from other Counties. ii 8 14
to be divided into classes ii 9 14
who may be ii 10 14
time of election for ii 11 14
term of office, when to commence ii 13 15
to be protected during sessions ii 17 15
vacancies, how filled ii 29 17
acting as Governor to vacate seat in 8 21
Sheriff, Election of, office, &c iv 30 30
Slave, crime committed by, not to disfranchise viii 12 34
Slave contracts declared void iv 34 30
Slavery prohibited — i 2 (>
Soldier, quartering of, prohibited i 29 10
in array, nota resident viii 5 33
Solicitor in each circuit, term of office, &c iv 29 29
Speaker of House to issue writs of election ii 29 17
State Board of Education, who to compose, duties, &c.. x 2 37
School fund. See Puhlic Scliooh.
Library subject to regulations of Legislature xiv 3 41
Normal School, to be established x 6 38
Reform School, to be established x 8 38
Treasurer, term of office, compensation, &c m 23 23
to keep registry of bonds ix 14 3()
University to be maintained x 9 38
Suffrage, right of. viii 32
no property qualification necessary to i 33 11
non-payment of poll tax, not to forfeit x 5 38
Superintendent of Education, term of office, compensa-
tion, &c Ill 23 23
supervision of education
vested in x 1 37
when elected, duties, &c. x 1 37
chairman of State Board. x 2 37
Soprenie Being, no person denying, shall Jiold office.... xiv 42
]V3
ART. SEC. PAGK.
Supreme Court, judicial power vested in iv 1 23
to consist of three Justices, two a
quorum iv 2 24
jurisdiction iv 4 24
sessions iv 5 25
to appoint Reporter and Clerk iv 7 25
Justice of disqualified. Governor to ap-
point some one to act IV 6 25
to decide all points made iv 8 25
vacancies in, how filled iv 11 2G
concurrence of two Justices necessary. iv 12 26
Justices of, to file decisions in sixty
days IV 17 27
decisions of, to be published... iv 32 30
Tax, to be laid only by consent of people or representa-
tives I 37 11
on actual value of property. ii 33 20
not to be imposed for use of navigable waters ... . vi 1 31
to be levied in pursuance of law and applied to
the object designated ix 4 35
to pay interest on debt contracted ... ix 7 35
by cities, &c., may be authorized ix 8 36
for free schools, to be levied x 5 38
'Taxation, to be in proportion to value i 36 11
uniform, what property taxable ix 1 34
sufficient to defray annual expenses ... ix 3 34
what property exempted from ix 5 35
by cities, &c, to be restricted ix 9 36
})roperty of Corporations, subject to xii 2 40
Title of nobility not to be given to any one i 39 11
to lands accrued to the State shall vest in State..- vi 2 31
which fail, to escheat to State vi 3 31
Towns may levy taxes, and its property taxed fur its
debts IX 8 36
may be incorporated with restricted powers of
taxation ix 9 36
Treasurer, State, term of office, compensation, &c.... iii 23 23
to keep correct registry of bonds, &c.. ix 14 36
Treasury, money drawn from, only on appropriation... ii 22 16
to same effect f ix 12 36
Trial by jury, rights to, to remain inviolate i 11 7
secured to accused persons i 13 7
no one to be punished without i 14 7
Union, this State to remain a member of the i 5 6
United States, paramount allegiance due to i 4 6
Univei'sity. Sec /V/aif Uiiivcrsitij.
120
Vacancy in General Assembly, how tilled
Supreme Court and other tribunals, liow
filled
Governor power to fill, in office of directors...
Venue, change of, to be provided for ,.
Veto of the Governor regulated
Warrant necessary to arrest, search or seizure
Wharf tax forbidden
Witness, disqualification of to be without distinction ..
to be faced by party accused
not to be unreasonably detained
Woman shall possess property as separate property. ...
Worship, mode of, to be protected
no one to be deprived of ri^ht to
Writs to run in name of State, and be attested by the
Clerk IV 31 30
Yeas and noes. See Ayes and noes.
ART.
SKC.
PAGE.
II
29
17
IV
n
26
XI
4
39
V
•2
31
III
22
22
I
22
9
I
40
11
I
12
7
I
13
7
I
33
11
XIV
I
8
10
42
7
1
9
7
INDEX
TO
SUPREME COURT RULES.
NO. PAGE
Affidavit may not be sworn to before attorney or party xvi 48
motions must be made on xix 48
Agreed statement sufficient return ii 44
to constitute case for hearing v 4->
Agreement must be by consent order ; xviii 48
Amendments to be incorporated inbody of case v 45
to brief, h^w to be made ix 47
Appellant waives his appeal by failure to tile return i 44
to serve brief vii 46
Applicants for admission to bar, to apply in writing xxiii 49
course of study xxiii i9
Argument confined to points furnished viii 47
limited in number and time xiii 48
Attorneys, notice of change of, to be given iv 44
not to sign as sureties ; xiv 48
to wear black coats xv 48
affidavits should not be sworn to before xvi 48
not to argue after decision xvii 48
agreements between, to be by consent order .... xviir 48
cannot submit motion on written application... xxiv .50
applying, coui'se of study, applications, &c. xxiii 49
Brief, what to contain, how amended v 45
three printed copies to be served vir 4(>
six copies delivered to the Clerk viii 47
facts stated in, alone considered ix 47
Case. See Brief
Clerk may dismiss appeal where return not filed i 44
where brief not served. vii 46
to distribute brief and points viii 47
Consent to be in writing and by order xviii 48
Counsel. See Attorneys.
Criminal causes mav be advanced on docket-. xn 48
Death of party, eilect of, on appeal
Dismissal of Appeal, failure to file return
no representative of deceased party,
failure to serve brief
failure to appear
Dockets, order of causes on
time to put causes on
failure to appear on call of
Dress of attorneys
Examination of applicants for admission to the bar xxiii
Exceptions, Avhat to contain
Facts stated only in argument or exceptions not con-
sidered
Filed, Return to be
Brief and points to be
Guardian «(?. lift;m same as in Court below
if changed, notice to be given
NO.
PAGK.
IV
44
I
44
IV
44
VII
46
XI
47
X
47
X
47
XI
47
XV
48
XIII
40
V
45
IX
47
I
44
VIII
47
IV
44
IV
44
Justices may enlarge time, stay proceeding, etc 'xxi 49
will not hear motions in absence of moving
counsel xxiv 50
Motion to restore appeal dismissed by clerk i 44
when to be made xrx 48
to be on eight days notii'e and affidavits xix 48
must be made by counsel in person xxiv 50
Notice to have further return made iii 44
to appellant to serve copy-briefs vii 4(i
Officer of Court not to sign as surety xiv 48
Papers, how to be printed and endorsed
Points and authorities to be delivered to clerk
to be preceded by statement of facts
and propositions of law
Practice of Courts to govern, in absence of rules
Printing of pa])ers, form, size, etc., prescribed
Ixcmittitur, what to contain ,
when to be sent to Court below
in default cases
Return, when to be filed ...
what to contain
how corrected
Rules, when to take effect xxv 50
VI
4()
VIII
47
IX
47
XXV
50
VI
40
XX
49
XX
49
XX
49
I
44
II
44
III
44
Service of oi'der to be accompanied by affidavits
when evaded
State causes may be advanced on docket. ..
Statement of case agreed upon a sufficient return
to constitute case
facts to precede points
Stay of proceedings by order of Justices xxi
Surety, attorneys and officers of Court, not to be xiv
Time for doing act may be enlarged by Justices
Waiver of appeal, failure to file return is
serve copy-briefs, on demand
is VII 46
NO.
PA(iE.
xxit
4'.>
XXII
49
XII
48
II
44
V
45
IX
47
XXI
49
XIV
48
XXI
49
I
44
INDEX TO NOTE.
Appeals to Supreme Court !\0
Brief. 5})
Death of party (U)
End of Appeal (52
Exceptions .'il
When to take 51
Hearing 60
Motions n
to dismiss appeals Kl
Notice of appeal .o4
Petition for rehearing 02
Preparation and settlement of case 55
Remittitur 62
Return 58
Security for costs 62
INDEX
TO
CIRCUIT COURT RULES,
XO. RULES.
Accused to be present at trial, except in misdemeanors... xxxv
Action for land, real owner may defend xxii
Affidavit in mitigation of sentence, practice prescribed... lxii
Agreements must be in writing xiv
Amend, motions to, when noticed xx
Amendments to case, when to be proposed, and settled... xlvii
to be marked allowed or disallowed, xlviii
referred to Judge for settlement... li
Appeal to Supreme Court, how prepared i-
Appearance, what to be deemed an xvii
Arraigned, prisoner when, to be placed in the dock xxxv
Arrest, Sheriff to file affidavit on which made
undertakings in cases of, to be filed
Attachment must be issued where service is by publica-
tion
undertakings in cases of, to be filed.
Attorney, how changed
habit of.
not to become surety ^
consent of. to be in writing
notice by, to be deemed an appearance
must file undertaking in cases of arrest, &c
See Counsel.
Attorney-General to move for judgment against defaulting
jurors
to have time to answer affidavits in
mitigation
Bar-Docket to be prepared by the Clerk
Bonds to be proved or acknowledged before filed
Calendars, number and arrangement
cases not to be on two, at same time
copy for use of the Bar at Court
IV
LXI.X
XXXVIII
LXIX
VII
VIII
IX
XIV
XVII
LXIX
Vu
so
(>6
(i7
7(>
7(5
6()
63
81
SI
6-4
64
64
66
m
81
67
80
XXVI
68
LXVI
81
XXVI
68
XXVI
68
XXVI
68
126
NO, nULES. PAGE.
Case, how prepared, liow an J when settled xlvii 75
to be filed — penaUy for neglect xlix 76
for appeal, when to be served and settled l 7<)
must conform to rules l 7G
failure to make, a waiver li 7(5
Chambers, no order at, to stay sale in partition, &c., with-
out notice lxv 81
Change of place of trial. See Venue.
Clerk to be fined for failure to produce Statutes and Rules. i ()o
to keep certain books ii (13
not to enter judgment for five days in G3
file ])apers unless projierly written and en-
dorsed XIII 05
to specify name of counsel on default orders xv 0(5
to serve notice on defaulting jurors, and report to'
Solicitor xxiv 67
duties in preparing Calendars and Bar-Docket xxvi 68
to note day of filing of Referee's Report xxx 70
to oj^en commissions on request and notice xxxiv 71
to append copy rule to order of survey served xxxvi 72
to record judgments xxxix 78
to adjust costs of Supreme Court xl 7o
Commissions, how executed, sealed and opened xxxiv 71
Consent to be in writing xiv 66
Continuance, what necessary on motions for xxvii 09
Costs, security for x 64
of Supreme Court to be adjusted by Clerk xl 73
to be paid by plaintiff' in partition where several
actions are brought lv 78
of former action to be paid lx 80
time within which to pay lxiii 80
of Receiver in action against insolvents lxx 82
Counsel not to argue after opinion pronounced xi 65
to submit requests to charge in writing xi 05
one on each side, to examine witnesses xxxi 70
to endorse his name on default orders xv 6()
Default orders to be endorsed by counsel xv 66
judgments by, where obtained xxxvii 72
Demurrer must be certified as meritorious xviii 06
Discovery of books and papers — application how made... xliii 74
what to state. xliv 74
order for xlv 74
to stay proceedings. xlvi 75
Dismissal of complaint by Master or Referee xxx 70
Dock, prisoner arraigned to be placed in xxxv 72
Dress of officers of Court >■ viii 64
127
NO. Pa'LES. PACE.
Exceptions,' what to contain — amendments to xlviii To
to be filed— penalty for failure... xlix 7(»
for appeal l 7()
when waived li 7(1
File-Book to be kept by the Clerk ii < :'.
Filing papers, where to be done lxviii SI
Foreclosure, copy-pleadings need not be furnished in .-•. xxxti 71
what necessary to obtain judgment lii 77
sale, payment of money and possession mi 77
claims for surplus money in liv 78
no order to stay, at Chambers, except, &c lxv SI
General guardian not to receive money unless bond is
sufficient xlii 74
(Juardian ad litem, who maj' not be vi (i4
Habit of officers of Court to be black coats viii (>-i
Index to iindertakings to be kejit by Clerk ii ('">
In flints, guardians arf Z tort for vi ()4
in foreclosure, facts to be roved lii 77
in partition, to be stated whether there are other
lands Lv 7S
reference may be had i.vi 79
Injunction undertakings to be filed lxix 81
Irregularity, motion to correct must specify lvii 7s)
proceedings may be set aside for, where
undertakings are not filed lxix 81
Issues to be tried by a jury, how settled xxviii 69
Judgment not to be entered for five days after Court iii fio
to be recorded. Abstract of xxxix 73
on j)etitions may be enrolled and docketed lxiv 81
by default, where to be taken xxxvii 72
after service by publication xxxviii 7o
of Supreme ('ourt to be recorded, costs ad-
justed, &c XL 73
Juries, how empannelled in criminal cases xxv 08
issues for trials by, how applied for anu settled.... xxviii (19
Jurors, venire and summons for xxiii (i7
defaulting, proceedings against xxiv G7
Lands to be sold at auction, necessary notice xli 74
Master, trial before— form of report, &c xxx 70
commissions may be opened by. xxxiv 71
Minutes of Court, Clerk to record ii 03
INI irtgaue. See Forcclositf.'.
128
NO. KULES. PAGE.
Motions to strike out and correct, when to be made xx 67
for continuance what required xxvii 69
trial of issues by a jury xxviii 69
papers to be furnished on, and by, whom xxxii 71
how noticed — orders on lvii 79
points on, to be briefly stated.. lviii 79
refused, may not be renewed lxi 80
ffranted on condition, time to comply lxiii 80
f(jr new trial, practice prescribed xlvii 75
New trials, motions for, practice prescribed xlvii 75
Nonsuit may not be taken after jury retire xxix 70
may be ordered by Referee, &c xxx 70
Notice necessary for order at Chambers to stay sde in
partition, &c. lxv 81
of appearance, what is sufficient xvii 66
appeal, when to be given l 76
pendancy of action, necessary to foreclosure lii 77
Officers of Court, to wear black coats. viii 64
not to be sureties. ix 6-4
Opening and reply, who entitled to mx 79
Order once refused cannot lie again moved.. lxi 80
time for complying with lxiii 80
on petition must refer to petition — may be entered
as a judgment lxiv 81
to stay sale in partition. &c., not at Chambers
without notice i-xv 81
Orders to show cause to brins matter to hearing ■... lvii 79
Papers, how written, folded and endorsed xii 65
not to be filed unless properly prepared xiii 65
whereto be filed lxvui 81
Partition, when copy papers to be furnished Court xxxii 71
of lands of intestate, debts to be provided for... lv 78
of all lands in one proceeding lv 78
reference in, when necessary lvi 79
sale in, not to be stayed without notice lxv 81
Pendancy of action, notice of, necessary to foreclosure.... lii 77
Petition, how described in order granting it lxiv 81
Pleadings, how written, folded and endorsed xii 65
not to be filed unless properly prepare! xiii 65
to be separately stated and numbered xviii 66
further time for, how to be obtained xix W
motions to amend, when to be noticed xx 67
129
NO. RULES. PAGE.
Pleadings, real owner ma}' defend title to lands xxir B7
copy of, when and by whom furnished xxxii 71
where to be filed lxviii 81
Plene administrnvlf, how plea to be supported xxi 67
Points on calendar motions to be briefly stated lviii 79
Practice not provided for, to accord with former practice, lxxi 82
Prisoner, except in misdemeanors, to be present at trial... xxxv 72
Proof of Service, how made xvi 66
Purchaser at foreclosure sale to be let into possession uii 77
Real owner admitted to defend title to land xxii 67
Receivers, their powers and duties lxx 82
Recording of judgments directed xxxix 73
Referee, hearing by, practice, report xxx 70
may open commissions xxxiv 71
Repeal of former rules lyxxf 82
Requests to charge to be in writing, when submitted xi 65
Retainer, notice of, deemed an appearance xvii 66
Rules to show cause, opening and reply on lix 79
Sales of land at auction, notice nece.ssary xli 74
under foreclosure of mortgage i^iir 77
claims to surplus money from liv 78
Security for costs, form of x 64
Service of summons, etc., how proved xvi 66
notice of appearance, what sufficient.. •■ xvir 66
Settlement of case on motion for new trial xlvii 75
for appeal i. 76
Sheriff to file with clerk aflSdavits on which arrest was
made iv 63
compelled to return process v 63
to certify to service of summons, etc xvi 66
to make return to writs of jv/urii xxiii 67
of service on defaulting jurors xxiv 67
Stay sale, no order at Chambers in partition to, without
notice lxv 81
Solicitor to move for judgment against defaulting jurors, xxiv 67
to have notice of affidavits in mitigation lxii 80
Surety, no officer of Court to be ix 64
to justify .. Lxvi 81
within the county lxvii 81
Surplus money in foreclosure to be deposited liii 77
claims for liv 78
Surveys, how to be made xxxvi 72
" 9
130
NO, RULES. PAGE.
Tenant sued for land, real owner may defend xxii 67
Time to answer or demur, how extended xix 66
comply with conditional orders uxiii 80
Trial, prisoner, except in misdemeanors, must be present
at XXXV 72
by jur\', settling issues for xxviii 69
Undertakings, clerk to keep index of ii 63
for restitution where service by i)ubli-
cation xxxviii 73
to be proved or acknowledged lxvi 81
in provisional remedies to be filed lxix 81
Venire, retui"n to, how made. .*.... xxiii 67
Venue, motion for change of, to be promptly made xxxiii 71
where changed, papers to be removed lxviii 81
Verdict, j)laintitl need not be present xxix 70
Witness to be examined by one Counsel xxxi 70
INDEX
TO
PROBATE COURT RULES.
NO. PAOK.
Attorneys, shall art as guardians ad litem iv 84
consent of, to be in writing.. ix So
not to argue after decision vii 84
Books to be kept by Judge of Probate i S3
Calendar of cases to be provided i 83
Consent of counsel must be in writing ix 85
Guardian acZ Ziiem, who maybe iii 83
duties of IV 84
Infant, no decree against, except on proof iii S3
Judgment on api^eal to be recorded xiii 85
Motions to correct pleadings, when to be noticed xii 85
Notice to be given of orders api^lied for xiv 85
Orders after issue joined, when heard xiv 85
Pleadings — Answer may raise issues of law and fact vi 84
manner of preparing papers viii 84
motions to amend xii 85
must be in writing vi 84
time of answering, how extended..., xi 85
"Rules of Circuit Court to govern this Court xv 85
when to go into operation xvi 85
Sheriff compelled to return process ii 83
Summons to be issued v 84
order for publication of. v 84
service of, how proved x 85
Time to answer, how extended xi 85
Trial, day of vi 84
INDEX
TO
COSTS AND FEES.
Coats and Fees 86-
Fee bill 91
Appraisers 1U2
Arbitration Mercantile Disputes 104
Attorneys 91
Auditor 102
Circuit Solicitors 103
City Court of Charleston 104
Clerks of Circuit Courts 93
Supreme Court 104
Constables 100
Coroners 101
County Auditor 102
Defendants 91
Deputy Surveyors... 101
Escheators 102
Jurors 102
Jury Commissioners -. .. 100
Masters 95
Marshals of Courts Martial 104
Miscellaneous 104
Notaries Public 101
Penalties for excessive fees. 102
Physicians 101
Plaintiffs 91
Printers. 103
Probate Judges 96
Referees 95
Registers of Mesne Con vey an '-e 95
Secretary of State 92
Sheriffs 98
Solicitors 108
Stenograph er 103
Surveyors.. 101
Trial Justices 97
in Charleston city....." 98
Witnesses 103
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S32 Shand, Robert Wallace.
1882 A manual containing the
c.l Constitution of South
Carolina.
iliiiii
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