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COMPILATION
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FOR THE USE OF THE
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SOUP-CAROLINA LAW OFFICER
RULES OF COURT
FEE BILLS
AND USEFUL FORMS;
WITH NOTES AND REFERENCES.
CHARLESTON, S. C.
PRINTED BY MILLER & BROWNE,
1848.
4
• V
^r
Site
Entered according to th%A* of {Spn&vss, A tWyear 1848,byV
. E. Milt.ee, in %e*C!erlTs t)ffic*e flftfce District of Sou*-
A
Carolina.
CONTENTS-
RTJLES IN THE STATE COURTS OF SOUTH-CAROLINA.
PAfIL,
Common Pleas, 1758, - - - - - - - - 3
General Sessions and Common Pleas : additions and alterations,
175S— 1796, - - 0
General Sessions and Common Pleas, 1S00, - . - - 14
Additional Rules of G. S. & C. P., 1802— 1810, - 19
General Sessions and Common Pleas, 1814, - - - 22
Additional Rules, 1814—1833, :28
Court of Appeals, 1836, - - - 30
General Sessions and Common Pleas and Law Appeals, 1837 :
now of force, - - - - - - - - - 3S
Additions and alterations since 1837 : now -of force, - - - 47
Court of Equity, 1791— 1800. 50
Court of Equity, 1810 and afterwards: now of force, - - 54
Court of Errors, 1845 : now of force, -
RULES OF THE CITY COURT OF CHARLESTON: now of force, - 63
RULES IN THE UNITED STATES COURTS.
District Court of South-Carolina, 1790, . - - - 65
District Court of South-Carolina, 1813 : now of force, - - 6(
Circuit Court of South Carolina, In cases at Common Law: now
of force, ---------- (ft
Admiralty Courts : now of force, 79
Courts of Equity : now of force, ------ 87
FEE BILLS.
Old Fee Bill of 1791, - 105
Fee Bill: now of force, 108
Acts and Resolutions of the Legislature, as to certifying of State
accounts, - - - 120
FORMS.
See " Table of Forms," - - ..... 124
ERRATA,
To render the Forms more useful, the reader is requested to make (is:
following corrections.
Page 133, Hue 12, for "there/' read thence; line 30, for "' term," read turn.
,. 136, line 10. - dollars with interest on sixty dollars,'1 reful sixty-four
dollars and ten cents with interest on sixty dollar.:
137, line 22, after -abated, &c." add on Sum. Pro. docket or other docket^
137, line 27, for •• call,1' read case.
138, line 17, between " plea ;" and " ordered," insert ]
14C. line 15, for " ouroom," read i;i room.
142, line 35, for '' required," read signed.
143. iLe 3, for "the Court directed," read the Court having dirtctcd. and
expunge and in the next line.
143, lines 17 6b 20, far " adjourned," read is adjour
150, line 2, for " then," readme re. Line 19, for "filed,'f read ^/i*.
. . 152, in lines 23 & 27, expunge the " a,'"' in both.
153, line 33, insert "and" before The Common Rules, and expunge "And" at the
beginning of the next line.
154, line 19, for " persecutions," read prosecutions.
155, line 7, place an asterisk at the beginning of the line, and the same before
rsoTE at the bottom of the page.
.. 157, line 20, place an asterisk at the beginning of the line, and before the firs*
Note at the bottom of the page.
153, line 3, expunge " then." Line 14, for " the plea," read thy plea.
160, line 7, for "verdict," read verdicts.
161, line 2, for "nor," read or. Line 24, for "in," read on.
. . 167, line 21, for " the defendant," read (the defendant.)
.. 17 A, line 20, insert "in" between is and^Ae.
174, line 21, italicize ("' process mesne or final in a civil case.")
.. 198, line 21, for "for the location," read from the location.
.. 206, line 7, for " therewith," read thereby.
.. 210, line 9, after ' ; crop ," insert his part.
. . 21L line 5, from botfom, for " they" read there.
.. 213, line 15, for.*> was left," read were left.
.. 220. line 3, expunge on.
.. 224, line 8, add signature, E. F.
.. 234. line 13, for " for questioning," read quashing.
-.' 235, line 9, after " must return, on oath," expunge the period, and make a com-
ma o?dasu.
ADVERTISEMENT.
In the several Courts of South-Carolina, there have been, at
various times, additions to their Rules, alterations and repeals of
them; and in some of the Courts, two or more such revisions of
them as produced new Tables of Rules, arranged in new form,
with new numbers, which superseded all that had before existed.
The old Rules are, however, referred toby their numbers in the
cases which were decided, whilst they were of force: they are
sometimes useful in the explanation of the new, and form a ma-
terial part of the juridical history of the State, which is in danger
of being lost. Of acollection of these Rules published at New-
York in 1796, — the oldest extant — only one copy (which is in the
possession of Dantel Horlbeck, Esq., Clerk of the Court of
Common Pleas for Charleston District) is known to be in exist-
ence ; and perhaps some separate Rules which were adopted at
times between the various revisions, have not been preserved.
A re-publication of the whole, so far as they can be obtained, is
here made, in such form that the tables which have been super-
seded may, at a glance, be distinguished from those which are
now of force.
The matters which are appended will be found useful. The
forms are such as are often needed, and cannot be found collec-
ted in any cheap publication.
RULES
OF THE
Court of Common pkas & (Sctural Qtssions,
AS THEY WERE PUBLISHED IN 1796 : SINCE SUPERSEDED.
Rules and Orders of the Court of Common Pleas in the Province of-
South- Carolina, established the At7i day of July 1758.
1st. Ordered, that the Provost Marshal do return all writs served in town two days Return of writa
after service; but if in the country, within six days after service.
2d.* That in all actions personally served by the Provost Marshal, the defendants Bail,
shall give bail for their appearance respectively, at the return of the writs ; and if at the
return of such writ, or within ten days after, the plaintiffs, or their attorney, shall shew
to the Court, or to a Judge, at his chambers, probable cause of action; -every defendant
in such actions, or writ, shall be held to special bail, unless such defendant or his attor-
ney, shall shew better cause to the contrary; and, where no cause of action shall be
shewn, or cause not sufficient as aforesaid, the defendant shall be discharged from his
bond to the Provost Marshal, upon appearing by his attorney, and filing common bail.
3d.t Where special bail, in any action, shall be ordered, upon cause shewn as aforesaid, Special hart.
the Clerk shall immediately enter such order on the back of the writ ; and if special bail
shall not be filed agreeably to such order, then the plaintiff shall have a right to receive
an assignment of the defendant's bail bond.froni the Provost Marshal, who shall assign
the same in the words following, mutatis mutandis : — " I, the within named A. B., do Assignment of
" hereby assign and set over the within written bond to t^e within named C. D., the Bail-bond.
" plaintiff, pursuant to the statute. Witness my hand and seal, this day of ... . 17
A.... B , (l.s.)
" Sealed and delivered in the presence of
"E. F., G. H."
And this shall be deemed a good assignment in law to ground an action on such bail
bond, the plaintiff observing such other directions as the statute appoints, except the
6tamps.
4th.i That no proceedings shall be carried on in any original action or actions, and Ori<nnal ac-
upon bail bonds given for appearances in such actions alone, at the same time ; but the tions & actions
defendant shall be properly in Court before any declaration shall be filed, or other pro- on bail bond,
ceedings had upon such original action or actions.
5th. That in all such actions as shall be served on defendants, by leaving copies at Service by
their houses, with notices, indorsed as the Act of Assembly directs, general imparlance copy left,
to plead, until the first day of the sitting of the ensuing term, shall be allowed to all
such defendants : and the same shall be entered and filed accordingly, provided every
6uch defendant shall file special bail, with the Clerk of the Court, at any time within Special bail,
ten days after the day on which the writ or process against him shall be returnable, or
within fourteen days after the return, if the defendant hives one hundred miles from
Charleston or upwards.
6th. Affixing the rule to the prison door shall be a good sen-ice, if the defendant lives Service of
in the couutry ; but if the defendant fives in to%vn, the rule shall be left at the usual Rules,
place of his abode, or (if an appearance is entered) with his attorney.
7th. That on affidavit made of the service of the rule to plead, and no plea is filed Judsment by
within the rule, the Clerk shall enter an order for judgment on the record and in the default,
book of rules ; and the plaintiff shall then be at liberty to enter up judgment by default.
Provided, nevertheless, that if the defendant, or bis attorney, shall apply to the Court, How set aside."
* See 24 $, No. 1095, Pub. Law's. t See 9 & 10 § of No. 1395, Pub. Acts.
t See 9 & 10 § of No. 1395, Pub. Acts.
4 Rules of the Common Picas, established
at the first sitting, to vacate the said judgment, the same shall be vacated on payment
of the plaintiffs costs ; the defendant at the same time pleading the general issue, going
to trial inslanter, (if the plaintiff, or his attorney think proper so to do) and submitting
to such other terms as the Court, upon the merits of the application, shall see fit to
impose.
Time of filing 8th. All pleadings shall be filed within ten days after a ride served on the party to
Pleadings. do the act, or his attorney ; in default whereof the plaintiff's attorney shall be at liberty
to enter up his judgment, or the defendant's attorney his judgment on non pros.
Copy & oyer. ^tu' That a copy of every deed, bond, or other writing declared on, shall be filed at
the Clerk's office at the time of filing the declaration ; and the defendant or his attorney,
shall have oyer of the original if he thinks fit to demand it.
10th. If the plaintiff's attorney shall not declare before the last day of the Court next
Non pros for after the return of the writ, (being the adjournment day) the defendant's attorney may
want of decla- then enter a rule for the plaintiff to declare in four days, exclusive of the service of the
ration. rule, or otherways to suffer nonpros, and judgment shall be entered accordingly ; and
the plaintiff shall not have longer time to declare without leave of the Court first had
and obtained..
„ . 11th. All causes at issue to be continued, shall be continued by indorsement on the
?ll muances back of the record ; and all causes to be tried, demurrers, or other matters to be argued,
anc ju ge s s}mii \ye entered hi the Judge's books, or paper of causes, three days before the sitting
PaPer- of the Court.
„ . ,. . 12th. Upon the return of*all writs of scire facias, the defendant shall have fifteen
e acias* days to plead, exclusive of the day of the return, and of the day of the service of the rule,
13th. If any frivolous or deceitful plea ^hall be hereafter pleaded in this Court, the
Frivolous plea, adverse party shall not be obliged to demur to the same ; but such plea shall, on motion
be rejected by the Court, and such judgment or order shall be awarded and given
thereupon as shall be agreeable to justice: Provided, nevertheless, that if any plea
which shall be objected to as frivolous, shall appear to affect the merits of the cause,
the Court, on motion, at the next sitting after filing such plea, may order the parties to
demur, and join in demurrer, and give them a day in Court to argue the same.
14th. That no attorney be permitted or suffered to be bail for any person whatsoever
Attorney not to the Marshal or Judge, on pain of being struck off the roll ; and the Marshal is hereby
to be bail. directed not to take any such bail, or the bail of any officer of the Court, on pain of
being severely amerced.
Taxation of 15th. No bill of costs shall be taxed in any cause contested, where the bill exceeds
costs, the common posts, without giving notice to the opposite party, or his attorney, in
writing.
Notice of 16th. All notices of trial shall be served either personally on the plaintiff or defend-
trial. allt' or tneu' attornies, or left at the dwelling house of such plaintiff or defendant, on
at least ten days before the first day of the sitting of the Court after such service; and
the cause shall come to trial accordingly, unless the said notice be countermanded with-
in five days after the service thereof.
Docket of 17th. That the Clerk of the Court shall keep a book or docquet, in which, at the end
Judgments, of every Court, or term, he shall, without fee or reward, enter the names of the parties
executions to of every judgment entered, with the number of the bill or entry of such judgment ; and
be entered by shall reserve a blank column, or columns, in which shall be entered the execution
Clerk. which shall issue on every such judgment, together with the nature of such execution,
and the time when the same shall be issued.
Judgment ob- 18th. If any judgment shall not be entered in the same term or- Court, in which the
tained at one same shall be obtained, the parties shall be at liberty to enter any such judgment on or
term, may be before the last day of the Court, or term, next ensuing, without paying any other fee or
entered in the reward for the same, than if such judgment had been entered hi the same Court, or
next term. term, in which the same was obtained.
19th. No writ of execution shall be granted until the expiration often days after the
Execution, motion for judgment, where the service of the original writ was personal ; nor until the
when to be expiration of thirty days after such motion, where service of the original process was not
granted. personal.
20th. That all writs of execution be returned regularly into the office of the Clerk of
Executions the Court, to be there filed and kept; and the said Clerk is hereby ordered not to affix
where return- the seal of the Court to any renewed execution, unless the old ones are first delivered to
ed, & renewals, him, to be kept and filed as aforesaid.
Dress of Bar. 2 1st. That gowns, bands and wigs, bo the habit of the gentlemen of the bar, as usual.
22d. Whereas divers suits and actions against executors and administrators, have here-
Suits against t0f01e been sued and prosecuted in this Court, to the ends that the lands, tenements, and
Ex rs&Admrs uther real estates of their testators and intestates might be subject and made liable to the
payment of the several demands of the plaintiff's in such actions : And whereas the de-
\th July 1758, since superseded. 5
fendaats in such actions have commonly pleaded that they had fully administered all
and singular the personal assets which came to their hands to be administered, and,
without any proof of the fact, the plaintiffs have admitted such pleas to be true ; and, by
the plaintiff's replying that his testator or intestate died seized of lands subject to the
payment of the debts, and the defendant's demurring to that plea, judgment has usually
and of course been awarded to the plaintiff in the action ; but in so much as the admis-
sion of such pleas, without some proofs of the facts pleaded, may eventually be injurious
to those persons who, by devise, descent, or otherwise, are interested in the lands of the
original debtor'; and, by fraud or collusion, real assets may be subjected and made lia-
ble to the payment of debts before the personal assets arc exhausted, and fully adminis-
tered: For prevention whereof it is hereby ordered, That no plea of plene administravit
shall, for the future be admitted many such action, or suit, against executors or adminis-
trators ; but the defendant pleading such plea, shall be, and he is hereby obliged to filo
with the same, in the Clerk's office, a full and particular account of his administration
upon oath, to the end it may appear to the Court, that the personal assets of the testator
•or intestate are really and in truth fully administered ; and then, if the plaintiff shall
think proper to admit the truth of such plea, he shall be at liberty to proceed hi the said
action to judgment in the ordinaiy course, and not otherwise : and if any defendant,
who shall plead as aforesaid, shall refuse or neglect to support his said plea, by render-
ing an account of his administration, on oath, in the maimer herein before directed, the
plaintiff ehall be at liberty to take issue upon such pleas, and bring the merits thereof
to trial.
23d. Whereas, by an act of the General Assembly of this Province of South-Carolina,
renunciations of inheritance, dower, and thirds of feme coverts, in this Province, taken Renunciations
and acknowledged before the Chief Justice "of this Province, or before such person, or ot dower and
persons as are authorized by him, are declared to be as effectual and valid in law, to all inheritance,
intents and purposes whatsoever, as any fine passed in due form of law in his Majesty's
Court of Common Pleas at Westminster, for conveying of lands in Great-Britain: And
whereas, many errors, faults, and abuses have, and may be committed in the drawing and
suing out of such renunciation of inheritance, dower, and thirds, by reason that many
persons, unskilful in the law, and such as are not under the immediate directions and au-
thority of this Court, do take upon them to draw and sue out such renunciation of inheri-
tance, dower, or thirds, and which may tend greatly to the hurt, prejudice, and disherison
of numbers of the good people of this Province; and in as much as if any such abuse, faidts
or misdemeanors do happen, touching the same, through their ignorance or neglect, no
reformation or punishment can be had, they being lor the most part persons unknown,
and living in remote or obscure places ; It is therefore ordered, That no renunciations
of inheritance, or dower, and thuds, shall be received or allowed by the Court here,
unless the same appear to have beeu sued out by some Barrister at Law, or some of the
Attornies of this Court, and subscribed with the name of such Banister or Attorney, to
the intent that if any misdemeanor be committed, the person subscribing such renuncia-
tion may be called to answer for it. And it is further ordered, that no renunciation of
inheritance, dower, or thirds, whatsoever, taken and acknowledged before any commis-
sioner or commissioners, by virtue of any writ of dedimus potestatem to them directed,
be allowed to pass, unless the person before whom such acknowledgment was made,
or one of them, or some person present when such acknowledgment was made, do
personally appear before the Chief Justice of this Province, or one of the Assistant
Justices, and be examined upon oath, touching the due execution thereof; which oath
shall be enrolled on the back of such writ of dedimus potestatem.
24th. In all other cases wherein no particular Rules are herein before set down, the
same method and practice as in the Court of Common Pleas at Westminster, shall be
used and practised here, so far as the same be not repugnant, or contrary to the above
Rules.
(Srncral Sessions ano Common picas,
ADDITIONS AND ALTERATIONS, BETWEEN 1758 & 1796.
January 20th, 1770.
The Court of General Sessions of the Peace, &c. met according to adjournment.
Insolvent Present — Mr. Justice Pringle, Mr. Justice Lowndes, Mr. Justice Doyley.
Debtors. Ordered, That all persons hereafter applying for the benefit of the Act for the relief
of Insolvent Debtors, do cause three days notice to be given to the persons at whose suit
they may be in custody, or then attomies, of the time when their imprisonment expires,
and the day whereon they intend to move the Court to take their respective petitions
into consideration.
A true extract from the Journals.
THOMAS HALL. C. C. G. S.
In the Common Pleas, 2Sth August 1771.
. . 25th. 'Whereas, by the sixth Ride of this Court, affixing the rule to the prison door is
rostmgoi deemed a good service, if the defendant lives in the country ; but the new prison now
Kuies" finished, being in a remote part of the town, affixing the rule to the door thereof, cannot
so well answer the purpose intended thereby, as if the same was affixed to some more
public place: It is therefore ordered. That the clause of the said rule above recited be
vacated and done away, and that for the future affixing the rule to the south door of the
State-house, when no appearance is entered, shall be deemed a good service, if the de-
fendant lives in the country.
By the Court, JAMES JOHNSTON, C.C. P.
At the adjournment of August Term, 1771.
Li the Common Pleas, May Term 1112.
Dockets call 26th. Whereas, the several causes depending and at issue in this Court, do seldom
of cases &c receive a trial as early in the Term as might be, owint: either to the neglect of the par-
' ' ties, or the non-attendance of their witnesses ; by which means the Court and Jury do
often sit many hours without doing business, the Terms are prolonged to a greater
length than is necessary, and many people are prevented thereby from pursuing their
necessary business and private affairs: It is therefore ordered, That for the future, the
several causes on the docquet, or paper of causes, shall be called over the beguining of
every Term, in the order in which they stand in the said docquet, and shall be tried in
the said order: and if it shall so happen that the plaintiff in any cause which shall be so
called on to be heard, or his attorney, shall not be ready to proceed in the hearing of
such cause, that then such cause shall lose its place in the docquet, or paper ef causes,
and shall stand the last on the list ; and when all the causes in the docquet shall have
been called over, such causes as lost their place shall be again called over for hearine,
in the order in which they shall then stand: and if it shall so happen that the plaintiff,
or his attorney, in any cause so called on a second time, shall not then be ready to pro-
ceed to a hearing, such cause shall be adjourned until the succeeding Term.
By the Court.
21th. Rules established 26th October 1772, being adjournment day.
Present — The Chief Justice, Mr. Justice Coslett, Mr. Justice Murray.
Ordered, That all causes be tried in a summary way by petition, pursuant to the
Sum. Pro. Circuit Court Law, be entered and numbered in a book to be kept for that pin-
Docket, the Clerk of this Court, on or before the first day of every Term, by the plaintiff, or Ins
attorney ; and in case they shall fail so to do, the defendant or his attorney, may at any
time during the Term, enter the same for a dumtssron: and after all the petitions are
heard, the plaintiff in such causes as are entered for dismission, shall be called; aiul if
they, or any of them, shall not then appear and bring on their, his, or her can-
cause and petition shall be dismissed, but without prejudice to a future action ; and the
defendant shall have costs against such plaintiff as shall so make default.
Rules of the G. S. and C. P., 1758 to 1796 ; since superseded. 7
2Sth. Rule established 5th of January 1773, being Return Day.
Present — The Chief Justice, Mr. Justice Savage, Mr. Justice Murray. Discounts in
In all causes tried in a summary way by petition, where the defendant has any dis- Sum. Pro.
count to plead, It is ordered, That a copy of the same be served by the defendant upon cases.
the plaintiff, or his attorney, ten days before the meeting of the Court.
29th. Rule established the 5th of January 1773, being Return Day.
Present — The Chief Justice, Mr. Justice Savage, Mr. Justice Murray.
Whereas, by the practice of the Court, blank writs are delivered to the attornies gianv Writs
thereof by the Prothonotary, and the attornies have sometimes delivered such blank
writs to the parties themselves, to be by them filled up at their discretion ; or have sent
them into the country, to be used occasionally by persons who are not attornies of this
Court, and over whom it hath no immediate authority; whereby the good people of this
Province may be greatly oppressed, and many inconveniences arise ; for prevention
whereof it is ordered, that no attorney of this Court do, in future, deliver blank writs to
any person whatsoever, on pain of being struck out of the roll.
South- Carolina, in the Common Pleas, 6th July 1773.
30th. Whereas, in actions commenced upon book debts, under the summary jurisdiction, Copy of Ac-
the defendant has no opportunity of seeing the account against him until the cause comes count to be
on to be tried, which may deprive him of the legal advantage he ought to have in de- served on de-
fending himself against such demands ; for remedy whereof, it is ordered, that in all such fendant in
actions brought under the summary jurisdiction hi future, the defendant be served with Snm. Pro.
a true copy of the account against him at the same time of the service of the petition cases,
and process.
THOMAS KNOX GORDON, *
CHARLES MATHEW COSLETT,
JOHN MURRAY.
July 6th, 1785.
Ordered, That all writs of venire issued for summoning juries, the service of the sum-
monses, or notices, to such persons as shall be drawn to serve as jurors at any Court of
General Sessions or Common Pleas, be proved on oath, before any of the'Judges of the
said Court, or before any of the Commissioners appointed for taking affidavits and spe-
cial bail, on the different circuits, by the Sheriffs, or such of their deputies who shall
respectively serve such summonses, immediately on their return from serving the same.
M. BURKE,
J. F. GRIMKE:
Venire.
In the Common Pleas, August Term 1786.
Ruled, That counsel at the bar, addressing themselves to the jury in the trial of causes,
shall in future, stand at the lower end, or opposite side of the table, and not on that next Attorneys,
to the jury. This is to be observed on circuit as well as in Charleston.
^DANUS BURKE,
THOMAS HEYWARD, Junr.
J. F. GRIMKE.
Upon the return of an award, or umpirage, a four day rule shall be served upon the
party, or his attorney, against whom the award or umpirage shall be made, to shew
cause why the award or umpirage should not be confirmed ; and if the award or umpi-
rage should be confirmed by the Court, then judgment shall be thereon entered, and
execution issued against the body or goods of the party, in the same manner as if a
judgment had been obtained by verdict of a jury.
HENRY PENDLETON,
iEDANUS BURKE,
January Term 1787. J. F. GRIMKE.
Awards.
8
Rules oftlie G. S. and C. P., 1758 to 1796; since superseded.
In the House of Representatives, January 30^ 178S.
. , . . ~ The Committee appointed to revise the act regulating the admission of Attornies,
Admission ot Report, That they have revised the said act, and conferred with the Judges of the
Attornies. Courts of Chancery and Common Fleas thereupon, who have determined, that in case
the act should remain in force, petitions for the admission of attornies shall he on the
first day of each term; and that two Judges of the Court of Chancery, and one Judge
of the Common Pleas, or one Judge of the Court of Chancery, and two Judges of the
Court of Common Pleas, shall then meet, and at such meeting examine the merits of
the said petitions, and either grant or reject them, as may appear to them proper. The
Committee therefore recommend that the act remain unaltered.
Resolved, That this House do agree to the report.
Ordered, That the report and resolution he sent to the Senate for their concurrence.
By order of the House,
JOHN SANDFORD DART, C. H. R.
In the Senate, February 1st 1788.
Resolved, That this House do conciu* with the House of Representatives in the fore-
going report and resolution.
Ordered, That the report and resolution be sent to the House of Representatives.
By order of the Senate,
FELIX WARLEY, C. S.
Extract from the Journals of the House of Representatives.
JOHN SANDFORD DART, C. H. R.
In the Common Pleas — Rules established Monday the l&th February
t ■ 1788, being adjournment day of January Term 1788.
Present — Mr. Judge Heyward, Mr. Judge Grimke.
Rules. Whereas, by a rule of this Court, affixing the Rule to the south door of the State-
house, when no appearance is entered, and the defendant lives without the limits of
Charleston, is deemed a good service ; but the State-house being lately unfortunately
burnt down, It is therefore ordered, that for the future, until the same be re-built, or it
shall otherwise be ordered, affixing the ride to the north front of the late Guard-house
in Broad-street, in such cases above-mentioned, shall be deemed a good service.
It is ordered, in future, in all cases upon points of law reserved, demurrers, motions
Summary for new trials, or in arrest of judgment, or other matters intended to be argued, the
statement for counsel on both sides shall first agree upon and make out a state of the case and facts,
Judges m cer- particularly setting forth the points to be determined, and deliver in a copy thereof;
tarn cases. signed by them, to each of the Judges before whom the same is to be argued, and set
down therefor, at least ten days previous to the hearing and arguing of the case.
THOMAS HEYWARD, Jun.
J. F. GRIMKE.
Sheriffs' Bales.
In the Vacation — South- Carolina, April bth 1791.
By the Chief Justice and Judges of the Court of Common Pleas. Whereas, by an act
of the General Assembly, entitled, " An Act to amend the several Acts for establishing
and regulating the Circuit Courts throughout this State," it is enacted, that no district
Sheriff shall sell any property in any private or retired part of his district ; but he shall
sell the same on the first Monday (and if the sales commenced on that day cannot be
concluded on the same, they may be finished on the day following, at the same hours)
in each month, between the hours of eleven and three, hi Charleston District, and eleven
and five in the other districts, at such places in each and every district, as the Judges of
the Court of Common Pleas shall appoint, and at no other time or place whatsoever.
It is therefore ordered, That the following places be appointed for making sales of
lands, houses and negroes by the district Sheriff, viz:
Charleston, for Charleston District,
Coosawhatchee Court-house for Beaufort District.
Georgetown, for Georgetown District.
Granby and Orangeburgh, alternately, for Orangeburgh District, beginning at Orange-
burgh the first month after this order.
The county Court-houses in the several counties in Cheraw6, Camden, and Ninety-six
districts, respectively, where the property to be sold 6hall have been taken, except in
Rules of the G. S. and C. P., 1753 to 1796; since superseded.
Eichlaiicl county, where the sales shall be made at the State-house in Columbia. And
in as much as the obliging Sheriffs to cany household furniture, plantation nl
carts, wagons, stocks of horses, cattle, Sac, and such other kind of personal property,
would in some cases, be impracticable, and in many others the expense and hardship
attending the removal of them, far exceed the value of such kind of property : B i;
therefore ordered, that in those cases, all such personal eflects be sold at the discre-
tion of the Sheriffs, either at the respective plantations, or places where seized, or at the
next nearest public place thereto, so as that the most may be made of them, and as may
tend to the benefit of the creditors and debtors.
JOHN RUTLE"
JOHN F. GRIMKE.
ELIHU HALL BAY.
South- Carolina, 2ith March 1792, being adjournment of 'January Term.
Whereas, by an Act of the General Assembly, entitled, " an Act to amend the several
Acts for establishing and regulating the Circuits Courts throughout this State."' it is
enacted, that no district Sheriff shall sell any property in any private or retired part of
his district; but he shall sell the same on the first Monday (and if the sales commenced
on that day cannot be concluded on the same, they may be finished on the day follow-
ing, at the same hours) in each month, between the hours of eleven and three in
Charleston District, and eleven and five in the other districts, at such places in each
and every district as the Judges of the Court of Common Pleas shall appoint, and at no
other time or place whatsoever.
And whereas, the Legislature have erected two othe \z : Pinckney and
Washington: and it is necessary that the same arran_- old be made for tl
of property by the Sheriffs in the said two ne
the county Court-houses in the several counties in Pincknev and Washington districts,
shall be the places for those districts respectively, for making sales of lands, houses and
negroes, by the Sheriffs of those districts.
And in as much as the obliging Sheriffs to carry household furniture, plantation uten-
sils, carts, wagons, stocks of horses, cattle, &c, and such other kind of personal property
would in some cases be impracticable, and in many others the expense and hardship
attending the removal of them farexceed the value of such kind of pn " : B • there-
fore ordered, that in those cases all such personal effects be sold at the discretion of
the Sheriffs, either at the respective plantations or places where seized, or at the next
nearest public place thereto, so as that the most may be made of them, and as may tend
to the benefit of the creditors and debtors.
JOHN BUI
JOHN F. GRIMKE,
ELIHC HALL BAY.
State of South- Carolina, Charleston District — In the Common Pleas,
at Chambers in the Vacation, 25th May 1792.
Present — The Chief Justice. Mr. Judge Grimke, Mr. Judge Bay.
Whereas, bv an Act of the General Assemblv, entitled " an Act to alter and amend the
law respecting juries, and to make some additional regulations to the Acts for establish-
ing and regulating the Circuit Courts," the Judges of the Court of Common Pleas are
thereby authorized, from time to time, to direct and alter the places where the Sherifis
of the several districts shall make sales of the property ordered to be sold by any pro-
cess of law, or order of Court, as often as thev in th s it shall deem ne
and convenient, for the purpose of effecting the intention - ith res-
pect to public sales; and all sales of mortgaged property shall be made in the several
districts at the places fixed by the Judges, and at the times fixed by law tor the - I
property under execution. And whereas, Samuel Saxon. I -
district, hath petitioned the Judges of the said Court to alter the p. in his
district; suggesting and stating to them a number of inconver: y arise,
and have Already arisen, from the present established mode of holding medy
which, it is ordered, thatfor thepr. ; the proper" xeco-
tion in the four counties now comp. - -trict, at the sev i'onrt-
houses of Edgefield, Abbeville, Laurens, and Newberry, tha: :" all lands,
houses, and negroes, taken in the four aforesaid counties, shall be at Cambridge.
B
10 Rules of the G. S. and C. P., 1758 to 1796; since superseded.
And whereas, it is represented to us. by the Sheriff of Camden district, that the places
at which sales have been directed to be. and are now holden in the said district, have
been found inconvenient and prejudicial : It is therefore ordered, that in future, until
otherwise allowed, all sales of property, taken in execution in the counties of Fan-field
and Richland, shall be at Columbia ; and all sales of property, taken in Kershaw, Cla-
rendon, Lancaster and Claremont, shall be at Camden, on the first Monday, and the day
following in every month.
And in as much as the obliging Sheriffs to remove household furniture, plantation
utensils, carts, wagons, stocks of horses, cattle, and such other kind of personal property,
would in some cases, be impracticable, and in many others the expense and hardship
attending the removal of them far exceed the value" of such property: It is therefore
ordered, that in those cases such personal efiects be sold at the discretion of the Sheriffs,
either at the respective plantations, or juaces where seized, or at the nearest convenient
Eublic place thereto, so as that the most may be made of them, and as shall tend to the
enefit of the creditors and debtors.
At a meeting and sitting of the Judges, in Columbia, at the conclusion of the Circuits,
on the eight day of May, hi the year of our Lord one thousand seven hundred and nine-
ty-four, pursuant to the" third section of the tenth Article of the Constitution.
Present— The Hon. ^rdanua Burke, John Faucheraud Grimke, and Elihu Hall Bay,
Esquires, Associate Judges of the State.
Whereas, many inconveniences have arisen from the irregular manner in which law
cases have been brought forward in this Court, from the different Circuit Courts :
1st. For remedy whereof, it is ordered, That io future every attorney who shall think
proper to bring forward any motion against the decision of any of the said Circuit
Courts, shall give notice, in writing, to the opposite attorney, (as also to the presiding
Judge) before the rising of such Circuit Court, of his intention, specifying therein, par-
ticularly, rhe ground upon which he intends to found his motion.
2d. And it is further ordered, That a docquet shall be kept by the Clerk of this Court
for entering the said law cases, on which every attorney shall regularly enter such case,
and the grounds of the motion, as mentioned in the foregoing Rule, on the first day of
the meeting of the Judges, at Columbia, after the conclusion of the Circuits, to the end
that the Judges may have before them, at one view, as well all the causes to come be-
fore them for argument, as some idea of the merits of each case, to be determined.
3d. And it is further ordered, That in every case where notice of any such intended
motion shall be given, as above mentioned, the attorney so giving it, shall come forward
agreeably to such notice, and prosecute it to effect, agreeably to the terms of notice;
and in default thereof, that the other attorney in possession of the case, shall be at full
liberty to proceed in like manner as if no notice had ever been given : and where any
case shall be adjourned over to Charleston, fi a fuller or more solid argument, by consent
of parties, and permission of the Court, the same shall be prosecuted there, in like
manner, at the next succeeding Court ; otherwise, the opposite attorney shall be at
liberty to proceed in like manner, as if no notice had ever been given. Provided, how-
ever, that in all cases where good and sufficient cause is alleged on oath, the Court will,
on motion, grant a further convenient time for taking up the argument.
4th. That where any appeal is brought up, from any of the County Courts, if theca*e
complained of turns upon matters of fact, or law and fact blended together, the Circuit
Court may direct a new trial at the next succeeding County Court, wiili directions on
points of law. But if such matters complained of turn upon points of law only, then
the said Circuit Court to proceed forthwith to give judgment thereon, according to the
right and justice of the case. That the Clerk of every Circuit Court do, in future, keep
a docquet for such appeals from the County Courts, on which the attorney bringing up
the same, shall regularly enter every such appeal, on the first day of every Circuit Court,
containing the naftire and grounds of the appeal.
5th. That in even- case where no form of a writ is particularly provided for in the
County Court acts, the same form shall in every case be observed, as nearly as may be,
as those made use of in the Supreme Courts of Judicature in this Stale.
Rules of the G. S. and, C. P., 1758 to 1796; since superseded. 11
6th. And it is further ordered, That a copy of these Rules be sent to the Clerks of the
different District Courts, to be affixed up in the respective offices, and also published in
the Columbian Gazette, for the information of all concerned.
I, Richard Lloid Champion, Clerk of the Court aforesaid, do certify the foregoing
to be be a true copy of the Rules and Orders made in the said Court, taken from
the records.
Given under my hand, at Columbia, this 8th day of May 1794.
R. L. CHAMPION.
In the Common Pleas, Charleston District, May Term, June 2, 1794.
Whereas, it has been usual for the attornies of this Court to give the opposite attor-
nies, hi causes depending therein, notice of motions for new trial, or in arrest of judg-
ment, or for some other special purpose, without coming forward agreeably to such
notice, to prosecute the said motions to effect ; by means whereof many cases have been
suspended for years, under pretext that some points of law, upon which such cases de-
pend, remain undetermined: for remedy whereof, as far as. may be, it is ordered, in
future, that where any attorney, in any cause depending in this Court, shall give notice
of any special motion by which any such cause shall be delayed, or suspended, out of
the usual course of proceedings, every such attorney shall give notice, in writing, at
least six days before the adjournment day of such Court, of such his intended motion,
containing the grounds of the same, and shall serve the Judges with a brief thereof:
and in case such attorney shall refuse or neglect to bring forward such motion, and pro-
secute the same to effect, at the adjournment day, the opposite party shall be at liberty
to proceed as if no such notice had ever been given, unless good and sufficient cause,
on oath, be shewn to the contrary. And it is further ordered, That the attornies in all
cases now suspended, or delayed, on account of notices of intended motions of new tri-
als, or for any other special purpose, do, as nearly as may be, conform to the foregoing
Rule, otherwise, after the next adjournment day of this Court, the opposite attornies
shall be at liberty to proceed in all such cases, in manner aforesaid, as if no such notices
had ever been given.
And whereas, great delay in the business of the Court is daily occasioned by reason
of the want of the punctual attendance of jurors at the hour to which the Court usually
stands adjourned: It is therefore ordered, in future, that if any juror, once impannelled
and sworn, shall refuse or neglect to attend punctually on the call of the pannel every
morning, that the Clerk do note such defaidt, and that such defaulter be forthwith served
with a Rule, to shew cause why he should not be fined for such default: and if ho
should fail to come immediately into Court, and shew cause to the contrary, or if such
cause should appear insufficient, then such juror to be fined in the sum of five pounds, pro-
clamation money, agreeably Ito the Act of Assembly, passed on the fifth day of April, one
thousand seven hundred and forty, in addition to the costs of the said rule and service.
Adjournment Day, May Term, 1795, 1th August,
Present — Judges Burke, Waties, and Bay.
Wherever such briefs shall be delivered to the Judges as before directed, the attorney
shall, on same day, give the title of the case, in writing, to the Prothonotary, who shall
enter it in due order of time, and keep a regular docquet of such cases respectively.
At a meeting of all the Judges, the following Rules were agreed to, and are ordered
to be entered as Rules of Court.
1st. That summary process, and writs of inquiry, be taken up from ten to eleven
daily.
2d. That as soon as a jury is impannelled, the docquet be called over, and causes tried
in their order.
3d. That all special jury causes be marked before the second call of the docquet.
4th. That the docquet be begun to be called a second time the day next after that on
which the first call ended.
5th. Respecting calling thirty causes a day: altered by first Rule of 3d of December
1795.
6th. That the pleadings hi each cause be produced to the Court when the cause is
called a second time, otherwise the cause shall be struck off the docquet.
7th. That every Monday in the term be set apart for hearing arguments on points of
law, motions for new trials, and special cases reserved for the opinion of the Court.
12 Rules of the G. S. and C. P., 1758 to 1796; since superseded.
State of South- Carolina.
At a meeting and sitting of the Judges, in Columbia, on the conclusion of the Circuits,
on the third day of December, in the year of our Lord one thousand seven hundred and
ninety-five, pursuant to the third section of the 10th Article of the Constitution.
Present — The Hon. iEdanus Burke, John Faucheraud Grimke, Thomas Waties, and
Elihu Hall Bay, Esquires, Associate Judges of the said State.
Whereas, complaints have been made to the Judges, of the great delay of business in
the Court of Common Pleas , in Charleston, whereby jurors attending thereon, are unne-
cessarily detained, at much expense, and to the great detriment of their private affairs ;
and it appears to the Judges, that a departure from the old Rule, in calling the docquet,
which they were induced to make for the accommodation of all parties concerned, has
greatly contributed to the delay complained of, and that a recurrence to the said Rule
will afford a remedy for the same: It is therefore ordered, that in future, the Court in
Charleston, will give too calls of the docquet ; and at the second call, will proceed there-
in until some cause shall be met with ready for trial, without any limitation of the num-
ber of causes to be called. It is further ordered, that in future, the Courts on the Cir-
cuits will also give too calls of the docquet, and will require the parties in every cause,
to come to trial at the second call, unless good cause be shewn by either party, why the
same shall be continued to the next Court; or unless both parties consent to postpone
the trial thereof, until all the other causes on the docquet shall be called, tried, or other-
wise disposed of, when the cause so postponed may be tried, if there be sufficient time
for the same.
Also ordered, That a copy of these Rules be published one month in the State Gazette
at Columbia, and in Charleston.
I, Richard L. Champion, Clerk of the said Court, do certify, that the above is a true
copy of the Rules and Orders made in the said Court, transcribed from the records.
R. L. CHAMPION.
Additional Rules and Orders for the better regulating the Practice of
the Court of Common Pleas in this State.
Charleston, March Term 1796.
Whereas, notwithstanding the former rules and regulations of this Court, many incon-
veniences have happened, by reason of the loose, irregular practice hitherto prevalent in
the same, by the attomies bringing forward suits before the record or proceedings have
been made up, by means whereof the parties have been frequently surprised into issues
and points not originally held out by the opposite parties, as the grounds of action or
defence, which of course they were not prepared to support or defend, to the great delay
and impediment of justice.
It is therefore ordered, That the respective Clerks of the several districts do not, in
future, put, or suffer any cause to be put on the issue docquet, for trial, unless all the pro-
ceedings in the cause have been regularly made up, and filed agreeably to the rules and
practice of the Court.
And whereas, it has been heretofore customary for the Clerk, at every Court, to trans- .
I er all the causes remaining undetermined at a day previous to the docquet for the next
succeeding Court, when many of the said causes in the intermediate time have been
settled, dismissed, or abated, by the death of one of the parties, or otherwise disposed of,
so as to put an cud to the controversy ; by reason whereof, the said docquets have gen-
erally been swelled out or extended to a great and unnecessary length, holding out to the
citizens of this Stase a great multiplicity of causes for trial, when in fact very few were
really ready : —
It is therefore further ordered, in future, that no cause be transferred from an old
docquet to a new one, for a succeeding Court, unless by the express directions of one of
the parties in the suit, or one of the attornies upon record; to the end that the plaintiff'
may have an opportunity of bringing on such causes, if he thinks proper, and the defend-
ant a similar opportonity of pressing for a non-suit, if he is unnecessarily or improperly
delayed: and farther, that no cause, old or new, be put down or entered on the docquet
after the opening of the Court on the morning of the day upon which the Court shall
begin the second call of the docquet.
Rides of the G. S. and C. P., 1758 to 1796; since superseded. 13
It is also ordered, That a docquet be prepared for cases on summary procees; and if
the plaintiff does not bring on the cause at the second Court, it is to be dismissed, uuless
good and sufficient cause be shewn to the contrary : and ha every case, in the Circuit
Courts, where the plaintiff' shall not file his declaration before or during the term next
after that to which the writ is returnable, the defendant shall be entitled to a non-suit
on the last day of the Court, unless good and sufficient reasons be assigned to the Court
for a further time.
And whereas, great inconvenience and delay have heretofore arisen, and still continue
to arise, from a practice that has obtained of the gentlemen of the bar, who appear for
defendants, and sometimes defendants themselves, taking out of the Clerk's office de-
clarations which have been duly filed: For remedy whereof, it is ordered, that the Clerk
in future, do not deliver, or suffer to be delivered, or taken out of the office, any declara-
tions whatever, after the same have been filed, and until plea filed and issue joined,
or the order for judgment be obtained : that the plaintiff's attorney only shall then be
permitted to take out the declaration, who shall, at the time, make a minute thereof in
a book to be kept bv the Clerk for that purpose ; to the end that the Clerk may always
be able to account for the declarations which may be taken out of the office: and the
defendant or his attorney may, if he chose, call for a copy of the declaration from the
Clerk, or take notes thereof, or draw his plea in the office.
JEDANUS BURKE.
J. F. GPJMKE.
THOMAS WATIES,
ELIHU HALL BAY.
RULES
OF THE
€onvt of Common picas & (General Sessions,
MADE JULY 1, 1800; SINCE SUPERSEDED.
Orders for
judgment.
Pleadings.
Rules to plead. 1. Every rule to plead shall be served upon the defendant's attorney, if an appearance
be entered, and he lives within one mile of the Court-house, and if there be no appear-
ance entered, or the defendant's attorney should not live within that distance, it shall
be served upon the defendant himself; but if neither live within that distance, affixing
the same to one of the front doors of the Court-house, shall be a good sen-ice.
2. On affidavit made of the service of the Rule to plead, if no plea be filed within the
Rule, the Clerk shall enter an order for judgment on the record, and in the Book of Rules;
and the plaintiff shall be at liberty to enter up judgment by default; Provided, that if
the defendant or his attorney, shall apply to the Court, on or before the second day of
the term next after such order is given to vacate the said judgment, the same shall be
vacated on payment of the plaintiff's costs in obtaining such order ; the defendant at the
same time pleading an issuable plea, and going to trial instanter (if the plaintiff, or his
attorney, think proper so to do) and submitting to such other terms, as the Court, upon
the merits of the application shall see fit to impose.
3. Replications, and all subsequent pleadings, shall be filed within ten days after ser-
vice of the Rule on the party to file such plea, or his attorney ; in default whereof, the
plaintiff's attorney shall be at liberty to take his order for judgment, or the defendant's
attorney his judgment on nonpros.
4. A copy of every deed, bond or other writing, declared on, shall be filed at the
Clerk's office, at the time of filing the declaration; and the defendant, or his attorney,
shall have oyer of the original, if he thinks proper to demand it, before he shall be re-
quired to file his plea; but this demand must be made before the rule to plead expires.
5. If any frivolous or deceitful plea shall be filed, the adverse party shall not be
obliged to demur to the same ; but such plea shall on motion, be rejected by the Court,
and such judgment, or order, shall be awarded thereupon as shall be agreeable to
justice.
6. No plea of plene administravit, shall be admitted in any action, against executors
or administrators, unless the defendant pleading such plea, do file, with the same in the
Clerk's office, a full and particular account of his administration, upon oath, with an
office copy of the inventory and appraisement of the estate ; to the end that it may ap-
pear to the Court, that the personal assets of the testator, or intestate, are really admin-
istered to the extent pleaded by defendant.
7. Every rule requiring the adverse party to proceed in his pleadings, shall be served
or posted, in the manner prescribed by the first rule.
Attomieq Srr. ^" ^° attorney shall be suffered to be bail for any person whomsoever, on pain of
„«♦ ♦„ u^V_ii ' being struck off the roll; and the Sheriff is hereby directed not to take any such bail,
not to be bail.
Judgments.
or the bail of any officer of.the Court, on pain of being severely amerced.
9. The Clerks of the respective Courts shall keep a book, or docket, in which, at the
end of every Court, they shall, without fee or reward, enter the names of the parties to
every judgment entered, with the number of the bill, or entry, of such judgment ; and
shall reserve a blank column, or columns, in which shall be entei'ed the execution Which
shall issue on every such judgment, together with the nature of such execution, and the
time when issued ; and also when such judgment is satisfied.
10. If any judgment shall not be entered in the same term, or Court, in which the
same shall be obtained, the parties shall be at liberty to enter any such judgment on or
before the last day of the Court or term, next ensuing, without paying any other fee for
the same, than if such judgment had been entered in the same Court or term, in which
the same was obtained; and no judgment shall be entered up after such second term,
without giving a term's notice to the adverse party, or his attorney, of his intention to
enter up the 6ame.
Rules of Sessions and Common Pleas, 1st July 1800; since superseded.
15
Insolvent
Debtors.
Docket.
11. No judgments obtained at any Circuit Courts, hall be entered up previous to the
day of the Court's rising.
12. No writ of execution shall be granted until ten days after motion for judgment, Executions,
when the service of the original writ was personal, or until the expiration of thirty days
after such motion, when the service of the original process was not personal.
13. All writs of execution shall be returned, regularly, into the office of the Clerk of
the Court, from whence they issue, to be there filed and kept in the record ; and no
Clerk shall affix the seal of the Court to any renewed execution, unless the one previous-
ly issued, be first delivered to him to be kept and filed as aforesaid ; or unless authorised
by a judge's order, granted on proof of the loss of the previous execution.
14. The habit of the gentlemen of the bar shall be black gowns and coats; and no Dress,
gentleman of the bar shall be heard if otherways habited.
15. The Clerks, and Sheriffs, shall also wear black coats; and the Sheriffs a cocked
hat and sword.
16. No renunciation of inheritance, or dower, or commission to take such renunciation, Renunciations,
shall have the seal of the Court affixed to it, unless sued out by some attorney of this
Court, and signed with his name. If taken under a commission, one at least of the
Commissioners shall make oath before some magistrate, that such commission was duly
executed ; and all such renunciation and commission shall be duly recorded.
17. All persons applying for the benefit of the acts, for the relief of insolvent debtors,
in addition to the notice published in the gazette, shall cause three days notice to be
given to the persons, at whose suit they may be in custody, or then- attomies, of the day
whereon they intend to move the Court to take then- respective petitions into consi-
deration.
18. AH issues shall be entered on the docket before the Court meets, on the first day
of the term.
19. All issues entered on the docket shall be called over, and tried in their order
as docketted.
20. The Court will call over the docket but once; and they will not call over more
than eighty causes on any one day.
21. If any causes remain uncalled, for want of time, they shall stand first hi order on
the docket of the ensuing term ; and the causes that have been called shall stand next in
order. The causes newly docketted shall be entered last.
22. If any issue, docketted, shall be called at four Courts, and not tried, the plaintiff
shall be called, and if he does not immediately go to trial, he shall be non-suited ; unless
it shall appear that it had been continued at defendant's motion, or other satisfactory
cause shall be shewn to the Court, on oath, to prove it was not postponed from the plain-
tiff's neglect ; or unless the defendant should, at such fourth calling, obtain a further
conthmance. Nothing in this ride shall be construed to prejudice defendant's right of
calling for a non-suit any previous Court.
23. No Clerk shall enter a cause upon the docket until the pleadings are fully made up.
24. No cause shall be entered upon the docket, except by the Clerk, or his Deputy.
25. Causes marked on the docket " plea withdrawn," or "or writ of enquiry," shall
not be placed on the docket of the next term, without special permission of the Court.
26. Upon calling the docket, no motion for a continuance shall be granted on the
ground of absence of a witness, without an oath, to the following effect, to-wit : That the
testimony of the witness will be material to support the action, (or defence) of the party
moving, that his motion is not intended for the purpose of delay ; but solely, because he
cannot with safety to his cause go to trial without such testimony ; that he has made
use of due diligence to procure the witness, or of such other circumstances, as will satisfy
the Court, that the motion is not intended merely for delay. And in all cases where a
writ of subpoena has been issued, the original shall be produced, and proof of the service,
or of the reason, why not served, indorsed thereon ; but if lost, the same proof shall be
offered, with the additional proof of the loss of the original subpoena.
27. When the issue is made up, the parties shall be bound to come to trial, at the
■ ensiung term, withoiit a notice of trial.
20. The Clerks shall regularly preserve every docket, as a record of the Court ; and on
each docket that he shall make out, he shall not only number the causes thereon, but
shall mention the number of terms, that they have been at issue.
29. All causes, on which writs of enquiry are to be executed, shall be entered on a
docket to be kepi in the Clerk's office, for that purpose, on or before the meeting of the
Court, on the first day of the term; and no writ of enquiry shall be executed in any
case not docketted.
30. If any liile to plead, should expire during the term ; and the defendant fail to
plead, the plaintiff may take his order for judgment, docket his cause among the writs of
enquiry, and execute his writ of enquiry during the same term, according to the aot m
such case made and provided.
Writs of
Enquiry.
16 Rules of Ssssions and Common Pleas, 1st July 1800; since superseded,
31. If an appearance has been entered, the plaintiff's attorney shall give notice to the
defendant's attorney, previous to executing his writ of enquiry.
32. Writs of enquiry shall be entitled to precedence, according to their order on the
docket.
Summary 33. All causes within the summary jurisdiction of this Court, shall be entered on a
Process. docket, to be opened in the Clerk's office, for that purpose, on or before the meeting of
the Court, on the first day of the term; and no cause shall be heard, if not so docketted.
If the plaintiffs do not enter such causes on the docket for trial ; the defendants may, at
any time, during the term, enter them for dismission; and if the plaintiff does not bring
on the cause, at the second Court, he shall be;liable to be non-suited, as in cases at issue.
34. The dockets of summary process causes, shall be called by the Court, at its leisure
intervals, when the jury is out of Court, or unoccupied.
Oath of parties 35. If the plaintiff in an action, by summary process, shall desire to have the benefit
hi Sum. Pro. of defendant's oath, he shall state in writing, the points to which he shall require his
oath, and serve him with a copy thereof, with notice of such his intention, at least one
day before the hearing of the cause; and defendant may either give his answer in wri-
ting, to be sworn to before the Clerk, or ore tenus in open Court; and if a defendant
shall desire the benefit of the plaintiff's oath, he shall proceed to require it in the same
manner.
36. In all actions within the summary jurisdiction of this Court, a copy of the deed,
note, account, or other cause of action, shall be endorsed on, or annexed to both the
copy process and original.
Juries. 37. To all writs of! venire, issued for summoning jurors, the Sheriff or his Deputy,
shall make a return, on oath, before the Clerk of the Court, from which the venire
issues, of the service of the summonses, or notices, served on the persons whom he is
commanded to summon ; and such return shall be made by the Sheriff or such of his De-
puties, as shall respectively serve the same immediately on their return from serving
them ; the Sheriff in his return, shall make one class of those who were summoned per-
sonally ; a second class of those for whom summonses were left at their houses : and a
third of those who could not be found.
33. On calling over the Juries, those of the Common Pleas and Petit Jurors, who an-
swer to their names, shall be alternately, as they answer, impannelled, the first on the
Petit, the second on the Common Pleas Jury ; but they may be transferred from the one
to the other, as the Court shall see necessary.
39. If any Juror, once impannelled, and sworn, shall refuse or neglect, to attend
punctually, on the call of the pannel every morning, the Clerk shall note such default ;
and the defaulter shall be forthwith served with a rule, to shew cause, why he should
not be fined for his default. If upon service of such rule, he shall fail to come immedi-
ately into Court, to make his excuse, or such excuse should appeal- to the Court insuffi-
cient, such Juror shall be fined according to law.
Awards. 40. Upon the return of an award, or umpirage, a four day rule shall be served upon
the party, or his attorney, against whom the award or umpirage, shall be made, to shew
cause why the award or umpirage, should not be confirmed; and if the award or umpi-
rage should be confirmed by the Court, then judgment shall be thereon entered, and
execution issued against the body, or goods of the party, in the same manner as if a judg-
ment had been obtained on verdict.
Declarations 41. No Clerk shall permit a declaration to be taken from his office, after it is filed,
not to be taken until issue be joined, or an order for judgment obtained. In the former case, the plain-
from the office, tiff only shall be entitled to possession of the pleadings in the latter, the party in whose
favor the order for judgmrnt is entered ; either party shall be at liberty at any time, to
inspect the pleadings, and to take a copy thereof.
Foreclosing ^2. ^n su'ls> on bonds or other papers, secured by mortgage of real estate, the plaintiff
mort^a^es shall obtain judgment as in other cases; and if he wishes to have a special order for the
sale of the property mortgaged, he shall at any time pending the suit, or after judgment
file a suggestion, stating the time when, the parties by and to whom, and the conditions
upon which the same were made, and the description, buttings and boundings of the
land, and such other particulars as may be necessary, to bring all the circumstances be-
fore the Court ; and when this is done, he shall serve on the defendant, or his attorney,
a ten day rule, to shew cause why such mortgaged estate, should not be ordered to be
sold ; and upon the return of that rule, he may move the Court for such order.
43. Orders for the sale of mortgaged property to effect a foreclosure in this Court,
shall be to the following effect: That if the defendant shall not within
days after this date, pay to the plaintiff the full amount of principal, interest, and costs,
due by him, on thai day, the. Sheriff shall proceed to sell the premises on a credit of
mouths, the titles to be signed, but not delivered, until the money be
paid according to the terms of sale; and if the amount of the purchase money be not
Rules of Sessions and Common Pleas, 1st July 1800/ since superseded. 17
!>aid, when due, the Sheriff shall re-sell, by virtue of the same levy, on account of the
bnner purchaser, for cash.
44. All Sheriffs sales of lands, houses, and negroes, shall be held, and take place at Sheriffs' sales
the Court-houses of the several districts, respectively ; and household furniture, planta-
tion utensils, carts, wagons, stock of horses, cattle, and such other personal effects, shall
be sold at the discretion of the Sheriffs, either at the respective plantations or places
where seized ; or at the nearest convenient public place thereto ; which place shall
always be mentioned in the Sheriff's advertisement.
45. Eveiy attorney, who shall think proper to bring forward any motion against the Motions at the
decision of a Circuit Court, or question on a point of law, shall give notice thereof in Constitutional
writing, with the grounds on which he intends to rest his motion, to the opposite attor- Courts.
ney and the presiding judge, before the rising of such Court,
46. Whenever any motion is to be brought before the Judges, at Columbia, or in
Charleston, a brief, setting forth so much of the circumstances of the case, as may" be
necessary to bring fully before the Court, every point to be decided by them, shall be
served by the party making the motion, upon each of the Judges upon the opening of
the Court, on the first day at Columbia, or three days before the meeting of the Court
in Charleston, if the case is to be argued there ; the brief shall also contain the grounds
on which the party means to rest his motion: and if he means to offer any affidavits to
the Court, the adverse party shall be served with copies of them, so as to allow a rea-
sonable time for answering them, or such affidavits shall not be heard. If any party
giving notice of his intention to make such a motion, shall fail to comply with this rule,
or fail to docket his case before the meeting of the Judges, on the first day, his motion or
rule shall be discharged, upon application by the adverse party. No ground of objection
in any such case shall be taken by the counsel, which is not expressed, or necessarily
implied in the brief and notice.
47. Ou the first day of the sitting of the Court, either at Charleston or Columbia, the
causes in which such notices have been given, shall be entered on the paper of causes ;
and no cause shall be heard unless so entered.
48. In eveiy case, where notice of any such intended motion shall be' given, the attor-
ney who has given it, shall prosecute it to a decision, agreeably to his notice ; or the
adverse attorney shall be at liberty to proceed in like manner, as if no notice had been
given. And in case any cause shall be adjourned from one Court to the other, the same
shall be prosecuted in the Court to which it is adjourned, in like manner, at the next
succeeding Court ; otherwise, the adverse attorney shall be at liberty to proceed in like
manner, as if no notice had been given : Provided, nevertherless, that in all cases in
which good and sufficient cause shall be shewn, the Court may grant further time for
hearing such motion.
49. In calling over the paper of causes in Charleston, or at Columbia, if the party who
is to bring forward the motion is not ready, the opposite party shall be heard, and the
Court will decide thereon, unless sufficient cause, on affidavit, be shewn to the Court
for a postponement; or if the party to oppose the motion be not ready, the party making
it shall be heard, and the Court will decide thereon, unless sufficient cause be shewn by
affidavit, for a postponement.
50. In all cases in which a party shall receive notice of a motion for a new trial, or in
arrest of judgment, he shall have leave, notwithstanding, to enter up his judgment, and
lodge his execution to bind property ; but if the motion be sustained, the judgment and
execution shall be wholly set aside.
51. When the Court is open and sitting, no rule or order shall be granted or made,
which can be obtained hi course at the Clerk's office, unless specially ordered by the
Court; nor shall any paper be filed in Court, during the hours of the Court's being open ;
and every rule or order made, and eveiy filing of any paper, contrary to this ride, shall
be void.
52. If the plaintiff should not file his declaration before the first day of the second term
after the return of the writ, he shall not be permitted to file it afterwards, without ob-
taining leave to do so ; and he shall give four days notice to the adverse party of the time
and place, when and where he intends to move for such leave.
53. Counsel at the bar, addressing themselves to the jury, in the trial of causes, shall
stand at the lower end, or opposite side of the table, and not on that next to the Jury.
54. No defendant, in the Court of Sessions, shall be at liberty to submit any affidavit
to the Court, which go to deny matters of fact, after a verdict against him ; but shall con-
fine himself to matters in extenuation or mitigation only ; and these affidavits shall be
filed so as to allow the Attorney-General or Solicitor, a reasonable time to answer them,
or they shall not be heard.
28 Rules of Sessions and Common Pleas, 1st July 1800/ since superseded,
55. On all rules to shew cause, the party called on shall begin and end his cause, and
on all special matters, either springing out of a cause at issue, or otherwise, the actor or
party submitting a point to the Court, shall in like manner begin and close ; and so shall
a defendant, who admits the plaintiff's case, and takes upon himself the burden of the
proof, have the like piivilege.
56. No attorney of this Court, shall ever attempt to argue or explain a case, after
having been fully heard, and the opinion o{ the Court has been pronounced, on pain of
being considered in contempt.
57. Every motion made, f< IT any rule or order, shall be submitted to the Court in wri-
ting by the counsel, who makes it ; and if granted by the Court, shall be delivered to
die Clerk.
58. The Clerk of each Court shall keep a book, in which shall be entered the names of all
persons who have been summoned as jurors, or bound in recognizances, and have made
default; and shall note opposite to the name of the defaulter, whether he be fined or ex-
cused ; and if fined, the amount of the fane ; or by whom and when excused ; which
book shall be exhibited to the Court, at every sitting, and a copy of the entries therein
transmitted to one of the Treasurers.
59. Surveys of lands in any quantity, of two hundred acres or less, shall be laid down
by a scale of ten chains to the inch; all over that cptantity by a scale of twenty chains to
an inch.
60. Commissions for examining witnesses, when executed, may be returned by post:
Provided, they be sealed up, directed to the Clerk of the Court from which they issue ;
deposited in the post-office by one of the Commissioners, and the postage paid.
61. In all cases wherein no particular rules are herein before set down, the practice
of the Court of Common Pleas, at Westminster, shall be pursued, so far as the same be
not repugnant or contrary to the above rules, or the laws of this State.
62. All rules and orders heretofore made for regulating the practice of this Court..
shall be, and they are hereby wholly repealed.
J. F. GEIMKE,
THOMAS WATIES,
E. H. BAY,
WILLIAM JOHNSON, Jun„
E. RAMSAY,
LEWIS TREZEVANT.
2Ufoitional EuUs of tljc dourts of wasUms & Glommon p*as.
2STH OF AUGUST 1802; SINCE SUPERSEDED.
63. No motion brought tip by defendant from the Court of Sessions, in any distinct, for Constitutional
anew trial, or in arrest of judgment, shall be heard by the Constitutional Court, unless Court,
the defendant be present ; and if he be not present, the motion shall be dismissed with-
out argument, unless his absence be occasioned by imprisonment or sickness.
64. It having been decided by the Constitutional Court at Columbia, that all motions
to be brought before that Court, from any district on the eastern circuit, shall be heard
in Charleston ; no such motion shall hereafter be heard any where else — all motions to
be brought from any other district, shall be heard at Columbia only.
65. Every brief served upon the Judges, shall be written upon a sheet of paper, of the
size of propatria paper ; and shall be endorsed with the names of the plaintiff and de-
fendant, and of their attornies, with the district, term and year, when, and the name of
the Judge before whom the cause was tried, with the nature of the motion, as for
example :
Lancaster, April 1802.
A. B., Plaintiff. ) E. F., Plaintiff's Attorney.
CD.
> Motion for a new Trial.
Defendant. ^ G. H., Defendant's Attorney. )
Tried before Judge
t. )G.
66. Whenever any motion may be made in arrest of judgment, or for a new trial, and
the judgment may have been entered up as the party's security till the motion shall be
decided; if either party should die before such decision shall take place, such judgment
so entered up shall be set aside, so that the parties may be placed precisely in the same
situation as they would have been, if the 50 th Rule had never been made.
67. If any attorney shall, in any case, bring up a motion to the Constitutional Court,
on grounds which shall appear to the Judges to be frivolous, or intended for delay, he
shall be amerced at the discretion of the Court.
68. All cases in which new trials may be granted, in Charleston district, shall be
placed at the end of the old, and before the new causes, on the issue docket ; aud the
Clerk shall distinguish these cases from the others.
69. The Clerk shall always prepare a docket of the traverses, at each Court of Sessions,
which shall be called, in due order, and the cases shall be disposed of as they are called.
70. Cases on the writ of inquiry, and summary process dockets, that shall have been
caUed over at four Courts, without being tried, shall be struck off the docket, and be
disposed of as is prescribed by the 22d Ride with respect to issues.
71. After the Court is opened, and until it adjourns each day, the Judges' dockets
shall not be subject to the inspection of the Bar, or then clients.
72. The Court will proceed to call over the docket of writs of iuquiry, each day, pre-
vious to calling the docket of issues, until they shall have called over fifty causes, or
consumed one hour. The writ of inquiry docket shall be called but once, and called
regularly. And when the docket of writs of inquiry shall be disposed of, the Court
will proceed to call the docket of processes in the same manner.
73. If the business of the Sessions should not occupy the Court, till the usual hom- of
adjournment, the business of the Common Pleas shall always be immediately com-
menced.
74. No Survey, made tinder a Rule of Court, shall be received in evidence, unless it
appears that at least fifteen days notice of the time and place of commencing such survey
was given to the opposite party, by the one who offers it in evidence.
75. Every surveyor shall represent in his plat, as nearly as he can, the different inclo-
sures of the parties, and the extent or boundaries, within which each party may have
exercised acts of ownership.
76. After a cause has gone to a jury, and any evidence been heard in it, neither party
shall be allowed to make any objection to a ride of survey, made in the case, or the man-
ner in which it may have been obtained, or the survey executed.
Docket.
Surveys.
20
Additional Rules of G. S. and C. P., 1800 to 1810; since superseded.
Constables.
Juries and ju- 77. The Sheriff, or his Deputy, shall serve a written summons on each juror, express-
rors & venires, ing the day, hour, and Court, at which he is to appear, and the penalty for default ; and
also, whether he is to sei-ve as a grand juror, or petit and common pleas juror, and if he
neglect to comply with this rule, or any part of the 16th section of the old jury law, passed
20th August 1731, he shall be amerced according to the 17th and 25th sections of the
said jury law.
77. Within ten days after the adjournment of each Court, the Clerk thereof shall issue
to the Sheriff, a writ in nature of a scire facias upon a recognizance, commanding him to
summon each and every juror, noted for default at that Court, to shew cause by affida-
vit, at ten o'clock on the first day of the next term, why they should not be fined accor-
ding to law, for failing to attend and serve as grand or common pleas and petit jurors, as
the case may be. And the Sheriff of each district, upon receipt of such writ, shall pro-
ceed to serve on each juror, mentioned in the said writ, a notice in writing to appear
accordingly, which notice shall be either served personally, or left at his usual place of
residence. And on the day prescribed by law, for the return of writs, the Sheriff shall
regularly make return of the said writ, and at the meeting of the Court, the Clerk shall
deliver all these writs to the Attorney-General, or Solicitor, who shall, on the second day
of the term, move the Court for executions on the same.
79. The probates on all writs of venire, shall be written at length, in the manner pre-
scribed by the 37 th Rule.
30. After drawing eveiy jury, the Clerk shall fold up the names of the jurors drawn,
in paper, and indorse thereon when they were drawn, and for what term.
81. In each district, at least eighteen constables shall be appointed, and at least that
number shall be always kept up. Nine of them in rotation, shall be summoned in wri-
ting by the Sheriff, to attend each Court. Those who do not appear, according to their
summons, shall be proceeded against by the Clerk, Sheriff, and Attorney-General, or
Solicitor, in the manner prescribed against jm-ors who make default, unless the Court
think fit to proceed more summarily against them.
82. Every Clerk shall keep a separate and accurate list of all the Constables appointed
placing their names in one column, the dates of their .qualifications in another, and the
dates of their deaths or discharge in a third.
83. Every Sheriff shall always keep at least nine staves in good order, for the Consta-
bles, on pain of being amerced.
84. Upon every commission, returned by the post, one of the Commissioners who ex-
amined the witness, shall endorse and sign a certificate, that the same was lodged by
himself in the Post-office ; or publication shall not be ordered.
85. All Sheriff's sales in Georgetown, shall be made at the market.
86. It shall not be necessary, hereafter, that the Clerk shall swear to any exemplifica-i
tion certified from his office.
87. Every Clerk and Sheriff, who cannot produce all the Rules of Court, when re-
quired, shall be fined ten dollars for each default.
Filing papers. 88. No affidavit, or other paper, shall be offered to the Court, unless the original, if
it be on affidavit, or a copy, if it be any other paper, has been previously filed.
89. No declaration shall be filed, unless written crosswise upon a whole sheet of
paper, of the size of propatria paper, and folded and indorsed according to established
custom ; nor shall any plea, demurrer, or other pleading, be filed, unless written upon
the declaration, or upon at ieast a. half sheet of paper of same size.
90. At Chambers, no motion for a Rule to shew cause, why any judgment or execu-
tion, should not be set aside for irregularity, or other cause ; or why the proceedings
upon any judgment or execution , should not be staid, shall ever be heard, unless the
party intending to move for it, shall have previously given to the adverse party reasona-
ble notice thereof in writing, and shall also have served upon him copies of every affida-
vit, and office certificate, intended to be submitted to the judge, so as to allow him
sufficient time to answer the same by counter affidavits, and certificates, if necessary ;
and the party about to make the motion, shall prove by a sufficient affidavit, before he
is heard, that he has complied with every particular required by this rule.
91. No motion of the nature of those mentioned in the last rale, shall ever be heard at
Chambers, unless it shall appear by a sufficient affidavit, that the ground of such motion
was unknown, or that it was never in the party's power to have made such motion in
open Court, during any previous Court.
92. In the absence of any party, or his attorney, no admission shall be received, in any
case whatever, by the Court, unless such admission be produced iu writing, and filed, or
proved, according to the rules of evidence.
93. The Clerk shall enter into the book, which he is ordered to keep by the 58th
rule, the amount of fines laid, or incurred by law, by any other persons than those re-
ferred to in said ride, with the names of such persons as are fined, or who incur them, in
a column, shewing when the fine was paid, or why it was not.
Commissions.
Sheriff sales.
Exemplifica-
tions.
Rules.
Motions at
Chambers.
Admissions.
Fines and
forfeitures.
Additional Rides of G. 8. and C.P., 1800 to 1810; since superseded. 21
94. Whenever any person shall apply for the benefit of the insolvent debtors' act, or of Insolvent
the prison bounds' acts, if he should fail to make his motion on the day upon which his Debtors,
.creditors are required by his advertisement to shew cause, he shall in addition to the
notice published in the gazette, cause three days notice to be given to the persons, at
whose suit he may be hi custody, or their attomies, of the day wherein he intends to
move that his petition be taken into consideration. The 17th Ride is hereby rescinded:
J. F. GRIMKE,
THOMAS WATIES,
ELIHU HALL BAY.
WILLIAM JOHNSON, Jr.
LEWIS TREZEVANT,
Charleston, August 28th 1802; JOSEPH BREVARD.
95. No person who is not a member of the Bar, shall be allowed to sit at the table or
desk designed for the use of the Bar, in any • Court-house in the State ; nor shall any
member of the Bar be allowed to take his seat there, unless he be first robed, nor to con-
tinue seated, unless he also continue in his robe. And it shall be the duty of the Sheriffs
to attend to the execution of this Rule.
JOHN F. GRIMKE,
THOMAS WATIES,
LEWIS TREZEVANT,
May 1804i JOSEPH BREVARD.
96. It is ordered, That the 40th Ride of this Court, which requires a four day ride to
be served upon the party or his attorney, against whom the award or umpirage shall be
made, shall be altered, and that a rule of one day shall hei'eafter be sufficient, unless
good and sufficient cause be shewn to the contrary.
JOHN F. GRIMKE,
THOMAS WATIES,
ELIHU HALL BAY.
J. BREVARD,
January 9th 1808. S. WILDS.
97. Whereas, it is deemed expedient for the furtherance of the business of the Court
of Common Pleas, to rescind the 20th Rule of Court, by which the call of the dockets is
limited to eighty causes in any one day. It is therefore ordered, that the said Rule be
rescinded.
THOMAS WATIES,
ELIHU HALL BAY.
J. BREVARD,
S. WILDS,
January 12th 1310. WM. SMITH.
RULES
OF THE
Court of Common |)kas & (General Session,
MADE MAY 7, 1814; SINCE SUPERSEDED.
Orders for
judgment.
Pleadings.
Rules to plead. 1. Every rule to plead shall be posted on one of the front doors of the Court-house.
2. On affidavit made of the posting of the Rule to plead, in manner aforesaid, if no plea
be filed within the Rule, the Clerk shall enter an order for judgment on the record, and in
the Book of Rules; and the plaintiff shall be at liberty to enter up judgment by default;
Provided, that if the defendant or his attorney, shall apply to the Court, on or before
the second day of the term next after such order is given to vacate the said judgment,
the same shall be vacated on payment of the plaintiff 's costs hi obtaining such order ;
the defendant at the same time pleading an issuable plea, and going to trial instanter,
(if the plaintiff, or his attorney, think proper so to do) and submitting to such other
terms, as the Court, upon the merits of the application shall see fit to impose.
3. Replications, and all subsequent pleadings, shall be hied within ten days after post-
ing of the Rule to tile such plea; in default whereof, the plaintiff's attorney shall be at
liberty to take his order for judgment, or the defendant's attorney his judgment on wow
pros, which may be set aside on motion, at the time, and on the terms and conditions
expressed in the second Rule for setting aside orders for judgment.
4. A copy of every deed, bond, open account, or other writing, declared on, shall bo
filed at the Clerk's office, at the time of filing the declaration; and the defendant, or
his attorney, shall have oyer of the original, if he thinks proper to demand it, before he
shall be required to file his plea; but this demand must be made before the rule to plead
expires.
5. If any frivolous or deceitful plea shall be filed, the adverse party shall not be
obliged to demur to the same ; but such plea shall on motion, be rejected by the Court,
and such judgment, or order, shall be awarded thereupon as shall be agreeable to
justice.
6. No plea of plene administravit, shall be admitted in any action, against executors
or administrators, unless the defendant pleading such plea, do file, with the same in the
Clerk's office, a full and particular account of his administration, upon oath, with an
office copy of the inventory and appraisement of the estate; to the end that it may ap-
pear to the Court, that the personal assets of the testator, or intestate, are really admin-
istered to the extent pleaded by defendant.
7. Every rule requiring the adverse party to proceed in his pleadings, shall be posted
in the manner prescribed by the first rule.
3. No attorney shall be suffered to be bail for any person whomsoever, on pain of
being struck off the roll ; and the Sheriff is hereby directed not to take any such bail,
or the bail of any officer of the Court, on pain of being severely amerced.
9. The Clerks of the respective Courts shall keep a book, or docket, in which, at the
end of every Court, they snail, without fee or reward, enter the names of the parties to
every judgment entered, with the number of the bill, or entry, of such judgment ; and
shall reserve a blank column, or columns, in which shall be entered the execution which
6hall issue on every such judgment, together with the nature of such execution, and the
time when issued ; and also when such judgment is satisfied.
10. If any judgment shall not be entered in the same term, or Court, in which the
same shall be obtained, the parties shall be at liberty to enter any such judgment on or
before the last day of the Court or term, next ensuing, without paying any Other fee for
the same, than if such judgment had been entered in the same Court or term, in which
the same was obtained.; and no judgment shall be entered up after such second term,
without giving a term's notice to the adverse party, or his attorney, of his intention to
enter up the same.
Attornies, &c,
not to be bail.
Judgments.
Rules qftlie G. S. and C. P., May 1814/ since superseded.
23
Dress.
Insolvent
Debtors.
Docket.
1 1 . No judgments obtained at any Circuit Court, shall be entered up previously to the
day of the Court's rising.
12. All writs of execution shall be returned, regularly, into the office of the Clerk of Executions,
the Court, from whence they issue, to be there filed and kept ; and no Clerk shall affix
the seal of the Court to any renewed execution, unless the one previously issued, be first
delivered to him to be kept and filed as aforesaid ; or unless authorised by a judge's
order, granted on proof of the loss of the previous execution.
13. The habit of the gentlemen of the bar shall be black gowns and coats; and'no
gentleman of the bar shall be heard if otherways habited ; and no gentleman of the bar
shall be heard if otherways habited ; nor shall any member of the bar be allowed to take
his seat there, unless he be first robed , nor to continue seated, unless he also continue in
his robe ; and it shall be the duty of the Sheriffs to attend to the execution of this. Rule.
[See Rules, January 1836.]
14. The Clerks, and Sheriffs, shall also wear black coats ; and the Sheriffs a military
hat and sword. _ Renunciations.
15. Whenever a renunciation of inheritance, or dower, shall be taken under a commis-
sion, one at least of the Commissioners shall make oath before some magistrate, that
such commission was duly executed ; and all such renunciations and commissions shall be
duly recorded.
16. Whenever any person shall apply for the benefit of the insolvent debtors' acts, or
of the prison bounds' act, if he should fail to make his motion on the day upon which his
creditors are required by his advertisement to shew cause, he shall in addition to the
notice published in the gazette, cause three days notice to be given to the persons, at
whose suit he may be in custody, or their attornies, of the day wherein he intends to
move that his petition be taken into consideration.
17. All issues shall be entered on the docket before the Court meets, on the first day
of the term.
18. All issues entered on the docket shall be called over, and tried in their order
as docketted.
19. That all cases for new trials shall be placed at the head of the docket.
20. That all causes continued by consent, be placed at the foot of the docket.
21. If any issue writ of inquiry, or summary process docketted, shall be called at four
Courts, and not tried, the plaintiff shall be called, and if he does not immediately go to
trial, he shall be non-suited ; unless it shall appear that it had been continued at defen-
dant's motion, or other satisfactoiy cause shall be shewn to the Court, on oath, to prove
it was not postponed from the plaintiff's neglect ; or unless the defendant should, at such
fourth calling, obtain a further continuance. Nothing in this rule shall be construed to
prejudice defendant's right of calling for a non-suit any previous Court.
22. No Clerk shall enter a cause upon the docket until the pleadings are fully made up.
23. No cause shall be entered upon the docket, except by the Clerk, or his Deputy.
24. Causes marked on the docket " plea withdrawn," or " writ of inquiry," shall
not be placed on the docket of the next term, without special permission of the Court.
25. Upon calling the docket, no motion for a continuance shall be granted on the
ground of absence of a witness, without an oath, to the following effect, to-wit : That the
testimony of the witness will be material to support the action, (or defence) of the party
moving, that Iris motion is not intended for the purpose of delay ; but solely, because he
cannot with safety to his cause go to trial without such testimony ; that he has made
use of due diligence to procure the witness, or of such other circumstances, as will satisfy
the Court, that the motion is not intended merely for delay. And in all cases where a
writ of subpoena has been issued, the original shall be produced, and proof of the service,
or of the reason, why not served, indorsed thereon ; but if lost, the same proof shall be
offered, with the additional proof of the loss of the original subpoena.
26. When the issue is made up, the parties shall be bound to come to trial, at the
ensuing term, without a notice of trial.
27. The Clerk shall regulaily preserve every docket, as a record of the Court ; and on
each docket that he shall make out, he shall not only number the causes thereon, but
shall mention the number of terms, that they have been at issue.
28. The Clerk shall always prepare a docket of the traverses, at each Court of Ses-
sions, which shall be called in due order, and the cases shall be disposed of as they are
called.
29. After the Court is opened, and until it adjourns each day, the Judge's dockets
shall not be subject to the inspection of the bar, or their clients.
30. The Court will proceed to call over the docket of writs of inquiry, or process,
each day previous to calling the docket of issues, until they have consumed one hour, or
at any other time, when not occupied by other business.
31. If the business of the Sessions should not occupy the Court, till the usual hour of
adjournment, the business of the Common Pleas shall always be immediately com-
menced.
24
Rules of the G. S. and C. P., May 1814; since superseded.
Write of
Inquiry.
Summary
Process.
Juries.
Awards.
Declarations
not to be taken
from the office.
Foreclosing
mortsnees.
32. All causes, on which writs of inquiry are to be executed, shall be entered on a
docket to be kept in the Clerk's office, for that purpose, on or before the meeting of the
Court, on the first day of the term; and no writ of inquiry shall be executed in any
case not docketted.
33. If any rule to plead, should expire during the term; and the defendant fail to
plead, the plaintiff may take his order for judgment, docket his cause among the writs of
inquiry, and execute his writ of inquiry during the same term, according to the act in
such case made and provided.
34. Writs of inquiry shall be entided to precedence, according to their order on the
docket.
35. All causes within the summary iurisdictkm of this Court, shall be entered on a
docket, to be opened in the Clerk's office, for that purpose, on or before the meeting of
the Court, on the first day of the term; and no cause shall be heard, if not so docketted.
If the plaintiffs do not enter such causes on the docket for trial, the defendants may, at
any time, during the term, enter them for dismission.
36. If the plaintiff in an action, by summary process, shall desire to have the benefit
of defendant's oath, he shall state in writing, the points to which he shall require his
oath, and serve him with a copy thereof, with notice of such his intention, at least one
day before the hearing of the cause; and defendant may either give his answer in wri-
ting, to be sworn to before the Clerk, or ore tenus in open Court; and if a defendant
shall desire the benefit of the plaintiff's oath, he shall proceed to require it in the same
manner ; and in case either plaintiff or defendant shall be absent, from and without the
limits of the State, and it shall appear to the Court, by application made on oath, that the
testimony of such absentee is necessary to the justice of the case, the person who is desi-
rous to obtain the same, may issue a commission for that purpose, and a term shall be
allowed to the party applying.
37. In all actions within the summary jurisdiction of this Court, a copy of the deed,
note, open account, or other writing, on which the action may be founded, shall be en-
dorsed on, or annexed to both the copy process and original.
33. To all writs c£ venire, issued for summoning jurors, the Sheriff, or his Deputy,
shall make a return, on oath, written at length, before the Clerk of the Court, from
which the venire issues, of the service of the summonses, or notices, served on the
persons whom he is commanded to summon : and such return shall be made by the She-
riff or such of his Deputies, as shall respectively serve the same immediately on their
return from serving tliem ; the Sheriff in his return, shall make one class of those who
were summoned personally ; a second class of those for whom summonses were left at
their houses : and a third of those who could not be found.
39. If any Juror, once impannelled, and sworn, shall refuse or neglect, to attend
punctually, on the call of the pannel every morning, the Clerk shall note such default;'
and the defaulter shall be forthwith served with a rule, to shew cause, why he 6hould
not be fined for his default. If upon service of such rule, he shall fail to come immedi-
ately into Court, to make his excuse, or such excuse should appear to the Court insuffi-
cient, such Juror shall be fined according to law.
40. Upon the return of an award, or umpirage, a one day rule shall be served upon
the party, or his attorney, against whom the award or umpirage, shall be made, to shew
cause why the award or umpirage, should not be confirmed; and if the award or umpi-
rage should be confirmed by the Court, then judgment shall be thereon entered, and
execution issued against the body, or goods of the party, in the same manner as if a judg-
ment had been obtained on verdict.
41. No Clerk shall permit a declaration to be taken from his office, after it is filed,
until issue be joined, or an order for judgment obtained. In the former case, the plain-
tiff only shall be entitled to possession of the pleadings; in the latter, the party in whose
favor the order for judgment is entered; either party shall be at liberty at any time, to
inspect the pleadings, and to take a copy thereof.
42. If the plaintiff should not file his declaration before the first day of the second
term, after the return of the writ, he shall not be permitted to file it afterwards, without
obtaining leave to do so ; and he shall give four days notice to the adverse party, of the
time and place, when and where, he intends to move for such leave, unless the motion is
made in open Court, in which case one day's notice will be deemed sufficient.
43. In suits, on bonds or other papers, secured by mortgage of real estate, the plaintiff
shall obtain judgment as in other cases ; and if he wishes to have a special order for the
sale of the property mortgaged, he shall at any time pending the suit, or after judgment,
tile a suggestion, stating the time when, the parties by and to whom, and the conditions
upon which the same was made, and the description, buttings and boundings of the
land, and such other particulars as may be necessary, to bring all the circumstances be*
fore the Court ; and when this is clone, he shall serve on the defendant, or his attorney,
Rules of tlie G. S. and C. P., May 1814/ since superseded. 25
a ten day rule, to shew cause why such mortgaged estate should not be ordered to be
sold, and upon the return of that rule, he may move the Court for such order.
44. Orders for the sale of mortgaged property to effect a foreclosure in this Court*
shall be to the following effect : That if the defendant shall not within
after this date, pay to the plaintiff the Ml amount of principal, interests and costs, due
by him on that day, the Sheriff shall proceed to sell the premises on a credit of
months ; the titles to be signed, but not delivered, until the money be paid according to
the terms of sale ; and if the amount of the purchase money be not paid, when due, the
Sheriff shall re-sell, by virtue of the same levy, on account of the former purchaser,
for cash.
45. All Sheriffs sales of lands, houses, and negroes, shall be held, and take place at gjierjg-„) gai ,c.
the Court-houses of the several districts, respectively ; aud household furniture, planta-
tion utensils, carts, wagons, stock of horses, cattle, and such other personal effects, shall
be sold at the discretion of the Sheriffs, either at the respective plantations or places
where seized ; or at the nearest convenient public place thereto ; which place shall
always be mentioned in the Sheriff's advertisement.
46. Eveiy attorney, who shall think proper to bring forward any motion against the Motions at the
decision of a Circuit Court, or question on a point of law, shall give notice thereof in circuit Trial
writing, with the grounds on which he intends to rest his motion, to the opposite attor- Courts.
ney and the presiding judge, before the rising of such Court,
47. Whenever any motion is to be brought before the Judges, at Columbia, or in
Charleston, a brief, setting forth so much of the circumstances of the case, as may be
necessary to bring fully before the Court, every point to be decided by' them, shall be
served by the party making the motion, upon each of the Judges at the opening of
the Court, on the first clay at Columbia, or three days before the meeting of the Court
in Charleston, if the case is to be argued there ; the brief shall also contain the grounds
on which the party means to rest his motion: and if he means to offer any affidavits to
the Court, the adverse party shall be served with copies of them, so as to allow a rea-
sonable time for answering them, or 6uch affidavits shall not be heard. If any party
giving notice of his intention to make such a motion, shall fail to comply with this rale,
or fail to docket his case before the meeting oi the Judges, on the first day, his motion or
rule shall be discharged, upon application by the adverse party. No ground of objection
in any such case shall be taken by the counsel, which is not expressed, or necessarily
implied in the brief and notice, or which was not made in the Court below.
48. Ou the first day of the sitting of the Court, either at Charleston or Columbia, the
causes in which such notices have been given, shall be entered on the paper of causes ; •
and no cause shall be heard unless so entered.
49. In every case, where notice of any such intended motion shall be given, the attor-
ney wno has given it, shall prosecute it to a decision, agreeably to his notice ; or the
adverse attorney shall be at liberty to proceed in like manner, as if no notice had been
given. And in case any cause shall be adjourned from one Court to the other, the same
shall be prosecuted iu the Court to which it is adjourned, in like manner, at the next
succeeding Court ; otherwise, the adverse attorney shall be at liberty to proceed in like
manner, as if no notice had been given : Provided, nevertkerless, that in all cases in
which good and sufficient cause shall be shown, the Court may grant further time for
hearing such motion.
50. In all cases in which a party shall receive notice of a motion for a new trial, or in
arrest of judgment, he shall have leave, notwithstanding, to enter up his judgment, and
lodge his execution to bind property ; but if the motion be sustained, the judgment and
execution shall be wholly set aside.
51. When the Court is open and sitting, no rule or order shall be granted or made,
which can be obtained in course at the Clerk's office, unless specially ordered by the
Court; nor shall any paper be filed in Court, during the hours of the Court's being open;
and every rule or order made, and every filing of any paper, contrary to this rule, shall
be void.
52. No defendant, in the Court of Sessions, shall be at liberty to submit any affidavit
to the Court, which goes to deny matters of fact, after a verdict against hbn ; but shall con-
fine himself to matters in extenuation or mitigation only ; and these affidavits shall be
filed so as to allow the Attorney-General or Solicitor, a reasonable time to answer them,
or they shall not be heard.
53. On all rules to shew cause, the party called on shall begin and end his cause, and
on all special matters, either springing out of a cause at issue, or otherwise, the actor or
party submitting a point to the Court, shall in like manner begin and close ; and so shall
a defendant, who admits the plaintiff's case, and takes upon himself tie burden of the
proof, have the like privilege.
D
26
Rules of the G. S. and C. P., May 1814; since superseded.
54. No. attorney of this Court, shall ever attempt to argue or explain a case, after
having been fully heard, and the opinion of the Com! has been fully pronounced, on
• pain of being considered in contempt.
55. Every motion made, for any rule or order, shall be submitted to the Court in wri-
ting by the counsel, who makes it ; and if granted by the Court, shall be delivered to
the Clerk.
56. The Clerk of each Court shall keep abook, in which shall be entered the names of all
persons who have been summoned as jurors, or bound in recognizances, and have made
default; and shall note opposite to the name of the defaulter, whether he be fined or ex-
cused ; and if fined, the amount of the fine ; or by whom and when excused ; and the
Clerk shall enter into this book, the amoimt of fines laid or incurred by law, by any
other persons than those referred to in this rule, with the names of such persons as are
fined, or who incur them, in a column, showing when the fine was paid, or why it was
not.
Surveys. ^7. Surveys of lands in any quantity, of two hundred 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
an inch.
58. No Survey, made under a Rule of Court, shall be received hi evidence, unless it
appears that at least fifteen days notice of the time and place of commencing such survey
was given to the opposite party, by the one who offers it in evidence.
5J>. Every surveyor shall represent in his plat, as nearly as he can, the different inclo-
sures of the parties, and the extent or boundaries, within which each party may have
exercised acts of ownership.
GO. After a cause has gone to a jury, and any evidence been heard in it, neither party
shall be allowed to make any objection to a ride of survey, made in the case, or the man-
ner in which it may have been obtained, or the sinvey executed.
Commissions. 61. Upon every commission, returned by the post, one of the Commissioners who ex-
amined the witness, shall endorse and sign a certificate, that the same was lodged by
himself in the Post-office ; or publication shall not be ordered.
62. Commissions for examining witnesses, when executed, may be returned by post '-
Provided, they be sealed up, directed to the Clerk of the Court from which they issue .
deposited in the post-office by one of the Commissioners.
Constitutional 63. No motion brought up by defendant from the Court of Sessions, in any district, for
Court.
anew trial, or hi arrest of judgment, shall be heard by the Constitutional Courtr unless
the defendant be present ; and if he be not present, the motion shall be dismissed with-
out argument, unless his absence be occasioned by imprisonment or sickness.
64. It having been decided by the Constitutional Court at Columbia, that all motions
to be brought before that Court, from any district on the eastern circuit, shall be heard
in Charleston ; no such motion shall hereafter be heard any where else — all motions to
be brought from any other district, shall be heard at Columbia only.
65. Every brief served upon the Judges, shall be written upon a sheet of paper, of the
size of propatria paper; and shall be endorsed with the names of the plaintiff and de-
fendant, and of their attoraies, with the district, term and year, when, and the namo of
the Judge before whom the cause was tried, with the nature' of the motion, as for
example:
Lancaster, April 1802.
A. B., Plainti
<vpr
IT.
E. F., Plaintiff's Attorney.
-Motion for a new Trial.
C. D., Defendant. ) G. H., Defendant's Attorney. )
Tried before Judge
Juries and ju- 66. The Sheriff, or his Deputy, shall servo a written summons on each juror, express-
rors &, venires, ing the day, hour, and Court, at which he is to appear, and the penalty for default ; and
also, whether he is to serve as a grand juror, or petit and common pleas juror, and if he
neglect to comply with this rule, or any part of the 16th section of the old jury law, passed
20th August 1731, he shall be amerced according to the 17th and 25th sections of the
said jury law.
67. Witliin ten days after the adjournment of each Court, the Clerk thereof shall issue
to the' Sheriff, a writ in nature of a scire facias upon a recognizance, commanding him to
summon each and every juror, noted for default at that Court, to shew cause by affida-
vit, at ten o'clock on the first day of the next term, why they should not be fined accor-
ding to law, lor failing to attend and serve as grand or common pleas and petit jurors, as
the case may be. And the Sheriff of each district, upon receipt of such writ, shall pro-
ceed to servo on each juror, mentioned hi tho said writ, a notice in writing to appear
accordingly, which notice shall be either served personally, or left at his usual place of
residence. And on the day prescribed by law, for the return of writs, the Sheriff shall
Rules of the G. S. and C. P., May 1814; since superseded. 27
regularly make return of the said writ, and at the meeting of the Court, the Clerk shall
deliver all these writs to the Attorney-General, or Solicitor, who shall, on the second day
of the term, move the Court for executions on the same.
63. After drawing every jury, the Clerk shall fold up the names of the jurors drawn,
in paper, and indorse thereon when they were drawn, and for what term.
69. In each district, at least eighteen constables shall be appointed, and at least that Qq^^j^ #
number shall be always kept up." Nine of them in rotation, shall be summoned in wri-
ting by the Sheriff, to attend each Court. Those who do not appear, according to their
summons, shall be proceeded against by the Clerk, Sheriff, and Attorney-General, or
Solicitor, in the manner prescribed against jurors who make default, unless the Court
think fit to proceed more summarily against them.
70. Every Clerk shall keep a separate and accurate list of all the Constables appointed
S lacing their names in one column, the dates of their cpialifications in another, and the
ates of their deaths or discharge hi a third.
7 1 . E very Sheriff shall always keep at least nine staves in good order, for the Consta-
bles, on pain of being amerced.
72. All Sheriff's sales in Georgetown, shall be made at the market. Sheriff sales.
73. It shall not be necessary, hereafter, that the Clerk shall swear to any exemplifica- Exemplifica-
tion certified from his office. tions.
74. Every Clerk and Sheriff, who cannot produce all the Rides of Court, when re- Rules.
quired, shall be fined ten dollars for each defaidt.
75. No declaration shall be filed, unless written crosswise upon a whole sheet of Filing papers-
paper, of the size of propatria paper, and folded and indorsed according to established
custom ; nor shall any plea, demurrer, or other pleading, be filed, unless written upon
the declaration, or upon at least a half sheet of paper of same size.
76. At Chambers, no motion for a Ride to shew cause, why any judgment or execu- Motions at
tion, should not be set aside for irregularity, or other cause : or why the proceedings Chambers,
upon any judgment or execution, should not be staid, shall ever be heard, unless the
Earty intending to move for it, shall have previously given to the adverse party reasona-
le notice thereof in writing, and shall also have served upon him copies of every affida-
vit, and office certificate, intended to lie submitted to the judge, so as to allow him
sufficient time to answer the same by counter affidavits, and certificates, if necessary ;
and the party about to make the motion, shall prove by a sufficient affidavit, before he
is heard, that he has complied with every particular recpiired by this ride.
77. No motion of the nature of those mentioned in the last role, shall ever be heard at
Chambers, unless it shall appear by a sufficient affidavit, that the ground of such motion
was unknown, or that it was never in the party's power to have made such motion in
open Court, during any previous Court.
73. In the absence of any party, or his attorney, no admission shall be received, in any Admissions,
case whatever, by the Court, unless such admission be produced in writing, and filed, or
proved, according to the rales of evidence.
79. A copy of the indictment, in cases of felony, shall be obtained by order of the
Judge, before whom the cause was brought, before au action of malicious prosecution
shall be commenced.
80. No person indicted shall be tried, unless personally present.
81. In all cases wherein no particular rales are herein before set down, the practice
of the Court of Common Fleas, at Westminster, shall be pursued, so far as the same be
not repugnant or contrary to the above rales, or the laws of this State.
82. All rides and orders heretofore made for regulating the practice of this Court,
ehall be, and they are hereby wholly repealed.
J. F. GRIMKE,
ELIHU HALL BAY,
J. BREVARD,
WM. SMITH,
ABRAHAM NOTT,
Charleston, May 7th 1814. C. J. COLCOCK-
^obitionctl Hales of % (Honrts of Stssicms $Z Common peas.
FROM 1814 TO 1833; SINCE SUPERSEDED.
Concerning
Briefs.
Concernins
couusel.
S3. In nil actions to try title, where the defendant shall 6et up a title to the land in
question, or any part thereof, either by possession or otherwise, he shall be required to
plead the same, and in his plea, shall set out the land so claimed by him, by metes and
bounds, with the same precision as the plaintiff is required to do.
84. Whereas, doubts have arisen, whether the Judge who presided at the trial before,
should be served with a brief or not : It is hereby lined, in future, the attorney appeal-
ing, shall deliver his brief to the Judge who presided at the Court below, on the first day
of the meeting and sitting of the Constitutional Court, next ensuing each trial below, and
shall deliver the briefs for the other Judges at the time that the cause is called.
85. In every case brought before the Constitutional Court, where the motion is to ar-
rest the judgment, or reverse a decision made on demurrer, it shall be the duty of the
counsel submitting the motion, to bring up a copy of the proceeding, to set forth in the
briefs served on the Judges, so much of the record, or pleadings, as may be necessary to
a clear understanding of the point or question of law intended to be discussed; and also,
to point out particularly, the defect or defects, meant to be insisted on by way of appeal;
86. Not more than two couusel shall be heard on each side, in any case argued in the
Constitutional Court, except in criminal cases affecting the life of a party.
87. That where an issue out of the Court of Equity is directed to be tried in the Court
of Common Pleas, that the Clerk of this Court shall give it place on the docket, from the
time that application shall be made, so to docket it. and not to prefer it to other causes,
which shall have been previously inserted on said docket.
88. That where a tenant is sued for land, of which he is hi possession, that the real
owner or his agent, or attorney, may enter himself on the proceedings, as the defendant
iu the suit, and shall be entitled to make such defence, as if he had been the original
defendant in the action.
Constitutional Court. — Thursday, May 15th, 1S17.
S9. In all actions, already commenced, or hereafter to be commenced, by Veudue
Masters, under the Act of the 17th March 1785, against purchasers at their sales, or
against Vendue Masters, under the Act of the 15th December 1815, who have failed to
pay over the proceeds of salss, the plaintiff shall be at liberty to file his declaration im-
mediately on the return of the writ, or as soon thereafter as he shall think proper ; and
the Clerk shall sign a rule for the defendant to plead within ten days, upon application
to him for that purpose — a copy of which shall be served on the defendant, if he reside
within the City of Charleston — if he reside without the said city, posting the same up at
the door of the Court-house, shall be deemed sufficient service. And if the defendant
shall not plead within the time aforesaid, the plaintiff" shall be entitled to his judgment
by default ; and in all such cases the presiding Judge shall assign a day of trial, at as early
a period as may be convenient, without regard to the order in which they stand on the
docket.
90. That in every case, in which a new trial has been granted, during the present
Court, or in which "a new trial shall be granted, at any future Court, the costs shall
abide the event of the suit, except where there is, or shall be a special direction given
respecting the costs. [January 18, 1818.]
91. Not more than two counsel shall hereafter be heard on the same side, of any cause
in the Court of Common Pleas or Sessions; nor shall any assistant counsel be heard on
the part of any prosecution iu the Court of Sessions : Provided, however, that in capital
criminal cases, the Court may, in its discretion, allow assistant counsel on the purt of
the prosecution, on the application of the Attorney-General, or Solicitor, or additional
counsel on the part of the prisoner, on his application. [April 18, 1818.]
Additional Rules of G. S. and C.P., 1814 to 1833; since superseded. 29
In the Constitutional Court. — Charleston, January 12, 1820.
92. Ordered,, That the Rule numbered 21. of the Rules of the Court of Sessions and
Common Pleas, made July the first, one thousand eight hundred, be re-established, as
follows :
" If any causes remain uncalled, for want of time, they shall stand first in order on the
docket for the ensuing term : and the causes that have been called, shall stand next in
order. The causes newly docketted shall be entered last."
Charleston, January Term, 1824.
93. In all cases hereafter to be tried in the Constitutional Court, it shall be the duty of
the counsel, or attorney bringing up the same, to furnish the State Reporter with a copy
of the brief delivered to the Court, before the case is heard.
94. At the sitting of the Circuit Courts in Charleston, hereafter, the writ of inquiry
and summary process dockets shall be called only on the Saturday of each week, during
the term, unless more time be thought necessary, in which case the presiding Judge may
set apart, and assign such other day or days, as he may deem necessary.
95. In the other districts, these dockets shall be called and disposed of, on the first
day of each term, if practicable, and shall not be again called, unless the presiding
Judge shall think proper to assign a subsequent day for the cases undisposed of.
In the Court of Appeals, April Term, 1833.
96. The Court proceeded to read and adopt the following rules, viz :
First. The Clerk of the Court of Appeals, shall not hereafter docket any case, until a
copy of the decree of the Chancellor, or the original report of the presiding Judge, shall
be delivered to him ; it shall be the duty of the Clerk to furnish copies of said decree or
report to any party in the appeal, and charge the party, or parties, for the same, with
the costs for copying.
Second. The Register in the Court of Equity, (who is the Clerk of the Appeal Court)
shall not be required to produce any original papers, but the party desiring the same,
shall obtain copies; the originals will not be allowed to be brought into Court.
RULES
OF
®t)£ Court of ^ppcctb.
ADOPTED AT THE FIKST SESSION UNDER THE ACT OF 1835.
1. The party intending to appeal from a verdict, or any point of law, decided against
him in a Court of Law, shall in proper person, or by his attorney, give notice hi writing,
of his motion, and of the grounds thereof, to the other party, or his attorney, and the
Judge before whom the case was tried, on the clay next after the decision of the cause.
2. The Judge shall, as soon after the receipt of the said notice, as may be convenient,
make out a report of the facts and points of law involved in the case, with his opinion
thereupon, and state therein, whether upon the facts he is, or is not satisfied with the
verdict, and deliver the same to the appellant's attorney, or the Clerk of the Court of
Appeals.
3. Where the report has been delivered to the appellant's attorney, he must deposit it
with the Clerk of the Court of Apjieals, before he will be allowed to docket his case.
4. The appellant, at the hearing of the cause in the Court of Appeals, shall furnish to
each of the Judges, who may sit to hear it, a true copy of the report of the Judge who
tried it, written or printed upon at least a full sheet of propatria paper.
5. The appellant, in a case at law, relying upon an exception to the record, must pro-
cure and bring up to the Court of Appeals an office copy.
6. In equity cases, the party intending to appeal frotn the decree of the Chancellor,
shall, within fifteen days after notice of the filing of the decree, hi proper person, or by
his solicitor, give notice in writing, of his intended motion, and of the grounds thereof,
to the other party, or his solicitor.
7. The appellant hi equity shall obtain and file with the Clerk of the Court of Appeals,
before he shall be allowed to docket his cause, a true copy of the decree, and of so much
of the record as may be necessary to the correct understanding of his motion.
8. He shall make out, and furnish to each of the Judges, an intelligible statement of
the facts and points of law involved, with his grounds of appeal, from the circuit decree.
9. A cause at law, or in equity, in which the party appeals, must be docketed at the
first term of the Court of Appeals, after it may have been decided, provided in an equity
cause, that the time allowed for an appeal, after notice of the filing of the decree, shall
have expired; and if the appeal be not docketed, then the appeal will be considered
abandoned.
10. A cause to be heard at any term of the Court of Appeals, must be docketed at
least three days before the session of the Court.
11. Not more than two attorneys or solicitors, (except in capital criminal cases,) shall
be heard on the same side of a case in the Court of Appeals.
12. In a case at law, or in equity, hi which there may be written testimony, or papers
necessary to a correct understanding and decision of it, it shall be the duty, and it is
hereby required of the appellant's attorney, or solicitor, to procure and bring up copies
of the same. The originals, unless for the purpose of inspection, will not be received by
the Court.
13. After the present term, all appeals in law and equity from the country, shall, in
Charleston, be placed on one docket, in the order in which they may be handed to tho
Clerk, and be heard the first days of each term ; and those from Charleston, shall, in
like manner, be docketed, and be heard as soon as tho Country causes shall be disposed
of. In Columbia, all appeals in law and equity, shall be placed on one docket, m the
order in which they may be handed to the Clerk.
14. No opinion, m a cause submitted, will be given, unless the attorney or solicitor
submitting it, furnishes an argument in writing. When this Rule is not complied with,
the appeal will be considered abandoned, and the cause struck from the docket.
Rules of Court of Appeals, adopted January 1836 ; since superseded. 32
15. Petitions for admission to the Bar, must be filed, on or before the Monday of the
second week of each term ; and the examination of the applicants, shall be by a Commit-
tee of the Bar, on such heads of law or equity, as the Court may direct.
1 G. The Clerks of Columbia and Charleston, will make out copies of their respective
dockets of the Court, for each Judge.
17. All the Rules of Court now in force, whether at law or in equity, adopted by tho
Constitutional Court, the Court of Appeals hi Equity, and the late Court of Appeals, not
altered by these Rules, are considered of force in, and obligatory on, this Court.
DAVID JOHNSON, RICHARD GANTT,
B. J. BARLE, JOSIAH J. EVANS,
JOHN B. O'NEALL, WILLIAM HARPER,
J. S. RICHARDSON, A. P. BUTLER,
H. W. DESAUSSURE, J, JOHNSTON.
Note. — It is the resolve of the Judges, that hereafter, on the Circuits, at each of the
Courts, the Sheriffs will be required to wear a black coat, cocked hat, and sword ; and
to attend the Judge to, and from his lodgings The Clerks and the members of the Bar,
will be required to wear in Courts, black coats. This is the enforcement of the Rules of
Court, in this respect, and not new rales.
By the Court of Appeals,
THOMAS J. GANTT, Clerk.
January 1836.
RULES
OF THE
€ouxte of fissions cmfc Common |)lcci0,
AND OF THE
€ourt of Cato ^IpptaU of Soutrj-Cfcoltna,
ADOPTED
DECEMBER TERM 1837, AND AFTERWARDS; NOW OF FORCE.
RULES TO PLEAD.*
1. Every rule to plead shall be posted on one of the front doors of Posting of
the Court-house. (Vide, 1758 R. 6. 1771 R. 25. 1788, 1800 R. l.Rules-
1814 R.l.)
ORDERS FOR JUDGMENT.
2. If no plea be filed within the rule, the Clerk shall enter on the Order for
record, and on the Book of Rules,6 an order for judgment, and the Judgment,
plaintiff shall be atliberty to enter up ajudgmentby default;0 provided,
that if the defendant, or his attorney, shall apply to the Court, on or be-
fore the second day of the term next after such order is given, to How vacated,
vacate the said judgment, the same shall be vacated, on payment of the
plaintiff 's costs, in obtaining such order; the defendant, at the same
time, pleading an issuable plea, d and submitting to such terms as the
Court, upon the merits of the application, shall see fit to impose. —
(Vide, 1758 R. 7. 1800 R. 2. 1814 R. 2.)
PLEADINGS.
3. Replications, and all subsequent pleadings, shall be filed within Replications,
ten days after posting the rule, to file such plea ; in default whereof, &c-
the plaintiff's attorney shall be atliberty to take his order for judg-
ment, or the defendant's attorney his judgment on nonpros. e which may
be set aside, on motion, at the time, and on the conditions, expressed
in the second rule, for setting aside orders for judgment. ( Vide, 1758
R. 8. 1800 R. 3. 1814 R. 3.)
a. 1 Sell. Prac. 300. 1791, 7 stat. 263 § 6. . 1839, 11 stat. 71, 75, § 8 & 16.
b. 1839,11 Stat. 71 § 8.
c. 1791, 7 Stat. 263 § 6 Dnbose v. Adm'r of Dubose, Cheves, 29.
d. 1 Sell. Prac. 308.
e. 13 Chs. II. Sta. 2, c. 2. 2 Stat. 513. Bank vs. Torre, 2 Speer, 501. Murphy vs.
Sumner, 1 Hill 216.
E
34: RULES SESSIONS, COMMON PLEAS AND LAW APPEALS. 1837.
Copy & Oyer. 4. A copy of every deed, bond, or open account, or other writing, de-
clared on, shall be tiled at the Clerk's office at the time of filing the
declaration ; and the defendant, or bis attorney, shall have oyer of the
original, if he think proper to demand it, before he shall be required
to tile his plea ; but this demand must be made before the rule to plead
expires." (Vide, 1758 R. 9. 1800 E. 4. 1S14 R. 4.)
t? • t ,„.~w 5. If any frivolous or deceitful plea shall be filed, the adverse party
Frivolous plea. J 1 ' r J
shall not be obliged to demur to the same, but such plea shall, on mo-
tion, be rejected by the Court, and such judgment, or order, shall be
awarded thereupon, as shall be agreeable to justice. b ( Vide, 1758 R.
13. 1S00 R. 5. 1814 R. 5.)
Plene admin- 6. No plea of plene administravit shall be admitted in any action
istraMt. against executors, or administrators, unless the defendant, pleading such
plea, do file, with the same, a full and particular account of bis admin-
istration, upon oath, with an office copy of the inventory and appraise-
ment of the estate; to the end, that it may appear to the Court, that
the assets of the testator, or intestate, are really administered to the
extent pleaded by the defendant : and in case the defendant be charged
as an executor de son tort, he shall, in lieu of the office copies above
required, file with his plea, on oath, a full account of all the assets
which have come into his possession, and an account shewing the man-
ner in which he has disposed of the same. c ( Vide, 1758 R. 22. 1800
R. 6. 1814 R. 6.)
Posting of 7. Every rule requiring the adverse party to proceed in his plead-
Eules. ing, shall be posted in the manner prescribed by the first rule. ( Vide,
1800 R. 7. 1814 R. 7.)
ATTORXIES, Sec., NOT TO BE BAIL.
No officer of 8. No attorney shall be bail for any person whomsoever, on pain of
Court to be ta- being struck off the roll ; and the Sheriff is hereby directed not to take
ken as bail. anv suc\l bail, or the bail of anv officer of the Court, on pain of being
severely amerced. d ( Tide, 1756 R. 14. 1S00 R. 8. 1814 R. 8.)
JUDGMENTS.
Abstract of 9. The Clerk of every Court shall keep a book, or docket, in which,
Judgment. at the end of every Court, he shall, without fee, or reward, enter the
names of the parties to every judgment entered, with the number of
the bill or entry of such judgment, and he shall reserve a blank co-
lumn, or columns, in which shall be entered the execution which shall
issue on every such judgment, together with the nature of such execu-
tion, and the time when issued, and also when such judgment is satis-
fied.6 ( Vide, 1758 P. 17. 1S00 R. 9, 1814 R. 9.)
Judgments. 10- If any judgment shall not be entered in the same term, or Court,
vhai to be en- at which the same shall be obtained, the parties shall be at liberty to
tcredup. enter such judgment, on or before the last day of the Court, or term,
next succeeding, without paying any other fee for the same, than if
a. Cregier v. Smith, 1 Speer, 29S, and cases there cited. Vidal v. Clark,2 Rich. 359.
b. Stat. 9, Anne. 20 v> 11. 2 Stat 434.
c. Johnson vs. Johnson, 1 Bail. 603. Ford v. Adm'r of Rouse, Rice's L. R. 219.
d. 1839. 11 Stat. 30 6 24.
e. 1839, 11 Stat. 72 $ 6 cl. 5.
RULES SESSIONS, COMMON PLEAS AND LAW APPEALS. 1837. 85
such judgment had been entered in the same Court, or term, in which
the same was obtained ; and no judgment shall be entered up after
such second term, without giving a term's notice to the adverse party,
or his attorney, of the intention to enter up the same.a (Vide, 1758
R. IS. 1800 R. 10. 1814 R. 10.)
11. No judgment obtained at any Court shall be entered up previ- jd.
ous to the day of the Court's rising.6 (Vide, 1800 R. 11. 1814 R. 11.)
EXECUTIONS.
12. All writs of execution shall be returned regularly into the office To be return'd
of the Clerk of the Court from whence they issue, to be there filed and au*l nle<3-
kept; and no Clerk shall affix the seal of the Court to any renewal R i v
execution, unless the one previously issued shall be first delivered to ecuti0n.
him, to be kept and filed as aforesaid, or unless authorized by a
Judge's order, granted on proof of the loss of the previous execution. c
(Vide, 1758 R. 20. 1800 R. 13. 1S14 R. 12.)
DRESS.
13. The habit of the gentlemen of the Bar shall be black coats ; and Dress of Att's.
no gentleman of the Bar shall be heard if otherwise habited : and it
shall be the duty of the Sheriff to attend to the execution of this rule.
(Vide, 1758 R. 21. 1S00 R. 14. 1814 R. 13.)
14. The Clerk and Sheriff shall also wear black coats, and the She- p0 0f clerks
riff a military hat and sword.** (Vide, 1800 R. 15. 1814 R. 14. See & Sheriffs.
also note to Rules of 1836. J
INSOLVENT DEBTORS.
15. "Whenever any person shall apply for the benefit of the insolvent Additional no-
debtors act, or the prison bounds act, if he shall fail to make his mo- tice to credit-
tion on the day upon which his creditors are required by his adver- ors> when ne-
tisement to shew cause, he shall, in addition to the notice pub- cessarv'
lished in the gazette, cause three days notice to be given to the persons
at whose suit he may be in custody, or their attorneys, of the day
whereon he intends to move, that his petition be taken into considera-
tion.6 ( Fi'<&, 1770. 1800 R. 17. 1802 R. 94. 1S14 R. 16.)
RENUNCIATIONS.
16. Whenever a renunciation of inheritance, or dower, shall be taken when taken
under a commission, one at least of the Commissioners shall make oath under a Com-
before some magistrate that such commission was duly executed ; and mission.
all such renunciations and commissions shall be duly recorded./ ( Vide,
1758 R. 23. 1800 R. 16. 1814 R. 15.)
s
a. Dibble vs. Taylor, 2 Speer, 308.
b. Union Bank vs. Magrath, 2 Speer, 302.
c. 1839, 11 Stat. 36 §"56. Primrose vs. Becket, 3 McC. 413. Robertson vs. Shan-
non,2 Strob. 1339, 11 Stat. 76 § 19.
d. 1839, 11 Stat. 30 § 22.
e. Bettis vs. Nixon, 1 Strob. 148. Mordecai vs. La Rissey, 1 Rich. 192.
/. 1839, 11 Stat. 77 § 23. Kottman vs. Ayer, 1 Strob. 553.
36 • RULES— SESSIONS, COMMON PLEAS AND LAW APPEALS. 1837.
DOCKET. a
Issues when to 17 j^ issues shall be entered on the docket, before the Court meets,
on the first day of the term. (Vide, 1796. 1800 R. IS. 1814 R. 17.)
th^d^lJe 1S- A11 issues entered on the docket shall be called over, and tried,
tried ™ tne or(3er in which they are docketed. (Vide, 1772 R. 26. 1800
R. 19. 1814 R. IS.)
Plff. shall be 19. If any issue, writ of inquiry, or summary process, docketed,
nnn-Suited for §ba]1 be called at four Courts and n't ^^ the plaintirF shall be called,
in »t procpc<iiiicr . • mm
to trial. = an(l if he does not immediately go to trial, he shall be non-suited ; un-
less it appear that it had been continued at the defendant's motion, or
other satisfactory cause shall be shown to the Court, on oath, to prove
that it was not postponed by the plaintiff's neglect ; or unless the de-
fendant shall, on such fourth calling, obtain a further continuance.
Nothing in this rule shall be construed to prejudice the defendant's
rio:ht of calling for a non-suit at any previous Court.6 (Vide, 1795,
1S00 R. 22. 1S02 R. 70. 1814 R. 21.)
Cases, v.-hen to 20. No Clerk shall enter a cause on the docket until the pleadings
be entered. aremadeup.c (Vide, 1796. 1S00 R. 23. 1814 R. 22.)
i l j0m 21. No cause shall be entered on the docket except by the Clerk or
docketed.. h.g deputy d (yid^ 1S00 E 2i 18u R 23.j
Permission to 22. Causes marked on the docket, " plea withdrawn," or " writ of
docket when inquiry," shall not be placed on the docket of the next term, without
necessary. speciai permission of the Court. (Tide, 1S00 R.25. 1S14 R. 24.)
Affidavit for 23. Upon calling the docket, no motion for a continuance shall be
continuance. granted on the ground of absence of a witness, without an oath to the
following effect, to-wit: That the testimony of the witness will be ma-
terial to support the action, (or defence) of the party moving; that his
motion is not intended for delay, but solely because he cannot go safely
to trial without such testimony ; and that he has made use of due dili-
gence to procure the witness : or of such other circumstances as will
satisfy the Court that his motion is not intended for delay merely. And
in all cases where a writ of subpoena has been issued, the original shall
be produced, and proof of service, or the reasons why not served, en-
dorsed thereon; but if lost, the same proof shall be offered, with the
additional proof of the loss of the original subpoena. e ( Vide, 1800 R.
26. 1S14R.25.)
Notice of trial 24. When the issue has been made up, the parties shall be bound to
unnecessary. come to trial at the ensuing term, without notice of trial. (Vide, 1758
R. 16. 1S00 R. 27. 1814 R. 26.)
Affidavit for 25. After the first term, a party applying for a continuance, on ac-
continuanceaf- count of the absence of a witness, shall set forth, in addition to the re-
ter first term, quisitions of the 23d rule, what he believes the absent witness will
prove ; and the Court may, as a condition of the continuance, order
that he pay the cost/
a. Davidson vs. Middleton. 3 Rich. 349. 1839, 11 Stat. 72 § 8.
b. Fair vs. McDowall, 1 Bay 31. Munro vs. Laurens, 1 McMul. 442.
c 1839, 11 Stat. 72 $ 8.
d. Id. Id.
e. Price ads. Justrobe, Harp. 111. Lvles vs. Robinson. 1 Bail. 25. Sheppard vs.
Lark, 2 Bail. 57G. Bone vs. Hillen, 1 Mills. C. R. 197.
/. Farrand vs. Bouchell, Harp. 83. M. S. Young vs. Aiken, Col. Dec 1846.
RULES SESSIONS, COMMON PLEAS AND LAW APrEALS. 1S37. 37
26. The Clerk shall regularly preserve every docket, as a record of Duty of Clerk
the Court, and on each docket that he shall make out, he shall not only J^^lf5
number the causes thereon, but shall mention the number of terms that
they have been at issue ; and also, in a sepai'ate column, shall copy
from the preceding docket, the memorandum made by the Judge, of
the manner in which the case was disposed of at the last Court. a
(Vide, 1796. 1800 R. 28. 1814 R. 27.)
27. The Clerk shall, at each term, prepare a docket of the traver- Sessions
ses, and other cases, in the Sessions, which shall be called in due order, docket.
and the cases disposed of as they are called.5 (Vide, 1802 R. 69.
1S14R. 28.)
28. After the Court is opened, and until it adjourns, each day, the Judges' and
Judge's dockets shall not be subject to the inspection of the Bar, or Bar docket,
their clients, but it shall be the duty of the Clerk to make a copy of the
docket for the use of the Bar.c (Vide, 1802 R. 71. 1814 R. 29.)
29. The process docket shall be called on the first day of the term, Process and
and if not finished, at such other times as the Judge shall direct. The ^"17 T^te
inquiry docket shall be called next to the process, then the docket of ca^e(j#
sessions cases, and then the issue docket; but in Charleston, the process
docket shall be called on the Saturday of the first week of the term.'2
(Vide, 1795 R. 1. 1800 R. 34. 1802 R. 72. 1814 R. 30. 1824 R.
94 and 95.)
WRITS OF INQUIRY.
30. All cases on which writs of inquiry are to be executed, shall be Inquiry dock't
entered by the Clerk on a docket to be kept in the Clerk's office for
that purpose, on or before the meeting of the Court, on the first day of
the term ; and no writ of inquiry shall be executed in any case not
docketed. e (Vide, 1S00 R. 29. 1814 R. 32.)
31. If any rule to plead shall expire during the term, and the de-
fendant fail to plead, the plaintiff may take his order for judgment,
docket his cause among the writs of inquiry, and execute his writ of
inquiry during the term, according to the act in such case made and
provided. (Vide, 1800 R. 30. 1814 R. 33.)
32. Writs of inquiry shall be entitled to precedence according to
their order on the docket. ( Vide, 1800 R. 32. 1814 R. 34.)
SUMMARY PROCESS./
33. All causes within the summary process jurisdiction of this When to be
Court, shall be entered on a docket to oj^ened in the Clerk's office for docketed.
that purpose, on or before the meeting of the Court, on the first day of
the term ; and no cause shall be heard if not so docketed. If the plain-
tiffs do not enter such causes on the docket for trial, the defendants
may at any time, during the term, enter them for dismission. ( Vide,
1772 R. 27. 1796. 1800 R. 33. 1S14 R. 35.)
•
a. 1839, 11 Stat. 72 % 8.
b. Id.
c. Id:
d. Country Docket for Charleston, see Act 1817, 7 Stat. 316.
e. 1839, 11 Stat. 72 § 8.
/. 1768, 7 Stat. 200. 1839, 11 Stat. 72 § 8.
38 RULES SESSIONS, COMMON PLEAS AND LAW APPEALS. 1837.
Oath of party. 34. If the plaintiff, in an action by summary process, shall desire to
have the benefit of the defendant's oath, he shall state, in writing, the
points to which he shall require his oath, and serve him with a copy
thereof, with notice of such intention, at least one day before the hear-
ing of the cause ; and the defendant may either give his answer in wri-
ting, sworn to before the Clerk, or ore tenus in open Court. And if a
defendant shall desire the benefit of the plaintiff's oath, he shall pro-
ceed to require it in the same manner. And in case either the plain-
tiff, or defendant, shall be absent from, and without the limits, of this
State, and it shall appear to the Court, by application made on oath,
that the testimony of such absentee is necessary to the justice of the
case, the person desiring to obtain the same, may issue a commission
for that purpose, and a term shall be allowed to the party applying."
(Vide, 1800 R. 35. 1814 R. 36.)
35. In all actions within the summary process jurisdiction of this
Copy of Note Court, a copy of the deed, note, open account, or other writing, on
&c.,"tobe en- which the action maybe founded, shall be endorsed on, or annexed to
dorsed. both the copy process and original. 6 Vide, 1773 R. 30. 1S00 R. 36.
1814 R. 37.)
JURIES, JURORS, AND VENIRES. c
Duty of Sheriff 36. To all writs of venire, issued for summoning jurors, the Sheriff,
respecting or his deputy, shall make a return, on oath, written at length, before
writs of venire tjje Clerk of the Court, from whence the venire issues, of the service
of the summonses, or notices, served on the persons whom he is com-
manded to'summon. The Sheriff, in his return, shall make one class
of those who were summoned personally; a second class of those for
whom summonses were left at their houses; and a third, of those who
could not be found. d (Vide, 17S5. 1800 R. 37. 1S02 R. 79. 1814
R. 38.)
tTS . . 37. The Sheriff, or his deputy, shall serve a written summons on
' Duty in stun- .. '. . , **% ■" n/_ ....
monks jurors, each juror, expressing the day, hour and Court, at which he is to ap-
pear, and the penalty for default; and also, whether he is to serve as a
grand juror, or petit and common pleas juror: and if he neglect to
comply with this rule, or any part of the 16th section of the old jury
a. Dillon vs. McCue, 2 Bay. 280: Hencken vs. Grainann. 2 Rich. 365: Hill vs«
Deunv, 1 Strob. 333 : Walker vs. Mathanev, Harp. 187 : Wallace vs. Norvelb
1 Bail. 125: Bartoline vs. Heartle, 2 Bail. 196: Clark vs. Meek: Id. 391 :
Fuhnore vs. Cocktield, Id. 446 : Tooiner vs. Righton, Riley's L. C. 263 : Holly
vs. Thurston, Rice 232 : Stead vs. Brannon. Bice 298.
b. Bailey vs. Wilson, 1 Bad. 15 : Hasood vs. Mitchell, Id. 124 : Wilson vs. Pyles,
1 Strob. 353. and cases there cited.
c. 1731, 3 Stat. 274: 1791, 7 Stat. 273 * 6: 1799, 7 Stat. 291 : 1763, 7 Stat. 203 $
15; 1813, (relating to Juries in Charleston) 6 Stat. 93 § 1: 1839, 11 Stat 73 $
10, 11, 12: 1839, 11 Stat. 33 $ 45. As to Talesmen, see State vs. Burket, 2
Mills, C. R. 155 : Bta/e vs. Williams, 2 Hill, 334. As to examination of Jurors
on voir dire, State vs. Baldwin, 3 Brev. 309 : State vs. Sims. 2 Bad. 33. As to
challenge in trial of felony, State vs. Barrontme, 2 N- & McC. 553 : State vs.
Sims, 2 "Bail: 32. As to polling, State vs. Harden. 1 Bail. 3 : Martin vs. Mave-
rick, 1 McC. 24 : State vs. Allen. 1 McC. 525. As to challenge in civil cases,
and misdemeanors, see 1841, 11 Stat. 154, State vs. Kleinback, 2 Speer, 418:
Cregier vs. Bunting, in Error. Charleston, January ISIS, 2 Strob.
d. 1839, 11 Stat. 33 $ 45."
RULES — SESSIONS, COMMON PLEAS AND LAW APPEALS. — 1S37. 39
law, passed the 20th August 1731, a he shall be amerced according to
the 17th and 25th sections of the said jury law. (Vide, 1802 R. 77.
1814 R. 66.)
38. After drawing every jury, the Clerk shall fold up the names of on^d°^ment
the jurors drawn, in paper, and indorse thereon, when they were arawn.
drawn, and for what term. b ( Vide, 1S02 R. 80. 1814 R. 68.)
39. If any juror, once impannelled, and sworn, shall refuse or ne- Negligent
gleet to attend punctually on the call of the pannel, every morning, the Jurors.
Clerk shall note such default ; and the defaulter shall be forthwith
served with a rule, to shew cause why he should not be fined for his
default. If upon the service of the rule, he shall fail to come immedi-
ately into Court, to make his excuse, or such excuse should appear to
the Court insufficient, such juror shall be fined according to law. c
(Vide, 1794. 1800 R. 39. 1S02 R. 70. 1814 R. 39.)
40. Within ten days after the adjournment of the Court, the Clerk Sci. Fa. agaiist
thereof shall issue to the Sheriff, d a writ in the nature of a scire facias defaulting in-
upon a recognizance, commanding him to summon each and every rors"
juror, noted for default at that Court, to shew cause, by affidavit, at ten
o'clock on the first day of the next term, why they should not be fined
according to law, for failing to attend and serve as grand or common
pleas and petit jurors, as the case may be. And the Sheriff of each
district, e upon the receipt of such writ, shall proceed to serve each
juror mentioned in the said writ, with a notice in writing, to appear
accordingly; which notice shall be either served personally, or left at
his usual place of residence. And on the day prescribed by law for
the return of such writs, the Sheriff shall regularly make return there-
of, and at the meeting of the Court, the Clerk shall deliver all these
writs to the Attorney-General, or Solicitor, who shall move the Court
for executions on the same, on the second day of the term, or before
the Court adjourns./ ( Vide, 1S02 R. 78. 1814 R. 67.)
AWARDS.
41. Upon the return of an award, or umpirage, a one day rule shall
be served upon the party, or his attorney, against whom the award, or , °. a C0D"
umpirage, shall have been made, to show cause why the same should aWard?
not be confirmed; and if the award or umpirage should be confirmed,
then judgment shall be entered thereon, and execution issued against
the body, or goods, of the party, in the same manner as if a judgment
had been obtained on verdict. (Vide, 1787, 1800 R. 40. 1S08 R. 96.
1814 R. 40.)
FORECLOSING MORTGAGES. «
42. In suits on bonds, or other papers, secured by mortgage of real
estate, the plaintiff shall obtain a judgment as in other cases : and if he
a. 3 Stat. 278.
b. 1839, 11 Stat. 74 § 12.
c 6 Stat. 291.
d* 1839, 11 Stat. 74 § 11.
e. 1839, 11 Stat. 34 o 45. Concerning exemptions from Jury duty ; State vs. Ingra-
ham, Cheves 78.
/. See additional rule, No. 93.
g. 1791, 5 Stat. 169 ; Durand vs. Isacks, 4 McC. 54 ; Williamson vs. Farrar, Carolina
Law J., 184, 195 ; same case, 2 Bail. 211.
40 RULES SESSIONS, COMMON PLEAS AND LAW APPEALS. 1837.
Suggestion for wishes to have a special order for the sale of the property mortgaged,
sale of mortg d kg siian at anytime pending the suit, or after judgment, file a sugees-
pi'cnnses. . jo* oo
tion, stating the time when, the parties hy, and to whom, and the con-
ditions upon which the same was made, and the description, buttings,
and boundings of the land, and such other particulars, as shall be ne-
cessary, to bring all the circumstances before the Court; and when this
is done, he shall serve on the defendant, a ten day rule, to shew cause
why such mortgaged estate should not be ordered to be sold, and upon
the return of that rule, he may move the Court for such order. (Vide,
1S00 R. 42. 1814 R. 43.)
Form of order 43. Orders for the sale of mortgaged property to effect a foreclosure
of sale. jn tjjjs Court, shall be to the following effect, viz : That if the defend-
ant shall not within pay to the plaintiff the full amount of
principal, interest, and costs, due by him, on that day, the Sheriff shall
proceed to sell the premises on a credit of months; the
titles to be signed, but not delivered, until the money be paid accord-
ing to the terms of the sale ; and if the amount of the purchase money
be not paid, when due, the Sheriff shall re-sell by virtue of the same
levy, on account of the former purchaser, for cash. (Vide, 1800 R.
43. 1814 R. 44.)
SHERIFF'S SALES.
Wheistobe 44. All Sheriffs' sales of lands, houses, and negroes, shall be made
held. at the Court-houses of the several districts ; and household furniture,
plantation utensils, carts, wagons, horses, cattle, and other personal
effects, shall be sold, at the discretion of the Sheriff, either at the res-
pective plantations, or places where seieed ; or at the nearest conveni-
ent public place thereto, which place shall always be mentioned in the
Sheriffs' advertisement. But all Sheriffs' sales in Georgetown shall be
made at the market. « (Vide, 1791, 1792 p. 9 and 10. 1800 R. 44.
1802 R. 85. 1814 R. 45 and 72.]
SURVEYS. b
s , 45. Surveys of lands in any quantity, of two hundred 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 an inch. (Vide, 1800 R. 59.
1814 R. 57.)
. T ri r 46. No survey, made under a rule of Court, shall be received in
survey. evidence, unless it appear, that, at least, fifteen days notice of the time
and place of commencing such survey, was given to the opposite party,
by the one who offers it in evidence. (Vide, 1802 R. 74. 1814 R. 58.)
Directions for 47. Every surveyor shall represent in his plat, as nearly as he can.
Surveyors. the different enclosures of the parties, and the extent, or boundaries,
within which each party may have exercised acts of ownership. (Vide,
1502 R. 75. 1814 R. 59.)
a. 1791, 7 Stat. 269, 276 : 1839, 11 Stat. 37 § 58 : See these Statutes, for the days
of sale, and mode of advertising : also, Turner vs. McCrea, 1 N. & McC. 11.
b. Underwood vs. Evans, 2 Bay, 437: Frean ads. Cruikshanks, 3 McC. 84: Thomas
& Aahby vs. Jeter & Abney, 1 Hill. 380: Huggins vs. Brewer, 2 Bail. 25 :
Screven vs. Heyward, Clievesll!'
RULES — SESSIONS, COMMON PLEAS AND LAW APPEALS. — 1837. 41
48. After a cause has gone to a jury, and any evidence has been Objections to
heard in it, neither party shall be allowed to make any objection to the ^7^! ^wj1
rule of survey, or the manner in which it may have have been obtained,
or the survey executed. « (Vide, 1802 R. 76. 1814 R. 60.)
COMMISSIONS.6
49. Upon every commission, returned by the post, one of the Com-
missioners who examined the witnesses, shall indorse and sign a certi-
ficate, that the same was lodged by him in the post-office. ( Vide, 1802
R. 84. 1814 R. 61.)
50. Commissions for examining witnesses, may be returned by post
when executed, provided they be sealed up, directed to the Clerk of
the Court from whence they issued, and deposited in the post-office by
one of the Commissioners. ( Vide, 1800 R. 60. 1814 R. 62.)
EXEMPLIFICATIONS.
51. It shall not be necessary, that the Clerk should swear to any Unnecessary
exemplifications certified from his office.0 {Vide, 1802 R. 86. 1814 tobeswornto.
R. 73.)
RULES.
52. Every Clerk and Sheriff, who cannot produce all the rules of ci'k & Sb'ft'to
Court, when required, "shall be fined ten dollars for such default. ( Vide, produce them.
1802 R. 87. 1814 R. 74.)
MOTIONS AT CHAMBERS.^
53. At Chambers, no motion for a rule to show cause, why any judg- Norice &c to
ment or execution, should not be set aside for irregularity, or other to be served on
cause, or why the proceedings upon any judgment, or execution, should the adverse
not be staid, shall ever be heard, unless the party intending to move party*
for it, shall have previously given to the adverse party reasonable no-
tice thereof, in writing, and shall also have served upon him, copies of
every affidavit, and office certificate, intended to be submitted to the
judge, so as to allow him sufficient time to answer the same by counter
affidavits, and certificates, if necessary : and the party about to make the
motion, shall prove, by sufficient affidavit, before he is heard, that he
has complied with every particular required by this rule. ( Vide, 1802
R. 90. 1814 R. 76.)
54. No motion of the nature of those mentioned in the last rule, shall Affidavit that
ever be heard at Chambers, unless it shall appear by a sufficient affi- mot^u could
davit, that the ground of such motion was unknown, or that it was never ope^Court? "*
in the party's power to have made the motion in open Court, during
any previous Court. (Vide, 1802 R. 91. 1814 R. 77.)
a. Barmore vs. Jay, 2 McC. 371.
b. 49th and 50th Rules repealed, and additional rule, 95, substituted.
e. 1800, 5 Stat. 381 § 4. 1731, 3 Stat. 285 § 40.
& 1818, 7 Stat. 321.
42 RULES SESSIONS, COMMON PLEAS AND LAW APPBALS. 1837.
ADMISSIONS.
..., 55. In the absence of any party, or his attorney, no admission shall
received. ^e received, in any case whatever, by the Court, unless such admission
be produced in writing, and filed, or proved, according to the rules of
. evidence. a (Vide, 1802 R. 92. 1814 R. 78.)
CONCERNING COUNSEL.
In the Appeal &6. Not more than two counsel shall be heard on the same side, in
Court. any cause, in the Appeal Court, except in criminal cases, affecting the
life of the party. ( Vide, 1814 R. 86. 1836 R. 11.)
*n|k?9" ^' ^* 51. Not more than two counsel shall be heard on the same side, in
any cause tried in the Circuit Court, nor shall any assistant counsel be
heard on the part of the prosecutors, in the Court of Sessions. Provi-
ded, however, that in capital criminal cases, the Court may, in its dis-
cretion, allow assistant counsel, on the part of the prosecution, on the
application of the Attorney-General, or Solicitor; and additional coun-
sel, on the part of the prisoner, on his application. (Vide, 1818 R. 91.)
CONSTABLES.
Their attend- 53^ >T;}ie Sheriff shall always have in attendance, as many constables
as the law requires, and shall provide a staff for each constable sum-
moned. Those who do not appear according to the summons, or shall
absent themselves from the Court, without leave, shall be proceeded
against, and fined in the manner prescribed in relation to jurors, unless
the Court think fit to proceed more summarily against them.6 (Vide,
1802 R. 81, 83. 1814 R. 69, 71.)
Clerk to keep 59# Every Clerk shall keep an accurate list of all the constables ap-
6tables pointed, placing their names in one column, and the dates of their qua-
lifications in another, and the time of their death or discharge, in
a third. c ( Vide 1802 R. 82. IS14 R. 70.)
MOTIONS AT THE CIRCUIT COURTS.
In writing and 60. Every motion made, for any rule, or order, shall be submitted to
6igned. the Court, in writing, by the counsel who makes it; and if granted by
the Court, shall be signed by the Judge, and delivered to the Clerk to
be entered on the minutes. d ( Vide, 1800 R. 57. 1814 R. 55.)
61. When the Court is open, and sitting, no rule or order shall be
Court open granted, or made, which can be obtained in course at the Clerk's
Rules & filing office, unless specially ordered by the Court ; nor shall any paper be
papers. fiXei [n Court, during the hours of the Court's being opened ; and every
rule or order made, and every filing of any paper, contrary to this rule,
shall be void. ( Vide, 1800 R. 51. 1814 R.51.)
Opening and 62. On all rules to show cause, the party called on shall begin and
reply. end his cause; and on all special matters, either springing out of a
cause, or otherwise, the actor, or party submitting a point to the Court,
shall, in like manner, begin and close ; and so shall the defendant, when
a. Dunklin vs. Whitlaw. 1 McC. -192.
b. 1741, 3 Stat. 586. 1816. 6 Stat. 29 0 2 : 1839. 11 Stat. 31 $ 25: 56 * 9: 74 § 14:
78 <j 31 : State vs. Williams, 2 Speer. 26.
r. 1839. il Stat. 73 <> 11: p. 55.
d. 1839. 11 Stat. 71 $ 8, ch. 1. '-.
RULES SESSIONS, COMMON PLEAS AND LAW APPEALS. 1837. 43
he admits the plaintiff's case, and takes upon himself the burthen of
the proof, have the like privilege." {Vide, 1S00 R. 55. 1814 R. 53.)
63. No attorney shall ever attempt to argue, or explain, a case, after Explanation
he has been fully heard, and the opinion of the Court has been fully terrtard:3-
pronounced, on pain of being considered in contempt. [Vide, 1800
R. 56. 1S14 R. 54.)
MISCELLANEOUS.
64. In all cases in which a party shall receive notice of appeal to Ex'on after
the Appeal Court, from the decision on the circuit, he shall have leave, notice of ap-
notwithstanding, to enter up his judgment, and lodge his execution to ^
bind property ; but if the motion in the Appeal Court be sustained,
then the judgment and execution, shall be wholly set aside. (Vide,
1800 R. 50. 1802 R. 66. 1814 R. 50.)
65. No defendant, in the Court of Sessions, shall be permitted to Affidavit of
submit any affidavit to the Court, which goes to. deny matters of fact, Def 'dt in the
after a verdict against him ; but he shall confine himself to matters in bessions-
extenuation, or mitigation only ; and these affidavits shall be filed, so
as to allow the Attorney-General, or Solicitor, a reasonable time to
answer them, or they shall not be heard. ( Vide, 1S00 R. 54. 1314
R. 52.)
66. No Clerk shall suffer a declaration to be taken out of his office, Declaration,
after it is filed, until issue be joined, or until an order for judgment be *£; ^ Clerk's
obtained. In the former case, the plaintiff shall be entitled to posses-
sion of the pleadings ; in the latter case, the party in whose favor the
judgment is entered; but either party shall be at liberty, at any time
to inspect the pleadings, and to take copies thereof. b (Vide, 1796
1800 R. 41. 1814 R. 41.)
67. If the plaintiff should not file his declaration before the first day
of the second term, after the return of the writ, he shall not be per- deckTTio °
mitted to file it afterwards, without obtaining leave to do so : and he
shall give four days notice to the adverse party, of the time and place,
when and where, he intends to move for leave, unless the motion is
made in open Court: in which case, one day's notice shall be deemed
sufficient.0 ( Vide, 175S R. 10. 1796. 1S00 R. 52. 1S14. R. 42.)
67. The Clerk of each Court shall keep a book, in which shall be p ,
entered the names of all persons who have been summoned as jurors,
or bound in recognizances, and have made default : and he shall note,
opposite to the name of the defaulter, whether he be fined or excused;
and if fined, the amount of the fine; or by whom, and when excused:
and the Clerk shall enter into this book, the amount of fines laid, or
incurred by law, by any other persons than those referred to in this
rule, with the names of such persons as are fined, or who incur them,
in a column, shewing when the fine was paid, or why, if not paid.d
(Vide, 1800 R. 58. 1802 R. 93. 1814 R. 56.)
a. Gray vs. Cottrell, 1 Hill, 38; Johnson vs. Wideman, Dud. 325; Hasoodvs. Cath-
cart, Rice, 262.
b. 1839, 11 Stat. 73 $ 9.
c. 1791, 7 Stat. 263 ; 1712, 2 Stat. 515; Bank of the State vs. Torre, 2 Speer, 501.
Perry vs. Aiken, 3 Rich. 61.
d. 1839, 11 Stat. 72 cl. 10.
44: RULES SESSIONS, COMMON PLEAS AND LAW APPEALS. 1837.
Copy of In- 68. A copy of the indictment in cases of felony, shall be obtained
dictment. ^y or(jer 0f t}ie JU(lge, before whom the case was brought, before an
action for malicious prosecution shall be commenced." (Vide, 1814:
R. 79.)
Party indicted, 69. No person shall be tried on an indictment, -unless personally
to be present, present, except for misdemeanors.4 (Vide, 1814 R. 80.)
Size of deck- 70. No declaration shall be filed, unless written crosswise on a
ration & other whole sheet of paper of the size of pro patria paper, and folded and
papeis. indorsed, according to established custom; nor shall any plea, demur-
rer, or other pleading be filed, unless written upon the declaration, or
upon, at least, a half sheet of paper of the same size. ( Vide, 1S02 R,
89. 1814 R. 75.)
Issues from 71. Where an issue has been directed from the Court of Equity, to
Equity, how be tried in the Court of Common Pleas, the Clerk of the Court shall
docketed. g[ye jt piace on the docket, from the time the application is made to
docket it, and not prefer it to other causes previously docketed. ( Vide,
1814 R. 87.)
Tenant sued, 72. When a tenant is sued for land, of which he is in possession, the
real owner real owner may enter himself on the proceedings, as the defendant in
may e en . ^e suit, and shall be entitled to make such defence, as if he had been
the original defendant in the action. c ( Vide, 1S14 R. 88.)
~ . . 73. In all cases, in which a new trial shall be ordered, the costs shall
(JostS 111 116W . •
trial cases. abide the event of the suit, except when there shall be given a special
direction respecting the costs. (Vide, 1818 R. 90.)
Security for 74. Whenever the plaintiff shall be required to give security for
costs, costs, the security shall be taken in the form following ; 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. d
STATE OF SOUTH-CAROLINA, )
District. )
■}
A. B
v. S- Debt or other action, as the case may be.
C. D
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, the defendant may have execution for his costs against me,
(or us, as the case may be.)
Given under hands, this day of ... . 18 . — .
E. F...., (F. G )
a. Taylor vs. Cooper, 2 Mills, C. R. 208 ; Mims vs. Burts, Id. 308 : Burton vs.
Watkins, 2 Hill, 674.
b. 1833, 7 Stat. 333.
c. Kennedy ads. Campbell, 3 Brev. 553 ; McKie vs. Garlington, 3 McC. 276 ; Evans
vs. Hinds, 2 Hill, 527 ; Crosby vs. Floyd, 2 Bail. 116.
d. 1839, 11 Stat. 77 § 22: Nolly vs. Squire, 1 Hill, 41 : Boyd vs. Graham, 2 Hill,
558; Bomar vs. Trail : Same vs. Williams, 1 Bail. 533 : McCollum vs. Massey,
2 Bail. 606 ; Craw ell vs. Littlefield, 2 Rich. .10, 17; Commissioners of Treasu-
ry vs. McKie, 1 N. & McC. 575 ; Dismukes vs. Dismukes, 1 McC. 552 ; Day
vs. Wilcox, 2 McC. 454.
RULES SESSIONS, COMMON PLEAS AND LAW APPEALS. 1S37. 45
ACTIONS ON SHERIFFS' BONDS.
75. After a judgment has been recovered on a Sheriff's bond, it shall After judgm't
stand as a security for any former or subsequent breach of it: and any once recover'd
one who may conceive himself aggrieved by the misconduct of the
Sheriff, shall have a right to come in, and suggest the breach of the
bond of which he complains, and pray execution for his damages ; and •
upon serving a thirty day rule upon the Sheriff, and Iris sureties, or such
of them as judgment had been rendered against in the first action, re-
quiring them to plead to the suggestion, shall, in default of such plea,
or upon issue joined, have his damages assessed by the verdict of a
jury, and have execution for the penalty to enforce the payment of the
damages assessed. a
BAIL BONDS.
76. Before any application shall be heard, on the part of bail, to Bail to have
have an exoneretur entered on his bail bond, on account of a variance an exoneretur
between the affidavit and the bail bond, he shall swear, that he was ig- oath>
norant.that the cause of action declared on, was the one intended to be
embraced in the affidavit ; that he executed the bail bond, believing the
cause of action was different from the one set out in the declaration;
and that he has sustained some prejudice or injury thereby. b
APPEAL COURT.
77. The party intending to appeal from a verdict, or any point of Notice of
law decided against him at the Circuit Court, shall, in proper person, Appeal,
or by his attorney, give notice in writing, of his motion, and of the
grounds thereof, to the other party, or his attorney, and the judge who
tried the cause, on the day next after the decision of the case. (Vide,
1794 R. 1. 1800 R. 45. 1814 R. 45. 1S36 R. 1.)
78. The Judge shall, as soon after the receipt of the notice as may
be convenient, make out a report of the facts, and the points of law Jcdge'3
involved in the case, with his opinion thereon, and state whether upon Repokt.
the facts he is, or is not, satisfied with the verdict, and deliver the same
to the appellant's attorney, or the Clerk of the Court of Appeals.0
(Vide, 1836 R. 2.)
79. When the report has been delivered to the appellant's attorney, -lyv. _ toije
he shall deposit the same with the Clerk of the Court of Appeals, be- deposited,
fore he will be allowe'd to docket his cause. ( Vide, 1833 R. 96. 1836
R. 3.)
80. The appellant at the hearing of the cause in the Court of Appeals, .
shall furnish to each of the Judges, who may sit to hear it, a copy of judcre°sPret>ort
the report of the Judge who tried it, written, or printed upon, at least,
a full sheet of pro patria papers ( Vide, 1800 R. 46. 1802 R. 65.
1814 R. 65 and 84. 1824 R. 93. 1836 R. 4.)
a. 1792, 7 Stat. 280 ; Treasurers vs. Munday, 3 Hill, 1C9 ; Treasurers vs. Bates, 2
Bail. 380 : Treasurers vs. Buckner, 2 McMul. 323 : Mulligan vs. Norton, Char-
leston, Jan. 1848, 2 Strob.
b. 1839, 11 Stat. 20 § 21; 78 §32; 7 Stat. 204 § 20; 294 § 6 : Rosenburg v. McKain,
3 Rich. 145; Vance vs. Findley, 1 N. & McC. 578 ; Spragella vs. Bruno, 1 Mills,
C. R. 280 ; Bennett vs. Brown, 1 Strob. 303: Ancruin vs. Sloan, 1 Rich. 421,
and cases cited in these.
c. 1824, 7 Stat. 325 § 3.
d. See additional Rules 89 and 92.
46 RULES— SESSIONS, COMMON PLEAS AND LAW APPEALS. — 1837.
Office copies 81. The appellant in a case, relying on an exception to the record,
rec ° shall procure, and bring up to the Court of Appeals, an office copy.
(Vide, 1814 R. 85. 1836 R. 5.)
Appeals when 82. All appeals shall be docketted the first term of the Appeal
docketed. Court, after they are decided, and on or before the sitting of the Court. °
( Vide, 1794 R. 2. 1836 R. 9.)
Copies of 83. In all cases wherein there shall be written testimony, or papers
papers. necessary to a correct understanding, and decision of it, it shall be the
duty of the appellant's attorney to bring up copies of the same. The
originals, except for the purpose of inspection, will not be received by
the Appeal Court 6 ( Vide, 1836 R. 12.)
Appeal 84. In Charleston, the Clerk shall make out a docket for country
dockets. causes, which shall be heard the first days of each term, and docketed
in the order in which they shall be handed to the Clerk. And those
from Charleston, shall be docketed in like manner, and be heard as
soon as the country causes shall be disposed of. In Columbia, all ap-
peals shall be placed on the same docket, and heard in the order in
which they are docketed.0 (Vide, 1836 R. 13.)
Cases submit- 85. No opinion in a cause submitted will be delivered, unless the
ted, when re- attorney furnish an argument in writing ; and when this rule is not
gardedasaban- complied with, the appeal will be considered as abandoned, and the
doned. cauge gtruck from the docket ( vide, 1836 R. 14.)
Examination 86. Petitions for admissions to the Bar, shall be presented on or be-
of Law Stu- fore the Monday of the second week of the term. And the examina-
dents. tjon 0f j-jjg applicants, shall be by a committee of the Bar, on such
heads as the Court may direct. The Clerks of the Appeal Court,
shall make out a copy of the docket for each of the Judges. d (Vide,
Res. H. R. 1788, ante p. 8. 1836 R. 15 & 16.)
Rules of C. C. • 87^ All cases not provided for in any of the foregoing rules, shall be
P. of Westmin- governed by the practice of the Court of Common Pleas at Westmin-
Bter- ster, so far as they are consistent with the laws of this State. e ( Vide,
1758 R. 24. 1800 R. 61. 1814 R. 81.)
Re al> 88. All rules, heretofore, adopted for the government of the practi-
clause; a ces of this Court, either in the Circuit, or in the Appeal Court, shall be,
and they are hereby repealed.
RICHARD G ANT T,
J. S. RICHARDSON,
JOHN BELTON O'NEALL,
JOSIAH J. EVANS,
B. J. EARLE,
A. P. BUTLER.
December 10, 1837.
a. 1342, 11 Stat. 222 § 5; 1843, 11 Stat. 254.
b. State vs. Williams, 1 Rich. 188.
c. 11 Stat. 222; 254.
d. 1812, 5 Stat. 677 ; see additional rules, 90 and 91.
e. Robertson vs. Shannon, 2 Strob.; 1824, 7 Stat. 326 ft 4 ; 1791, 262 § 4 ; 1789, 253 ;
1768, 199 $ 3; 203 $ 15 ; 1737, 190 $ 2 ; 1721, 169 $ 12 ; 173S, 5 Stat. 7S.
Sttrtrittons cmtr SUtc-raticms since 1837.
In the Law Court of Appeals, Columbia, May 1841.
89. It is ordered, after this term, that counsel appealing, furnish to Copies of Re-
each member of the Court, and the Reporter, at the call of the case, njgneci jU(jges
with a printed copy of the report containing the grounds of appeal. a and Reporter.
In the Law Court of Appeals, Charleston, February 16, 1842.
Present — Judges Richardson, O'Neall, Evans, Butler and Wardlaw.
The following rule was adopted :
90. Hereafter, no Student of Law shall be examined for admission, Qualifications
until he has attained the age of twenty one years. * . -^ V *
In the Law Court of Appeals, Charleston, March 2, 1842.
91. The Law Court of Apeals, for the purpose of ensuring a more Course of
thorough preparation on the part of the Students of Law, to be admit- Study,
ted to the Bar, recommend the following course of reading :
• 1. Blackstone's Commentaries.
2. Stephen's Pleading.
3. Phillips' Evidence. •
4. Chitty on Contracts.
5.. Hales' Pleas of the Crown.
6. Kent's Commentaries.
7. Chitty on Bills. .
8. Williams' Law of Executors.
9. Chitty's Pleadings.
10. Our own reports, read in connection with, and as illustrating,
enforcing or altering the principles contained in the above works.
11. The Constitution of this State and of the United States, the Sta-
tute Law, and more especially the following Acts :
1. The Act of distribution and its amendments.
2. The Statute of Frauds and Perjuries.
3. Acts in relation to Executors and Administrators.
4. Acts of Limitation.
5. Act of 1740 and other Acts relating to Slaves and Free Negroes.
6. Acts relating to Dower, Jointure, and the inheritance of mar-
ried women.
7. Acts relating to Joint Tenancy, Tenancy in Common, Coparce-
nary and Partition.
8. Acts' relating to Mortgages, Conveyances, and Recording.
9. Acts in relation to the Courts, to Process, Bail and Practice.
a. See Rule 80, page 45.
b. See Rule 86, page 46.
48 . RULES — SESSIONS, COMMON PLEAS AND LAW APPEALS.
10. The Insolvent Debtors and Prison Bounds Acts.
11. The Attachment Acts.
12. Acts relating to Wills.
13. Acts of 1839, in relation to Public Officers.
14. The Acts in relation to the power and duties of Magistrates and
Constables.
15. The Acts creating crimes, or changing the punishment of Com-
mon Law Offences.
16. The Militia and Patrol Law.
17. The Fee Bill, and Acts relating to costs.
IS. The Act of 1825 in relation to the power and duties of the Com-
sioners of Roads and the amendments since passed.
19. Statute 3 and 4 Anne, and the Act of '98 in relation to Bonds
and unnegotiable Notes.
20. The Statutes and Acts regulating Distress, Replevin, and rela-
ting to Landlords and Lessors.
21. Statutes of Forcible Entry and Detainer.
22. Statute 31. Ch. 2, c. 2, commonly called the Habeas Corpus Act.
23. Statutes of Jeofail.
24. Acts relating to Juries and Jurors.
25. Acts relating to locating'and granting lands, to Caveats, to the
evidence in actions to try titles to land, and to the action of Trespass
to try Titles.
26. The Acts on the subject of Apprentices.
27. The Tax Act of 17S8, and the amendments since passed.
It will be expected that the above course will be read and reviewed/
and a certificate of some attorney to that effect will be required to be
filed with the petition.
The Students will be examined on the above.
The Clerk at Charleston will communicate the foregoing to the Clerk at Columbia,
and they will respectively give notice forthwith in the papers published in Charleston
and Columbia. By the Court,
THOS. J. GANTT, C. C. A.
Original Re-
port to be pro- produced,
duced.
Charleston, 29th January 1845.
Present — Judges Richardson, O'Neal!, Evans, Butler, Wardlaw and
Frost.
92. No case will be hereafter heard, until the original report be
Charleston, Tuesday 11th February 1845.
[It having been unanimously decided, hi the case of the State vs. Bennett Dozier, 2
Speere, 211, that a venire for the jury, could only legally issue under the seal of the
Court, and now, at this term, the Court finds the said decision has not been generally
known or conformed to, and that many venires may have issued unsealed : It is there-
fore ordered, that the Clerks of the several Courts of the General Sessions of the Peace
and Common Pleas in the respective judicial districts of this State, (if any of them, may
have issued, without the seal of the Court, venires to (he approaching terms of their res-
pective Courts,) do forthwith seal the said venires, and thereupon, that the Sheriffs res-
pectively do resummon the jurors who may have been summoned before the said writs
were sealed ; and that]
a. See Rule 80, page 45.
ALTERATIONS AND ADDITIONS SINCE 1837. 49
93. Hereafter, no Clerk shall issue any venire, until the seal of the Seal to Venire.
Court shall be affixed thereto; and on the first day of each term, or of
each week, where the term consists of more than a week, the Clerk
shall produce to the Judge presiding, the venires for the term, or for
that week, and if they, or any of them, are not under the seal of the
Court, in such case the Clerk shall be fined at the discretion of the
Judge so presiding, <*
J. S. RICHARDSON,
JOHN BELTON O'NEALL,
JOSIAH J. EVANS,
A. P. BUTLER,
D. L. WARDLAW,
EDWARD FROST.
Payment of money into Court. Columbia, December 1845,
94. It is ordered, That every order for payment of money into Order for pay-
Court, whether so expressed or not, be understood to be made, onmeut0^m0Hey
condition that the party desiring to make the payment procure the
taxation of costs up' to the time of payment, and pay all such costs,
including the Clerk's commissions; and that the Clerk give no receipt
for the sum ordered to be paid in, until all such costs be paid to him,
or to the persons entitled to receive the same ; and that, if the plaintiff
should take the money out of Court, before final determination of the
suit has been ordered, the Clerk shall, in the receipt to be taken for
the money, require such plaintiff to say, for information of the defend-
ant, whether he accepts the money in full discharge of the action, or
takes it with the intention of proceeding further. 6
In the Court of Appeals, Columbia, Spring Sittings 1846.
rdered, That the 49th and 50th Rules of Court, be rescinded, and insteac
allowing rule be adopted :
95. Commissions for the examination of witnesses, when executed,
may be returned by mail; provided they be sealed up, and directed to ommisslons'
the Clerk of the Court from which they issued; and that upon the en-
velope shall appear the names of the Commissioners, written by them-
selves across the seals, and the proper postmark, c
J. S. RICHARDSON, Presiding Judge.
a. See State vs. Voss, 1 Rich. 188.
b. See Broughton vs. Richardson, 2 Rich. 64, and cases there cited. Mazyck vs.
McEwen, 2 Bail. 23.
c. 1839, 11 Stat. 75 § 17; 2 Rich. 527. Concerning the Clerk's duty in granting
commissions, and of the service of the interrogatories, see Gooday ys. Corlies,-
1 Strob. 201 ; Dogan vs. Ashby, Id. 436.
G
Euks arte ©raers of tt}e (tort of Gfytritg,
FROM 1791 TO 1300; SINCE SUPERSEDED.
1. No subpoena or other process for appearance, shall issue (except in cases to stay
waste) till after the bill is filed.
2. Subpceuas shall be served personally, or left with one of the family at the place of
abode of the person to whom directed. *
3. There shall be twelve days between the test and return of subpoenas ad responden-
dum, except the defendant lives within ten miles of the place in the district where the
Court is to be held, and then it is to be returnable immediately.
4; Upon the day of the return of the subpoena the defendant shall appear, by his soli-
citor, in case he was served with the said subpoena, eight days before the return : if not,
that then he shall appear within eight days after the serving the subpoena, except, as is
before excepted, where he shall appear immediately.
5. In case the defendant do appear, he shall constitute a solicitor to appear and act for
him, so far as a solicitor can or may lawfully act, during the continuance of the suit, and
file the'warrant, or order, to appear for him iri the Register's office.
6. In case the complainant be out of this State, ana sueth by attorney, then security
shall be given by such attorney, for payment of costs, in case the suit be dismissed be-
fore a writ of subpoena ad respondendum be granted.
7. The defendant appearing, shall put in his plea, or demurrer, or answer within fif-
teen days, except he shew good cause to the contrary ; otherwise, an attachment to
be granted against him, provided he can then have a copy of the bill ; otherwise, within
fifteen days after he hath procured a copy of the bill.
8. Where the defendant doth wilfully refuse to answer, and stand out all process of
contempt, the Court will take the matter pro confes^o, and decree; the defendant hav-
ing before appeared, or being in custody.
9. The defendant being served with process to answer, by advice of counsel, upon
sight of the bill, maybe enabled to demur thereunto, if there be cause, or may put in a
just plea.
10. Every demurrer shall express the several causes of demurrer, and shall be deter-
mined in open Court.
11. If upon any slip or mistake in the bill, the plaintiff, upon motion before the Master
in Equity, (within eight days after the demurrer put in and not after that time) may
amend the bill, upon payment of costs.
12. If the demurrer be admitted by the plaintiff to be good, within eight days after
the filing of it, and he doth pay the defendant, or his solicitor cost?, then the bill shall
stand dismissed of course, without motion, unless both sides agree to the amendment of
the same ; but such dismission is no bar to a new bill to be exhibited by the plaintiff.
13. In case the plea, or demurrer be allowed, the complainant's bill shall be dismiss-
ed with costs : and if the defendant's plea or demurrer be overruled, the defendant shall
pay costs, and not be admitted to ptn in his answer till the said costs are paid.
14. If the defendant plead that there is another suit depending for that very cause, or
that the cause has been formally dismissed, and the dismission signed and enrolled in
the Court of Equity, if the plaintiff be not satisfied therewith, the same shall be referred
to the Master in Equity ; and if it be determined against the plaintiff, he shall pay costs
to the defendant: but such reference must be procured by the plaintiff, and a report
thereupon, within one month after filing such plea, otherwise the bill to be dismissed of
course, with costs.
15. All pleas, but matter of record, must be upon oath.
16. Where the plaintiff conceived the plea for matter of manner nought, he may put
it to the judgment of the Court, if he signify the same to the defendant, or his solicitor,
within six days after filing the plea.
RULES AND ORDERS OF THE COURT OF EQUITY 1791 TO 1800. 51
17. Upon the plea or demurrer being overruled, a new subpoena shall be granted, for
the defndant to put in his answer in ten days, or otherwise an attachment to be granted.
18. If the defendant appear by solicitor, upon affidavit made, that the defendant is
not able to travel, for answering the same cause personally in equity, by reason of ex-
treme old age, or other infirmities, or reasonable cause, then a commission shall be
granted to two or more gentlemen of credit, to receive and certify his answer.
19. An answer to a matter charged as a defendant's own act, must regularly be with-
out saying to his remembrance, or as he believeth, if it be said to be done within seven
years before, unless the Court, upon the exception taken, shall find special cause to dis-
pense with so positive an answer ; and if the defendant deny the fact, he must traverse
or deny it, as the cause requires, directly, and not by way of negative pregnant : as if
he be charged with a receipt of a sum of money, he must traverse or deny that he hatli
not received that sum , or any part thereof, or else set forth what part he hath received :
and if the fact be said to be done with divers circumstances, the defendant must not de-
ny or traverse hterally, as it is laid in the bill, but must answer the point of substance
positively and certainly.
20. If the answer be good to common inteut, the plaintiff must reply, and prove the
matter if he can, and not stand upon the insufficiency of the answer.
21. In case the answer is imperfect, the complainant in eight days after he can pro-
cure a copy of the answer, shall put in his exceptions, otherwise none to be admitted
without a particular order of the Court, if sitting, or the Master or Commissioner in
Equity, in case the Court is not sitting.
22. If the defendant shall fail to amend his answer, the exceptions, within eight days
after the filing thereof, shall be heard before the Master or Commissioner in Equity.
23. The insufficiency appearing on the exceptions to be insisted on, and no new ex-
ceptions tc be put in.
24. If the answer be certified insufficient, the defendant is to pay costs : and the de-
fendant's second answer is not to be received till he hath paid the costs ; but the defen-
dant may have liberty to appeal from the report of the Master to the Court.
25. If the second answer be reported insufficient to any of the points before certified
(for the report must specify the point upon the exceptions wherein the answer is defec-
tive) the defendant shall pay, for every insufficient answer, such costs as may be taxed,
and may be examined upon interrogatories to the point or points reported insufficient :
and shall be committed until he hath perfectly answered the interrogatories, and paid
the costs.
26. The plaintiff may have a subpoena fcr costs, and another for a better answer upon
any of those insufficiencies.
27. If the answer be reported good, the plaintiff .hall pay the defendant's costs.
28. Upon a subpoena for costs, and he make a better answer, the costs are to be paid
on the service, and the defendant to appear on the subpoena, and answer as in the first
subpoena, but upon rep t upon a second insufficient answer in eight days, without fur-
ther service, and if he does net answer in the time, an attachment issues as it" he had been
served.
29. If either party appeal from the Masters report, as they may do in all the said cases
against the appealer, he shall pay such costs as shall be taxed.
30. Where the plain dff finds sufficient cause for an order, or decree, upon the answer
alone, he may go to hearing upon bill, and answer only, provided he, or his solicitor,
signify his intentions so to do, aud give notice, in writing of the same to the defendant,
or his solicitor, twelve days before the sitting of the next Court of Equity.
31. In such case the answer is to be admitted true in all points; and no evidence is to
be admitted unless it be matter of record to which the answer refers, and is proveable
by the record.
32. If the Court shall not find ground to make a decree, the bill shall be dismissed with
costs.
33. When a commission to examine witnesses is required, the complainant's solicitor
may, within six days after the pleadings are complete, move the Master or Commission-
er in Equity for a commission, giving the defendant, or his solicitor, notice thereof in
writing, one day before ; and in case the defendant do not, within six days after such mo-
tion made, (he or his solicitor, being served with a copy thereof at any time within two
days before the expiration of the said six days,) come and join in a commission to exam-
ine witnesses then a commission shall be granted to the plainthTexparte.
34. Incase an issue be joined, and the plaintiff and defendant join in commission, there
shall be four Commissioners.
35. The plaintiff shall name four, and the defendant four; out of each of which the
Court, if then sitting, or otherwise the Master in Equity, shall take two from each no.
urination,
52 RULES AND ORDERS OF THE COURT OF EQUITY 1791 TO 1800,
36. The complainant must name one Commissioner, unto whom the defendant may
give general exceptions ; the defendant to name the second, the complainant the third,
and the defendant the fourth.
37. When both the plaintiff and defendant have examined what witnesses they please,
then either of them may give the other, or his solicitor, a rule for publication, within one
week ; which being expired, and no cause shewn to the contrary, then publication is
granted by the Master iu Equity ; or else publication may pass by consent, the solicitors
on both sides setting their hands to each consent.
38. No witnesses to be examined after publication, without special order of the Court.
39. If the plaintiff appears not, the defendant is to be dismissed with costs, except-
ing the Court shall think fit to allow him a longer time ; but such dismission shall not be
a plea, hi bar of a new bill, but a second shall.
40. If the defendant doth not appear, the bill and answer, &c. shall be read. If the
Court, upon hearing, shall find cause to decree for the plaintiff, yet a day shall be given
for the defendant to shew cause against the same ; but before he be admitted thereunto,
he shall pay down to the plaintiff, or his solicitor, such costs as the Court, upon hearing
shall assess; and the order shall be penned by the Register accordingly, viz : It is de-
creed, &c, unless the defendant shall pay to the plaintiff, or his solicitor, in Court, the
costs, or shew cause to the contrary ; and the defendant shall likewise produce a certi-
ficate from the plaintiff's solicitor, in Court, that he hath paid the costs, or affidavit of
tender and refusal.
41. Where either party are not satisfied with the order made on healing, on petition
signed by counsel, that shews cause, the Court will re-hear.
42. Such petition to be preferred at any time within three days' after the making of
such order upon hearing.
43. Within eight days after making the decree, or the dismission of the suit, the de-
cree shall be fairly drawn up, and presented to the Judges to be signed, and after that
enrolled.
44. Where the cause is dismissed upon a full hearing, the decree signed and enrolled,
it cannot be again retained, or a new bill admitted, but where there is new matter.
45. The decree enrolled, and the party served with the same, by delivering a copy of
the same attested by the Register, if he do not yield obedience to the 6ame, an attach-
ment shall be granted against him, or such other process as is allowed by the law.
46. The party being taken, is to be straitly imprisoned, and not to be at liberty till
he obey, viz : that he perform that part of the decree which is presently to be done,
and give security to perform that part which is to be done for the future.
47. Where the decree is for the payment of a sum of money it must be demanded by
the plaintiff himself ; or he that served .it must have a letter of attorney to receive it.
43. No bill of review shall be put in, except the party that prefers it enters into re-
cognizance, with sureties, for satisfying of costs and damages for delay, if it be found
against him. No bill of review is grantable, but upon error in law appearing in the bo-
dy of the decree itself, without averment, or further examination of any matter of fact,
which misfht have been had at the time of the decree, unless he there shew new matter
which had risen in time after the decree, whereof the plaintiff could not have advantage
. before ; and then, upon oath made that there is a discovery of such new matters, the bill
of review by leave of the Court, may be exhibited.
49. The bill of review shall not be granted, unless the decree be first obeyed and
, performed.
50. Where the decree is to deliver writings, or pay money, he must perform this, ex-
cepting by special order of the Court, security shall be ordered to be taken instead of an
actual performance of the same, till the bill of review be determined.
51. No witnesses, which either were or might have been examined upon the former
bill, shall, upon the bill of review, be examined to any matter, uuless the Court shall
provide otherwise, by particular motion, upon oath made, that there is a discovery of
60me new matter upon which such witnesses can give evidence.
52. The Master or Commissioner, in all matters referred to them, having heard both
parties on the subject so referred, and prepared his report, shall issue a summons for
them, or their solicitor, to attend and peruse his report, and take a copy of it; and if
either party is dissatisfied therewith, he shall, within six days after such attendance,
bring in a note, in writing, of his exceptions thereto, and take out a summons to be heard
thereon ; a copy of which he shall serve on the adverse party, or his solicitor, at least
one day before hearing ; and the Master or Commissioner, shall then settle and finish his
report as he shall think just and equitable.
53. No exceptions to the Master's or Commissioner's report will be heard by the
Court, until they have been previously argued before him.
SINCE SUPERSEDED. 53
54. The injunction to stay proceedings at law. must be served either on the party
himself, his counsel, or solicitor, as the cause requires, and afterwards filed in the office
of the Clerk of the Court of Common Fleas.
55. The first and last days of the term are appointed for hearing motions generally,
on which davs no causes will be heard; but motions of course may be made any day in
term, at the rising of the Court after the causes are heard.
56. The Register snail not set down any cause for hearing before the pleadings are
completed and filed in his office ; and all causes shall he entered with the Register ten
days (exclusive of Sundays) previous to the first day of each term.
57 The Register shall send to each of the Judges a docket of the causes entered with
him, nine davs before the first day of the term.
58. The second day of the term the Court will proceed to call the docket, and will sit
to hear such causes as may be then ready : those wherein the parties are not prepared
at the second call of the docket will remain over to the next term.
59. Briefs are to be delivered at the Judge's Chambers, for causes to be heard at
Charleston, three days (exclusive of Sundays) before the first day of tenn; and for cau-
ses to be heard in the upper districts, briefs are to be left with* the Registers of the
respective districts within the time above mentioned.
60. No cause will be heard unless entered with the Register, and briefs are delivered
agreeably to the foregoing rales.
61 . That the two inner benches of the Court be reserved for the elder practitioners of
the bar ; the second bench on the right or south side, to be occupied by the younger
practitioners; and the two outer benches on the north side, by the students of the law.
The gentlemen of the bar to take their seats according to seniority of the dates of their
respective admissions.
September Term 1791. -,
62. That the grounds of such rhotions as are appointed to be heard on the first and
last days of the tenn, shall be reduced to writing by the party, or his solicitor, intending
to make the same ; a copy of which shall be served on the adverse party, or his solicitor,
four days before the first day of the term.
June Term 1792.
63. That all executions, in future, shall be returnable on the first day of the term.
March Term 1796.
64. That gowns, bands and black coats, be the habit of the term, and that no gentle-
man be permitted to address the Court, unless he appears in his own gown.
JOHN NELTYILLE, Jan., Register in Equity.
May Term 1800.
Bales of tl)c Court of tEquitg,
ESTABLISHED BY ORDER OF THE JUDGES. MARCH 1810 & AFTERWARDS :
NOW OF FORCE.
SrBPCEXAs : 1- ^o subpoena or other process for appearance shall issue, (except
to stay waste) till after the bill is filed.
2. All subpoenas ad respondendum, shall be served personally, or
How served where the defendant cannot be found, but is within the State, by leav-
ing a true copy of the writ at the dwelling house, or most usual and
notorious place of residence or habitation, of the person to whom di-
rected. a
. 3. In case the defendant do appear, he shall constitute a solicitor to
Appearance. , -i , . _ «** » .
appear and act lor him, so tar as a solicitor can or may lawfully act,
during the continuance of the suit, and file the warrant of order to ap-
pear for him in the Register's office.
4. In case the complainant reside out of the State, the defendant
Security for may, at any time after the service of the subpoena, obtain an order for
C03ts- the complainant to put in security for costs, before the master or com-
missioner ; and if such security be not put in within thirtv days after
the service of such order on the complainant's solicitor, the bill shall
stand dismissed, unless the Master or Commissioner, on cause shewn,
shall grant further time.
Demurrer. 5. Every demurrer shall express the several causes of demurrer, and
shall be determined in open Court.
6. Upon any slip or mistake in the bill, the plaintiff, on motion before
Amendment the Master or Commissioner, may, (within thirty days after demurrer
put in, and notice thereof,) amend, on payment of costs.
P)e , gj 7. If the demurrer be admitted by the plaintiff to be good within
mitted <^ood by thirty days after filing it, and he doth pay the defendant, or his solici-
PlaintifT. tor, the costs, then the bill shall be dismissed of c*ourse, without mo-
tion ; unless both sides agree to the amendment of the same : but
•such dismission is no bar to a new bill to be exhibited by the plaintiff.
Demurrer al- $. In case the plea or demurrer be allowed, the complainant's bill
lowed, shall be dismissed with costs ; and if the defendant's plea or demurrer
Overruled. De overruled, the defendant shall pay costs.
9. If the defendant plead that there is another suit depending for that
Peao anoth r yery. cauS6) or th it the cause had been formerly dismissed, and the
° dismission signed and enrolled in the Court of Equity, if the plaintiff
be not satisfied therewith, the same shall be referred to the Master or
Commissioner in Equity ; and if it be determined against the plaintiff,
a. Southern S. P. Company vs. Roger. Cheves. Ch. R. 48.
■
RULES OF THE COURT OF EQUITY. 55
he shall pay costs to the defendant ; but such reference must be pro-
cured by the plaintiff, and a report thereon, within thirty days after
filing such plea, otherwise the bill to be dismissed, of course.
10. Pleas to the jurisdiction, and pleas of any matter of record, or of p, ,
matters recorded in this Court, need not be upon oath : but pleas in bar ^e on'0ath.
founded on matters in pais, are to be on oath.
11. Upon demurrer being overruled, the defendant shall pay costs, n f d t
and put in plea or answer, within thirty days thereafter; in like man- wnen to pay
ner, if a plea be overruled, the defendant shall pay costs, and put in costs.
an answer within the same time ; and in like manner,. if a defendant on
exception taken, be ordered to make a better answer, he shall pay
costs, and put in his amended answer within the same time ; otherwise
in such cases, an attachment shall be granted, or the bill be taken pro
fesso, at the election of the complainant; unless in either case further
time be obtained according to the 13th section of the Act of Assembly,
passed in December 1808.
12. If the defendant appears by solicitor, upon affidavit made, that Commission to
such defendant is absent from the State, then a commission shall be take answer,
granted, by the Register or Commissioner, directed to two or more
persons of credit to take and certify the answer ; and the form of the
oath 6hall be endorsed on the answer, be subscribed by the defendant,
and be certified by the Commissioner, as having been subscribed and
sworn; and where the defendant shall reside within the State, and
shall have appeared as aforesaid, he shall be at liberty to swear to his
plea or answer, before any Judge or Justice of the Peace of this State,
and the form of the oath shall be endorsed on the answer or plea, be
subscribed by the defendant, and be certified as aforesaid, by such
Judge or Justice of the Peace; and where it may be necessary that
any bill or petition be sworn to, the same may be sworn to, certified
in the same manner.
13. An answer, charged as a defendant's own act, must be without Answer as to
saying to his remembrance, or as he believeth, if laid to be done five Deit's own act.
years before, unless the Court upon exception taken, shall find special
cause to dispense with so positive an answer : and if he deny the fact,
he must traverse or deny it directly, and not by way of negative preg-
nant.
14. In case the answer is imperfect, the complainant in thirty days j f .
after he can procure a copy of the answer, shall put in his exceptions : Answer.
otherwise, none to be admitted, without a particular order of the Court,
if sitting, or the Master or Commissioner in Equity in case the Court
is not sitting; but, in cases of injunction, or ne exeat, the Court on
cause shewn, may require exceptions to be filed within a shorter period.
15. If the defendant shall fail to amend his answer, the exceptions Exceptions
within fifteen days after filing thereof, and notice to the defendant, when heard,
shall be heard before the Master or Commissioner in Equity.
16. The exceptions taken and specified, to be alone insisted on, Nonewexcep-
, r . . r ' tions allowed.
and no new exceptions put in.
17. If the answer be certified insufficient, the defendant is to pay Answerinsuffi-
costs ; but the defendant may have liberty to appeal from the report cient> Deft, to
of the Master to the Court. Pa? costs-
18. If the answer be reported good, the plaintiff shall pay the de-gufficient p,g
fendant's costs. to pay costs.
56 RULES OF THE COURT OF EQUITY,
Commission to 19. The complainant upon bill filed, and thirty days after subpoena
examine Wit- SGVye^ aml defendant on plea or answer filed, may obtain a commis-
sion to examine witnesses, resident out of the State, on application to
the Register or Commissioner, giving ten days notice thereof to the op-
posite party, and serving him at the same time with a copy of the inter-
rogatories to be annexed; and if he does not put in cross-interrogato-
ries before the expiration of that time, a commission shall be granted
to the party applicant exparte : there shall be four commissioners, two
to be named by each party, unless the opposite party shall not join in
the commission, .in which case they shall be named exparte, by the ap-
plicant, and the commission may be executed by any two or more of
them. a
2Q. Witnesses unable to travel from age, sickness, or infirmity, may
Aged cfcinfirmbe examined by commission, if ordered by a Judge or Commissioner,
on motion and affidavit ; the applicant giving the same notice, and ta-
king out his commission in other respects, as prescribed by the prece-
ding rule. b
21. Commissions, when executed, shall be sealed up by the corn-
Sealing, &c. of missioners, who shall execute the same, and directed to the Register
Commissions or Commissioner of the Court from whence they issue, and shall not
be opened, but on motion in open Court, or by consent of parties in
writing.
22. If the plaintiff shall fail to appear and prosecute his suit, the bill
Bill when dis- sna^ De dismissed, unless the Court, on cause shewn, shall allow him
missed, further time ; such dismissal, however, shall not be a plea in bar to a
new bill, but a second shall.
23. If the defendant shall not appear and defend the suit, the bill
Deft omitting and answer shall be read ; if the Court, upon hearing, shal} find cause
to appear and to (\ecree for the plaintiff, yet a day shall be given for the defendant to
shew cause against the same ; but before he be admitted thereunto, he
shall submit to such conditions as the Court shall see fit to impose.0
Decrees when "^' Decrees may be enrolled at any time, not exceeding twelve
to be enrolled, months, after they shall be pronounced ; unless by special order of the
Court.
25. No execution or attachment for the enforcement of a decree,
Execution, shall issue, until thirty days after the rising of the Court, during which
when to issue. suc}-, decree was pronounced; and if there be an appeal, then such
execution or attachment shall not issue until thirty days after the ad-
journment of the Court of Appeals, at which the cause shall be deter-
mined, and all executions shall be returnable on the first day of the
term, next after the same shall issue : unless otherwise ordered by the
Court,
•c .. 26. (for Charleston.) The Master or Commissioner in all cases
Exceptions to n „ V , ' , , . in- r l
Master's Re- °f reference, having prepared his report, shall issue a summons for the
port. parties to attend him and peruse the same. And if either party is
(Charleston.) dissatisfied therewith, he shall within ten days after the time fixed for
attendance, state his exceptions in writing, and take out a summons to
be heard thereon ; a copy of which, he shall serve on the adverse par-
j
a. 1840,11 Stat. 115 § 21.
b. 1340, 11 Stat. 111$ 10, 11. '
c. Southern S. P. Company vs. Roger, Cheves Ch. R. 53.
MARCH 1810 AND AFTERWARDS : NOW OP FORCE. -")7
ty, or his solicitor, at least three days before such hearing : and the
Master or Commissioner shall, thereon, finally determine and report. a
27. (for the country.) On the Circuit, notice of all reports made Exceptions to
in vacation, shall be served on the parties, or their solicitors, on or be- Mastei srePort
p. , ~ ' ■, ™ , v ,' , ,. . ~ -. , (country:)
tore the first day ot the next term : and the party dissatished there-
with, shall file his exceptions, and give notice thereof, on or before the
second day of the same term. Notices of all reports in term time,
shall be immediately served on the parties or their solicitors : and the
party dissatisfied therewith, shall, within one day after such notice, file
his exceptions : that in all cases where such exceptions are filed, and
notice given, the Commissioners shall immediately proceed to hear,
and thereon finally determine, unless he shall allow further time.
28. The injunction to stay proceedings at law, must be served either Iujunction to
on the party himself, his counsel or solicitor, as the cause requires, °f S!?rved ancl
and afterwards filed in the office of the Clerk of the Court of Common
Pleas.
29. All causes shall be docketed ten days before the- meeting of the Docket.
Court; and no cause shall be docketed, until the pleadings are com-
plete, and filed.
30. (for Charleston.) Briefs shall be served with the Registers of Briefs,
the respective Circuit Courts, and Courts of Appeal, three days before (Charleston.)
the meeting of the Courts; and no cause will be heard, unless briefs
are so delivered.
31. (for the country.) On the Circuit, all briefs shall be served, Id. (country.)
on or before the meeting of the Court.
32. A decree being fully performed, the party satisfied, shall, on Satisfaction of
application made to him, enter satisfaction in a book to be kept for Decrees-
that purpose, by the Register or Commissioner, and on the enrolled
decree, (if the same be enrolled,) and the Register or Commissioner
shall grant certificates of satisfaction on application therefor.
33. When the bill or petition is dismissed, the costs shall be paid by costs.
the complainant; when sustained, by the defendant, unless otherwise
ordered by the Court: the party, in either case, entitled thereto, may
have an attachment or execution for enforcing payment thereof. *
34. Sundays are to be included in all the calculation of time under Time, how
the preceding rules. computed.
35. (for Charleston.) The bill being taken pro confesso, the or-
der therefor, can only be set aside where the defendant shall save 'en taken pro
7 •/ o conlcsso order
days written notice in Charleston, prior to the ensuing term, of his in- therefor' how
tention to apply for the same, on the firsi day of such term, and shall set aside, &c.
have previously filed, or on making the application, shall produce a (Charleston.)
full and explicit answer or plea, with a brief for the Court, and shall
docket the cause for hearing, at the said term, and submit to any fur-
ther conditions the Court may impose. If complainant be dissatisfied
with the answer, he may, within ten days, tender exceptions, and if on
reference thereof, the answer shall be adjudged insufficient, the bill
shall be absolutely ordered to be taken pro confesso. But in making
a final decree, where a bill has been taken pro confesso, the Court will
require such proofs as shall satisfy it of the justice of the complainant's
<z. Ad. of Foote v. Van Ranst, 1 Hill C. R. 185.
b. Caston va- Perry, Bail. Eq. R. 96.
H
58 RULES OF THE COURT OF EQUITY.
demand ; and the defendant may be heard touching the merits bo dis-
closed, and may take advantage of any matter which would have been
good cause of demurrer, but not of such as ought to have been present-
ed by plea or answer. "
Bills taken pro 36. (for the country.) The bill being taken pro confesso, the
therefor' how orc'er therefor can be set aside, only where the defendant shall apply
set aside, &c. for the same on the first day of the meeting of the Court, and shall have
(country.) previously filed, or, on making such application, shall produce a full
and explicit answer or plea, with a brief. for the Court, and shall dock-
et the cause for hearing, at such Court, and submit to any further con-
ditions the Court may impose. — If the complainant be dissatisfied with
such answer, he shall forthwith file exceptions, and if, on reference
thereof, the answer shall be adjudged insufficient, the bill shall be ab-
solutely ordered to betaken pro confesso, as to the points not satisfac-
torily answered, unless otherwise ordered by the Court; but in making
a final decree, where a bill has been taken pro confesso, the Court will
require such proofs as shall satisfy it of the justice of the complainant's
demand, and the defendant may be heard touching the merits so dis-
closed, and may take advantage of any matter which would have been
good cause of demurrer, but not of such as ought to have been present-
ed by plea or answer.
Book of 37. The Register and Commissioners of the respective Courts, shall
Reports. keep books in which they shall cause to be transcribed all reports
made to the Court, as soon as the same shall be confirmed.
Cases, when 38. No cause shall be continued on the docket for a longer time, or
cont'd on dkt. on other terms than those prescribed by law.
39 Gowns arid black coats shall be the habit of the bar, and no
Dress. member thereof shall be permitted to address the Court, unless in such
. habit. *
20th March 1810.
cases.
In the Court of Appeals — Fall Term 1810.
Costs in appeal 40. In all cases brought up to the Court of Appeals, costs may be
directed to be paid by either the complainants or defendants,0 as the
Court shall see fit, notwithstanding the decree or order of the Circuit
Judge respecting them, should not be made a ground of appeal.
a. Southern S. P. Company v. Roger, Cheves, Cli. R. 53.
b. See various rules and regulations for the proceedings in the Court of Equity, in
different acts of the Legislature, respecting that Court ; and particularly the 12th, 13th,
14th, 15th, lo'th and 17th sections of the act of December 1803.
c. The rule of the Court of Chancery, as to supplementary bills, and bills in
nature of bills of review, made by Lord « Chancellor Hardwicke, is to be found in 2d
vol. of Atkins, p. 139, in a note : — "-The 17tli of October 1741, Lord Hardwicke made
the following order : That no supplemental or new bill, in nature of a bill of review,
grounded upon any new matter discovered, or pretended to be discovered, since the
pronouncing of any decree of ibis Court, in 0 der to the reversing or varying of such de-
cree, shall be exhibited without the special leave of the Court first obtained for that
purpose; and unless the parly, exhibiting the same, do first deposit with the Register
of this Court, so much money, as together with the deposit, by the rules of this Court
to be made, on obtaining a re-hearing of the cause wherein such decree was pronounced,
will make up the sum of fifiy pounds, as a pledge to answer such costs and damages as
shall be awarded to the adverse party, in case the Court shall think fit to award any, at
the hearing of the cause on such supplemental or new bill."
MARCH 1810 AND AFTERWARDS : NOW OP FORCE. 5'9
41. Ordered, that the Master and the Commissioners in the Equity Master and
Circuit Courts of this State, shall at the first sitting of their respective fc,0™1™^^
Courts, in every year, severally make report to the Court, of the differ- Court.
ent estates in their hands, severally, under and by virtue of any decree
or order of the Court, with a full and particular account of the monies
received and paid, relating to said estates: "■ And the said Masters and
Commissioners, shall also, at the time above-mentioned, severally re-
port what executors, administrators, guardians, or trustees, have been
ordered by any decree of the Court, to account annually, before them
respectively, and which of them have complied therewith: and it shall
be the duty of the said Master and Commissioner, respectively, to take
out rules against those who may be in default, so as to enforce the due
execution of the orders and decrees of the Court on that subject.
April 23d, 1811.
42. When the defendent is out of the limits of the State, and an order Order made
is taken out for him to plead, answer, or demur, or that the bill be taken whilst defend-
pro confesso, the defendant .appearing in person, or by his attorney, ant is absent
before the expiration of the time, contained in the said order, shall be,1"0111', net5tate,
f ' now dissolved*.
at liberty to move at Chambers, before any one of the judges, and giv-
ing four days notice thereof, to the complainant, or his attorney, for a
dissolution of the said order.
HENRY WM. DESAUSSURE,
THEODORE GATLLARD,
THOMAS WAT1ES,
WILLIAM D. JAMES,
WAD DY THOMPSON.
March 26th, 1814.
March 18, 1816.
43. It is ordered, That in all cases, it shall be held to be incumbent Cause to be
on the complainant's solicitor, to set down the cause for hearing, and set down for
make out and serve briefs, preparatory for trial, according to the rules. ileanne-
Upon failure to do so, the Court may strike the cause off the docket.
Columbia, December 1817.
44. It is ordered, That in all cases, where injunctions shall be obtain- Docketing of
ed to stay proceedings at. law, the Registers or Commissioners in the Injunction ca-
several Circuit Courts, in Equity, shall on the coming in of the an- ses>
swers, place such causes at the head of the docket, for priority of hear-
ing, at the ensuing Court. And if the Complainants should not be
ready to try their several causes on the merits, the defendants in such
causes, may severally move for the dissolution of the injunction at the
first Court, and the Circuit Court shall make such order thereupon, as
to justice shall appertain. *
a. 1840, 11 Stat. 113 § 15.
6. Rescinded by Rule 49, post.
60 RULES OP THE COURT OP EQUITV.
Copies of de- 45. It is ordered, That the Commissioners in the several Circuit
publication. ^ Courts, shall transmit annually to the Commissioner in Columbia, cer-
tified copies of all decrees, pronounced in their Courts, upon which
appeals have been made, together with such of the documents as may
be necessary to elucidate the same. And, it shall be the duty of the
Commissioner at Columbia, to transmit such of the said decrees with
the decrees of the Court of Appeals thereon, as may be selected by
the said Court for publication, together with the reports of the cases,
once a year, to the State Printer, conformably to the Act of the Le-
gislature.
46. It is ordered, That the Registers and Commissioners shall be at
liberty to require the payment of the fees allowed by law, for the ser-
vices they shall render, and for each service, at the time the same shall
be rendered, in all unlitigated cases.
HENRY WM. DESAUSSURE,
THEODORE GAILLARD,
THOMAS WATIES,
W. D. JAMES.
Register's fees.
Columbia, December 12th 1818.
Position on 47. All causes standing for argument, on plea or demurrer, in the
docket of cer- Circuit Court, shall be placed on the docket next to the injunction
tain cases. cases, so as to give them priority of hearing to cases in which the de-
fendants have answered. a
Certified copy 48. On docketing an appeal in the Court of Appeals, the solicitor
of Decree to bringing up the same, shall file with the Register or Commissioner, a
be filed on ap- certified copy of the decree of the Circuit Court : and no appeal shall
Pea ' be docketed until the said copy is filed, without the leave of the Court.
MarcJi 1820.
49. It is ordered, That the rule entered into on the seventeenth day
Cases to be of December 1817, is hereby rescinded, and that in future, the Judge
called in their h0]<jing the Circuit Court for Charleston Equity Circuit, shall proceed
order wiLliout ■*»*.-■
preference. to ca*l the docket regularly, without giving preference to the injunc-
tion causes, or cases on plea or demurrer, beginning where the prece-
ding Judge left off. *
HENRY WM. DESAUSSURE,
THEODORE GAILLARD,
WM. D. JAMES,
THOMAS WATIES.
Columbia, May Uli, 1824.
Concerning ^0. Not more than two counsel sjiall be heard on each side, in any
Counsel. cause argued in the Court of Appeals.
HENRY WM. DESAUSSURE,
THEODORE GAILLARD,
THOMAS WATIES,
W. THOMPSON,
WM. D. JAMES.
a. See Rule 49, post.
b. See Rules 44 and 47, ante.
MARCH 1810 AND AFTERWARDS : NOW OF FORCE, 61
Saturday, 21th April 1833.
Present — Justices Johnson and O'Neall, and Earle, J., sitting for
Judge Harper.
The Court proceeded lo read and adopt the following rules.
51. The Clerk of the Court of Appeals shall not hereafter docket jn Appeal
any cause, until a copy of the decree of the Chancellor, or the original Court, no case
report of the Presiding Judge, shall be delivered to him. It shall be docketed un-
the duty of the Clerk, to furnish copies of said decree, or reports, to ess offeree
any party in the appeal, and charge the party or parties applying for \,e delivered.
the same, with the costs for copying. a
52. The Register of the Court of Equity, who is the Clerk of the Copies and not
Court of Appeals in Charleston, shall not be required to produce any originals to be
original paper, but the party desiring the same shall obtain copies ; the Procuce
originals will not be allowed to be brought into Court.
March 2d, 1835.
Present — Judges Johnson, O'Neall, and Harper.
The Court proceeded to read and adopt the following additional
rule.
53. No case in Equity will be hereafter heard, unless the counsel Counsel ap-
appealing, (if the decree does not contain a statement of the cause,) pealing to fur-
furnish a clear and intelligible statement of the facts and questions 0f ^sh statem'nt,
law upon which he demands the judgment of the Court ; all papers re-
lied upon must be copied in the brief, and none not so copied, save
the decree, the Master or Commissioner's report and exceptions, will
be allowed to be read. b
Columbia, May 1842.
54. Applicants for admission to practise in the Court of Equity, will Course of
hereafter be required to stand an examination upon the following Study,
books, viz :
Fonblanque's Equity.
Mitford's Pleadings.
Story's Equity.
Story's Equity Pleadings.
Harrison's Chancery.
Acts of Assembly, as to the organization and practice of the Court
of Equity.
a. See Rule 48, ante.
b. See Rules 6, 7, 8, 9, 12, and 13, of the Court of Appeals, adopted January 1836,
ante pages 30 and 31.
tlulcs of tljc Court of (Errors,
ADOPTED, COLUMBIA, MAY 1845,°
1. In no case whatever, will an appeal lie directly from any Circuit
Court of Law or Equity, to all the Judges assembled as a Court of
Errors.
2. No cause shall be placed on the docket of the Court of Errors,
unless by the order of the Appeal Court in which the cause was heard
or opened.
3. No application will be entertained by either Court, by petition or
otherwise, nor will argument be heard on any motion for sending a
cause to the Court of Errors, after judgment rendered.
4. In every case, the Court requiring the assembling of a Court of
Errors, shall, so far as practicable, unless all questions and matters in-
volved in the cause be referred to the said Court, specify the particular
questions and points of law on which it may desire the judgment of that
Court.
Johnson, Harper, Johnston and Dunkiv, C C.
O'Neall, Evans, Butler, Wardlaw and Frost, J J.
Richardson, J., absent.
a. Pell vs. Ball. 1 Rich. Eq. Rep. 426 ; 1836, 7 Stat. 340 $7, $ 8. The words of the
Act are,
$7, "That upon all constitutional questions arising out of the Constitution of this
State, or the United States, an appeal shall lie to the whole of the Judges assembled to
hear such appeals: that an appeal shall also lie to the whole of the Judges upon all
questions upon which either of the Courts of Appeal shall be divided, or when any
two of the Judges of the Court shall require that a cause be further heard by all the
Judges."
§ 8. " That the Judges of Law and Equity, when assembled as aforesaid, in one
Chamber, shall form a Court for the correction of all errors iu Law or Equity, in the
cases that may be heard before them ; and that it shall be the duty oi' the Judges to
make all proper rules and regulations for the practice of the said Court of Errors, and
for the mode of bringms: causes before them."
tlulcs of tl)c Citi) Court of Charleston,
ADOPTED MAY 27th, 1844, BY THE CITY COUNCIL AND EECORDEE. «
The insertion of these Rules at large, is deemed unnecessary, as they
are almost identical with the Rules of the Court of Common Pleas
and General Sessions, adopted in 1837.6 The latter Rules, taken in
connexion with the alterations, additions, &c, hereinafter mention-
ed, will furnish the entire Rules of the City Court.
ALTERATIONS.
For " Court-house," in Rule 1st, react " City Hall."
For the word "Judge," wherever it occurs, read "Recorder." •
Instead of the 13th and 14th Rules, this Rule has been adopted :
" The dress of the gentlemen of the Bar, Clerk and City Sheriff,
shall be black coats; and no gentleman of the Bar shall be heard, if Dress,
otherwise habited : and it shall be the duty of the Sheriff to attend to
the execution of this Rule. The Recorder shall wear a black silk
robe."
Instead of the 26th Rule, this Rule has been adopted :
" The dockets shall shew, in separate columns, the number of cases, Arrangement
causes of action, number of terms, plaintiff's attorney, (and in the ses- 0f Docket.
6ions, prosecutor's name and subject of indictment,) the order of the
last Court, and place for the event of suit to be entered by the Re-
corder."
Instead of the 44th Rule, this Rule has been adopted:-
"All City Sheriffs' sales of lands, houses and nesrroes, shall be made 0, ■„., ,
i_ r% i /-/-.it t-!- • i t-. l ■ m bheniis sales,
at the Louia-house or < harleston .District, or at the Exchange in Char-
leston; and household furniture, and other personal effects, shall be
sold at the discretion of the Sheriff, either at the place where seized, or
at the nearest convenient public place thereto ; which place shall al-
ways be mentioned in the Sheriffs' advertisement.
The 39th and 40th Rules, relating to commissions, c are still of force. Commissions.
Instead of the 58th and 59th Rules, this Rule has been adopted :
" The City Sheriff shad always have in attendance, as many Consta-
bles as the law requires. Those who shall absent themselves from Constables.
Court without leave, shall be proceeded against, and fined in the man-
ner prescribed in relation to jurors, unless the Court think fit to pro-
ceed more summarily against them."
«. 1801, 7 Stat. 303 § 10,
b. Ante, page 33 to 46.
c. 1836, 7 Stat. 333 $ 4,
J
64 RULES OF THE CITY COURT OF CHARLESTON.
Instead of the 87th Rule, this Rule has been adopted :
Rules of C. C. " All cases not provided for in any of the foregoing Rules, shall be
P.ofWestmm- verne(j ^ tjie p,.actice 0f the Court of Common Pleas at Westmin-
slgf rind A. A. ^ «/ i
1839. ' ster, so far as they are consistent with the laws of this State ; and by
the Acts of Assembly of the year 1839, concerning the office of Clerk
and Sheriff, so far as they may be applicable to the proceedings and
jurisdiction of the City Court."
ADDITIONS.
Under the head of " Docket," page 36, ante
City Docket. « A separate docket shall be kept for the cases in which the City is
prosecutor, to recover penalties for violation of the City Ordinances."
Docket of Ma- " A separate docket shall be kept by the Clerk, for cases of appeal
gistrates' casts from the decrees of Magistrates, ° and no such appeal shall be entered
after the second Monday of the term, nor shall any appeal from the
decree of a Magistrate be docketed, unless it be accompanied with the
appeal bond required by the Act of Assembly."
c • "A contingent docket shall be kept by the Clerk, which shall con-
Docket. ° tain au tne rules, scire facias, bills found, in which defendants have
not been arrested."
" The several dockets shall be regularly called in the following
Order of call order : 1st. The Sessions Docket. 2d. The City Docket. 3d. The
of Dockets. Writ of Inquiry Docket. 4th. The Issue Docket. The Process
Docket shall be called on the first Saturday of the term, and if not fin-
ished, at such other time as the Recorder shall direct. The Contin-
gent Docket shall be called on the last Saturday of the term."
OMISSIONS.
The 16th Rule, relating to renunciations, has been omitted.
Also, the 22d Rule, relating to the docketing of certain cases.
Also, the latter part of the 37th Rule, viz : "And if he neglect to
comply," &c.
Also, the 45th, 46th, 47th and 4Sth Rules, relating to surveys.
Also, the 51st Rule, relating to exemplifications.
Also, the 52d Rule, requiring the Clerk and Sheriff to produce Rules.
Also, the 56th and 57th Rules, l'elating to counsel.
Also, the latter part of the 61st Rule, viz: " Nor shall any paper be
filed," &c.
Also, the 71st Rule, relating to issues from Equity.
Also, the 72d Rule, relating to suits for land.
Also, the 73d Rule, relating to costs in new trials.
Also, the 75th Rule, relating to actions on Sheriffs' bonds.
Also, the 79th, 80th, 81st, 82d, 83d, 84th, 85th. and 86th Rules, rela-
ting to appeals.
And also, the 88th Rule, repealing clause.
a. 1818, 7 Stat. 320 $ 6.
u
RULES AND ORDERS
IN THE
fchtxai €oitrt for tl)c District of 0, Carolina.
ADOPTED IN 1790; SINCE SUPERSEDED.
Columbia, 12th May 1790.
Ordered, That it be requisite to the admission of practitioners in
this Court, that they should have been admitted attornies of the Court
of Common Pleas of this State for two years.
JOHN RUTLEDGE,
JAMES IREDELL.
Columbia \2tJi May 1790.
Ordered, That any two Judges of the Court may, in the vacation,
admit persons to practise as attornies and solicitors of this Court, who
have the qualifications required by the order uf yesterday.
Ordered, That writs be returnable on the first day of each term.
Ordered, That defendants be entitled to an imparlance, on filing
special bail, where it is ordered.
Ordered, That the mode of proceeding in causes at common law, be
conformable to the practice of the Court of Common Pleas of this
State.
Ordered, That the proceeding in causes of Equity be conformable
to the practice of the Court of Chancery of this State.
RULES
IN THE
liberal Court for % ^District of 0. Carolina,
ADOPTED MAY 10, 1813: NOW OF FORCE.
r v the orderly conducting of business in the District Court of South-
Carolina, as well on its Instance side, in cases of Common Law, as on
its Admiralty Side, in cases of Maritime Jurisdiction : It is ordered by
the said Court, that the following Rules be observed,
ON ITS INSTANCE SIDE.
1. That the Marshal do return all writs and other processes, on the
first day of the term r and that they be returnable on that day accord-
2. That defendants be entitled to an imparlance on filing special bail,
when required.
3. That Juries he drawn and Venires issue, on the first day of each term,
for the succeeding Court, should the business of that day permit, if not.
on any other day during the term, by permission of the Court.
4. That writs of Venire facias issue from the Clerk's office ; and be
served and returned by the Marshal, in his proper person; or by his
Deputy; or in case the Marshal, or his Deputy, be not an indifferent
person, or be interested in the event of any cause, then they are to be
served and returned by such fit person, or persons, as the Court shall
specially appoint for that purpose ; agreeably to the tenor and con-
struction of the 27th, 28th, and 29th sections of the Judiciary Act.
5. In future, all persons who have been admitted attornies of the
Court of Common Pleas of this State, and have practised therein, du-
ring the term of one year ; or who have been admitted into the Circuit
Court of this district, and whose private and professional character ap-
pear fair, may, on petition in writing, duly presented in this Court, sta-
ting such admission and practice, be admitted to practice therein.
6. That the service of writs, and other processes, issued from this
Court, be proved before the Clerk any time in vacation.
7. The Clerk of this Court, in the absence of the Judge, on good
and sufficient cause being sh «ra, may make the necessary orders for
holding to bail, on suits instituted in this Court.
8. The Marshal of this Court shall give due ne ic° in one of the ga-
zettes of this City, to the jurors and others concerned, of the time and
place of the meeting of this Court; and sbou 1 it be adjourned to any
future day, or days, before the commence nent of the next regular
term, it shall alao be his duty to give such due notice of the same.
RULES IN THE FEDERAL COURT FOR DISTRICT OF SOUTH-CAROLINA. 67
And the charges incidental thereto, are to be defrayed out of the fines
inflicted upon defaulters, or from any other monies from whence the
6ame may be lawfully dischaiged.
9. The names of the defaulting Jurors shall be hereafter notified by
the Clerk, in one of the gazettes of this City, three weeks immediately
preceding the sitting of tlie Court, then next succeeding; and upon
neglect to answer the said notice satisfactorily, or on not giving a suf-
ficient excuse, on oath, t'^e _:d defaulters shall be fined by the Court.
10. Pleas, replications, nd all subsequent pleadings shall be filed
within ten days af'er service of the rule on the party to file such plea,
or on his attorney; . i default whereof, the plaintiffs attorney shall be
at liberty to take his or ler for judgment; or the defendant's attorney
his judgment o\ non pros.
11. On all declarations filed, a ten day rule to plead shall issue.
12. The Marshal shall pay over to the District Attorney, or other
proper officer, all monies received by him, under executions, at the
suit of the United States, immediately on the receipt thereof.
13. All rules against the Marshal, to pay over monies, in his hands,
shall be returnable in four days ; or for a longer or shorter time in par-
ticular cases, upon cause shewn.
14. On motion made for any special order of Court, the order pro-
posed shall be submitted to the Court, in writing, by the counsel or
party making it; and if granted by the Court, it shall be delivered to
the Clerk for insertion in the Journals.
15. No practising attorney shall be received as special bail for any
person ; nor as security for any officer of this Court.
16. In all cases wherein no particular rules are herein before set
down, the practice of the Court of Common Pleas, of South-Carolina,
shall be pursued ; so far as the same be not repugnant or contrary to
these rules, or the laws of the United States.
17. In all cases where the Plaintiff sues out a Writ of Error, he shall
enter into a bond, with security, in a sum not exceeding three hundred
dollars; and in all cases where the defendant shall sue out a Writ of
Error, he shall also enter into a bond in a sum not exceeding three
hundred dollars, and ten per cent, on the amount demanded, to cover
such damages as the Court may impose for delay.
18. When commissions to examine witnesses respecting pensions,
are required, application shall be made to the Clerk of the Court ;
upon which he shall deliver one to the party applying, he or they pay-
ing the proper fee to him, for so doing, if required.
19. All Rules and Orders heretofore made for regulating the prac-
tice of this Court, shall be, and they are hereby repealed.
JOHN DRAYTON,
Judge of the District Court of South- Car olir.-j,.
RULES
IN THE
II. States Circuit €ourt of Soittlj-Carolina,
IN CASES OF COMMON LAW : NOW OF FORCE.
PROCESS.
1. Rules shall be held monthly in the Clerk's office, on the first
Monday in every month, for the purpose of entering all proceedings
and orders which may be entered at the Rules ; and not necessary to
be taken or made in open Court. The rules shall be held under the
direction of the Clerk ; but either of the Judges of the Court may make
or allow any special order in any cause not inconsistent with the re-
gulations herein prescribed, which shall be entered in the Rule Book,
and take effect accordingly.
2. All process shall be made returnable to the next succeeding term,
or to any intermediate Rule day, at the election of the party suing out
the process, and the return of such process executed, shall be effectual,
whereon to ground any subsequent proceedings.
3. Where any person, plaintiff or defendant in any suit, shall be
dead, it shall be lawful for the Clerk at Rules, upon application and
suggestion of the death, to issue process to bring into Court the exe-
cutors or administrators of such deceased person, to be substituted
for the deceased party; and he may also, on motion of the executors
or administrators of a deceased party, permit them to enter themselves
as parties, and to proceed in such suit.
4. On process returnable to Rules or otherwise, the Marshal shall
be allowed time for serving the same at the rate of ten miles per diem,
counting from Charleston, and from the date of entry in his office; and
if he cannot with due diligence return such process to the Rules or
Court, to which it is made returnable, he may return it to the next
Rules. A copy left at the defendant's usual place of residence shall
be a sufficient service.
5. Whenever a writ shall be returned, the declaration may be filed
immediately after the return ; and whenever filed on a Rule day, the
defendant shall be bound to take notice, and plead accordingly, with-
out a rule to plead. In all other cases a rule to plead shall be specially
taken out and served upon him or his attorney. If a declaration shall
not be filed within six rules after return of the writ served, it shall not
afterwards be filed without leave of Court.
6. A defendant shall be allowed time to file his plea to an action at
the rate of five miles per diem, for the distance of his residence from
RULES IN THE U. STATES CIRCUIT COURT OP SOUTH-CAROLINA. 69
the Court-house in Charleston, counting from the Rule day on which
the declaration shall be filed, when filed on a Rule day ; and counting
from the day of the service of the rule to plead, when filed on any
other day. But where the general issue is tendered, and nothing but
a "similiter" wanted to make up the issue, a special order may be
taken for the other party to reply instanter. And the same time shall
be allowed the parties to a suit as to all subsequent pleadings, counting
always from the Rules at which, or next before which the plea to be
answered, was filed. But in all cases except that of the similiter, tine
until the next Rules shall be allowed, and the additional time at the
rate aforesaid, whenever the distance of the party's residence entitles
him to more, in which last case, the time to the Rules shall be counted
as part.
7. Whenever a party fails to comply with the 6th Rule, an order
for judgment, or of non pros, may be entered at the Rules ;a but the
same may be set aside at the next Rules, on motion, payment of costs,
and pleading instanter, or for special cause shewn, on motion made
within the two first days of the next term ; in which latter case the
Court will impose such other reasonable terms as the ends of justice
may require.
8. A copy of every open account, and of every bond, deed, or other
writing declared on, shall be filed with the Clerk at the time of filing
the declaration; and the defendant may have oyer of the original bond,
deed, or other writing, before he shall be required to file his plea,
provided notice of a demand of oyer be served on the plaintiff's attor-
ney ten days before the day on which the defendant is bound to plead
to the action.
9. If any frivolous or deceitful plea be filed, the adverse party shall
not be obliged to demur to the same; but the Clerk may give an order
for judgment or non pros, at the Rules, and the party against whom it
is given shall be held to his motion to set aside such order at the next
term, as under the seventh Rule.
10. No plea oljplene administravit shall be received and filed, unless
accompanied with an office copy of the inventory and appraisement of
the estate ; and the defendant tendering such plea shall be bound on
ten days' notice in writing, to deposit with the Clerk a full account of
his administration upon oath, or the book or books containing the same.
11. Whenever any gentleman of the bar shall leave with the Clerk
instructions how to direct to him by mail, and a request to have the
benefit of this rule, it shall be the duty of the Clerk, within ten days
after the Rules, to forward to such gentleman an abstract of all the
rules, orders and entries made on each Rule day, for which the Clerk
shall be entitled to demand one dollar each month.
a. Extract from Circuit Court Journal page 3S9, April 10th 1833.
Present — His Honor William Johnson.
Kedmond vs. Hertz. On motion by plaintiffs attorney, for an order for judgment,
the defendant not having plead, under a rule returnable the first day of the present term.
The Court after hearing argument, refused the motion, as under the existing rules, or-
ders for judgment are only given by theXlerk and on Rule days.
70 RULES IN THE U. STATES CIRCUIT COURT OF SOUTH-CAROLINA,
JUDGMENTS.
12. All judgments obtained at the.same term, and entered up agree-
ably to the next rule, shall be of the same rank as to precedence. The
same shall be regularly docketed, as heretofore, in a book kept for the
purpose, having successive columns, exhibiting at one view the date,
the time, and nature of the executions sued out, the returns upon the
same, and the date of satisfaction, with a column for miscellaneous oc-
currences.
13. Judgments, to retain their rank or precedence under the prece-
ding rule, shall be entered up within five days after the party is enti-
tled to the same ; but may be entered at any time before the second
term after, to take precedence from date. If not entered before the
said second term, they shall not be entered without a motion at Rules,
or in open Court ; and then not until the Rules next after such motion.
14. In all cases where judgment shall be signed for a penalty, satis-
faction shall be entered on payment of principal, interest, and costs;
and where the condition is for the performance of something other
than the payment of money, the Court will order a writ of inquiry upon
the condition to determine the real amount due.
15. If a motion in arrest of judgment, or for a new trial, be intend-
ed t ) be made, the party shall give notice thereof, and of his grounds,
within two days after verdict. Xo motion in arrest of judgment shall
be heard after a new trial once had ; but the motion in arrest of judg-
ment and for a new trial may, in the first instance, be made simulta-
neously.
16. If an order for judgment be taken by default, or judgment be
given for plaintiff, on demurrer, the Court, on motion of plaintiff, will
assess the damages, if the action be on single bill, promissory note,
bill of exchange, or any written contract, or in all such cases the petit
jury, attending: the Court, may assess the damages, as in case of writ
of inquiry at common law. The plaintiff in such case shall produce
the writing on which the action is founded, but the execution shall be
considered as established.
17. To prevent fraud in entering up judgment on warrant of attor-
ney, no such judgment shall be signed unless accompanied with an
affidavit of the debt specifying the amount actually due, and a legal
verification of'the letter of attorney. And if the warrant be of a date
twelve months or more anterior, the affiant shall further swear to his
belief that the defendant is stdl living.
18. If a plaintiff take an order for judgment, the defendant may,
notwithstanding file his plea, and take the steps necessary to have an
issue made up if he means to move to set the order aside. The plain
tiffin such case shall be bound to reply and await the contingency of
having the order of judgment set aside, in order that there may be no
delay in the event of setting aside such order for judgment.
19. Whenever the existence of unsatisfied judgments or mortgages,
impedes the payment over of moneys levied, and in the Court, or in
the hands of the Marshal, it shall he sufficient to advertise in some one
respectable gazette, for one month, a notice to the parties interested in'
such judgments, to come forward and^satisfy the Court that such judg-
ments are actually subsisting unsatisfied judgments. If the parties in
IN CASES AT COMMON LAW: NOW OF FORCE. 71
interest fail to do this, the Court may order the money to be paid over
to the executions in the Marshal's hands.
20. Whenever judgment for the recovery of money shall be signed,
if th? defendant or his attorney will indorse upon the record his con-
sent that the same shall bear interest, the execution may afterwards
issue at any time for the amount of the principal and interest calculated
to the return day of such execution.
EXECUTIONS.
21. No execution shall issue until the Rules next after the sitting of
the Court at which th^ judgment was obtained.
22. The Marshal shall return every execution to the Clerk, with a
special note indorsed, exhibiting what has been done under each exe-
cution, which execution and return shall be filed and preserved in the
record ; and no new execution shall be signed until that previously is-
sued has been duly returned, except by special order of a judge.
DOCKETS.
23. No cause shall be docketed until the issue is made up, except
where nothing is wanting but a similiter, or joinder in demurrer, in
which cases, the Court will, on motion, at any time during the term,
order the necessary entry to be made by the Clerk.
24. The docket shall be finally made up on the second day of the
term, and all causes duly docketed shall be called for trial in their or-
der without notice of trial. Every cause called at four several terms,
and not proceeded in, shall be omitted from the next docket, not to be
restored but by order of Court, on cause shewn ; provided the same
has not been continued at defendant's motion.
25. Causes to which dilatory pleas or demurrers have been filed,
shall be placed on a separate part of the docket, and shall have an
early call.
26. Causes marked on the docket settled, discontinued, or otherwise
terminated, shall not again be docketed, without leave of Court, or
consent of both parties in writing.
27. At the opening of the Court, on the first day of the term, the
Court will proceed to call over the docketed causes for trial, in their
order, beginning with the issues, and will call the docket but once.
28. Either party may docket a cause entitled to be docketed, and
the parties to every cause duly docketed, may be compelled to trial,
without any further notice.
CONTINUANCES.
29. Motions for continuance on the ground of absence of a witness
or the non-return of a commission, shall be accompanied with an affi-
davit, stating what the party expects to prove by the witness or com-
mission, and that he is not able to prove the same by any other means.
The affidavit shall also shew that due diligence has been used to pro-
cure the same, by stating the steps that had been taken, or the causes
why the ordinary measures have not been pursued, to the end that the
Court may be satisfied, that the party making such motion does not
affect delay.
72 RULES IN THE U. STATES CIRCUIT COURT OF SOUTH-CAROLINA.
WRITS OF INQUIRY.
30. A docket shall also be made of causes in which writs of inquiry-
are to be executed, and no writ of inquiry shall be executed in a cause
not docketed.
31. If it be in any way known to the plaintiff's attorney, that the de-
fendant has an attorney attending on his cause, no writ of inquiry shall
be excuted without reasonable notice given to such attorney.
JURIES.
32. To all writs of venire, the Marshal or his deputy shall make a
return on oath to the Clerk, exhibiting in three several columns those
jurors on whom a summons has been served personally, those who
have been summoned by copies or notices left at their houses, and
those who could not be found.
33. The Clerk shall keep a book in which shall be entered the
names of all persons who have been summoned as jurors, or bound in
recognizances, and have made default; and shall enter opposite to the
name of each defaulter, whether he be fined or excused ; if fined, the
amount of the fine, and if excused, by whom excused; which book
shall be exhibited to the Court at every sitting.
34. The Marshal, or his deputy, shall serve a written or printed
summons on each juror, expressing the day, hour and Court at which
he is to appear, and also whether he is to serve as a Common Pleas
and Petit, or as a Grand Juror.
35. Within ten days after the adjournment of each Court, the Clerk
shall publish in some one public print, the names of the defaulting ju-
rors summoned to attend that term, with a notice, that on the first day
of the ensuing term they will be fined according to law, unless they
make sufficient excuse on oath ; which publication shall be continued
for three weeks, and shall be a sufficient notice to such defaulters.
36. After drawing every jury, the Clerk sh.all fold up the names of
the jurors so drawn, seal the envelope, and indorse the seal with his
name, with the date of such drawing, and the Court and jury for which
thoy were drawn ; which paper shall remain sealed until the whole
list be drawn throughout.
37. The jurors shall be summoned from the persons legally quali-
fied under the State laws, resident within the parishes of St. Philip, St,
Michael, Christ Church, St. Thomas, and St. Andrew, for Charleston;
and Richland district, for Columbia.
38. When a jury cannot be had from the persons so summoned, the
Court will summon a jury de talibus circumstantibus.
39. Jurors who have made default, may make oath to their excuse
before any State Magistrate, and file the same with the Clerk on or be-
foi'e the first day of the ensuing term. If the excuse be deemed insuf-
ficient, the same penalties shall be inflicted as are inflicted by the State
laws, or they may be moderated by the Court, according to circumstan-
ces. The mode of collecting fines so inflicted, shall be by attachment
as for contempt.
40. Persons above sixty years of age, shall be excused from serving
on juries : other excuses must depend upon their particular merits.
IN CASES AT COMMON LAW: NOW OP FORCE. ,73
FORECLOSING MORTGAGES.
41. In Suits on bonds, or other contracts, secured by mortgage, the
plaintiff may enter his judgment and have his execution, as in ordinary
cases; but if he proposes to have the mortgage foreclosed according
to the State laws, in such case, he shall, at any lime pending the suit,
or after judgment, file a suggestion, stating the time when, the parties
by and to whom the conditions upon which such mortgage was made,
together with a description of the mortgaged property, and all such
other particulars as may be necessary to bring all the circumstances of
the case before the Court, after filing which he shall serve on the de-
fendant, or his attorney, a ten day rule, to shew cause why such mort-
gaged property should not be sold, and unless cause be shewn, an
order of sale shall pass accordingly.
42. Orders of sale of mortgaged property to effect a foreclosure,
shall be to the following effects " That if the defendant shall hot with-
in after this date, pay to the plaintiff the full amount of princi-
pal, interest, and costs, due by him on that day, the Marshal shall
proceed to sell the premises on a credit of months; the titles
to be signed, but not delivered until the money be paid according to
the terms of sale; and if the amount of the purchase money be not
paid when due, the Marshal shall re-sell for cash, and on account and
risk of the former purchaser."
#
MARSHAL'S SALES.
43. Sales of lands and negroes shall take place at the Court-house
of the^listrict in which the levy is made. Sales of all other kinds of
property shall take place on the premises where the levy is made ; but
such sales may be made elsewhere by consent of parties.
44. Sales of lands and negroes by the Marshal, under execution,
shall take place on the first Wednesday in every month, and after ad-
vertising three weeks in any public print of respectable circulation
nearest the place of levy. The property to be sold shall be sufficient-
ly described, and the parties, plaintiff and defendant, distinctly named.
SURVEYS.
45. Surveys of land in any quantity not exceeding two hundred
acres, shall be laid down by a scale of ten chains to an inch ; if exceed-
ing that quantity, by a scale of twenty chains to an inch.
46. No survey made under a rule of Court shall be received in evi-
dence, unless it appear that at least fifteen days' notice of the time and
place of commencing such survey, was given to the opposite party by
or in behalf of the party who offers it in evidence.
47. Every surveyor shall represent on his plat, as nearly as he can,
the different enclosures of the tenants, and the extent or boundaries
within which each party has exercised acts of ownership, by cultiva-
tion or otherwise.
48. All objections to the regularity or admission of surveys must be
made before the jury is charged with the cause.
7<£» RULES IN THE U. STATES CIRCUIT COURT OF SOUTH-CAROLINA,
MOTION FOR NEW TRIAL, IN ARREST OF JUDGMENT.
49. In cases in which a party shall receive notice of a motion for a
new trial, or in arrest of judgment, he shall have leave notwithstand-
ing to enter up his judgment and lodge his execution to bind property ;
but if the motion be sustained, the judgment and execution shall be
wholly set aside. If either party shall die before a decision be had in
the cause on such motion, his legal representative may enter himself
party to the suit on motion, and be entitled to all the rights of the
original party.
FINES AND FORFEITURES.
50. The Clerk shall keep a regular debit and credit account of all
fines and forfeitures imposed, and money recovered on recognizances,
which account *shall be exhibited with, his list of defaulters, and shall
be annually attested.
COMMISSIONS TO EXAMINE WITNESSES.
51. Commissions for examining witnesses may be forwarded by
mail, and when executed may be returned in the same mode ; provided
that in the latter case, the Commissioner who deposits it in the Post-
office, certify the same on the envelope over the seal, and if deposited
by a messenger, that the Commissioner certify the delivery to the
messenger, and the messenger certify the delivery to the office. And
if it should pass through any number of hands, successively, the same
to be done by each, noting every stage of its progress, until delivered
into the officj.
52. The time to be allowed for the return of a commission from any
part of the United States, if not exceeding one hundred miles distant,
shall be one month ; if at a greater distance, not exceeding five hun-
dred miles, two months ; if at any greater distance, three months. If
from any part of the West-India Islands, three months. If from any
part of Europe, six months. If from any other quarter of the globe, it
must be judged of specially by the Court.
53. When a commission is returned, it may be opened by leave of
the Clerk, upon consent of both parties in writing, indorsed on the
commission ; and after the return of a commission, it shall be the pro-
perty of both parties, and remain with the Clerk to be used by either.
54. Either party to a cause at issue, or ordered for judgment, wish-
ing to sue out a commission to examine witnesses, shall first file a copy
of the interrogatories to be propounded to the witnesses, and shall give
ten days' notice thereof, accompanied with a copy of such interrogato-
ries to the opposite party, or his attorney; and each party may name
any number of Commissioners, not exceeding five, any two of whom
shall be competent to examine the witnesses, or any one of them ; and
the cross interrogatories and Commissioners in behalf of the opposite
parties, shall be rendered within ten days after such notice. But on
application to either of the Judges, or on motion at Rules, commissions
may be sued out by plaintiff, at any time after filing his declaration, or
by the defendant, at any time after filing his plea, though no issue be
made up, and although the ten days' notice be not given, provided the
IN CASES AT COMMON LAW: NOW OF FORCE. 7B
same be necessary for the purposes of justice, and will expose the op-
posite party to no risk.
PLEAS.
55. The defendant, with leave of the Court, may plead as many se-
veral pleas to the merits as may be necessary to his defence.
56. The defendant shall not plead specially, without the consent of
the plaintiff, if by the rules of evidence, the special matter can be
given in evidence on the general issue.
57. If the plaintiff amend his declaration so as substantially to change
his case, or the defence, the defeijdant shall have th* same time to
plead de novo, as is given in the first instance.
58. The defendant shall not plead two dilatory pleas, that is, a se-
cond, after the first has been disposed of.
59. If ihe defendant in debt shall plead non est factum, or non as-
sumpsit, on a bill of exchange or promissory note, without an affidavit
to the truth of his plea, the instrument declared on, shall be produced
by the plaintiff, but need not be proved. The execution thereof shall
be considered as admitted. An executor or administrator, in such
cases, may make affidavit to his belief.
60. A plaintiff may have leave to'Strike out an issue in fact, for the
purpose of filing a general demurrer, on payment of costs, and sub-
mission to such terms as will prevent delay.
61. Neither party shall, after pleading, demand the letter of attor-
ney of the opposite party.
BAIL.
62. Bail may be required in any suit sounding in contract, provided
an affidavit of the sum actually due be attached to the writ, and an
order indorsed thereon, requiring bail to be taken. In all special cases
the order of a judge shall be obtained.
63. The obligation entered into by bail, in a civil suit, shall be to
surrender the principal, if in life, at any time before the bail shall be-
come legally fixed, or made personally liable for the sum sued for in
the original action.
64. Bail in civil suits shall become liable to pay the sum recovered
in the original action, upon the return of non est inventus to a ca. sa. or
nulla bona to a fi. fa. against the principal. And although bail has
become fixed, he may have the privilege of surrendering his principal
in discharge, at any time before judgment against himself, on payment
of costs and expenses.
65. A plaintiff shall not be at liberty to discontinue against the prin-
cipal, and proceed against the bail, but shall proceed to judgment and
execution against the pi'incipal, and may have his election to bring an
action on the bail bond, or issue a scire facias against the bail, upon
the judgment against the principal, and obtain judgment thereon
against the bail.
66. Bail to the Sheriff need not enter into a recognizance of special
bail, but may, of right, surrender his principal to the Sheriff, in office
hours, or in open Court. And he shall also be entitled to the aid of
the Marshal to retake the principal, upon a written demand to that
76 RULES Di THE U. STATES CIRCUIT COURT OF SOUTH-CAROLINA,
effect, left at the Marshal's office, and advancing a reasonable sum to
defray all incidental expenses He shall be entitled generally to all
the privileges, rights, and powers, which may be acquired by entering
into a recognizance of special bail.
67. It shall be in the power of the plaintiff, whenever he has a legal
right to require bail, to direct the Marshal to make such bail justify
before the Clerk at Rules, or before some State magistrate, and the
proceedings attending such justification shall be duly returned with
the writ.
• AWARDS.
68. Upon the return of an award, or umpirage, under a rule of re-
ference, a two day rule shall be served by either party upon the other,
to shew cause why it should not be confirmed by the Court, and
judgment entered thereon. If no sufficient cause be shewn, the judg-
ment shall be entered, and execution had, as in ordinary cases.
PRISONERS.
69. Prisoners shall be confined at one of the places where the Court
is held. If a debtor, he may make his election; if a criminal, the
Marshal may exercise his own discretion.
70. Whenever a defendant shall be in actual confinement, under a
writ of capias ad respondendum, the Marshal shall make return of the
writ immediately, that the defendant may sue out a rule on the plain-
tiff to declare in ten days after service. If the declaration be not filed
within ten days, or at the next Rules, the plaintiff shall be non-prossed.
But the time to declare may be extended by a Judge, or at Rules,
upon cause shewn. And the same means of terminating the suit may
be pursued at every subsequent stage of the pleadings.
MISCELLANEOUS.
71. When the Court is open and sitting, no rule or order shall be
granted which can be obtained of course before the Clerk, unless upon
special cause shewn.
72. On all rules to shew cause, the party cited shall begin and end
the argument. But in all special matters, either springing out of a
cause at issue, or otherwise, the actor or party submitting a point to
the Court, shall be heard last; and generally the actor shall open and
conclude the cause.
73. No attorney of this Court shall ever attempt to argue or explain
a cause, after having been fully heard, and the opinion of the Court
has been pronounced.
74. Every motion for a rule or order shall be submitted in writing,
and shall be copied into the minutes from the writing submitted.
75. In actions of covenant, or on bonds, for the performance of co-
venants, the plaintiff may assien as many breaches as he pleases.
76. The Clerk shall issue subpoenas for all witnesses whose names
are furnished him by the District Attorney, or the defendant, to testify
in criminal prosecutions.
IN CASES AT COMMON" LAW: — NOW OF FORCE. 77
77. Mutual existing debts in the same right or rights to recover
money on contract, express or implied, may be set off against each
other, upon the defendant's filing with his plea, a notice and copy
thereof; and if the jury shall find a sum or balance due the defendant,
he may file his declaration instanter, and take judgment for such
balance.
78. In order to avoid bringing causes by management into the
Coui'ts of the United States, by ci'eating nominal parties distinct from
the parties in interest ; whenever a suit is instituted to try the right to
property, real or personal, and the defendant will make oath that he
suspects, and has cause to suspect, that the plaintiff has accepted a
conveyance of the property from the real and actual owner, for the
sole purpose of bringing a suit in this Court, when the title in fact ex-
ists in some other person not entitled to sue in this Court, the defend-
ant shall not be required to plead to the action, until the facts so sur-
mised, and stated in the defendant's affidavit, be denied on oath.
79. In the event of the death of the plaintiff to a suit, if no executor
or administrator appear to enter himself party to the suit within twelve
months after a suggestion of his death be entered of record, the suit
shall finally abate. And in the event of a defendant's death, if the
plaintiff sue out his summons to the executor or administrator to enter
himself party, and he fail to do so within twelve months after service,
the plaintiff may sign his judgment against the estate.
80. In actions against two or more defendants, who must by the
rules of law be jointly sued, and all of whom would be liable to be
sued in this Court; if one or more of the defendants be served with
legal process, the rest of the defendants may be cited to appear, by
order of a Judge of this Court, provided notice of such order, setting
forth the cause thereof, be published three months in any one gazette
of the State, with a citation to such defendant to appear and plead to
the action on or before the Rules next after the three months have ex-
pired. And if plea be not filed accordingly, the plaintiff shall be at
liberty to proceed to judgment against the defendant, who has been
served with the process; and if he be one of a mercantile firm, execu-
tion may be levied both on his own property and that of the firm.
81. No writ of possession in trespass to try title shall issue without
leave granted on motion in open Court,
82. The attorney on record in this Court in appeals and writs of er-
ror from the District Court, shall be allowed tweuty dollars as a gross
charge, and in addition thereto, fifteen cents per copy sheet of ninety
words, in lieu of all other costs ; the Clerk and Marshal, in such cases,
shall be allowed the fees allowed by law in other cases in suits in the
Common Pleas ; and the fees of the Court of Admiralty, upon appeals
from decisions in the Admiralty ; but this shall not be considered as
authorizing an additional percentage when money is paid into their
hands.
83. In all cases of appeal from the District Court in Admiralty cau-
ses, the evidence must be filed with the Clerk before the appeal be
docketed, and whenever the Judge's statement of the evidence is, by
agreement to be received as the evidence, a consent to that effect must
be indorsed thereon, before the cause be docketed in this Court.
RULES IN THE U. STATES CIRCUIT COURT OF SOUTH-CAROLINA.
84. In no case shall the defendant be compelled to plead or answer,
until the plaintiff shall have given security for costs, if notice be given
to the plaintiff's attorney, that such security will be required; except
where the party sues in forma pauperis.
85. In no case shall the plaintiff proceed in his suit, (after writ or
process served,) until he has given security (if the same shall be de-
manded,) for the Marshal's and Clerk's fees ; and if the security offered
shall not be deemed sufficient by the said officers, the plaintiff may
appeal to the Court.
86. Attorneys who have been admitted into the Supreme Court, or
any one of the Circuit Courts of the United States, and those who have
been admitted in the State Court, and practised therein for three
years, or who having been admitted to the State Courts shall be found
qualified, on examination, shall be admitted to practise in this Court.
87. Only two counsel on each side shall be heard in any cause. One
for the promovent shall be first heard, the two for the respondent shall
follow, and one for the promovent close in argument.
88. On points of law, gentlemen of the bar shall address them-
selves exclusively to the Court.
89. Before the writ de homine replegiando do issue, an affidavit
shall be filed with the Clerk, stating the plaintiff's claim to his free-
dom, and his right to sue in this Court ; the amount of bail to be given
shall be indorsed on the writ by a Judge of this Court, or by the Clerk
at Rules.
90. In all causes wherein no particular rules are herein set down,
the practice of the Court of Common Pleas at Westminster, shall be
pursued, so far as the same be not repugnant to the above Rules, or
the laws of the State.
I, Henry Y. Gray, Clerk of the Circuit Court of the United States,
for the Sixth Circuit, South-Carolina District, do hereby certify, that
the foregoing Rules are the Rules regulating the practice of the said
Court, in suits at Common Law.
Given under my hand, at office, in the City of Charleston, District
aforesaid, this first day of November, A. D, one thousand eight
hundred and forty-two.
H. Y. GRAY, Clerk Circuit Court.
Extract from Circuit Court Journal p. 340, March 23d 1848.
Ordered, That all letters and other documentary evidence in any
other language than English, intended to be used in any suit in this
Court, shall be translated before the said suit shall be considered as
ready for trial; such translation to be by consent of parties to the
same, and agreed upon by them to be correct; or by sworn interpre-
ters, ordered by either Judge of the Court at Chambers, upon appli-
cation to him by either party, notice of application being given to the
opposite party.
RULES OF PRACTICE
OF THE
Courts of t\)t ttutteir States,
IN CAUSES OF
ADMIRALTY AND MARITIME JURISDICTION.
1. No mesne process shall issue from the District Court in any civil
cause of Admiralty and Maritime Jurisdiction, until the libel or libels
of information shall be filed in the Clerk's office, from which such pro-
cess is to issue. All process shall be served by the Marshal or his
deputy, or where he or they are interested, by some discreet and dis-
interested person appointed by the Court.
2. In suits in personam, the mesne process maybe by a simple war-
rant of arrest of the person of the defendant, in the nature of a capias,
or by a warrant of arrest of the person of the defendant with a clause
therein, that if he cannot be found, to attach his goods and chattels to
the amount sued for, or if such property cannot be found, to attach his
credits and effects to the amount sued for in the hands of the garnish-
ees named therein ; or, by a simple monition in the nature of a sum-
mons to appear and answer to the suit, as the libellant shall, in his
libel or information pray for, or elect.
3. In all suits in personam — where a simple warrant of arrest issues
and is executed, the Marshal may take bail with sufficient sureties
from the party arrested by bond or stipulation, upon condition that he
will appear in the suit and abide by all orders of the Court, interlocu-
tory or final, in the cause, and pay the money awarded by the final de-
cree rendered there in the Court, to which the process is returnable,
or in any appellate Court. And upon such bond or stipulation, sum-
mary process of execution may and shall be issued against the princi-
pal and sureties, by the Court to which such process is returnable, to
enforce the final decree so rendered, or upon appeal by the appellate
Court.
4. In all suits in personam, where goods and chattels, or credits and
effects are attached, under such warrant authorizing the same, the at-
tachment may be dissolved by order of the Court to which the same
warrant is returnable, upon the defendant, whose property is so attach-
ed, giving a bond or stipulation with sufficient sureties to abide by all
orders, interlocutory or final, of the Court, and pay the amount award-
ed by the final decree rendered in the Court to which the process is
returnable, or in any appellate Court ; and upon such bond or stipula-
80 RULES OF PRACTICE FOR THE COURTS OF ADMIRALY.
tion, summary process of execution, shall and may be issued against
the principal and sureties, by the Court to which such warrant is re-
turnable, to enforce the final decree so rendered, or upon appeal, by
the appellate Court.
5. Bonds or stipulations in Admiralty suits may be given and taken
in open Court, or at Chambers, or before any Commissioner of the
Court, who is authorized by the Court to take affidavits of bail, and
depositions in cases pending before the Court.
6. In all suits in personam, where bail is taken, the Court may, upon
motion for due cause shewn, reduce the amount of the sum contained
in the bond or stipulation therefor: and in all cases where a bond or
stipulation is taken as bail, or upon dissolving an attachment of pro-
perty as aforesaid, if either of the sureties shall become insolvent pend-
ing the suit, new sureties may be required by the order of the Court,
to be given, upon motion, and due proof thereof.
7. In suits in personam, no warrant of arrest, either of the person or
property of the defendant, shall issue for a sum exceeding five hundred
dollars, unless by the special order of the Court upon affidavit or other
proper proof shewing the propriety thereof.
S. In all suits in rem against a ship, her tackle, sails, apparel, furni-
ture, boats, or other appurtenances, if such tackle, sails, apparel, furni-
ture, boats, or other appurtenances, are in the possession or custody
of any third person, the Court may, after a due monition to such third
person, and a hearing of the cause, if any, why the same should not be
delivered over, award and decree that the same be delivered into the
custody of the Marshal or other proper officer, if upon the hearing the
same is required by law and justice.
9. In all cases of seizure, and in other suits and proceedings in rem,
the process, unless otherwise provided for by statute, shall be by a
warrant of arrest of the ship, goods, or other thing to be arrested, and
the Marshal shall thereupon arrest and take the ship, goods, or other
thing, into his possession for safe custody ; and shall cause public no-
tice thereof, and of the time assigned for the return of such process,
and the hearing of the cause, to be given in such newspaper within the
district, as the District Court shall order, and if there is no newspaper
published therein, then in such other public places in the district as the
Court shall direct.
10. In all cases where any goods or other things are arrested, if the
same are perishable, or are liable to deterioration, decay or injury, by
being detained in' custody, pending the, suit, the Court may, upon the
application of either party, in its discretion, order the same, or so much
thereof to be sold-, as shall be perishable, or liable to depreciation,
decay or injury, and the proceeds, or so much thereof as shall be a full
security to satisfy in decree, to be brought into Court, to abide the
event of the suit: or the Court may, upon the application of the claim-
ant, order a delivery thereof to him, upon a due appraisement to be
had under its direction, .either upon the claimant's depositing in Court
so much money as the Court shall order, or upon his giving a stipula-
tion with the sureties in such sum as the Court shall direct, to abide
by and pay the money awarded by the final decree rendered by the
• Court, or the appellate Court, if any appeal intervenes, as the one or
the other course shall be ordered by the Court.
RULES OF PRACTICE FOR THE COURTS OF ADMIRALTY. 81
11. In like manner, where any ship shall be arrested, the same may,
upon the application of the claimant, be delivered to him upon a due
appraisement to be had under the direction of the Court, upon the
claimant's depositing in Court so much money as the Court shall order,
or upon his giving a stipulation with sureties as aforesaid; and if the
claimant shall decline any such application, then the Court may, in its
discretion, upon the application of either party, upon due cause shewn,
order a sale of such ship, and the proceeds thereof to be brought into
Court, or otherwise disposed of, as it may deem most for the benefit
of all concerned.
12. In all suits by material men for supplies or repairs, or other ne-
cessaries for a foreign ship, or for a ship in a foreign port, the libellant
may proceed against the ship and freight in rem, or against the mas-
ter or the owner alone in personam. And the like proceeding in rem,
shall apply to cases of domestic ships, where 'by the local law a lien is
given to material men for supplies, repairs, or other necessaries.
13. In all suits for mariners' wages, the libellant may proceed against
the ship, freight, and master, or against the ship and freight, or against
the owner or master alone, in personam.
14. In all suits for pilotage, the libellant may proceed against the
ship and master, or against the ship, or against the owner alone, or the
master alone, in personam.
15. In all suits for damage by collision, the libellant may proceed
against the ship and master, or against the ship alone, or against the
master, or the owner alone, in personam.
16. In all suits for an assault or beating on the high seas, or else-
where, within the admiralty and maritime jurisdiction, the suit shall be
in personam only.
17 In all suits against the ship or freight, founded upon a mere ma-
ritime hypothecation, either express or implied, of the master for mo-
neys taken up in a foreign port for supplies or repairs, or other neces-
saries for the voyage, without any claim of marine interest, the libellant
may proceed either in rem, or against the master, or the owner alone,
in personam.
18. In all suits on bottomry bonds, properly so called, the suit shall
be in rem only against the property hypothecated, or the proceeds of
the property in whosoever hands the same may be found, unless the
master has, without authority, given the bottomry bond, or by his fraud
or misconduct has avoided the same, or has substracted the property,
or unless the owner has, by his own misconduct or wrong, lost or sub-
stracted the property, in which latter cases the suit may be in personam
"against the wrong-doer.
19. In all suits for salvage, the suit may be in rem against the pro-
perty saved, or the proceeds thereof, or in personam against the party
at whose request and for whose benefit the salvage service has been
performed.
20. In all petitory or possessory suits between part owners or ad-
verse proprietors, or by the owners of a ship, or the majority thereof,
against the master of a ship for the aocertainment of the title and de-
livery of the possession, or for the possession only, or by one or more
part owners against the others to obtain security for the return of the
ship from any voyage undertaken without their consent, or by one or
L
82 RULES OF PRACTICE FOR THE COURTS OF ADMIRALTY.
more part owners against the others to obtain possession of the ship for
any voyage, upon giving security for. the safe return thereof, the pro-
cess shall be by an arrest of the ship and by a monition to the adverse
party or parties to appear and make answer to the suit.
21. In all cases where the decree is for the payment of money, the
libellant may, at his election, have an attachment to compel the defend-
ant to perform the decree, or a writ of execution in the nature of a
capias and of a fieri facias, commanding the Marshal or his deputy to
levy the amount thereof of the goods and chattels of the defendant, and
for want thereof to arrest his body, to answer the exigency of the exe-
cution. In all other cases, the decree may be enforced by an attach-
ment to compel the defendant to perform the decree; and upon such
attachment the defendant may be arrested and committed to prison until
he performs the decree, or is otherwise discharged by law, or by the
order of the Court.
22. All informations and libels of information upon seizures for any
breach of the revenue or navigation, or other laws ofthe United States,
shall state the place of seizure, whether it be on land, or on the high
seas, or on navigable waters within the admiralty and maritime juris-
diction ofthe United States ; and the district within which the proper-
ty is brought and where it then is. The information or libel of infor-
mation shalLalso propound in distinct articles the matters I'elied on
as grounds or causes of forfeiture, arid aver the same to be contrary to
the form of the statute or statutes ofthe United States in such case
provided, as the case may require, and shall conclude with a prayer of
due process to enforce the forfeiture, and to give notice to all persons
concerned in interest to appear and shew cause at the I'eturn day of
the process why the forfeiture should not be decreed.
23. All libels in instance causes, civil or maritime, shall state the
nature ofthe cause, as for example, that it is a cause civil and mari-
time, of contract, or of tort or damage, or of salvage, or of possession or
otherwise, as the case may be, and if the libel be in rem, that the pro-
perty is within the district: and if in personam, the names and occupa-
tions and places of residence ofthe parties. The libel shall also pro-
pound and articulate indistinct articles the various allegation of facts,
upon wluch the libellant relies in support of his suit, so that the defend-
ant may be enabled to answer distinctly and separately the several
matters contained in each article ; and it shall conclude with a prayer
ofthe process to enforce his rights in rem, or in personam, (as the case
may require,) and for such relief and redress as the Court is competent
to give in the premises. And the libellant may further require the de-
fendant to answer on oath all interrogatories propounded by him touchy
in"- all and singular the allegations in the libel at the close or conclu-
o o o
sion thereof.
24. In all informations and libels in causes of admiralty and mari-
time jurisdiction, amendments in matters of form may be made, at
any time, upon motion to the Court as of course. And new counts
may be filed, and amendments in matters of substance may be made
upon motion at any time before the final decree, upon such terras as
the Court shall impose. And where any defect of form is set down by
the defendant upon special exceptions, and is allowed, the Court may,
in granting leave to amend, impose terms upon the libellant.
RULES OF PRACTICE FOR THE COURT OF ADMIRALTY. 83
25. In all cases of libels in pei-sonam, the Court may, in its discretion,
upon the appearance of the defendant, where no bail has been taken,
and no attachment of property has been made to answer the exigency
of the suit, require the defendant to give a stipulation with sureties in
such sura as the Court shall direct, to pay all costs and expenses which
6hall be awarded asrainst him in the sun, upon the final adjudication
thereof, or by any interlocutory order in the process of the suit.
26. In suits in rem, the party claiming the property shall verify his
claim on oath or solemn affirmation, stating that the claimant, by whom
or on whose behalf the claim is made, is the true and bonafide owner,
and that no other person is the owner thereof. And where the claim
is put in by an agent or consignee, he shall also make oath, that he is
duly authorized thereto by the owner, or if the property be at the time
of the arrest in the possession of the master of a ship, that he is the law-
ful bailee thereof for the owner. And upon putting in such claim, the
claimant shall file a stipulation with sureties in such sum as the Court
shall direct, for the payment of all costs and expenses which shall be
awarded against him by the final decree of the Court, or upon an ap-
peal, by the appellate Court.
27. In all libels in causes of civil and maritime jurisdiction, whether
in rem or in personam, the answer of the defendant to the allegations
in the libel shall be on oath or solemn affirmation ; and the answer shall
be full and explicit and distinct to each separate article and separate
allegation in the libel, in the same order as numbered in the libel ; and
shall also answer in like manner each interrogatory propounded at the
close ofthe libel.
28. The libellant may except to the sufficiency or fulness, or distinct-
ness or relevancy of the answer to the articles and interrogatories in
the libel ; and if the Court shall adjudge the same exceptions, or any
of them to be good and valid, the Court shall order the defendant
forthwith, within such time as the Court shall direct, to answer the
same, and may further order the defendant to pay such costs as the
Court shall adjudge reasonable.
29. If the defendant shall omit or refuse to make due answer to the
libel upon the return day of the process, or other day assigned by the
Court, the Court shall pronounce him to be in contumacy and default,
and thereupon the libel shall be adjudged to be taken pro confesso
against him, and the Court shall proceed to hear the cause ex parte,
and adjudge therein as to law and justice shall appertain. But the
Court may, in its discretion set aside the default, and upon the applica-
tion of the defendant, admit him to make answer to the libel at any
time before the final hearing and decree, upon his payment of all the
costs of the suit up to the time of granting leave therefor.
30. In all cases where the defendant answers, but does not answer
fully and explicitly, and distinctly, to all the matters in any article of
the libel, and exception is taken thereto by the libellant, and the ex-
ception is allowed, the Court may, by attachment, compel the defend-
ant to make further answer thereto, or may direct the matter ofthe
exception to be taken pro confesso against the defendant to the full pur-
port and effect of the article to which it purports to answer, and as if
no answer had been put in thereto,
84 RULES OF PRACTICE FOR THE COURTS OF ADMIRALTY.
31. The defendant may object by his answer to answer any allegation
or interrogatory contained in the libel which will expose him to any
prosecution'or punishment for a crime, or for any penalty or any for-
feiture of his property for any penal offence.
32. '1 he defendant shall have a right to require the personal answer
of the libellant upon oath or solemn affirmation, to any interrogatories
which he may at the close of his answer propound to the libellant
touching any matters charged in the libel, or touching any matter of
defence set up in the answer, subject to the like exception as to mat-
ters which shall expose the libellant to any prosecution or punishment
or forfeiture, as is provided in the 31st Rule. In default of due answer
by the libellant to such interrogatories, the Court may adjudge the
libellant to be in default and dismiss the libel, or may compel his an-
swer in the premises by attachment, or take the subject-matter of the
interrogatory pro confesso in favor of the defendant, as the Court, in its
discretion, shall deem most fit to promote public justice.
33. Where either the libellant or the defendant is out of the coun-
try, or unable from sickness or other casualty, to make an answer to
any interrogatory on oath or solemn affirmation at the proper time,
the Court may, in its discretion, in furtherance of the due administra-
tion of justice dispense therewith, or may award a commission to take
the answer of the defendant when and as soon as it may be practi-
cable.
34. If any third person shall intervene in any cause of admiralty and
maritime jurisdiction in rem, for his own interest, and he is entitled,
according to the course of admiralty proceedings, to be heard for his
own interest therein, he shall propound the matter in suitable allega-
tions, to which, if admitted by the Court, the other party or parties in
the suit may be required, by order of the Court, to make due answer;
and such further proceedings shall be had, and decree rendered by the
Court therein, as to law and justice shall appertain. But every such
intervenor shall be required upon filing his allegations, to give a stipu-
lation with sureties to abide by the final decree rendered in the cause,
and to pay all such costs and expenses and damages as shall be awa, d-
ed by the Court upon the final decree, whether it is rendered in the
original or appellate Court.
35. Stipulations in admiralty and maritime suits may be taken in
open Court, or by the proper Judge at Chambers, or under his order,
by any Commissioner of the Court, who is a standing Commissioner
of the Court, and is now by law authorized to take affidavits of bail,
and also depositions in civil causes pending in the Courts of the United
States.
36. Exception may be taken to any libel, allegation or answer for
surplusage, irrelevancy, impertinence, or scandal, and, if upon refer-
ence to a master, the exception shall be reported to be so objectiona-
ble, and allowed by the Court, the matter shall be expunged at the
cost and expense of the party in whose libel or answer the same is
found.
37. In cases of foreign attachment, the garnishee shall be required
to answer on oath or solemn affirmation, as to the debts, credits or ef-
fects of the defendant in his hands, and to such interrogatories touch-
ing the same as may be propounded by the libellant; and if he shall
RULES OF PRACTICE FOR THE COURTS OF ADMIRALTY. 85
refuse or neglect so to do, the Court may award compulsory process
in personam against him. If he admit any debts, credits or effects, the
same shall be held in his hands liable to answer the exigency of the
suit.
38. In cases of mariner's wages, or bottomry, or salvage, or other
proceedings in rem, where freight, or other proceeds of pi'operty are
attached to or are bound by the suit, which are in the hands or posses-
sion of any person, the Court may, upon due application by petition of
the party interested, require the party charged with the possession
thereof to appear and shew cause, why the same should not be brought
into Court to answer the exigency of the suit; and if no sufficient
cause be shewn, the Court may order the same to be brought into
Court to answer the exigency of the suit, and upon failure of the party
to comply with the order, may award an attachment or other compulso-
ry process to compel obedience thereto.
39. If in any admiralty suit, the libellant shall not appear and pro-
secute his suit according to the course and orders of the Court, he
shall be deemed in default and contumacy, and the Court may, upon
the application of the defendant, pronounce the suit to be deserted,
and the same may be dismissed with costs.
40. The Court may, in its discretion, upon the motion of the defend-
ant and the payment of costs, rescind the decree in any suit in which
on account of his contumacy and default, the matter of the libel shah
have been decreed against him, and grant a re-hearing thereof, at any
time within ten days after the decree has been entered, the defendant
submitting to such further orders and terms in the premises as the
Court may direct.
41. All sales of property under any decree in admiralty, shall be
made by the Marshal or his deputy, or other proper officer assigned
by the Court, where the Marshal is a party in interest, in pursuance
of the orders of the Court; and the proceeds thereof, when sold, shall
be forthwith paid into the registry of the Court by the officer making
the sale, to be disposed of by the Court according to law.
42. All moneys paid into the registry of the Court, shall be deposit-
ed in some Bank designated by the Court, and shall be so deposited
in the name of the Court, and shall not be drawn out except by a check
or checks signed by a Judge of the Court, and countersigned by the
Clerk, stating on whose account and for whose use it is drawn, and in
what suit, and out of what fund in particular it is paid. The Clerk
shall keep a regular book containing a memorandum and copy of all
the checks so drawn and the date thereof.
43. Any person having an interest in any proceeds in the registry of
the Court, shall have a right by petition and summary proceeding to
intervene per inter esSe suo, for a delivery thereof to him ; and upon due
notice to the adverse parties, if any, the Court shall and may proceed
summarily to hear and decide thereon, and to decree therein according
to law and justice ; and if such petition or claim shall be deserted, or
upon a hearing be dismissed, the Court may, in its discretion, award
costs against the petiti >ner in favor of the adverse party.
44. In cases where the Court shall deem it expedient or necessary,
for the purpose of justice, the Court may refer any matters arising in
the progress of the suit, to one or more Commissioners to be appoint-
86 RULES OF PRACTICE FOR THE COURTS OF ADMIRALTY.
ed by the Court, to hear the parties and make report therein. And
such Commissioner or Commissioners, shall have and possess all the
powers in the premises, which are usually given to, or exercised by
Masters in Chancery, in references to them, including the power to
administer oaths to, and examine the parties and witnesses touching
the premises.
45. All appeals from the District to the Circuit Court, must be made
while the Court is sitting, or within such other, period as shall be de-
signated by the District Court by its general Rules, or by an order
specially made in the particular suit.
46. In all cases not provided for by the foregoing Rules, the District
and Circuit Courts are to regulate the practice of the said Courts res-
pectively, in such manner as they shall deem most expedient for the
due administration of justice in suits in admiralty.
47. These Rules shall be in force in all the Circuit and District
Courts of the United States, from and after the first day of September
next.
It is ordered by the Court, that the foregoing Rules be, and they
are adopted and promulgated as Rules for the regulation and govern-
ment of the practice of the Circuit Courts and District Courts of the
United States, in suits in admiralty on the instance side of the Courts.
And that the Reporter of the Court do cause the same to be published
in the next volume of his Reports; and that he do cause such addition-
al copies thereof to be published, as he may deem expedient for the
due information of the Bar and Bench in the respective districts and
circuits.
Supreme Court United States, I
December Term, 1844. \
r
RULES
Court of (Equitn of tl)e United 0tate0,
PROMULGATED BY THE SUPREME COURT OF THE UNITED STATES,
JANUARY TERiM, 1842: NOW OF FORCE.
PRELIMINARY REGULATIONS.
1. The Circuit Courts, as Courts of Equity, shall be deemed always
open for the purpose of filing bills, answers, and other pleadings, for
issuing and returing mesne and final process and commissions, and for
making and directing all interlocutory motions, orders, rules, and other
proceedings, preparatory to the hearing of all causes upon their
merits.
2. The Clerk's office shall be open, and the Clerk shall be in attend-
ance therein on the first Monday of every month, fur the purpose of
receiving, entering, entertaining, and disposing of all motions, rules,
orders, and other proceedings, which are grantable of course and ap-
plied for, or had by the parties, or their solicitors, in all causes pending
in equity, in pursuance of the rules hereby prescribed.
3. Any Judge of the Circuit Court, as well in vacation as in term,
may, at Chambers, or on the rule days, at the Clerk's office, make and
direct all such interlocutory orders, rules, and other proceedings, pre-
paratory to the hearing of all causes upon their merits, in the same
manner, and with the same effect, as the Circuit Court could make and
direct the same in term, reasonable notice of the application therefor
being first given to the adverse party, or his solicitor, to appear and
shew cause to the contrary at the next rule day thereafter, unless some
other time is assigned by the Judge for the hearing.
4. All motions, rules, orders, and other proceedings, made and di-
rected at Chambers, or on rule days at the < lerk's office, whether spe-
cial or of course, shall be entered by the Clerk in an order book, to be
kept at the Clerk's office on the day when they are made and directed
— which book shall be open at all office hours, to the free inspection
of the parties in any suit in equity, and their solicitors. And except
in cases where personal or other notice is specially required or direct-
ed, such entry in the order book shall be deemed sufficient notice to
the parties and their solicitors, without further service thereof, of all
orders, rules, acts, notices, and otherproceedings, entered in such order
book, touching any and all the matters in the suits, to and in which they
are parties and solicitors. And notice to the solicitors shall be deemed
88 RULES OF THE COURT OP EQUITY OP THE UNITED STATES.
notice to the parties for whom they appear, and whom they represent,
in all cases where personal notice on the parties is nut otherwise spe-
cially required. Where the solicitors for all the parties in a suit re-
side in or near the same town or city, the Judges of the Circuit Court may,
by rule, abridge the time for notice of rules, orders, or other proceed-
ings, not requiring personal service on the parties, in their discretion.
5. All motions and applications in'the Clerk's office, for the issuing
of mesne process and final process to enforce and execute decrees, for
filing bills, answers, pleas, demurrers, and other pleadings ; for making
amendments to bills and answers; for takiug bills pro con \fesso ; for
filing exceptions, and for other proceedings in the Clerk's office, which
do not, by the rules hereinafter prescribed, require any allowance or
order of the Court, or of any Judge thereof, shall be deemed motions
and applications, ^rantable, of course, by the Clerk of the Court. But
the same may be suspended, or altered, or rescinded, by any Judge of
the Court, upon special cause shewn.
6. All motions for rules or orders and other proceedings, which
are not grantable of course, or without notice, shall, unless a different
time be assigned by a Jud^e of the Court, be made on a rule day, and
entered in the order book, and shall be heard at the rule day next after
that on which the motion is made. And if the adverse party, or his
solicitor, shall not then appear, or shall not shew good cause against
the same, the motion may be heard by any Judge of the Court ex
parte, and granted, as if not objected to or refused, in his discretion.
PROCESS.
7. The process of subpoena shall constitute the proper mesne
process in all suits in equity, in the first instance, to require the defend-
ant: to appearand answer the exigency of the bill; and unless other-
wise provided in these rules, or specially ordered by the Circuit Court,
a writ of attachment, and if the defendant cannot be found, a writ of
sequestration, or a writ of assistance, to enforce a delivery of poces-
sioo, as the case may require, shall be the proper process to issue, for
the purpose of compelling obedience to any interlocutory or final order
or decree of the Court.
8. Filial process to execute any decree, may, if the decree be
solely for the payment of money, be by writ of execution, in the form
used in the Circuit Court in suits at common law in actions of assump-
ist. If the decree be for the perforance of any specific act, as, for ex-
ample, for the execution of a conveyance of land, or the delivering up
of deeds, or other documents, the decree shall, in all cases, prescribe
the time within which the actshall be done, of which the defendant shall
be bound without further service to take notice ; and upon affidavit of
the plaintiff, filed in the Clerk's office, that the same has not been com-
plied with within the prescribed time, the Clerk shall issue a writ of
attachment against the delinquent party, from which, if attached there-
on, he shall not be discharged, unless upon a full compliance with the
decree and the payment of all costs, or upon a special order of the
Court, or of a Judge thereof, upon motion and affidavit, enlarging the
time for the performance thereof. If the delinquent party cannot be
found, a writ of sequestration shall issue against his estate upon the
return of noncst inventus, to compel obedience to the decree.
RULES OF THE COURT OF EQUITY OF THE UNITE* STATES. 89
9. "When any decree or order is for the delivery of possession,
upon proof made by affidavit of a demand and refusal to obey the decree
or order, the party prosecuting the same shall be entitled to a writ of
assistance from the Clerk of fche Court.
10. Every person, not being a party in any cause, who has obtained
an order, or in whose favor an order shall have been made, shall be
enabled to enforce obedience to such order by the same process, as if
he were a party in the cause ; and every person, not being a party in
any cause, against whom obedience to any order of the Court may be
enforced, shall be liable to the same process for enforcing obedience
to such order, as if he were a party in the cause.
SERVICE OF PROCESS.
11. No process of subpoena shall issue from the Clerk's office in
any suit in equity, until the bill is filed in the office.
12. Whenever a bill is filed, the Clerk shall issue the process of
subpoena thereon, as of course, upon the application of the plaintiff,
which shall be returnable into the Clerk's office the next rule day, or the
next rule day but one, at the election of the plaintiff, occurring after
twenty days from the time of the issuing thereof. At the bottom of the
subpoena shall be placed a memorandum, that the defendant is to enter
his appearance in the suit in the Clerk's office, on or before the day, at
which the writ is returnable ; otherwise, the bill may be taken pro
confesso. Where there ai-e more than one defendants, a writ of subpoe-
na may, at the election of the plaintiff, be sued out separately for each
defendant, except in the case of husband and wife, defendants, or a
joint subpoena against all the defendants.
13. The service of all subpoenas shall be by a delivery of a copy
thereof by the officer serving the same, to the defendant personally, or
in case of husband and wife, to the husband personally, or by
leaving a copy thereof at the dwelling house or usual place of abode
of each defendant, with some free white person, who is a member or
resident in the family.
14. Whenever any subpoena shall be returned not executed as to
any defendant, the plaintiff shall be entitled to another subpoena, toties
quoties, against such defendant, if he shall require it, until due service
is made.
15. The service of all process, mesne and final, shall be by the mar-
shal of the district, or his deputy, or by some other person specially
appointed by the Court for that purpose, and not otherwise ; in the
latter case, the person serving the process shall make affidavit thereof.
16. Upon the return of the subpoena, as served and executed upon
any defendant, the Clerk shall enter the suit upon his docket as pend-
ing in the Court, and shall state the time of the entry.
APPEARANCE.
17. The appearance day of the defendant shall be the rule day, to
which the subpoena is made retuimable ; provided he has been served
with the process twenty days before that day; otherwise, his appear-
ance day shall be the next rule day succeeding the rule day, when the
process is returnable. .
M
9t) rules oPthe court op equity op the united states.
The appearance of the defendant, either personally or by his solici-
tor, shall be entered in the order book on the day thereof by the Clerk.
BILLS TAKEN PRO CONFESSO.
18. It shall be the duty of the defendant, unless the time shall be
otherwise enlarged, for cause shewn, by a Judge of the Court upon
motion for that purpose, to file his plea, demurrer, or answer to the
bill in the Clerk's office, on the rule day next succeeding that of enter-
ing his appearance; in default thereof, the plaintiff may, at his election,
enter an order (as of course,) in the order book, that the bill be taken
pro confesso ; and thereupon the cause shall be proceeded in ex parte?
and the matter of the bill may be decreed by the Court at the next
ensuing term thereof accordingly, if the same can be done without an
answer, and is proper to be decreed ; or the plaintiff, if he requires
any discovery or answer to enable him to obtain a proper decree, shall
be entitled to process of attachment against the defendant, to compel
an answer ; and the defendant shall not, when arrested upon such pro-
cess, be discharged therefrom, unless, upon filing his answer, or other-
wise complying with such order, as the Court or a Judge thereof may
direct, as to pleading to, or fully answering the bill, within a period
to be fixed by the Court or Judge, and undertaking to speed the cause.
19. When the bill is taken pro confesso, the Court may proceed to a
decree at the next ensuing term thereof, and such decree rendered
shall be deemed absolute, unless the Court shall at the same term, set
aside the same, or enlarge the time for filing the answer, upon cause
shewn upon motion and affidavit of the defendant. And no such mo-
tion shall be granted, unless upon the payment of the costs of the
plaintiff in the suit up to that time, or such part thereof as the Court
shall deem reasonable, and unless the defendant shall undertake to
file his answer within such time as the Court shall direct, and submit
to such other terms as the the Court shall direct, for the purpose of
speeding the cause.
FRAME OF BILLS.
20J Every bill, in the introductory part thereof, shall contain the
names, places of abode, and citizenship of all the parties, plaintiffs and
defendants, by and against whom the bill is brought. The form, in
substance shall be as follows : " To the Judges of the Circuit Court
of the United States, for the District of . A. B. of ; and
a citizen of the State of , brings this, his bill, against C. D., of
, and a citizen of the State of , and E. F., of , and
a citizen of the State of . And thereupon your orator complains
and says, that, &c."
21. The plaintiff in his bill, shall be at liberty to omit, at his option,
the part which is usually called the common confederacy clause of the
bill, averring a confederacy between the defendants to injure or de-
fraud the plaintiff; also what is commonly called the charging part of
the bill, setting forth the matters or excuses, which thij defendant is
supposed to intend to set up by way of defence to the bill ; also, what
is commonly called the jurisdiction clause of the bill, that the acts com-
plained of are contrary to equity, and that the defendant is without
any remedy at law; and the bill shall not be demurrable therefor. And
RULES OF THE COURT OF EQUITY OF THE UNITED STATES. 91
the plaintiff may, in the narrative or stating part of his bill, state and
avoid, by counter-averments, at his option, any matter or thing, which
he supposes will be insisted upon by the defendant, by way of defence
or excuse, to the case made by the plaintiff for relief. The prayer of
the bill shall ask the special relief, to which the plaintiff supposes him-
self entitled, and also shall contain a prayer for general relief; and if
an injunction, or a writ of ne. exeat regno, or any other special order
pending the suit, is required, it shall also be specially asked for.
22. If any persons, other than those named as defendants in the bill.
shall appear to be necessary or proper parties thereto, the bill shall
aver the reason, why they are not made parties, by shewing them to
be without the jurisdiction of the Court, or that they cannot be joined
without ousting the jurisdiction of the Court as to the other parties.
And as to persons who are without the jurisdiction, and may properly
be made parties, the bill may pray, that process may issue to make
them parties to the bill, if they should come within the jurisdiction.
23. The prayer for process of subpoena in the bill shall contain the
names of all the defendants, named in the introductory part of the bill,
and if any of them are known to be infants under age, or otherwise
under guardianship, shall state the fact, so that the Court may take
order thereon, as justice may require, upon the return of the process.
If an injunction, or a writ of ne exeat regno, or any other special order
pending the suit, is asked for in the prayer for relief, that shall be suffi-
cient, without repeating the same in the prayer for process.
24. Every bill shall contain the signature of counsel annexed to it,
which shall be considered as an affirmation on his part, that upon the
instructions given to him, and the case laid before him, there is good
ground for the suit, in the manner in which it is framed.
25. In order to prevent unnecessary costs and expenses, and to pro-
mote brevity, succinctness and directness in the allegations of bills and
answers, the regular taxable costs for every bill and answer shall in no
case exceed the sum which is allowed in the State Court of Chancery
in the district, if any there be; but if there be none, then it shall not
exceed the sum of three dollars for every bill or answer.
SCANDAL AND IMPERTINENCE IN BILLS.
26. Every bill shall be expressed in as brief and succinct terms as
it reasonably can be, and shall contain no unnecessary recital of deeds,
documents, contracts, or other instruments, in h&c verba, or any other
impertinent matter, or any scandalous matter not relevant to the suit.
If it does, it may on exceptions be referred to a Master by any Judo-e
of the Court for impertinence, or scandal, and if so found by him, the
matter shall be expunged at the expense of the plaintiff, and he shall
pay to the defendant all his costs in the suit up to that time, unless the
Court or a Judge thereof shall otherwise order. If the Master shall
report, that the bill is not scandalous or impertinent, the plaintiff shall
be entitled to all costs occasioned by the reference.
27. No order shall be made by any Judge for referring any bill,
answer, or pleading, or other matter, or proceeding, depending before
the Court for scandal or impertinence, unless exceptions are taken in
writing, and signed by counsel, describing the particular passages,
92 RULES OF THE COURT OF EQUITY OF THE UNITED STATES.
which are considered to be scandalous or impertinent ; nor unless the
exceptions shall be filed on or before the next rule day, after the pro-
cess on the bill shall be returnable, or after the answer or pleading is
filed. And such order when obtained, shall be considered as abandon-
ed, unless the party obtaining the order, shall without any unnecessa-
ry delay, procure the Master to examine and report for the same, on
or before the next succeeding rule dav, or the Master shall certify, that
further time is necessary for him to complete the examination.
AMENDMENTS OF BILLS.
28. The plaintiff shall be at liberty, as a matter of course, and with-
out payment of costs, to amend his bill in any matters whatsoever,
before any copy has been taken out of the Clerk's office, and in any
small matters afterwards, such as filling blanks, correcting errors of
dates, misnomer of parties, misdescription of premises, clerical errors,
and generally in matters of firm. But if he amend in a material point,
(as he may do of course,) after a copy has been so taken, before any
. answer or plea, or demurrer to the bill, he shall pay to the defendant
the costs occasioned thereby, and shall without delay, furnish him a
fair copy thereof, free of expense, with suitable references to the pla-
ces, where the same are to be inserted. And it the amendments are
numerous, he shall furnish in like manner to the defendant, a copy of
the whole bill as amended; and if there be more than one defendant,
a copy shall be furnished to each defendant affected thereby.
29. After an answer, or plea, or demurrer, is put in, and before re-
plication, the plaintiff may, upon motion or petition, without notice,
obtain an order from any Judge of the Court to amend his bill on or
before the next succeeding rule day, upon payment of costs, or without
payment of costs, as the Court or a Judge thereof may, in his discretion,
direct. But after replication filed, the plaintiff shall not be permitted
to withdraw it, and to amend his bill, except upon a special order of
a Judee of the Court, upon motion or petition, after due notice to the
other party, and upon proof by aff lavit, that the same is not made for
the purpose of vexation or dflay, or that the matter of the proposed
amendment is material, and could not with reasonable diligence have
been sooner introduced into the bill, and upon the plaintiff's submitting
to such other terms as may be imposed by the Judge for speeding the
cause.
30. If the plaintiff, so obtaining any order to amend his bill after
answer, or plea, or demurrer, or after replication, shall not file his
amendments or amended bill, as the case may require, in the Clerk's
office, on or before the next succeeding rule d^y, he shall be consider-
ed to have abandoned the same, and the cause shall proceed as if no
application for any amendment had been made.
DEMURRERS AND PLEAS.
31. No demurrer or plea shall be allowed to be filed to any bill, un-
less upon a certificate of counsel, that in his opinion, it is well founded
in point of law, and supported by the affidavit of the defendant, that it
is not interposed for delay ; and if a plea, that it is true in point of fact.
RULES OF THE COURT OF EQUITY OF THE UNITED STATES. 93
32. The defendant may, at any time before the bill is taken for con-
fessed, or afterwards, with the leave of the Court, demur or plead to
the whole bill, or to part of it, and he may demur to part, plead to part,
and answer as to the residue; but in every case in which the bill specially
charo-es fraud or combination, a plea to such part must be accompanied
with an answer, fortifying the plea, and explicitly denying the fraud
and combination, and the facts on which the charge is founded.
33. The plaintiff may set down the demurrer or plea to be argued,
or he may take issue on the plea. If, upon an issue, the facts stated in
the plea be determined for the defendant, they shall avail him, as far
as in law and equity they ought to avail him.
34. If upon the hearing, any demurrer or plea is overruled, the
plaintiff shall be entitled to his costs in the cause up to that period,
unless the Court shall be satisfied that the defendant had good ground
in point of law or fact, to interpose the same, and it was not interposed
vexatiously or for delay. And upon the overruling of any plea or de-
murrer, the defendant shall be assigned to answer the bill, or so much
thereof as is covered by the plea or demurrer, the next succeeding
rule day, or at such other period as consistently with justice and the
rights of the defendant, the same can in the judgment of the Court, be
reasonably done ; in default whereof, the bill shall be taken against
him, pro confesso, and the matter thereof proceeded in, and decreed
accordingly.
35. If upon the hearing, any demurrer or plea shall be allowed, the
defendant shall be entitled to his costs. But the Court may, in its
discretion, upon motion of the plaintiff, allow him to amend his bill
upon such terms as it shall deem reasonable.
36. No demurrer or plea shall be held bad and overruled upon
argument, only because such demurrer or plea shall not cover so much
of the hill as it might by law have extended to.
37. No demurrer or plea shall be held bad and overruled upon ar-
gument, only because the answer of the defendant may extend to some
part of the same matter, as may be covered by such demurrer or plea..
38. If the plaintiff shall not reply to any plea, or set down any plea
or demurrer for argument, on die rule day, when the same is filed,
or on the next succeeding rule day, he shall be deemed to admit the
truth and sufficiency thereof, and his bill shall be dismissed as of course,
unless a Judge of the Court shall allow him further time for the pur-
pose.
ANSWERS.
39. The rule, that if a defendant submits to answer, he shall answer
fully to all the matters of the bill, shall no longer apply, in cases where
he might, by plea, protect himself from such answer and discovery.
And the defendant shall be entitled, in all cases by answer, to insist
upon all matters of defence, (not being matters of abatement, or to the
character of the parties or matters of form,) in bar of or to the merits
of the bill, of which he may be entitled to avail himself by a plea in
bar ; and in such answer he shall not be compellable to answer any
other matters than he would be compellable to answer and dis-
cover upon filing a plea in bar, and an answer in support of such plea,
touching the matters set forth in the bill to avoid or repel the bar or
94 RULES OF THE COURT OF EQUITY OF THE UNITED STATES.
defence. Thus, for example, a bonajide purchaser, for a valuable con-
sideration, without notice, may set up that defence by way of answer,
instead of plea, and shall be entitled to the same protection, and shall
not be compellable to make any further answer or discovery of his
title, than he would be in any answer in support of such plea.
40. A defendant shall not be bound to answer any statement
or charge in the bill, unless specially and particularly interrogated
thereto ; and a defendant shall not be bound to answer any interroga-
tory in the bill, except those interrogatories, which such defendant is
required to answer ; and where a defendant shall answer any statement
or charge in the bill, to which he is not interrogated, only by stating
his ignorance of the matter so stated or charged, such answer shall be
deemed impertinent.
41. The interrogatories contained in the interrogating part of the
bill shall be divided as conveniently as may be from each other, and
numbered consecutively, 1, 2, 3, &c. ; and the interrogatories, which
each defendant is required to answer shall be specified in a note at the
foot of the bill, in the form, or to the effect following ; that is to say, —
"The defendant (A. B.) is required to answer the interrogatories num-
bered respectively 1, 2, 3, &c. ;" and the office copy of the bill taken
by each defendant shall not contain any interrogatories except those,
which such defendant is so required to answer, unless such defendant
shall require to be furnished with a cojiy of the whole bill.
42. The note at the foot of the bill, specifying the interrogatories
which each defendant is required to answer, shall be considered and
treated as part of the bill, and the addition of any such note to the bill,
or any alteration in, or addition to such note after the bill is filed, shall
be considered and treated as an amendment of the bill.
43. Instead of the words of the bill now in use, preceding the in-
terrogating part thereof, and beginning with the words, "To the end,
therefore," there shall hereafter be used words in the form, or to the
effect following : "To the end, therefore, that the said defendants may,
if they can, shew why your oi'ator should not have the relief hereby
prayed, and may, upon their several and respective corporal oarhs,
and according to the best and utmost of their several and respective
knowledge, remembrance, information, and belief, full, true, direct,
and perfect answer make, to such of the several interrogatories here-
inafter numbered and set forth, as by the note hereunder written, they
are respectively required to answer ; that is to say : —
" 1. Whether, &c. 2. Whether, &c.
44. A defendant shall be at liberty, by answer, to decline answer-
ing any interrogatory, or part of an interrogatory, from answering
which he might have protected himself by demurrer ; and he shall be
at liberty so to decline, notwithstanding he shall answer other parts
of the bill, from which he might have protected himself by demurrer.
45. No special replication to any answer shall be filed. But if any
matter alleged in the answer shallmake it necessary for the plaintiff to
amend his bill, he may have leave to amend the same, with or without
the payment of costs, as the Court, or a Judge thereof, may, in his dis-
cretion, direct.
46. In every case, where an amendment shall be made after answer
RULES OF THE COURT OF EQUITY OF THE UNITED STATES. 95
filed, the defendant shall put in a new or supplemental answer, on or
before the next succeeding rule day after that, on which the amend-
ment or amended bill is filed, unless the time therefor is enlarged, or
otherwise ordered by a Judge of the Court; and upon his default the
like proceedings may be had as in cases of an omission to put in an
answer.
PARTIES TO BILLS.
47. In all cases where it shall appear to the Court, that persons, who
might otherwise be deemed necessary or proper parties to the suit,
cannot be made parties by reason of their being out of the jurisdiction
of the Court, or incapable otherwise of being made parties, or because
their joinder would oust the jurisdiction of the Court as to the parties
before the Court, the Court may, in their discretion, proceed in the
cause without making such persons parties ; and in such cases the de-
cree shall be without prejudice to the rights of the absent parties.
4S. Where the parties on either side are very numerous, and can-
not without manifest inconvenience and oppressive delays in the suit,
be all brought before it, the Court, in its discretion, may dispense with
making all of them parties, and may proceed in the suit, having suffi-
cient parties before it to represent all the adverse interests of the
plaintiffs and defendants in the suit properly before it. But in such
cases the decree shall be without prejudice to the rights and claims of
all the absent parties.
49. In all suits concerning real estate, which is vested in trustees
by devise, and such trustees are competent to sell and give discharges
for the proceeds of the sale, and for the rents and profits of the estate,
such trustees shall represent the persons beneficially interested in the
estate or the proceeds, or the i-ents and profits, in the same manner,
and to the same exteut, as the executors or administrators in suits con-
cerning personal estate represent the persons beneficially interested
in such personal estate ; and in such cases it shall not be necessary to
make the persons beneficially interested in such real estate, or rents
and profits, parties to the suit ; but the Court may, upon consideration
of the matter on the hearing, if it shall so think fit, order such persons
to be made parties.
50. In suits to execute the trusts of a will, it shall not be necessary
to make the heir at law a party ; but the plaintiff shall be at liberty to
make the heir at law a party, where he desires to have the -will estab-
lished against him.
51. In all cases in which the plaintiff has a joint and several demand,
against several persons, either as principles or sureities, it shall not be
necessary to bring before the Court, as parties to a suit concerning
such demand, all the persons liable thereto ; but the plaintiff may pro-
ceed against one or more of the persons severally liable.
52. Where the defendant shall, by his answer, suggest, that the
bill is defective for want of parties, the plaintiff shall be at liberty, with-
in fourteen days after answer filed, to set down the cause for argument
upon that objection only ; and the purpose for which the same is so
set down shall be notified by an entry, to be made in the Clerk's order
book, in the form, or to the effect, following ; that is to say: "Set down
upon the defendant's objection for want of parties," And where the
96 RULES OF THE COURT OF EQUITY OF THE UNITED STATES.
plaintiff shall not so set down his cause, but shall proceed therewith
to a hearing, notwithstanding an objection for want of parties taken
by the answer, he shall not at the hearing of the cause, if the defend-
ant's objection shall then*be allowed, be entitled as of course, 'to an
order for liberty to amend his bill by adding parties. But the Court, if
it thinks fit, shall be at liberty to dismiss the bill.
53. If a defendant shall, at the hearing of a cause, object, that a suit
is defective for want of parties, not having by plea or answer taken the
objection, and therein specified, by name or description, the parties to
whom the objection applies, the Court, if it shall think fit, shall be at
liberty to make a decree saving the rights of the absent parties.
NOMINAL PARTIES TO BILLS.
54. Where no account, payment, conveyance, or other direct relief
is sought against a party to a suit, not being an infant, the party upon
service of the subpoena upon him, need not appear nd answer the bill
unless the plaintiff specially requires him so to do by the prayer of his
bill ; but he may appear and answer at his option ; and if he does not
appear and answer, lie shall be bound by all the proceedings in the
cause. If the plaintiff shall require him to appear and answer, he
shall be entitled to the costs of all the proceedings against him, unless
the Court shall otherwLe direct.
55. Whenever an injunction is asked for by the bill to stay proceedings
at law, if the defendant do not enter his appearance and plead, demur,
or answer to the same, within the time prescribed therefor by these
rules, the plaintiff shall be entitled, as of course, upon motion without
notice, to such injunction. But special injuctions shall be grantable
only upon due notice to the other party by the Court in term, or by a
Judrru thereof in vacation, after a hearing, which may be ex parte, if
the adverse party does not appear at the time and place ordered. In
every case, where an injunction, either the common injunction, or a
special injunction, is awarded in vacation, it shall, unless previously
dissolved by the judge granting the same, continue until the next term
of the Court, or until it is dissolved by some other order of the Court.
BILLS OF REVIVOR AND SUPPLEMENTAL BILLS.
56. Whenever a suit in equity shall become abated by the death
of either party, or by any other event, the same may be revived by a
bill of revivor, or a bill in the nature of a bill of revivor, as the circum-
stances of the case may require, filed by the proper parties entitled to
revive the same ; which bill may be filed in the Clerk's office at any
time ; and upon suggestion of the facts, the proper process of subpoe-
na shall, as of course, be issued by the Clerk, requiring the proper
representatives of the other party to appear and shew cause, if any
they have, why the cause should not be revived. And if no cause
shall be shewn at the next rule day, which shall occur after fourteen
days from the time of the service of the same process, the suit shall
stand revived, as of course.
'57. Whenever any suit in equity shall become defective, from any
event happening after the filing of the bill, (as, for example, by a change
of interest in the parties,) or for any other reason, a supplemental bill,
or a bill in the nature of a supplemental bill, may be necessary to be
filed in the cause, leave to file the same may be granted by any Judge
RULES OP THE COURT OF EQUITY OF THE UNITED STATES. 97
of the Court on any rule day, upon proper cause shewn, and due notice
to the other party. And if leave is granted to file such supplemental
bill, the defendant shall demur, plead, or answer thereto, on the next
succeeding rule day after the supplemental bill is filed in the Clerk's
office, unless some other time shall be assigned by a Judge of the
Court.
58. It shall not be necessary in any bill of revivor, or supplemental
bill, to set forth any of the statements in the original suit, unless the
special circumstances of the case may require it.
ANSWERS.
59. Every defendant may swear to his answer before any Justice or
Judge of any Court of the United States, or before any Commissioner
appointed by any Circuit Court to take testimony or depositions, or
before any Master in Chancery appointed by any Circuit Court, or
before any Judge of any Court of a State or Territory.
AMENDMENT OF ANSWERS.
60. After an answer is put in, it may be amended, as of course, in
any matter of furm, or by filling up a blank, or correcting a date, or
reference to a document or other small matter, and be re-sworn, at any
time before a replication is put in, or the cause is set down for a hear-
ing upon bill and answer. But after replication, or such setting down
for a hearing, it shall not be amended in any material matters, as by
adding new facts or defences, or qualifying or altering the original
statements, except by special leave of the Court, or of a Judge there-
of, upon motion and cause shewn, after due notice to the adverse party,
supported, if required, by affidavit. And in every case where leave is
so granted, the Court or the Judge granting the same, may, in his dis-
cretion, require that the same be separately engrossed and added as a
distinct amendment to the original answer, so as to be distinguishable
therefrom.
EXCEPTIONS TO ANSWERS.
61. After an answer is filed on any rule day, the plaintiff shall be
allowed until the next succeeding rule day to file in the Clerk's office,
exceptions thereto for insufficiency, and no longer, unless a longer
time shall be allowed for the purpose, upon cause shewn to the Court
or a Judge thereof; and if no exception shall be filed thereto within
that period, the answer shall be deemed and taken to be sufficient.
62. When the same solicitor is employed for two or more defend-
ants, and separate answers shall be filed, or other proceedings had, by
two or more of the defendants separately, costs shall not be allowed
for such separate answers or other proceedings, unless a Master, upon
reference to him, shall certify, that such separate answers and other
proceedings were necessary or proper, and ought not to have been
joined together.
63. Where exceptions shall be filed to the answer for insufficiency,
within the period prescribed by these rules, if the defendant shall not
submit to the same, and file an amended answer on the next succeeding
N
98 RULES OF THE COURT OF EQUITY OF THE UNITED STATES.
rule day, the plaintiffshall forthwith set them down for a hearing on the
next succeeding rule day thereafter, before a Judge of the Court; and
shall enter, as of course, in the order book, an order for that purpose.
And if he shall not so set down the same for a hearing, the exceptions
shall be deemed abandoned, and the answer shall be deemed sufficient:
provided, however, that the Court, or any Judge thereof, may, for good
cause shewn, enlarge the time for filing exceptions, or for answering
the same, in his discretion, upon such trrms as he may deem reason-
able.
64. If at the hearing, the exceptions shall be allowed, the defendant
shall be bound to put in a full and complete answer thereto, on the
next succeeding rule day ; otherwise the plaintiffshall, as of course, be
entitled to take the bill, so far as the matter of such exceptions is con-
cerned, as confessed, or at his election, he may have a writ of attach-
ment to compel the defendant to make a better answer to the matter of
the exceptions; and the defendant, when he is in custody upon such
writ, shall not be discharged therefrom, but by an order of the Court,
or of a Judge thereof, upon his putting in such answer, and complying
with such other terms, as the Court or Judge may direct.
65. If, upon argument, the plaintiffs exceptions to the answer shall
be overruled, or the answer shall be adjudged insufficient, the prevail-
ing party shall be entitled to all the costs occasioned thereby, unless
otherwise directed by the Court, or the Judge thereof, at the hearing,
upon the exceptions.
REPLICATION AND ISSUE.
66. Whenever the answer of the defendant shall not be excepted to1,
or shall be adjudged or deemed sufficient, the plaintiffshall file the
general replication thei'eto, on or before the next succeeding rule day
thereafter ; and in all cases where the general replication is filed, the
cause shall be deemed to all intents and purposes at issue, without any
rejoinder or other pleading on either side. If the plaintiff shall omit
or refuse to file such replication within the prescribed period, the de-
fendant shall be entitled to an order, as of course, for a dismissal of
the suit ; and the suit shall thereupon stand dismissed, unless the Court
or a Judge thereof, shall, upon motion for cause shewn, allow a repli-
cation to be filed nunc pro tunc, the plaintiff submitting to speed the
oause, and to such other terms as may be directed.
. TESTIMONY, HOW TAKEN.
67. After the cause is at issue, commissions to take testimony may
be taken out in vacation as well as in term, jointly by both parties, or
severally by either party, upon interrogatories filed by the party, ta-
king out the same, in the Clerk's office, ten days notice thereof being
given to the adverse party to file cross interrogatories before the issu-
ing of the commission ; and if no cross interrogatories are filed at the
expiration of the time, the commission may issue ex parte. In all cases
the Commissioner or Commissioners shall be named by the Court, or
by a Judge thereof. If the parties shall so agree, the testimony may
be taken upon oral interrogatories by the parties, or their agents, with-
out filing any written interrogatories.
RULES OP THE COURT OF EQUITY OF THE UNITED STATES. 99
68. Testimony may also be taken in the cause, after it is at issue,
by deposition, according to the Acts of Congress. But in such case,
if no notice is given to the adverse party of the time and place of ta-
king the deposition, he shall, upon motion and affidavit of the fact, be
entitled to a cross-examination of the witness, either under a commis-
sion, or by a new deposition taken under the Acts of Congress, if a
Court, or a Judge thereof, shall, under all the circumstances, deem it
reasonable.
69. Three months, and no more, shall be allowed for the taking of
testimony after the cause is at issue, unless the Court, or a Judge
thereof, shall, upon special cause shewn by either party, enlarge the
time : and no testimony taken after such period, shall be allowed to be
read in evidence at the hearing. Immediately upon the return of the
commissions and depositions containing the testimony, into the Clerk's
office, publication thereof may be ordered in the Clerk's office by any
Judge of the Court, upon due notice to the parties, or it may be en-
larged as he may deem reasonable, under all the circumstances. But
by consent of the parties, publication of the testimony may, at any time,
pass in the Clerk's office, such consent being in writing, and a copy
thereof entered in the order book, or indorsed upon the deposition or
testimony.
TESTIMONY DE BENE ESSE.
70. After any bill filed, and before the defendant hath answered the
same, upon affidavit made that any of the plaintiff's witnesses are aged
or infirm, or going out of the country, or that any of them is a single
witness to a material fact, the Clerk of the Court shall, as of course,
upon the application of the plaintiff, issue a commission to such Com-
missioner or Commissioners, as a Judge of the Court may direct, to
take the examination of such witness or witnesses, dc bene esse, upon
giving due notice to the adverse party of the time and place of taking
his testimony.
FORM OF THE LAST INTERROGATORY.
71. The last interrogatory in the written interrogatories to take tes-
timony now commonly in use, shall, in the future, be altered, and stated
in substance, thus: — " Do you know, or can you set forth any other
matter or thing, which may be a benefit or advantage to the parties at
issue in this cause, or either of them, or that may be material to the
subject of this your examination, or the matters in question in this
cause ] If yea, set forth the same fully and at large in your answer."
CROSS BILL.
72. Where a defendant in equity files a cross bill for discovery only
against the plaintiff in the original bill, the defendant to the original
bill shall first answer thereto, before the original plaintiff shall be com-
pellable to answer the cross bill. The answer of the original plaintiff
to such cross bill may be read and used by the party filing the cross
bill, at the hearing, in the same manner, and under the same restric-
tions as the answer, praying relief, may now be read and used.
100 RULES OP THE COURT OF EQUITY OF THE UNITED STATES.
REFERENCE TO AND PROCEEDINGS BEFORE MASTERS.
73. Every decree for an account of the personal estale of a testator
intestate, shall contain a direction to the master, to whom it is referred
to ta1 ce the same, to inquire and state to the Court, what parts, if any,
off . h personal estate are outstanding or undisposed of, unless the
Court shall otherwise direct.
74. Whenever any reference of any matter is made to a master to
examine and report thereon, the party at whose instance, or for whose
benefit the reference is made, shall cause the same to be presented to
the master for a hearing, onorbefoie the next rule day succeeding the
time when the reference was made ; if he shall omit to do so, the ad-
verse party shall be at liberty forthwith to cause proceedings to be had
before the master, at the cost of the party procuring the reference.
75. Upon every such reference, it shall be the duty of the master,
as soon as he reasonably can after the same is brought before him, to
assign a time and place for proceedings in the same, and to give due
notice thereof to each of the parties or their solicitors; and if either
party shall fail to appear at the time and place appointed, the master
shall be at liberty to proceed ex parte, or, in his discretion, to adjourn
the examination and proceedings to a future day, giving notice to the
absent party or his solicitor of such adjournment; and it shall be the
duty of the master to proceed with all reasonable diligence in every
such reference, and with the least practicable delay; and either party
shall be at liberty to apply to the Court, or a Judge thereof, for an prder
to the master to speed the proceedings, and to make his report, and to
certify to the Court or Judge the reasons for any delay.
70. In the reports made by the master to the Court, no part of any
state of facts, charge, affidavit, deposition, examination, or answer,
brought in or used before them, shall be stated or recited. But such
state of facts, charge, affidavit, deposition, examination, or answer,
shall be identified, specified, and referred to, so as to inform the Court
what state of facts, charge, affidavit, deposition, examination, or answer,
were so brought in or used.
77. The master shall regulate all the proceedings in every hearing
before him, upon every such reference ; and he shall have full author-
ity to examine the parties in the cause upon oath, touching all matters
contained in the reference; and also to require the ^.oduction of all
books, papers, writings, vouchers, and other documents, applicable
thereto ; and also to examine on oath, vv-a core, all vitnecses produced
by the patties before him, and to order the examination of other
witnesses to be taken, under a commis: i to be issued upon his
certificate from the Clerk's office, or by deposition according to
the acts of Congress, or otherwise as hereinafter provided; and also
to direct the mode, in which the matters requiring evidence, shall be
proved before him ; and generally to do all other acts, and direct all
other inquiries and proceedings in the matters before him, which he
may deem necessary and proper to the justice and merits thereof, and
the rights of the parties.
7S. Witnesses who live within the district, may, upon due notice to
the opposite party, be summoned to appear before the commissioner
appointed to take testimony, or before a master or examiner appointed
in any cauae, by subpeena in the usual form, which may be issued by
RULES OF THE COURT OF EQUITY OF THE UNITED STATES. 101
the Clerk in blank, and filled up by the party praying the same, or by
the commissioner, master, or examiner, requiring the attendance of the
witnesses at the time and place specified, who shall be allowed for at-
tendance the same compensation as for attendance in Court ; and if any
witness shall refuse to appear, or to give evidence, it shall be deemed a
contempt of the Court, which being certified to the Clerk's office by the
commissioner, master, or examiner, an attachment may issue thereupon
by order of the Court, or of any Judge thereof, in the same manner as
if the contempt were for not attending, or for refusing to give testimo-
ny in the Court. But nothing herein contained shall prevent the ex-
amination of witnesses viva voce, when produced in open Court, if the
Court shall, in its discretion, deem it advisable.
79. All parties accounting before a master shall bring in their respec-
tive accounts in the form of debtor and creditor ; and any of the other
parties, who shall not be satisfied with the accounts so brought in, shall
be at liberty to examine the accounting party viva voce, or upon inter-
rogatories in the master's office, or by deposition, as the master shall
direct.
80. All affidavits, depositions, and documents, which have been pre-
viously made, read, or used in the Court, upon any proceeding in any
cause or matter, may be used beforevthe master. .
81. The master shall be at liberty to examine any creditor or other
person coming in to claim before him, either upon written interrogato-
ries, or viva voce, or in both modes, as the nature of the case may ap-
pear to him to require. '1 he evidence upon such examination shall be
taken down by the master, or by some other person, by his order, and
in his presence, if einer party requires it, in order that the same may
be used by the Court, if necessary.
82. The Circuit Courts may appoint standing masters in chancery
in their respective districts, both the Judges concurring in the appoint-
ment ; and they may also appoint a master pro hac vice in any particu-
lar case. The compensation to be allowed to every master in chancery
for his services, in any particular case, shall be fixed by the Circuit
Court, in its discretion, having regard to all the circumstances thereof;
and the compensation shall be charged upon, and borne by, such of the
parties in the cause, as the Court shall direct. The master shall not re-
tain his report as security for his compensation ; but when the com-
pensation is allowed by the Court, he shall be entitled to an attachment
for the amount against the party, who is ordered to pay the same, if,
upon notice thereof, he does not pay it within the time prescribed by
the Court.
EXCEPTIONS TO REPORT OF MASTER.
83. The master, as soon as his report is ready, shall return the same
into the Clerk's office, and the day of the return shall be entered by the
Clerk in the order book. The parties shall have one month from the
time of filing the report, to file exceptions thereto ; and if no exceptions
are within that period filed by either party, the report shall stand con-
firmed on the next rule day after the month is expired. If exceptions
are filed, they shall stand for hearing before the Court, if the Court is
then in session ; or, if not, then at the next sitting of the Court, which
shall beheld thereafter by adjournment, or otherwise.
102 RULES OF THE COURT OF EQUITY OF THE UNITED STATES.
84. And in order to prevent exceptions to reports from being filed
for frivolous causes, or for mere delay, the party, whose exceptions are
overruled, shall, for every exception overruled, pay costs to the other
party, and for every exception allowed, shall be entitled to costs — the
costs to be fixed in each case by the Court, by a standing rule of the
Circuit Court.
DECREES.
S5. Clerical mistakes in decrees, or decretal orders, or errors arising
. ... . ®
from any accidental slip or omission, may, at any time before an actual
enrolment thereof, be corrected by order of the Court or a Judge there-
of, upon petition, without the form or expense of a re-hearing.
8G. In drawing up decrees and orders, neither the bill, nor answer,
nor other pleadings, nor any part thereof, nor the report of any master,
nor any other prior proceeding, shall be recited or stated in the decree
or order ; but the decree and order shall begin in substance as follows :
"This cause came on to be heard (or to be further heard, as the case
may be,) at this term, and was argued by counsel ; and thereupon,
upon consideration thereof, it was ordered, adjudged, and decreed, as
follows, viz :" [Here insert the decree or order.]
•
GUARDIANS AND PROCHEIN AMIS.
87. Guardians ad litem to defend a suit may be appointed by the
Court, or by any Judge thereof, for infants or other pei-sons, who are
under guardianship, or otherwise incapable to sue for themselves; all
infants and other persons so incapable, may sue by their guardians, if
any, or by their prochein ami, subject however, to such orders as the
Court may direct for the protection of infants and other persons.
88. Every petition for a re-hearing shall contain the special matter
or cause, on which such re-hearing is applied for, shall be signed by
counsel, and the facts therein stated, if not apparent on the record,
shall be verified by the oath of the party, or by some other person. —
No re-hearing shall be granted after the term, at which the final de-
cree of the Court shall have been entered and recorded, if an appeal
lies to the Supreme Court. But if no appeal lies, the petition may be
admitted at any time before the end of the next term of the Court, in
the discretion of the Court.
89. The Circuit Courts (both Judges concurring therein,) may make
any other and further rules and regulations for the practice, proceed-
ings, and process, mesne and final, in their respective districts, not
inconsistent with the rules hereby prescribed, in their discretion, and
from time to time alter and amend the same.
90. In all cases, where the rules prescribed by this Court, or by the
Circuit Court, do not apply, the practice of the Circuit Court shall be
regulated by the present practice of the High Court of Chancery in
England, so far as the same may reasonably be applied consistently
with the local circumstances and local convenience of the district,
where the Court is held, not as positive rules, but as furnishing just
analogies to regulate the practice.
91. Whenever under these rules an oath is or may be required to
be taken, the party may, if conscientiously scrupulous of taking an
RULES OP THE COURT OF EQUITY OF THE UNITED STATES. 103
oath, in lieu thereof, make solemn affirmation to the truth of the facts
stated by him. /
92. These Rules shall take effect, and be of force, in all the Circuit
Courts of the United States, from and after the first day of August
next; but they may be previously adopted by any Circuit Court in its
discretion ; and when and as soon as these Rules shall so take effect,
and be of force, the Rules of Practice for the Circuit Courts in Equity
Suits, promulgated and prescribed by this Court, in March 1822, shall
henceforth cease, and be of no further foixe or effect. And the Clerk
of this Court is directed to have these Rules printed, and to transmit
a printed copy thereof, duly certified, to the Clerks of the several
Courts of the United States, and to each of the Judges thereof.
I, William Thomas Carroll. Clerk of the Supreme Court of the
United States, do hereby certify, that the foregoing ninety-two
Rules have been ordered, by the said Supreme Court, to be the
"Rules of Practice in suits in Equity in the Circuit Courts."
. Promulgated by the said Supreme Court, on this second day of
March, in the year of our Lord one thousand eight hundred and
forty-two.
Per Curiam :
Teste :
WM. THOS. CARROLL,
Clerk of the Supreme Court of the United States.
©l& In Bill of 1791.
$4
29
32
5
36
1
o 0
3
21
1
29
09
1
07
FEES OF ATTORNIES, CLERKS & SHERIFFS, IN THE SUPERIOR COURTS
OF LAW, ACCORDING TO THE OLD FEE BILL OF 1791 -.a
SINCE SUPERSEDED.
Plaintiff's Attorney.
For filling up writs, signing, attendance to lodge the same with Sheriff, in cases
where no bail is required, and all incidental charges, when settled before
declaration filed, ........
For every extra copy of a writ and notice, .....
For all subsequent proceedings whatever, from the filing of the declaration, or
obtaining interlocutory judgment inclusive, where no bail is required,
In all cases where special bail is required, .....
For all proceedings subsequent to the former, including final judgment and
verdict, ---- .....
For all other services whatever, including the whole proceedings to the issuing
of execution inclusive, --------
For all exhibits in cases of covenant, per copy sheet of ninety words, -
To the Jury in each case tried, -------
Attornies Fees in extraordinary cases.
For every demurrer, joinder, and argument on a point of law, - - - 5 36
For every motion for a new trial, or for arrest of judgment, or special matter
and argument, * - •- - - - - - -5 36
For every renewal of writ or execution, - - - - - - 1 07
For filling up every writ of subpoena, and four tickets inclusive, - - - 1 07
Every rule to shew cause in arrest of judgment, copy and notice, and motion
for trial, - - - - - - - - - -150
Preparing every commission to examine witnesses where necessary, attending
to strike commissioners, drawing interrogatories in chief, and cross interroga-
tories and instructions, - - - - - - -8 57
( Witnesses costs, see " Fee Bill: now of force." )
For commencing and prosecuting, and defending a suit by summary process, c 4 29
All lees in dower or partition from the commencement to the end of the procee-
dings, all services inclusive, surveyor's fees extra, r - - - 21 43
On writs of attachment, in addition to common costs, on bond, note or dBfcount,
except printer's bill, ------- 12 36
a 5 Stat. 154; Resolutions of the Legislature, 1812, p. 110.
In relation to costs in the City Court of Charleston, the 2d section of the Act of 1318,
(7 Stat. 319) declares, " That the charges and fees of the several offices of said inferior
City Court, shall be the same as in the Court of Sessions and Common Pleas, in like
cases." At the time this Act was passed, the old Fee Pill of 1791 was of force. The
practice in the City Court is, and has invariably been, to tax costs under this old Fee
Bill, without reference to the Act of 1827, and other subsequent Acts, regulating the
fees of the officers of the Court of Common Pleas and general Sessions.
b Harp. Rep. 472.
c By the Act of 1809, 5 Stat. 596, only one half costs allowed Attornies, Clerks anc
Sheriffs, if demand is under fifty dollars.
O
106 OLD FEE BILL OF 1791: SINCE SUPERSEDED.
Defendant's Attorney.
For appearance, filing bail and imparlance, - ' - - - - $4 29'
Drawing and filing plea or demurrer, or other proceedings, previous to joinder
in demurrer, or issue taken, - - - - -•- • 3 75
Verdict in cases for defendant, postea bill of costs, and allowing taxation, copy
and notice, including all charges, - - - - - -2 14
For drawing commissions to examine witnesses, drawing interrogatories, atten-
ding to strike commissioners, and instructions, all incidental charges inclusive, 8 57
Copies of all exhibits necessary to be filed by defendant, per copy sheet, - 09
Clerks.
For attending to sign a wait, and affixing seal, - - - - ^21
For filing a declaration, plea, replication and demurrer, joinder in demurrer, or
other pleading, --------- 16-
For copying a declaration or other writing, per copy sheet, ... 09
For entering every special order of Court, or copy, - - - - 11
Every search in the records, where the cause is ended, - - - 14
Signing every judgment, -------- 43'
Attending drawiug a jury for special Court, - - - - - 75
Each day's attendance at a special Court, ..... 75
Drawing a bail piece, attending and taking bail, 43
For recording every judgment or other writing, for every copy sheet, - - 09
For every recognizance, --------43
For receiving money in Court and paying it again, one per c^nt.
For his attendance in every cause tried in Court, swearing jury, and reading pa-
pers and docketing the same, -------43
For swearing every witness, - - - - - - -11
For every certificate, and signing, - - - - - -11
For administering every oath, -■ - - - - 11
For reading a verdict, - - - - - - - -11
For attending at the Judge's chambers on a special argument, 43
For making out a license for the admission of an attorney, administering the oath
and reading the qualification, - - -" - - - 6 43
For recording or copying a plat of land, and copy, - - - - 50
For issuing a certiorari, or other special writ, and sealing, - - - 75
For a dedimus potestatem and sealing, - -" - - - 43
For filing and entering return thereof, - - - € - - 21
For entering a decree on summary process and execution, - - - 43
For recording the brand and mark of a stock of cattle, - - - - 32
On a noli prosequi, - - - - -- - -1 50'
When a bill is found or thrown out, - - - - - - 3 21
Upon bill found, and trial before petit jury and verdict, - -• - - 4 29
On each writ of venire for summoning jurors, ----- 32
On each writ of habeas corpus, or bench warrant, - - -• 1 50
Each writ of subpoena and tickets, ...... 43
For every order of bastardy, taking a recognizance, and all other proceedings, - 54
For each order for restitution of goods, ------ 25
For each certificate to the Coroner, ... . - . -14
For the whole fee of a tavern license and bond, - - - - 2 Ofr
m
Sheriff.
For serving every writ or summons, or other process, taking bail, returning and
proving service, and assigning bail bond, - - -■ - 1 50
For copy left at defendant's residence, or where he cannot be personally arrest-
ed, returning and proving service, - - - - - -107
For mileage from the court-house of the districts respectively, to the defendant's
residence, or where he shall be found or taken, but not for returniug, each
mile, ---------- 05
For commitment and releasement of any prisoner, 54
For summoning all juries, to the Sheriff of each district Court, $64.29 per annum,
to be paid by the State.
For serving any order or rule of Court, except publio orders or rules, and deli-
vering a copy, ---------43
OLD PEE BILL OF 1791 : SINCE SUPERSEDED. 107
For serving every writ of subpoena and tickets, and returning the same, - $0 43
For serving a bench warrant, or warrant of a Justice of Peace, and return
thereof, and proving service in the same maimer as oa services of writs, - 86
For every return of a writ where the goods or persons are not to be found, - 43
For dieting white persons in the several gaols and work-houses in the State,
allowing 1ft of bread and 1ft of flesh, wholesome provisions, per day, <* - 21
For dieting negroes, or other slaves, allowing wholesome food, per day, * - 14
For executing a person condemned to death, to be paid by the State, - - 4 29
For putting a person in the Stocks, branding, pilloring, whipping or cropping,
to be paid by the State, each, -. - - - - - -107
For bringing up a person on habeas corpus, aud discharging or conveying to pri-
son, to be paid by the party if solvent, if insolvent, then by the State, - 1 07
For conveying a prisoner on habeas corpus or otherwise, from one district or
county gaol to another, every mile he shall necessarily ride, going to and re-
turning, for each mile, --.-----05
All necessary expenses to be allowed the Sheriff, in addition to the immediate
foregoing charge, for levying an execution on the goods of the defendant, and
selling the same ; for all sums where the debt does not exceed one hundred
pounds, two and a half per cent, commissions ; and for all sums where the
debt exceeds one himdred pounds, one per cent. In all cases where the de-
fendant, after the Sheriff may have levied upon the property, shall settle with
the plaintiff before actual sale, the Sheriff in such cases shall b<= only entitled
to one-fourth per cent., besides all reasonable disbursements, and also
fees for entering executions ; but if the defendant shall pay the money to the
Sheriff, one per cent, in lieu of the one-fourth.
Where an execution shall be lodged in the Sheriff's office only to bind the pro-
perty, with directions not to levy, for entering the same in his books, - - 54
For serving an execution against the body of defendant and return, - - 1 50
For every prisoner brought up for trial at the Sessions, to be paid by the State, - 32 .
For drawing each set of conveyances, - - - - - -5 36
a Increased by the Act of 1805, 5 Stat. 500, to 37£ cents per day.
b Increased by the Act of 1810, 5 Stat. 619, to 25 cents per day.
ftt Bill: noto oi force.
IN THE SUPERIOR COURTS OF LAW."
Plai?iliff,s or Defendant's Attorney.
For rule on Sheriff, or other officer of the Court, - - - - $3 00
Issuing writ of attachment for contempt, - - - - 3 00
(1827, 6 Stat. 333.;
a For various Statutes and cases on the subject of costs, see note in 2 Stat. 743. In separate suits
on a joint and several note, bond or other obligation, full costs are allowed in only one case, and but
one fourth costs in the other separate cases, 18-27, 6 Slat. 336 § 7 : not repealed by the A. A 1339 and
1840, regulating the fees of Clerks and Sheriffs. Arledge v. Ford, 2 Rich. 58. Treble costs in cases
against patrol. 1839, 11 Stat. 61 § 19. Double costs ureases under Militia Act of 1841. 11 Stat. 210
$ i57. Double costs in cases against Magistrates, Constables and Bailifls. 1733 (P. L. 135 ;) Barksdale
v. Morrison, 3 McC. 134.
In matters of tort, no costs are allowed if the recovery is under £20 currency, ($12.24) unless
title to property is established, and then costs are allowed if the recovery is above $4. 1747, (P. L.
214) McCulloughv. McCullough, 2 N. & McC. 361 : Vaughanv. Cade, 2 Rich. 53. In matters of con-
tract, Magistrates have exclusive jurisdiction of and under $20. Vaughan v. Cade, 2 Rich. 50. and
cases there collected. Plaintiff, suing in the geueral jurisdiction, ouly entitled to sum. pro. costs,
■when the demand is reduced by actual payments to within the sum. pro. .jurisdiction: otherwise
when the demand is reduced by discount. Levy and Roberts, 1 McC. 395; Smith v. Mc.Vlaster,
3 McC. 288; Duggan v. Roche, 2 Hill 584. See Furman et al., vs. Peay, 2 Bail. 612. In debt on
penal bond, the smallest damages will carry costs. Wyliev. Stroud, et al., 1 Speer 141. Costs allow-
ed m action of ravishment of ward, to try ward's freedom, though no damages found. Clifford v.
Phillips, 1 McC. 469. The only costs allowed upon a suggestion of fraud, under the prison bounds
act, are those of the Clerk and Sheriff. Gilchrist v. Edwards, 1 Rich. 191. Costs under a suggestion on
Sheriff's bond. Rowell v. Mulligan, 2 Strob. — . No costs allowed in a qui turn action for the benefit
of the public. O'Driscoll v. McCants, 2 Bay 323. Slaves convicted of offences, owners not liable to
pay costs ot prosecution. Penning v. Porter, 1 M. Cons, Rep. 396.
Where a suit abates by the death of one of the parties, each party pays his own costs. Latta v.
Admrs. of Sursiner, 2 McC. 430. Nominal plaintiff's in suits on notes, negotiable or unnegotiable,
when liable for costs. Bennett v. McFall, 2 M. Cons. Rep. 198 ; Horton v. Blair, 2 Bail. 546; Myers
v. James, Id. 547 ; Lomax v. Baker, 1 Speer 161. Action uu ad minist ration bond, in the name of the
Ordinary, for the benefit of a distributee, the distributee and not the Ordinary liable lor costs. Bomar
v. Trail, 1 Bail. 533. Sureties to prison bounds' bond and Sheriff's' bond, not liable for costs in cases
against their principal. Baker et al v. Bushnell, 2 McMul. 21; Leslie et al. v. Taggart. et al., 2 McMul.
71. Executors and administrators, when, and when not, liable for costs. See Fink & Co. ads. Luten,
2 Bay 166; Yanderhorst v. Whitner, 2 Bay 399; Cowsar's Exr. v. Wade, 2 Brev. 291; Jamison v.
Lindsay, 1 Bail. 80 : Moore et al. v. Hunt et al , 1 Bail. 370 ; Bordeaux v. Cave, 2 Bail. 6 ; Adm'r of
Mealer v. Ex'or of Meyer, 2 Bail. 53; Ker Boyce v Hancock, Id.; Farley v. Farley, 2 Bail. '319;
Gyles et al. v, Pratt, 1 Hill 239. In issues which the parties are entitled to make up as a matter of
right, or when the Court neglects to make an order regulating the costs on a ieigned issue, the costs
follow the result of the case. Todd v. Stroud, 1 Rich. 25; Baker et al. v. Bushnell. 2 McMul. 22,
and cases there cited ; Westmoreland v. Tippens, 1 Bail. 514; Cohen ads, Sherman, 2 Speer 529. De-
fendant not entitled to receive costs against the relator, where a motion for a prohibition is dismissed
without an order concerning the costs. City Council of Beaufort y. Danner etal., 1 Strob. 17(1. Costs
in separate suits for a joint trespass. Hawkins v. Hatton, 1 N. & McC. 31!!. \\ here there are several
defendants and verdict in favor of one. Trapp v. McKenzie, 2 N. &. McC. 57 I , McClure v. Sutherland,
4 McC 158 ; Clark v. Linsser et al. 1 Bail. J 87. Judgment oinou pros, and execution for Defendant's
costs. Boney et al., ads. Moses, 1 N. & McC. 58. Pending an appeal from a non suit, plaintiff" dies,
defendant may have leave to enter up judgment and have execution for his costs. Cordray v. Barnes,
3 Rich. 281;
FEE BILL : NOW OF FORCE IN THE SUPERIOR COURTS OF LAW
109
Plaintiff's Attorney.
For issuing every writ, and other incidental charges to filing declaration,
For filing declaration, posting rules, and all incidental charges before en-
tering up judgment, -------
For entering up judgment, issuing execution, and all incidental charges
whatever inclusive, -------
Where special bail is required, ------
For every subpoena writ and ticket, -
For every renewal of execution, ------
For every demurrer or joinder in demurrer, -
For every motion for a new trial, in arrest of judgment, or special matter
and argument on trial in Circuit, or in the Court of Appeals, a-
For every rule to shew cause, ------
For every commission to examine witnesses, or filing cross interrogatories, ^
For every appeal from a Magistrate, -
For commencing, defending, and proseeuting every case in summary pro-
cess, where the amount sued for does not exceed fifty dollars, -
In cases exceeding fifty dollars, ------
(The two last, exclusive of subpoena writs and commissions, and inclu-
sive of all other charges.) i
For all proceedings in dower, from beginning to end, c -
For cases of attachment, in addition to common costs, -•
For every bill of exceptions tendered to a Judge to sign, - - -
To the Jury in each case tried, ------
$4 00
4 00
fl827, 6 Stat. 333. J
Defendant's Attorney.
3
00
1
00
1
00
1
00
o
6
00
5
00
2
00
8
00
2
00
2
00
4
00
20
00
10
00
5
00
1
00
For appearance and all services before filing plea inclusive, - - 4 00
For filing plea, demurrer, joinder in demurrer, and all services before trial, 4 00
For entering up judgment, issuing fieri facias, and all incidental charges
inclusive, - - - - - - - -3 00
Security for costs, when and how required, &c. See Rule 74, G. S. &:. C. P., 1837, ante
page 44, and cases there referred to. Liability of Attorney to Clerk and Sheriff for costs, when plain-
tiff resides beyond the limits of the State. 1791, 5 Stat. 101 0 5; Benson v. Whitfield, 4 McO. 149.
Payment of costs postponed till termination of suit. Hyams v. Boyce, 1 McMol. 95. Taxatiou of
costs : notice of taxition and items of costs. 1827, G Stat. 336 § 5 ; 1839, 11 Stat. 11^2; Farr v. Fair,
2 Hill, 554 ; Bogan v. White, Dud. 31G ; Williams v. Jones, 2 Hill 555 : Shaw v. Kelly, 2 M. Cons, Rep.
317. Execution for costs due officers of Court; 1839, 11 Stat. 11 § 3 ; Corrie v. Jacobs et al., Harp.
32G ; Corrie v. Fitts, 3 McC. 25. Plaintiff not empowered to collect costs due officers of Court. Corrie
v. Fitts, 3 McC. 25: Scharlock v. Oland, 1 Rich. 207.
In addition to the costs allowed by the fee bill, a party is entitled to be reimbursed for actual ex-
penses, necessarily incurred. Under this head has been classed: Money paid to witnesses for their
attendance before Commissioners to be examined, and to Commissioners for taking depositions: also,
for the travelling and ferriage of a witness who resides out of the district, and for a notary's bill.
Kirkley v. Nolly. 1 Hill, 398 ; Coxet al. v. Charleston F. and M. Insurance Company ; 3 Rich. 331. —
Expenses not allowed, viz: Money paid to an agent tor taking and bringing back a commission to
and from another State ; Williams v. Jones, 9 Hill 555. Nor are costs allowed for a copy of the opin-
ion of the Appeal Court, or for the printers' bill for briefs. Moore v. Adm'rs of Denson, 1 Speer 29.
a Clark v. Linsser, 1 Bail. 190 ; Morris v. Lapenne, 1 Bail. 191 : Farr v. Farr, 2 Hill, 554 : Cowsar's
Ex'r v. Wade, 2 Brev. 291 ; Ramsay et al. v. Marsh et al., Harp. 472.
b Ramsay et al. v. Marsh et al., Harp. 472; Vickers v. Adm'r of La Bruce, 2 Hill 366 ; Furman v.
Peay, 2 Bail. 612.
c Vance v. Becknall, 1 Bail. 140 ; Harshaw v. Davis, 1 Strob. 74.
00
00
110 FEE EILL : NOW OF FORCE IX THE SUPERIOR COURTS OF LAW.
Commissions to examine witnesses, or filing- cross interrogatories, - - $8 00
Motion for a new trial, in arrest of judgment, or special matter in argu-
ment on the trial on Circuit, or in the Court of Appeals, - -5
Subpoena writ, or renewal of execution, - - - - - 1
Copies of all exhibits, per copy sheet, ..... 12£
(1827, 6 Stat. 333 J
Witnesses. a
To each material witness attending the Court, residing in the cities, ^ or
towns, or villages, where the Courts are held, per day, - - 50
Each witness from the country, including horse hire, per day, - 1 00
All witnesses to be allowed their ferriage and toll.
(1191, 5 Stat. 155. J
Attorney General.
On papers returned, and no indictment given out, and noli prosequi en-
tered, - - - - - - - - - 5 36
When an indictment is found, - - - - - -8 57
Upon bill of indictment found, and trial before petit jury, and verdict or
confession, - - - - - - - -15 00
Circuit Solicitors entitled to the. same fees ; 1 Faust 165.
( 1791, 5 Stat. 156J
Clerks of the Courts of Com?no?i Pleas and General Sessions.
For signing writ, and all incidental services before declaration, - - 50
For filing declaration, - - - - - - - • 37£
For drawing and posting rule to plead, - - - - - 25
For granting order for judgment, - ..... 12£
For filing each plea, demurrer, or replication, - - - - 25
For rule to plead, including copy for gazette in attachments, - - 50
For signing and sealing subpoena writ, - 50
For docketing a cause, one charge only at each term, ... 12£
For attending the tibial of a cause, and swearing witnesses, - - 50
For entering verdict, or other order for final judgment on minutes of Court, 25
For making assessment on reference, - - - ^ - 25
For filing discount in each cause, - - - - 25
For Special order for bail, ...... 50
a See Howard /. Stent. 2 Bail. 272. In criminal cases, witnesses subpcenaed for the Defendant
are not entitled to costs, though the Defendant be found guilty. Little v. Goodman, 3 Rich. 91. Costs
cannot be taxed for the attendance of a witness before the case is put on the inquiry docket. Bogan
v. White, Dud. 31G. Witness interested in the event of the suit, who was released at the time of the
trial, not entitled to have, costs taxed for his attendance , Rice et al. v. Palmer, 2 Bail. 117. A witness
served with a ticket, but not regularly subpoenaed, notwithstanding lie may have come from a dis-
tance, allowed ouly 50 cents per day. Bratton v. Clendenin, Harp. 454; see Johnson v. Wideman,
Cheves 26. In taxing costs for attendance of witness, there should be an affidavit by witness, if alive,
of his attendance and his intention to charge for it, and likewise proof of his having been subpoenaed.
Clark v. Linsser et al., 1 Bail. 187. And where witness was not sworn on the trial, an affidavit of his
materiality, or that he was summoned in good faith, must be submitted. Tavlor v. McMahan, 2 Bail.
131 ; Farr v. Farr, 2 Hill 554 ; Love v. Ligram et al., 2 Spaer 87. Tarty summoning entitled to re-
ceive witnesses costs from Sheriff. Sims v. Anderson, 1 Hill 3D 1.
b Duggan v. Roche, 2 Hill 584.
FEE BILL ! NOW OF FORCE IN THE SUPERIOR COURTS OF LAW. HI
For filing and recording every rule or order for arbitration, - - $0 25
For filing and recording affidavit for continuance, when ordered by Judge, 25
For signing, entering, and enrolling judgment, - - - - 75
For signing and sealing first execution, - - - - - 50
For signing and sealing each renewal of execution, - - - 25
For entering satisfaction on judgment, - - - - -25
For taking security for costs, entering order therefor, if made, - - 50
For recording proceedings in each case, as required by law, - - 1 50
For administering oath, other than on trial of cause, proof of service on
Sheriff 's return, oath to jurors, or by order of Court, - 12j
For taking and filing bonds in attachment, trover, or in other case, - 1 00
For signing and sealing commission to examine witnesses, - - 75
Exemplification of proceedings, or other office copy, per copy sheet of
ninety words, --..---.9
Recording plat of land under order of same, or copying same, - - 50
Rule of survey, --------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. j>osscssiancm, - - - 50
Receiving and paying over money officially, under three hundred cellars,
two per cent.
Receiving and paying over money officially, two per cent, on the first three
hundred, and one per cent, on the excess.
Filing suggestion to foreclose mortgage, or for other purpose leading to
an issue, - - - - - -- - -50
In every summary process cause, where same is settled before decree,
and the debt or demand is $50, or more, - - - - 75
In every summary cause after decree, when the debt or demand is $50 or
more, all other services inclusive, except subpoena writs, commissions
and orders for bail, - - - - - - -150
In all cases of summary process, when the debt or demand is under $50,
only one half of the costs allowed.
Every appeal from Magistrate, all services inclusive, - - - 1 00
On bill nol. pros, before given out, - - - - - 1 00
On bill thrown out by Grand Jury, or found, and nol. pros, abated, discon-
tinued, or struck off, - - - - - - -2 00
On bill found, and verdict by Petit Jury, - - - - - 3 00
All orders for bastardy and taking recognizance, - - - - 1 00
Issuing bench warrant, writ of habeas corpus, scire facias, and each execu-
. tion on sessions, - - - - - - - -1 50
For issuing warrant, taking recognizances, or other services in the sessions
as Magistrate ex officio, same fees as allowed that officer,
For services as to new jury list every three years, - - - 3 00
For each writ of venire facias, including all services incident to summoning
juries, - ^ . -- - - - - - - 2 00
For preparing and issuing certificates for Grand and Petit Jurors and
Constables, enrolling and furnishing return to Comptroller General for
each week of the return of every Court, - - - - 5 00
For filing petition and signing writ de lunatico inquirendo, - - 1 00
For furnishing advertisements in cases of escheat, exclusive of printer's
bill, - - - - - - - - - 1 00
For recording whole proceedings therein, - - - - 2 00
112 FEE BILL: NOW OF FORCE IN THE SUPERIOR COURTS OF LAW.
For filing inventory and order of discharge of debtors, - - - $0 50
For granting rules against creditors, - - - - - 50
For hearing and trying applications under prison bounds act, a . - 2 00
If a jury is required, issuing su'mmons and charging same in addition, - 2 00
For confession of judgment before Clerk, if for less than fifty dollars, - 1 00
For confession of judgment before Clerk, if for more than fifty dollars, - 2 00
For issuing execution in such case, and each renewal thereof, - - 1 00
For advertising and giving notice to managers of elections, in case of ap-
proaching or actual vacancy in the offices of Clerk, Sheriff, Ordinary, or
Tax-Collector, - - - - - - - 10 00 .
For license to an attorney, all incidental services included,
For filing and entering notice of alien's intention to become a citizen,
For filing and recording report of alien, - - - - -
For administering oath ofintention, -
For filing and entering application to become a citizen, and administer-
ing oath, -._.....
For giving certificate of citizenship, .....
For taking renunciations of dower or inheritance, ...
For official record of estray, and filing papers, ... -
For filing papers and appointing guardian of free persons of color, and
certificate, ..._....
For every search for a paper found, (not to be charged to the parties or
attornies when for papers in a case pending,) -
For every search necessary for a certificate, that a paper is not to be found
in office, ---------
For sweating a Magistrate or Constable in office, and certificate thereof, -
For granting license to pedlar, including all services, -
For every probate in writing, ......
For signing dedimus potestatem, ------
For official certificate to exemplification of record, -
For official certificates in other cases requiring the seal,
For official certificates without the seal, - - - - -
fl839, 11 Stat.S; 1S40, 11 Stat. 106 § 1.)
Sheriffs.
For entering every writ, process, execution, or other paper, in writ or ex-
ecution book, and making the indorsements therein. - - - 25
For serving every writ, not otherwise herein specified, or summons in
dower or partition, besides mileage, - - - - - 1 00
For serving every summary process, where the debt or demand is over
fifty dollars, rule, notice, or order of Court, besides mileage, - - 1 00
In all cases of summary process, where the debt or demand is under fifty
dollars, only half the costs allowed by this act shall be charged.
Mileage from Court-house to defendant or witness' residence, or place
where found, going, but not returning, per mile, ... 5
For bail bond, or other bond or mortgage, taken officially, - - 1 00
Commitment and release of prisoner, each, - - - - 50
Serving each venire for Grand Jury, - - - - - 10 00
Serving each venire for Petit Juries, - - - - - 20 00
a Gilchrist v. Edwards, 1 Rich. 191.
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rEE bill: now of force IN the superior courts of law. 113
Serving subpoena writ, and mileage on each ticket, - - - $0 50
Serving bench or other warrants, 'scire facias, from Court of Sessions, or
w; it of attachment for. contempt, besides mileage, - - - 1 50
Search for person or goods not found, and return on the execution, oi non
est inventus, or nulla bona, ...... 50
On each case returned in schedule, according to the act of 1827, a -25
Levying attachments or execution, besides mileage,6 - - - 1 00
Dieting white person per day,c ------ 30
Dieting slaves or free negroes, ------ 18
Executing convict, including all charges for burying and other expenses, 20 00
For putting convict in piljory, or stocks, or whipping him, - - 2 00
Bringing up prisoner under habeas corpus, to be paid by the prisoner, if
able, (if not, the State,) besides mileage and necessary expenses, - \ 00
Conveying prisoner from one place to another, for every mile going and
returning, besides all necessary expenses,,* - - - - 6
V Commissions on all monies collected by him, if under three hundred dol-
lars, two per cent.
If over that sum, two per cent, for the first three hundred dollars, and one
per cent, for the balance.
And one half of one per cent, on all sums paid to plaintiff, as agent or at-
torney, on execution lodged with the Sheriff.
Execution lodged to bind, with order not to levy, - - - 50
For serving execution against the body of defendant, besides mileage, - 1 50
For advertising defendant's property, in addition to p: inter's bill, - 1 00
Drawing and executing a deed of conveyance, or taking mortgage, - 3 00
Drawing and execHting each bill ofsSle, when required by purchaser, - 2 00
No she; iff shall charge more than one bill of sale for property bought at
the same sale, by the same party.
For excuting a writ of habere facias possessionem, besides mileage, - 1 00
^ Transfering money bonds, or other securities for money to party, one half
of one per cent.
For selling land under decree of Ordinary, in lieu of commission, and all
other charges, except for advertising, - - - - - 2 00
For each notice served on a set of managers of elections, besides mileage, 1 00
Commissions on all sums paid out of the office on Ji. fas. lodged, one-
fourth of one per cent.
Summoning freeholders to try suggestion of fraud under prison bounds
act, (1833, 6 Stat 492.)' - - - - - - 5 00
Under the Militia Act o/"1841, fll Stat. 197 § 9S.;
From the person against whom execution shall issue ;f
For every fine paid before levy, ------ 50
For every fine paid after levy and before sale, - - - - 1 00
a 1 Strob. 471. And see Act of 1847, 11 Stat. 433 § 2.
b 1 Rich. 13.
c Plaintiff when liable for jail fees, 1817, 6 Stat. 66; 1839, 11 Stat. 31 § 30; C'ald vpH v. Boyd, 1 N.
& McC. 377; Black ads. Hyams. 4 McC. 503; Brian v. Ellis, Dud. 72; Thamasson v , Ker, 2 McMul.
342 ; Finth v. Deloach, 2 Speer 200 ; Hyams v. Michel, 3 Rich. 303.
d Taggert v. Huteon, Rice 302, Resolutions oilS07, pott 121.
« 1 Rich. 191.
/Cheves71.
114 FEE BILL : NOW OP FORCE — IN EQUITY.
For every fine collected by sale of property, including fee for advertising, 2 50
For arresting and committing delinquent to jail, - - - - 2 00
And the Sheriff shall be entitled to retain twenty per cent, on all fines he
may collect.
f 1840, 11 Stat. 104J
Deputy Surveijors. a
For surveying every acre of land, ------ 1
For making out a fair plat, certifying, signing and returning the same, * - 2 14
For running old lines for any person, or between parties, or by order of
Court, while they are on the survey, per day,c - - - - 3 00
( 1791, 5 Stat. 158.;
IN EQUITY."1
Complainant 's Solicitor.
Drawing and filing a bill and necessary exhibits, - - - - 20 00
Every commission to examine witnesses, or other purpose, or filing cross
interrogatories, - - - - - - - -8 00
Special matter and argument on the Circuit, or in Court of Appeals, on
trial of the cause, - - - - - - -5 00
Briefs for Circuit Judge, - - - - - - - 5 Q0
Briefs for Court of Appeals, - - - - - - 10 00
Exceptions to Commissioner's report, -# - - - - 5 00
All petitions and incidental charges, - - - - - 10 00
Each dav attending before Commissioners on reference, - - - 5 00
( 1827, 6 Stat. 335.;
Defendant's Solicitor. e - * *
Drawing and filing answer and exhibits, - - - - - 20 00
Every commission to examine witnesses, or other purposes, or filing cross
interrogatories, - - - - - - - -8 00
a Surveyor, attending Court under rule of survey, entitled to the same costs as under subpoena. 1
Hill 399, overruling Nicklin v. Morrow, 1 Tr. Con. Rep. 474.
b Costs cannot be taxed for more than a single plat, although the plat comprise several distinct
fields, or tracts. 1 Bail. 592 ; 1 McMul. 73.
c The Surveyor is entitled to $3 per diem, going and returning, as well as for each day employed
in making the survey. 1 Bail. 592 ; 1 Hill 399. Fees of Surveyor General, post.
d See Rule 33 ante, page 57 ; Lowndes v. Chisolm, 2 McC. Ch. R. 465 ; Price v. White, Bail. Bq.
R. 240; Dupont v. .Johnson. Id. 279; Pinchback v. McCraven, 1 Hill's Ch. Rep J3; City Council v.
Page 1 Speer's Eq. 214 ; Muse Ex'r v. Peay, Dud. Eq. R. 236. Costs, a matter of discretion in Equi-
ty. Pace v. Burton, 1 McC. Ch. R. 251 No appeal lies upon a mere question of Costs. Lewis v.
Wilson, 1 McC. Ch. 210 McMullan v. Elridge, Harp. Eq. R. 260 ; Contra, Stewart ads. Fowler, Id.
261. See Lyles v. Lyles. Adm'r 1 Hill's Ch. R, 92. Costs on amendment. Jennings v. Spring, Bail.
Eq. R- 181. Costs on bills for discovery. McElwee v. Sutton. 1 Hill's Ch. R. 34. Floyd Ex'r v;
White, Dud. Ch. R. 40. Executors and Administrators, when chargeable with costs. See Black v.
Blakely, 2 McC. Ch. R. 9. Dupont v. Johnson. Bail. Eq. R 279 : Davis v. Davis, 2 Hill's Ch. R, 377;
Wham v. Love, Rice's Eq. R. 51. Costs allowed for copies of opinions of Appeal Court. Pinchback
v. McCraven 1 Hill's Ch. R. 414. Fees of a Receiver appointed by Court: 1821, 7 Stat. 323 §2;
Massey v. Massey, Cheves' Ch. Rep. 160. ■
c Costs are not allowed for a defence to a petition in Chancery, Exparte McClelland, 1 Hill's Ch.
B. 112;
FEE BILL : NOW OF FORCE — IN EQUITY. 115
Special matter in argument on the trial on Circuit, or in the Court of
Appeals,- - - - - - - - -5 00
Briefs for Circuit Judge, - - - - - - -5 00
Briefs for Court of Appeals, - - - - - - 10 00
Each day's attendance on reference before Commissioner, a - - 5 00
Exception to Commissioner's report, b - - - - - 5 00
f 1827, 6 Stat. 336.;
Masters and Commissioners in Equity.
For every summons, - - - - - - - 37£
For taking affidavit in writing, - - - - -25
Swearing all the witnesses on reference before him, or on trial in Court, 1 00
Taking* a recognizance, ------- 50
Taking oath of the defendant to answer, - - - - - 50
Each day engaged in holding reference, - -#- - -100
Making up and returning report, but not more than one report in each
case, - - - - - - - - -3 00
Commissions on all sales by order of Cwurt, where the total amount of the
sale, if all the property, shall not exceed five hundred dollars, two per
■cent.
And in all cases where it shall exceed that sum, one per cent.
And this to include all other charges, such as receiving and paying over
money, or transferring bonds.
Commissions on all moneys received, other than on sales made by Com-
missioner, one per cent.
Deed of Conveyance, - - - - - • -3 00
f 1S27, 6 Stat. 335.;
Register in Equity.
Signing and sealing any writ, ......
Affidavits of service of writ, or other process, ....
Examinaiion of witnesses, and taking down testimony, exemplification of
proceedings, or other office copy, per copy sheet, -
For every search, --------
But for all searches in any case, not more than - - - -
Examining decree, affixing seal, &c, -----
For every order published in a gazette, in addition to printer's bill,
Every. commission to take answer or examine witnesses, or for other pur-
poses, -.----..._
For examining and filing each return of a guardian or trustee,0 -
For letters of guardianship, and taking bond, - - -
For every rule against a defaulting guardian or trustee, -
(In all districts in which there is not such an officer as Register in Equity,
and in which the duties of Register are performed by a Commissioner,
such Commissioner, or Commissioners in Equity, shall be entitled to
charge and receive the fees allowed to the Register in Equity, accord-
ing to services rendered.)
f 1827, 6 Stat. 335.;
a McDonald v. Williams, Rice's Eq. R. 296.
b McDonald v. Williams, Rice's Eq. R. 296.
c Speer's Eq. R. 29. 1 Rich. Eq R- 25.
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116 FEE BILL : NOW OP FORCE. ORDINARY, MAGISTRATE.
Ordinary.
For a citation, --------50
For qualifying executor, administrator, or guardian, issuing letter to either
and recording such letters, - - - - - -2 50
For taking bond from administrator or guardian, and recording same, - 1 00
For issuing warrant of appraisement and oath, - - - 50
For proving a will in common form, and filing and certifying the same, - 1 00
For proving a will in solemn form, and filing and certifying the same, - 5 00
For recording will, probate and certificate, per copy sheet of ninety words, 9
For riling and entering renunciation of executor, - - - 50
For dx'dbnus potest atcm to prove will, or qualify as executor, - - 1 00
For recording each inventory and appraisement, or account of sales, each^
figure counting for a word, per copy sheet of ninety words, - - 9
For receiving, examining, and filing the annual or final a'ccounts of each
administrator, executor, or guardian, for first year, ...
For each succeeding year, ------
For recording said accounts, per copy sheet of ninety words,
For hearing and filing petition for sale of personal estate and order,
For hearing and filing petition for guardianship, and appointment of guar-
dian, ---------
For entering a caveat, or withdrawing the same, -
For hearing every litigated case, ------
For swearing and e> amining each witness, -
For certifying copy of any paper on file in his office, -
For copying such paper, per copy sheet of ninety words, -
For every rule issued against defaulting witness, or party failing to account, 2 00
For every attachment issued on the return of such rule, -
For furnishing and certifying copy of proceedings in case of appeal,
For every order of revocation of letters or substitution of other security, -
For every search, --------
For every certificate not hereinbefore specified, - - - -
For services in proceedings for sale or division of real estate,
For taking bonds in cases of guardianship of minors, or such sale or divi-
sion of real estate, - - - - - - -3 00
On all monies collected on sale of real estate, and paid over by him, one
per cent.
For services, under the Act of 1842,° in the sale of real property, and
paying over proceeds to executor where personal estate is insufficient
to pay creditors, - - - - - - -5 00
(1839, 11 Stat. 10.;
Magistrates.
Oath and warrant in any criminal case, - - - - 43
Each recognizance, ------ -43
Each commitment, -.- - - - - -21
Administering and certifying oath in writing, oilier than above, - 32
Issuing writ of habeas corpus, to the two Magistrates jointly, - - 1 50
Issuing summons and copy for defendant in civil cases, - - - 37
Isssuing summons for witnesses in any civil case, - - - 21
a 11 Stat, 152.
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FEE BILL: NOW OF FORCE. MAGISTRATES. — CONSTABLES. 117
Taking examination of witnesses in writing, in any case as prescribed by-
law, ...----.. 50
For giving judgment on hearing litigated case, - - - -25
For^ivi Adjudgment in case not defended, - - - - - IS
Issuing executionoTTnwjewal, - - - - - -25
Report of case, and taking bond to appeal, ----- 62£
Issuing attachment returnable to Court or to Magistrate, including all
notices, - - - - - - - - -100
Filing return of garnishee, and order thereon, - 12£
Proceedings on behalf of landlord or lessor, against tenant or or lessee,
to the two Magistrates jointly, - - - - - - 10 00
Proceedings against vagrant, and returning report thereof^ - - 2 00
Proceedings on certifying indenture of apprentice, or assignment, - 1 00
Proceedings on trial of slaves and free negroes in capital cases, including
all charges, ... - ... 2 00
Proceedings on trial of slaves and free negroes in cases not capital, - 1 00
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, - - - - 12^
Taking and certifying renunciation of dower or inheritance, - - 2 00
Granting order for special bail, ------ 50
Hearing and determining application under prison bounds act, same fees
as allowed to Clerk.
Issuing a patrol warrant or distress warrant, - - - - 43
Provided, that nothing herein contained, shall authorize, or empower any
Magistrate to demand, or receive any fee whatever for his services in
any proceeding in causes small and mean, where the amount for which
the summons shall be issued, shall be one dollar and fifty cents or under.
f 1840, 11 Stat. 105«J
Constables.
Summoning witness in a civil case, ----- 21
For summoning freeholders to try question before Magistrates, between
landlord and tenant, to be paid by the unsuccessful par'y, - - 10 00
For summoning coroner's jury and witnesses, to be paid by the State, - 2 14
For serving a summons, rule, or notice, by a Magistrate, in a civil case,
(no mileage to be allowed,) ------ 50
For serving attachment on person absconding, or about to abscond, and
making inventory and return, besides commissions at five per cent, on
sale of effects (but no mileage,) - - - - - -100
For hanging a slave, or free negro, according to sentence, to be paid by
the State, - - - - - - - - 5 00
For whipping slave, or inflicting other corporal punishment, according to
sentence, to be paid by State, ------ 75
For selling estray, five per cent, on the proceeds.
For levying execution, advertising sale, and paying over proceeds besides,
commissions at five per cent, on amount to be collected (but no mileage)
to be paid by the defendant in execution, - - - - 21
a § 6. Nothing in this Act shall be construed to alter, abrogate, or interfere with the practice or fees
as now established by law for the Magistrates of St. Philip and St, Michael. Provided, that the fees
to be charged against the State, be uniform throughout the State.
118 PEE BILL: NOW OP FORCE. CORONER. — NOTARIES, &C.
For every day employed in searching for stolen goods, to be paid by party
complaining, - - - - - - - -100
For serving a warrant in any State case, (but no mileage,) to be paid by
the State, if the proceedings be stopped at the instance of the State,*!*
if the Grand Jury find no bill, or if the defendant be acquitted, or if it
appear that though convicted, the defendant was discharged from inabi-
lity to pay costs ; otherwise to be paid by the defendant, - - 1 00
fl840, 11 Stat. 106.;
Coroner.
For every inquisition, - - - - - - -8 50
For mileage, (if over five miles from the Coroner's residence,) the same
as is allowed to the Sheriff, going and returning.
For each warrant issued, -------50
For each commitment, -------50
For each recognizance, -.-----75
For each body disinterred, - ' - - - - -3 00
For recording proceedings, in each inquisition, in his book, twelve cents
per copy sheet of ninety words,
f 1839, 11 Stat. 54 § 40.;
Notaries of Public.
For taking a deposition and swearing witness, per copy sheet, - - 11
For every protest, - - - - - - - -2 14
For a duplicate of depositions, protest and certificate, per copy sheet, - 9
For each attendance on any person to prove any matter or thing, and cer-
tifying the same, - - - - - -.- -64
For every notarial certificate, with seal affixed, - - - - 54
(1791, 5 Stat. 158.;
Secretary of State.
For every search, - - - - - - - -14
For a commission for a 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 containing
ninety words, --------9
For drawing a proclamation, and copy to the printer, to be paid by the
State, - - - - - - - - - 1 07
For a militia commission, to be paid by the State, - - - - 86
For a pardon or reprieve, with the great seal, and recording, to be paid by
the State, - - - - - - - - 1 07
For attending the Court of Justice with records, - - - - 64
For finding the wax, and appending the great seal to laws, to be paid by
the State, for each law, -------43
For a general commission of the peace, for any county or district, to be
paid by the State, - - - - - - -2 14
For a separate commission of the peace to be paid by the State, - - 54
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 registering the certificate of a single person becoming a denizen, « - 25
a 1799, 5 Stat. 355 § 4.
PEE BILL! NOW OP FORCE. REGISTER. COMMISSIONER, &C. 119
For a family not exceeding three, - - - - - 50
For a family exceeding three, - - - - - - 1 00
fl790 5 Stat. 153.)
Register of Mesne Conveyances.
For recording and copying deeds or other papers, per copy sheet of ninety
words, ---------9
For entering satisfaction on mortage, - - - - - 25
For recording or copying plats, of not more than six corners, - - 1 00
And for every corner over six, ------ 6^
For every probate in writing, * - - - 25
For every search, --- ..... 12^
For every certificate, .......25
f 1839, 11 Stat. 10.;
Commissioners of Locations.
For recording applications, making entries, and granting warrants under
hand and seal, -..-----75
For recording plat, and sending to Surveyor General's office, - - 1 75
For each copv of plat and certificate, - - - - - 1 25
fl8J9, 11 Stat. io.;
Surveyor General. a
For every search, -- .-».-_ 14
For copying a plat and certificate, - - - - - 1 07
For receiving, recording a plat, and sending the same to the Secretary's
office, to be passed into a grant, - - - - - -214
For a certificate in all other cases, - - - - -32
For a deputation and instructions to a Deputy Surveyor, - - - 1 07
f 171, 5 Stat. 158.;
a Fees of Deputy Surveyor, ante p. 100.
~Uts cmi Resolutions of tl)e Ccgislciture,
AS TO THE MODE IN WHICH ACCOUNTS, PRESENTED TO THE LEGISLATURE FOR
PAYMENT, ARE REQUIRED TO BE CERTIFIED.
Oath requisite to he taken by persons who may may make application to the
Legislature for payment of Accounts.
Resolved, That in future all accounts exhibited against this State, shall be cer-
tified by such officers only as are known in law, and who directed the respective
duties and services to be performed for the public ;• and said accounts shall also
be attested, which attestation shall be subscribed to by the parties making the
demands, and to be as follows :
District.
Personally appeared [the party's natne] before me, [the Magistrate's name] who,
after being duly sworn upon the Holy Evangelists of Almighty God, (or affirm as
the case may be.) and saith, that the above (or within) account of dollars
cents, is truly and justly due him from the State of South-Carolina, and that he
has never received any part thereof, either by discount or otherwise, directly or
indirectly. \V itness my hand. A. B.
Sworn before me , this day of )
CD. \
Magistrates and Constables not to receive fees from the State in certain cases.
Sec. 11. And be it further enacted by the authority aforesaid, That no Magis-
trate or Constable, after the passing of this Act, shall be entitled to receive any
fees from the State, in any criminal case where the defendant shall be convicted,
unless it shall appear from the certificate of the Clerk of the Court, that such de-
fendant h is been discharged from inability to pay costs.
fl823, 6 Stat. 2Z2.J
Magistrates' Fees in criminal cases regulated.
Sec. 12. And be it further enacted by the authority aforesaid, That from and
after the passing of this Act, no Magistrate shall receive any fees whatever in cri-
minal cases from the State, unless the whole proceedings shall have been returned
to the Clerk of the Court; and unless bills of indictment be preferred, or the pro-
ceedings stopt at the instance of the State: Provided, that nothing herein contain-
ed, shall extend to the fees which any Magistrate or Constable may be entitled to,
in the trial of any slave or person of colour,
f 1823, G Stat. 232.J
ACTS AND RESOLUTIONS OF THE LEGISLATURE. 121
Clerics, Sheriffs and Gaoler's Fees — 7iow to he certified.
Sec. 7. And be it further enacted by the authority aforesaid, That after the
passing of this act, no Clerk of the Court, Sheriff, or Gaoler, shall be entitled to
receive any fees from the State, in any criminal case where the defendant shall be
convicted, unless they make oath that such defendant has been discharged from
inability to pay costs.
Sec. 8. And be it further enacted by the authority aforesaid, That no Sheriff or
Gaoler shall be entitled to fees for dieting prisoners, unless they forward with
their accounts the commitments and releasements of the Magistrates.
(1S27, 6 Stat. 353.J
Clerk's Account against the State.
Sec. 35. In all cases the Clerk shall render his account against the State, un-
der oath, to be taken and subscribed before any Magistrate of his district, in which
shall be shewn the nature of the service, fully set forth, and if in the session, the
name of the party, offence, charge, and termination thereof, and which shall be
credited with nil monies received by him, and due to the State ; nor shall any
Clerk be entitled to receive any fees from the State, in any case where the de-
fendant is convicted, unless he makes oath that such defendant has been discharged
from inability to puv costs.
(1839, 11 Stat". Id.)
Claims of Magistrates and Constables in the Parishes of St. Philip and St. Michael
in what manner established, see 1829, 6 Stat. 387 § 3, 4.
Guarding Prisoners : compensation therefor, §v.
Resolved, That in the removal of prisoners from one district to another, when a
guard may be necessary, that the number of men ordered for that service shall
not exceed more than three for any number of prisoners not exceeding four; four
for any number of prisoners not exceeding six; and for every three prisoners
above six, an addition of one man as a guard; for which service the said guards
shall be paid one dollar and fifty cents per day, if acting as horsemen, and one
dollar per day if as infantry, in lieu of all expenses; and if attended by a Sheriff,
or his deputy, he shall be considered as one of said guard, and not entitled to any
other compensation, except the maintenance of the prisoners, which shall not ex-
ceed fifty cents per day, and fifty cents per day for horse hire, if conveyed on
horseback.
Resolved, also, That the Legislature ought not to make provision for the pay-
ment of guards, unless the name of every person acting as such is mentioned in
the account preferred against the State.
(Resolutions of 1S07.)
Advertising Elections in Gazettes.
The Committee on Retrenchment reported, that it was " an unnecessary expenditure in causing the
whole of the resolutions of the Legislature, in relation to general elections, to be published throughout
the State, and recommend the following regulations in relation to it," — which were agreed to by
the house and concurred in by the Senate :-
Q
122 ACTS AND RESOLUTIONS OP THE LEGISLATURE.
1st. That the said resolutions be printed with the Acts of the Legislature, and
attached to the same.
2d. That they be published in one of the Charleston papers at the usual time of
giving notice of the general elections.
3d. That in each district, where a gazette is published, so much of the said
resolutions as relate to the district in which the gazette is published, shall be
published in the same, the usual length of time before the election : but in no in-
stance shall the publication be in more than one gazette, in each district.
(Resolutions of 1830. )
Resolved, That Managers of Elections throughout the State, be restrained from
publishing notice of elections in newspapers more than twice a week for one
month, and on the days of election.
(Resolutions of 1837.J
Resolved, That Managers of Elections for the Parishes of St. Philip's and St.
Michael's, be restrained from publishing notice of elections in more than one of
the newspaper's of the City of Charleston, and that the publication shall be made
in conformity with the resolutions heretofore adopted by this Legislature, for
which service the proprietor of said paper shall be paid the sum of fifty dollars.
Resolved, That in each other district, where a gazette is published, the proprie-
tor thereof shall receive the sum of twelve dollars and fifty cents, for publishing
so much of the notice of elections, as relates to the district in which said gazette
is published.
(Resolutions of 1S38.)
Contingent Accounts.
Sec. 2. Every contingent account against the State, shall be lodged in the Comp-
troller's Office, at Columbia, on or before the third day of the annual session of the
Legislature ; and that it shall be the duty of the Comptroller to examine and re-
port on the same to the Legislature, on or before the third Monday of each annual
session, and no such account shall be considered or acted on by the Legislature,
unless so examined and reported.
(1846, 11 Stat. 356 § 2.)
SOME USEFUL FORMS
INTENDED MAINLY FOR
(Steojss m& StfyBrtiSte.
ST ab Ic of tl)c JTorm0»
CLERK.
ENTRIES IN BOTH JOURNALS.
1. Caption of Journal.
2. Formal transcript from Journal.
3. Judge not attending.
4. Extra Court.
5, 6, 7. Orders concerning a new Jury List.
8. Other matters which each Journal should contain.
COMMON PLEAS JOURNAL.
9 — 15. Various Decrees in Sum. Pro.
16. Discontinued, settled, abated, &c.
INQUIRY AND ISSUE DOCKETS.
17. Case transferred, where no special terms are imposed.
18. Various cases transferred under one general order.
19. Order of reference, and Clerk's assessment.
Note as to interest.
20. General order of reference— cases of various classes.
Do. do. cases of one class.
22. Final judgment ordered.
23. Issue tried.
24 — 28. Changes of Jurors, adjournments, nonsuit, arguments, &c.
Note as to juries, form of receiving a verdict, Sec.
29. Confessions before Clerk.
30. Confessions made d'iring Court.
31. Order for judgment of non pros.
32. Leave of further time to declare.
33. Leave to plead double.
34. Rule of reference to arbitrators.
35. Order for survey, and form for rules.
ATTACHMENT.
36. Order for sale of goods attached.
37. Order for payment and delivery of moneys, goods, &c. to the Plaintiff.
3S. Order appointing assignees under the Act of 1844.
39. Order for payment of money by garnishee.
40. Order for attachment for contempt.
Note as to rule and attachment for contempt.
TABLE OF THE FORMS. 125
SATISFACTION.
41. Rule to shew cause why satisfaction should not be entered.
42. Order for entry of satisfaction of judgment.
43. Like order as to a mortgage.
44. Issue thereon ordered, verdict and order.
45. Collateral issues, and issues for the trial of special facts.
Note and references — forms of verdict as to caste.
46. Other matters which C. P. Journal must contain.
GENERAL SESSIONS JOURNAL.
47. Bills given out.
48. Order for bringing up a prisoner.
49. Findings of Grand Jury, and' form of receiving them.
50. Order of commitment.
51. Additional Constables.
52. Adjournment.
53. Arraignment — not guilty — day assigned.
54. " plea of guilty.
Present tense to be used.
55. On bail — arraigned — non cul. — put on trial — challenges — jury.
56. Evidence, summing up.
57. Verdict — surrender by bail — commitment.
58. Challenges — tales. Verdict — remanded.
59. Misdemeanor — changes in Jury.
60. " — Verdict — acquittal and discharge.
61. Sentence for misdemeanor — fine — imprisonment — to commence at a
subsequent day — security for good behavior and the peace.
62. Demand why sentence of death should not. be passed — nothing said —
Judgment to be hanged.
BENEFIT OF CLERGY.
63. Demand — benefit of Clergy — allowed — imprisonment and whipping.
64. Counterplea filed, and judgment of death prayed.
65. Inspection of record or certificate — no denial — sentence of death.
66. Answer to counterplea — Jury ordered — verdict.
67. Oath of Juror on trial of identity, or other collateral fact.
entries — New day assigned, wliere sentence of death has not been executed.
68. Recital of conviction— -solemn demand.
69. Award of execution.
70. Identity denied — issue joined.
71. Pardon oleaded : note as to keeping pardon.
72. Pardon allowed — discharge.
73. Condition of pardon — imprisonment — then discharge.
74. Replication — condition — broken — award of execution prayed.
75. No denial — award.
76. Breach denied — issue.
77. Order afcer conviction in Bastardy.
78. Other Liitters which the Sessions Journal must contain.
79 — 83. Common rules in the Sessions.
84. CERTIFICATE of conviction.
12G TABLE OF THE FORMS.
ARRAIGNMENT, TRIAL, &C. FOR FELONY.
85. Form of arraignment.
Note as to peremptory challenges, on the trial of collateral issues.
86. Form at the trial. Jurors offered, challenged, or sworn — oath.
87. Jury charged.
88. Oath of a witness.
S9. Verdict rendered and recorded.
90. "When the prisoner is called for sentence.
91. " " in the Court of Appeals.
92. Judgment of death before pronounced not executed — demand why
new day for execution should not be assigned.
93. In case of a woman, after judgment.
94 — 97. Oaths, &c. — Jury of matrons.
oaths. — Note as to the form of administering oaths.
98. Oath of Foreman of Grand Jury.
99. Oath of the rest of the Grand Jury.
100. Oath of a witness to give evidence to the Grand Jury on a bill.
101. Oath of a witness sent to the Grand Jury to give information, not on
a bill.
102. Oath of the Petit Jury in the Common Pleas.
103. Oath of the Petit Jury upon a misdemeanor in the Sessions.
104. Oath of a witness, on trial of a misdemeanor.
105. Oath of a witness in C. P. on trial before Jury.
106. Oath of a witness on trial of sum. pro. before Judge.
107. Oath — voir dire.
108. Oath of a Constable to keep a Jury.
109. Oath of an interpreter to a deaf and dumb witness.
110. Oath of an interpreter in general sworn in any case.
111. Oath under the Constitution of the State.
112. Oath against gaming.
113. Oath under the Jurv law.
114. Reference to other oaths.
RULE TO PLEAD, AND RULE TO REPLY, 115.
FOREIGN ATTACHMENT.
Note and references.
116. Rule to plead — no wife nor attorney.
117. " wife or attorney in the State.
115. Bond before signing writ.
SPECIAL BAIL FOR DISSOLVING AN ATTACHMENT.
119. Recognizance of bail.
120. Bail piece.
121. Justification.
122. Order dissolving the attachment. Note.
ORDER UNDER THE 2d SECTION OF THB ATTACHMENT ACT OF 1844.
123. Affidavit.
124. Order.
TABLE OF THE FORMS. 127
125 — 127. Recognizances under the attachment acts.
BAIL.
128. Affidavit and order before suit commenced.
129. " " pending action. *
TROVER.
130. Affidavit.
131. Bond.
132. Order.
INSOLVENT DEBTORS. #
133 — 139. Notice, affidavits, oath, assignment and orders.
PRISON BOUNDS.
141 — 146. Notice, order for assignment — assignment — order for discharge.
Note as to refusal to assign.
147. Note as to proceedings where any accusation against prisoner.
148. Bond to betaken under Act of 1833, when appeal, and discharge of
prisoner.
149. Sci. Fa. on this bond.
JURORS.
150. Writ of venire facias.
151. Sci. Fa. against defaulting Juror, not attending Court.
152. " " not attending a Magistrate's Court.
153. Fi. Fa. for fine imposed upon a defaulting Juror.
PAPERS IN THE SESSIONS.
154. Sci. Fa. upon recognizance.
155. Fi. Fa. upon judgment confirmed on recognizance. Notes.
156. Ca. Sa. for fine and costs.
157. Bench warrant.
158. Recognizance for the maintenance of a bastard child.
159 — 160. Fi. Fa, after failure of Defendant convicted of bastardy, with endorse-
ment.
EXECUTION AGAINST PLAYERS, SHOWMEN, &c. 161.
GUARDIAN OF FREE PERSON OF COLOR, 162—165.
ELECTIONS, NOTICES, &c. 166-167.
SATISFACTION OF JUDGMENT— ENTERED, 168—170.
NATURALIZATION, 171—178.
DENIZENSHIP, 179,
ESCHEATS, 180—186.
128 TABLE OF THE FORMS.
Hea/tster of Mesne €ont)et)anees.
1S7-8. Satisfaction of mortgage. Note.
1S9. Common probate of deed.
Note as to copy in evidence, and registry actr.
190. Renunciation of dower.
191. Relinquishment of inheritance.
Made under Act of 1731.
192. Writ of dedimus potcstatem — dower : inheritr.ee or probate.
193. Certificates to be annexed to the writ in its t .ecution.
(13cminissiciner of locations.
195. Warrant of survey.
196. Elapsed land.
Clerk acting as (Drama™.
Note.
194. Bond by Executor, purchaser at a sale of his testator's estate.
CERTIFICATES AND AUTHENTICATION OF RECORDS.
197-8. Authentication of judicial proceeding, by Clerk and Judge's certi-
ficates.
199. Authentication of record or office copy, from office, not appertaining
to a Court.
200. Authentication of a Magistrate's attestation.
201. Certificate as to the records of a County Court.
202. " " " of a former District, now divided.
203. Certificate by Register of Mesne Conveyances — copy — paper not
registered.
204. Certificate by Commissioner of Locations. »
" Certificate by Clerk, acting as Ordinary.
£05. Judge's certificate as to special certificates of Clerk.
SHERIFF.
DEPUTIES.
206-8. Forms of deputation, and distinction between various deputies.
RETURNS OF MESNE PROCESS.
210. Service of Sum. Pro. — copy delivered.
211. " " -^-copy left.
212. " writ of capias ad respond. — copy delivered.
213. " " " " —copy left.
214. Arrest under order for bail, — copy delivered.
215. '* " " body held.
216. . " " " bail bond, given.
217. " " " prison bounds bond given.
218. " " " discharge under prison bounds, insolv't
debtors' act.
219. " " " death in prison.
S20. " " " discharge on supersedeas.
0
TABLE OP THE FORMS. 129
221. Arrest under order for bail— discharge by order of plaintiff.
222. " " " discharge upon deposit of money.
223. Two or more defendants : — and defendants in different districts.
2^4. One of several partners.
225. Non est inventus.
226. Tarde.
227. Languidus. »
228. Languidus and non est inventus.
229. Rescue.
230. Injunction — stay of process.
231. Privilege of a member of the Legislature.
233. " " « " and N. E. I.
233. Privilege of a suitor, or witness in Court.
234. " " *' " with copy served.
2J5. " " " " and N. E. I.
Note as to privilege of one engaged in the militia service, and of
suitor or witness attending the Commissioner in Equity.
236. Subpoena writ — served — and N. E. I.
Note as to service by copy left.
SCIRE FACIAS.
237. Nihil.
238. Copy delivered.
239. Copy posted, of rule or Sci. Fa. to revive proceedings.
CORPORATION.
240. Copy delivered to President.
241. Copy delivered to Clerk at place of business.
RETURNS OF FI. FA.
242. Note and references.
Nulla bona.
243. Nulla bona to Fi. Fa. de bonis testat. si non de bonis propiis.
244. Payment by defendant in full.
245. Payment specially applicable to this case.
246. Part payment, and nulla bona, &c.
Note as to payment by assignee.
247 — 255. levy.
Upon lands — equity of redemption, undivided share — interest in re-
mainder— slaves — articles in schedule.
Notes — what a levy — what not liable : requisite description of the
property.
SALE AND APPLICATION OF THE PROCEEDS.
256 — 261. Sale — titles to another — older judgment, older execvf'ons, residue
applied, &c
DISPOSITION OF LEVY AND FURTHER LEVY.
262. Sale of part and discharge — land not defendant's.
263. Discharge by Plaintiff's directions.
R
130 * TABLE OP THE FORMS.
264. After payment of older judgment and executions, rateable division.
265-6. Costs retained — balance applied — destruction, one negro died.
267. Negroes found to be mortgaged, and redelivered to defendant.
268. Destruction— negro drowned.
269. Remains for want of bidders^
270. Mortage older than this Fi. Fa. — levy transferred to another.
271. Articles not the property of defendant; ,
272. " exempt from sale by law.
273. " left with the defendant and not produced. Note.
274. Levy insufficient, and further levy.
275. Plaintiff's orders to wait.
276. Order of Court or Judge staying execution.
277. Subsequent returns after expiration of stay.
27S. Application to this Fi. Fa. of money made in another.
279. Preceding Sheriff — neglect to shew disposition of levy, supplied.
280. Further levy ; nulla bona.
281. Payment to landlord.
282. " tax collector.
283. " funeral expenses, &c.
RETURNS OF CA. SA.
284. Note and references.
Non est inventus. v
285. Cepi Corpus— body held — satisfaction.
286. " money paid specially to this case.
287. " prison bounds bond, discharge under insolv't debtors',
or prison bounds acts— supersedeas — death in prison.
288. " discharge by order of Plaintiff.
289. " " " and subsequent arrest-body held,
satisfaction, prison bounds, &c.
Other returns, tarde, languidus, privilege, injunction, orders to stay.
RETURNS, BONDS, &c— FOREIGN ATTACHMENT.
290. Note and references,
Neither goods nor garnishee found.
291. Lands and goods attached— no person in possession.
292. Notice on Court house door.
293. Goods attached in the hands of garnishee.
294. "' " " " claimed on oath by garnishee
as creditor.
Note as to the nature of a garnishee's claim, and of property which
can be attached in his hands.
295. Goods attached in the hands of garnishee, taken into possession for
want of claim on oath, or of bond.
296. Goods attached in the hands of garnishee, and held until attachment
dissolved.
297. Goods attached in the hands of garnishee, until Clerk certified entry
of special bail.
298. Goods attached in the hands of garnishee, until bond given to Sh'ff,
299. Goods attached in the hands of garnishee, until sale under order-
balance of proceeds ready, after payment of a Fi. Fa.
TABLE OP THE FORMS. 131
Goods attached in the hands of garnishee, until rescue or distribution.
" " delivery to plaintiff or to assignees.
300. " " and bond given under the 1st sec. of Act of 1S44.
301. Schedule returned by the garnishee.
302. Bond under 1st sec. of the Act of 1844.
THE SECOND SECTION OP THE ACT OP 1844.
303. Non est inventus.
304. Arrest and detention for want of bond.
305. Arrest and prison bounds bond, discharge, death, privilege, &c
306. Arrest and bond taken.
307. Bond to the Sheriff, under 2d sec. of Act. of 1844.
308. Assignment of bond.
NOTICE AGAINST GARNISHEE FAILING TO MAKE RETURN.
309. Copy served.
" posted.
310. Bond to Sheriff, replevying goods attached : assignment.
ORDER IN TROVER.
311. Returns.
312. Bond.
BAIL.
313. Form of bail bond.
314. Assignment.
RENDER BY BAIL.
315. How made, when, &c.
316. Acknowledgment to be signed by party rendering.
317. Receipt to be signed by Sheriff.
318 — 319. Returns of render on mesne process.
320—321. " « on Ca. Sa.
HABERE FACIAS POSSESSIONEM.
322. Possession delivered.
323. Possession of an undivided share.
324. Fi. Fa. or Ca. Sa. returned.
325. No person came to point out land and l'eceive possession.
BONDS OF INDEMNITY.
326. For selling goods.
327. For delivering goods and returning nulla bona.
PRISON BOUNDS BOND.
328. On mesne process,
329. On execution.
132 TABLE OF THE FORMS.
REPLEVIN.
330. Replevin bond.
331. Assignment.
WRIT OF REPLEVIN.
332. Gonds replevied and writ served.
333. Elougata.
334. l'i wperty claimed.
335. Retorno habendo returned.
336. Withernam : writ of second deliverance — returned.
HABEAS CORPUS.
•
337. Body ready with the cause.
338. Languidus in prisona.
339. Jail burnt and escape.
Mode of serving the writ.
RETURNS TO RULE AGAINST SHERIFF.
340. Money made— proceedings to set aside judgment.
341. Rule by assignee— money applied to Fi. Fa. against assignor.
342. Short time, and notice of motion to set aside execution.
JURORS.
343. Summons for a juror.
344. Return of writ of venire facias— schedule with classes.
DOMESTIC ATTACHMENTS.
345. General directions.
346. Return of goods seized — no person in possession.
347. Held until replevied, sold, rescue, destruction.
348. Goods attached in hands of garnishee, and service of the garnishee.
349. Nulla bona and non est inventus.
SPECIAL EXECUTIONS.
350. Fi. Fa. upon recognizance forfeited— for fine— or on bastardy bond.
351. Militia executions.
352. Tax executions.
INJUNCTION BOND-NE EXEAT-BENCH WARRANT, 353-355.
SUBPCENA AD RESP. IN EQUITY, 356.
ATTACHMENT FOR CONTEMPT, 357.
RULES, NOTICES, INTERROGATORIES, CITATIONS, &c. 35S.
FOR THE CRIER.
359. Form of opening Court.
360. Form of adjourning Court.
SOME USEFUL FORMS
Jntmi>ri> mainlg for OLkrks an& 0!)criffo.
CLERK.— ENTRIES IN BOTH JOURNALS.
Caption.
The State of South-Carolina.
At a Court of Common Pleas [or General Sessions] for the District
of begun to be holden at Courthouse, on Monday
* Present the Honorable one of the Law Judges of the
said State.
If the Clerk is required to certify a very formal transcript of any mat-
ter from the Journal. a
(As above to *) and there continued by divers adjournments until day of aforesaid.
Present the Honorable (&c.) On ( Saturday) the dav of aforesaid, the
following order was made and entered [or entry was made] on the Journal of the said
Court, to-wit : [here insert a copy of the entry. ~\
In witness whereof, I, D. H., Clei'k of the said Court, have hereunto set my hand and
affixed the seal of the said Court, at , this day (&c.) sovereignty
and Independence of the United States of America.
(Seal of office.)
D. H., c. c. p. or c. g. s.
If the Judge should not attend, b
(AsinNo. 1 to *) N"Q Judge being present, the Clerk of the said Court
opened the Court, and t adjourned it. until 10 o'clock to-morrow.
Next day. No Judge being present, the Court was opened by the
Clerk, and adjourned until 10 o'clock to-morrow.
On the last day of the Term. The Court was opened by the Clerk,
and no Judge being yet present, on this last day of the appointed
term, [or if at any time during the term the Cleric has received due notice
that the Judge will not he present, say, commencing as in the, beginning of
this No. to 1 due notice having been received by the Clerk, that
the Honorable , one of the Law Judges of the State, whose term*
it is to preside at this Court, is (ill of fever ) and that no Judge will
attend] the Clerk, together with the Sheriff of the District, in the pre-
sence of Esquire, a Magistrate of the said District, drew in open
Court the necessary Juries for the next regular term of the said Court,
in manner and form as is prescribed by law, to-wit:
a See No. 35 for a less formal transcript.
b 13th Section Clerks' Act 1839, 11 Stat. 74.
2 £*^ci^i-c^
134 CLERK. — ENTRIES IN BOTH JOURNALS.
The panel of Grand Juroi-s,
A. B., C. D., &c. (24 in all.)
The panel of Petit and Common Pleas Jurors.
E. F., G. H., &c. f48 in all for each week.)
The Court was then adjourned by the Clerk until the Monday
of {the first day of the succeeding term.)
4. Extra Court.
When an extra Court is ordered by the Circuit Judge, his order is made and entered
on the Journals of the regular term at which he presided ; and the juries are then drawn
for the extra Court as well as for the next regular term. 1825, 7 Stat, 329; 2 Rich. 534.
When a Judge fails to attend a regular Court, and an extra Court is ordered by the
Court of" Appeals, a jury for it must be drawn by the Clerk aud Sheriff. 1843, 1 1 Stat.
254 § 5: 1839, 11 Stat. 74 § 13.
The Court of Appeals may also order an extra Court " for further dispatch of busi-
ness." 1824, 7 Stat. 326 $ 5 ; 1817, 7 Stat. 317 § 1, 2, 3. For such a Court it was pro-
vided, that the Jurors drawn at the preceding term should be summoned; and then
Jurors for the next term be drawn at the extra Court; but the 13th Section of the
Clerk's Act of 1839, probably made a change.
When Jurors are drawn by a Clerk and Sheriff, under an order made by the Court of
Appeals in the case provided for by the Act of 1843, although a Court is not opened, an
entry should be made in the Journals, thus :
The State of South-Carolina, >
District. )
[Here copy the order of the Court of Appeuls.]
Under this order, D. H., Clerk of this district, and J. S., Sheriff of
this District, on this day of at Court-house, in the
presence of Esquire, a Magistrate of this district, drew a jury
[or juries] for the said extra Court, in manner and form as is provided
by law, viz :
Panel of Grand Jurors : [24 if a Grand Jury is ordered.}
Panel of Petit and Common Pleas Jurors : [48 for each week.]
And the said Clerk delivered to the said Sheriff", a proper venire [or
venires] for the said jury [or juries] to be summoned to attend the said
extra Court, at the time appointed in the order above copied.
Orders concerning a new Jury List. a
c Order for preparation of tickets :
To be entered at the term next preceding the expiration of three years from the time
when new tickets were last placed in the Jury box.
• For the purpose of forming a new Jury list for this district, the
Sheriff is directed to procure from the Tax-collector a copy of his last
ta>: -returns (which the Tax-collector is required, without delay, to fur-
nish to the Sheriff, when it may be demanded,) 6 and from the said
returns the Sheriff, with the assistance of the Clerk, is required to
transcribe upon tickets, each containing one name, the names of all
a See note c to 36th Rule of Court: al60, State v. Massey, 2 Hill 380; and note to No.
27- Nos. 89, 49.
* 1799,7 Stat. 291.
»»» » ) N \
CLERK. ENTRIES IN BOTH JOURNALS. 135
persons who are by law qualified a to sit as Jurors in this district ; and
also upon other6 like tickets, the names again written, of all of the
persons qualified as aforesaid, who live within [if for Charleston Dis
trict, say, " the City of Charleston,"] five miles of the Court-house :
which tickets shall be ready to be placed in the Jury box at the next
term. (Signed by the Judge.)
Entry at next Term, when tickets are placed in the Jury box. 6.
The Jury tickets prepared under the order made at the last term
were placed in the Jury box, to-wit : those which included the names
of all Jurors for the district, were placed in the division c numbered
1 : that from them all Grand and Petit Jurors may be ordinarily drawn;
and those which included the names of Jurors within [the City of
Charleston, or] five miles of the Court-house, were placed in the divi-
sion numbered 3, that from them all tales may be drawn.
The Jurors for the next term were then drawn from the division
numbered 1, to be entered in the venires, summoned and impanelled
as the law requires. [Signed by the Judge.)
If there should have been an omission to enter the first order at the right
time, and tickets,should have been prepared at the next term, without or-
der, or under a verbal order then made, an entry to this effect may be
made :
The Sheriff having procured from the Tax-collector a copy of his
last tax-return, and prepared new Jury tickets according to law, the
tickets in the presence of the Court were placed in the Jury box, to-
wit: those which included (&c. as above, No. G.)
Each Journal should also contain (besides so much of the preceding matter as is ap- 8.
plicable.) at every term holden,
1. " The venires for this term were laid before the Judge." 93d Rule of Court.
2. Of the Graud Jurors summoned the names of those who appear: the names of de-
faulters and others who were excused : the names of other defaulters, and order of Soi.
Fa. against them.
3. Foreman appointed, and Grand Jury sworn.
4. Of Petit Jurors, the same as concerning Grand Jurors.
5. Of Petit Jurors in attendauce, Juries No. 1 and No. 2, and supernumeraries were
drawn : Foreman appointed and Juries sworn.
6. Juries drawn for next term. 24 in panel of Grand Jury: 48 for each week in pa-
nel of Petit Juries : order for venires.
7. A roll of the Jurors and Constables for the term. (A copy of which is to be trans-
mitted to the Comptroller General. 1839, 11 Stat. 74 § 14.)
a Constitution of 1790. 1 Art. 4 Sec; 2 Hill 280.
b 1768, 7 Stat. 203 ; 2 Mills C. R. 155; 2 Hill 384.
c The old Jury law of 1731, required six divisions in the Jury box; but the Act of
1799, which obliterated the distinction between Grand and Petit Jurors, and the repeal
of all the provisions which have heretofore existed for special juries, and juries for spe-
cial occasions drawn from the District Jury box. have rendered unnecessary more than
four divisions, to-wit: 1. Into which the general tickets are put: 2. Into which they
are transferred alter having been drawn : 3. Into which the tales tickets are put ; and"4.
Into which they are transferred when drawn.
136 CLERK. COMMON" PLEAS JOURXA' .
COMMON PLEAS JOURNAL..
Summary Process. a
Decree by default : sum assessed by Clerk. b
A B...... )
v. > Sum. Pro. on Note. It. S., PlfTs Attorney.
Balance after a ^ ^ » )
credit, or when jjet tj]e p]aintiff have iuaVment by the defendant's default, according
pvpf mtprcst is • i-» ' o
calculated but t0 tne Clerk's assessment fur the sum of *
not up to the sixty dollars *yith interest on sixty dollars, from the first day of Janu-
day of decree. ary 1S4S, and 'costs.
Where no cal-
culation is nee- * sixty dollars with interest thereon, from the first day of November
dedbut iutert 1347, and costs,
allowed.
\ here ca cu- # seventy-three dollars (of which the principal sum, sixty dollars, will
to day of de- bear interest from this day,) and costs,
cree.
10. Decree by default upon proof: no interest allowed.
A..
Sum. Pro. on account. R. S.. PlfTs Attorney.
Let the Plaintiff have judgment by the defendant's default, accord-
ing to the proof made, for the sum of forty dollars and costs.
11. Decree by default upon proof when only part of the demand bears
interest.
A B )
v. > Sum. Pro. Note and account. R. S., Plff's Atty.
C D , )
Wher .10 cal- Let the plaintiff have judgment by the defendant's default, according
culatioi. is to the proof for * seventy dollars, with interest on forty dollars,
from the first day of January 184b, and costs.
Where calcu- * seventv-three dollars (of which forty dollars will bear interest from
lation is mad' , _.„ , • ~ ., . , x , •*
to a day prio be 23d 01 March inst.) and costs.
to a decree.
19 Summary Process tried by the Judge.
A B , )
v. > Sum. Pro. Trespass. R. S., Plff's Attorney.
J D , )
After trial before the Judge, rdered that the Plaintiff have judg-
ment for dollars.
a Clerk's Act of 1' '39, 6 3 1 cl, 11 Stat. 71 ; 1738, 7 Stat. 200 .. 1.
h See Act of 1809, 7 Stat. 309 ; " Rum to be indorsed over his official signature on the
process.' Clerk's Act of 1839 § 29, 11 Stat. 78.
CT TERK. COMMON PLEAS JOURNAL. 137
Summary Process tried by a Jury. 13.
A.'.... B , )
v. S Sum. Pro. Trover. R. S., Plff's Attorney, E. F.,
C I> , ) ' Defendant's Attorney.
On application of the parties [or of the plaintiff, or Defendant, or By
order of the Judge,] this case was tried by Jury No. 1, (repeating them
if necessary to shew who they were,) and the following verdict was ren-
dered, to-wit : " We find, &c." according to which, let the plaintiff [or
defendant] have judgment for {amount found) and costs.
Decree for defendant by the Judge. 14.
A B , )
v. V Sum. Pro. Award. R. S., Plff's Attorney, E. F.,
C D , ) Defendant's Attorney.
After trial before the Judge, a decree was given for the defendant.
Ordered, that the defendant have judgment for his costs.
Non suit. 15.
A ;B I
C D , )
Sum. Pro. Single Bill. R. S., Plff's Attorney,
E. F., Defendant's Attorney.
Non suit ordered. Let the defendant have judgment for his costs.
Discontinued, settled, abated, Sfc. 16
A B , )
v. > Sum. Fro. R. S., Plff's Att'y, — or Assumpsit — Issue
C D , ) docket, [or Sum. Pro. or other docket,] No. 27.
" Discontinued" — " settled" — " abated."
[According to the entry made on the docket, which disposes of the call, if no special
order be drawn by the attorney and signed by the Judge.] ,
4 ! I
Enquiry and Issue Dockets.
Case transferred where no special terms are imposed." 17.
No. (on docket.)
A B , ^
v. > Assumpsit, Non Assumpsit,
C D , ) R. S., Plff's Att'y. C. D., Deft's Att'y.
This case was marked " transferred" on the Enquiry docket. On
motion of the defendant's attorney, the defendant has leave to vacate
the order of judgment upon the ordinary terms.
a See 2d Rule of Court.
138 CLERK. COMMON PLEAS JOURRNAL.
18. T arious cases transferred u?ider one general order. °
No. — A. B. v. C. D.. Asst. R. S., Plff's Att'v. C. D., Deft's Att'y.
No.— E. F. v. G. H., Debt. G. H., Plff's AttTy. E. G., Deft's Att'y.
These cases were marked " transferred" on the Enquiry docket.
On motion of the defendant's attorney, in every of them, the defendant
in every one has leave to vacate the order for judgment upon the ordi-
nary terms.
19. Order of reference and Clerk's assessment.
A B , ^
v. > Asst. Note. B,. S., Plff's Attorney.
D.
On the Enquiry docket — no appearance ; [or, On the Enquiry docket,
the defendant's attorney, O. T., having withdrawn his appearance ; or,
On the Enquiry docket, the defendant's attorney, O. T., having failed
to plead ; or, On the Issue docket, the defendant's attorney, O. T., hav-
ing withdrawn his plea*; Ordered, that it be referred to the Clerk to
ascertain the sum actually due to the Plaintiff in this case, and that the
plaintiff have leave to enter his final judgment accordingly. Where-
upon the Clerk ascertained the sum actually due to be [one hundred
and twenty dollars, whereof one hundred dollars, the principal sum
will bear interest from this day. or, one hundred dollars with interest
from first day of January 1S47 — according to circumstances. b] See Sum.
Pro. No. 9.
20. General order of reference. — Cases of various classes.
In every one of the following cases, on motion of the plaintiff's at-
torney, it is ordered, that it be referred to the Clerk to ascertain the
sum actually due*to the Plaintiff iu the said case, and that the plaintiff
have leave to enter his final judgment accordingly. Whereupon the
Clerk ascertains the sum actually due in every one of the said cases to
be as below stated, viz :
Enquiry docket.
No. [on docket) 9.
a See 11 Stat. 71.
b 1C09, 7 Stat. 319 ; 1839, 1 1 Stat. 71 $ 8, cl. 1 ; "Sum to be endorsed on the decla-
tion over the Clerk's official signature." 1839, 11 Stat. 78 § 29.
As to the mode of calculating interest on a note, made to bear interest before it be-
comes due. see Doig v. Calhcart, 3 Rich. 105. As to the calculation of interest ou a
bond which contains a stipulation fur the auuual payment of interest, see Dnvall v.
Bims, 1 Blrob. 11<; : Singleton v. Lewis.-? Hill 403; (iii.bes v. Chisolm, 2 N. & McC. 38.
Debrulil v. Neuffer. 1 Strob. 426; In debt upon judgment, the whole amount for which
judgment was entered, principal, interest and costs, bears interest from the day of the
entry: and this whether the original cause of action btire interest or not. Harrington
v. Glenn, 1 Hill 79, and cases cited, overruling 2 Bay 193.
As to what are cases of liquidated damages under the Act oi 1809, see Wilkie v. Wal-
ton, 2 Speer 477. and cases cited.
For evidence to be taken by the Clerk in making his assessment. See 2 Hill 556.
A judgment is a lkpiidated demand, and may be referred to the Clerk. 2 Speer 573,
and cases cited.
As to interest on accounts : See 1 Speer 209, 249.
CLERK. COMMON PLEAS JOURNAL. 139
A B , }
v. > Assumpsit. Note. R. S., Plff's Attorney.
C D , )
No appearance ; sum ascertained, one hundred, &c.
No. 14.
e f ; )
v. J- Debt on single bill. R. S., Piff's Att'y. O. T.,
G- H , ) Deft's Att'y.
The defendant's attorney having withdrawn his appearance : sum
ascertained, one hundred, Sec.
No. 23.
K L ,)
v. } Debt on Judg't. R. S., Plff's Att'y. O. T. Def. Att'y.
M N , )
Defendant's attorney having failed to plead, sum ascertained, one
hundred dollars, &c.
Issue Docket.
No. 36.
O P , )
v. V Assl. on Bill of Exchange. R. & P., Plff's Att'ys.
R S , ) O. T„ Deft's Att'y.
The defendant having withdrawn his plea, sum ascertained, one
hundred, &c.
General order of reference. — Particular class — no appearance. 21.
In every one of the following cases * [upon the Enquiry docket
for default of appearance] on motion of the plaintiff's attorney, it is
ordered, (as above No. 20 .) '
particular class— plea toithdrawn.
[As above to *) [upon Issue docket, pleas having been withdrawn] and so
of oilier classes.
Final judgment ordered.* 22.
A B ,^
v. > Debt on penal bond. A. C, Plff's Attorney.
C D......)
On Enquiry docket, No. — no appearance.
Id. appearance withdrawn.
Id. no plea filed.
On Issue docket, No. — plea withdrawn.
Ordered, that plaintiff have leave to enter his final judgment for the
penalty of the bond.
a Martin v. Maloay, 1 Rich. 272.
140 CLERK. — COMMON PLEAS JOURNAL.
23. Issue tried.
No. 49.
:l
A B...
v. [> Assumpsit. Non Assumpsit.
C D , ) R. S., Plff's Att'y. T. B., Deft's Att'y.
Jury No. 1, [as above organized, or, to-wit : O. B., Foreman, A. K,
&c] was charged with the trial of the issue in this case, and returned
the following verdict, viz : We find, &c.
O. B., Foreman.
24. Changes of Jurors : a adjournments, 8pc.
O. T. being absent, C. R. supernumerary was substituted in his room
on Jury No. 1.
E. D. and G. H., who were challenged in the case of A. B. v. C. D.,
resumed their places on Jury No. 1, oh room of those who had been
substituted for them. See No. 28. | ■ ,
25. A B , ^
v. > Assumpsit. Non Assumpsit.
C D , ) R. S. Plff's Att'y. T. B. Deft's Att'y.
In this issue before Jury No. 1, the case was opened and the plain-
tiff's evidence in chief heard.
The Court adjourned until 10 o'clock, A. M. to-morrow.
C. C. P.
26. A. B. v. C. D. The evidence in defence and part of the evidence
in reply was heard. The Court adjourned until 10 o'clock, A. M., to-
morrow.
27. A. B. v. C. D. Assumpsit.
After the close of the evidence, argument was heard. The Court
adjourned until, &c.
Further argument was heard.
After close of the argument, the Jury, No. 1, was charged with the
case and retired.
Jury No. 1, b returned with the following verdict, &c.
a 11 Stat. 71 § 8cl. 1.
b It is not imperative upon the Judge to send cases to the two juries in turn. 2
Kich. 190.
As to the misconduct of Jurors alleged as a ground for a new trial : see 2 Rich. 122.
As to improper tampering with a jury by a party or his friend. See Cohen v. Robert
2 Strob.
When a jury has returned with a verdict, the Clerk after calling the names of the
Jurors, asks solemnly, '• Gentlemen, have you agreed upon your verdict :" The Fore-
man replies, " Yes," and hands the record. The Clerk reads the title of the case and
the verdict — calling the attention of the Court, if any sum be in figures and not in let-
ters, or if there be any other delect in form; and then, il no objections prevail, the ver-
dict is recorded. If a jury be polled, every Juror being called is separately asked whe-
ther he agrees to the verdict : concerning this, see No. 89 and note e. to 36 Rule of Court.
CLERK. COMMON PLEAS JOURNAL. 141
The Plaintiff submitted to a non suit, with leave to move to set it
aside.
On motion of E. M., the defendant's attorney, a non suit was ordered.
E F , } Debt. Nil debet, or special plea, fas the case may he.) 28.
v. >
G H , ) A. B., Plff's Attorney. C. D., Deft's Attorney.
This issue was referred to Jury No. 2: N. R., supernumerary Juror,
was substituted in room of R. T. absent: L. G. was excused, and R.
W. supernumerary substituted: A. R. was challenged for cause, by
the plaintiff, and W. O. substituted : O. R.and C T. were peremptorily
challenged by the plaintiff: C. G. and E. F. by the defendant; and in
room of these four last named, L. A., M. E., P. T. and G. S., being
drawn from supernumeraries, a were substituted. Jury No. 2, was
then composed as follows :
1. A. R., Foreman. 3. G. S.
2. E. F. 4. C. D., &c.
After some progress the Court adjourned, &c.
Confessions before Clerk. * 29.
Form of entry in the Journal of C. P. the first day of the term,
The records of the confessions of judgment made before the Clerk,
since the first day of the last term, were read by the Clerk, in open
Court, from the " book of confessions before Clerk." [Page — to page
— , including the following cases, to-wit :
A. B. v. C. D. Note.
E. F. v. G. W. Bond.]
The matter in brackets is not indispensable.
Confession of judgment made during Court. c 30.
A. B. v. C. D. Debt. R. S., Plff's Attorney.
The defendant acknowledges the action and confesses judgment in
these words, " I confessjudgment for the sum, &c."
Order for judgment of non pros. „-
A. B. v. C. D. Debt. R. S. Plff's Att'y. Writ lodged day
The plaintiff having failed to file his declaration in due time, on mo-
tion of K. M., defendant's attorney, ordered that the defendant have
leave to enter judgment of non pros.
a State v. Kleinback, 2 Speer 418.
b 18th Sec. Clerk's Act 1839, 11 Stat. 75 ; 1821. 6 Stat. 160 ; 3 Hill 225.
c. Confession of judgment made in a case pending, or entered during Court, required
to he on the Journal by 1st clause 8th section of Clerk's Act of 1839, 11 Stat. 71 ; lltb
Rule of Court; 2 Speer 302.
142 CLERK. COMMON PLEAS JOURNAL.
For the cases in which the Clerk may grant an order for judgment of non pros., and
for the effect of such order, see the cases referred to in Rules of Court, 2d and 67th, and
the authorities cited in those cases ; also, 1 N. & McC. 38 ; 1 Hill 216 : 3 McC. 31 ; 2
Rich. 334.
32. Leave of further time to declare. a
A. B. v. C. D, Assumpsit.
On motion of K. L., Pl'fTs Att'y, [and by consent of Z. Q,., Deft's
Att'y, or, and after argument by him, and Z. Q. Deft's Att'y,] Order-
ed, that the plaintiff have leave of further time until the first Monday
of March next, to file his declaration.
33. Leave to plead double. b
A. B. v. C. D. Debt.
On motion of M. O., Daft's Att'y, ordered that the defendant have
leave to plead double.
34. Rule of reference to Arbitrators. c
A. B. v. C. D. Debt.
On motion of K. L. Plff's Att'y, and by consent of M. 0. Deft's Att'y,
ordered, that this case be referred to the arbitrament of O. T., G. K.,
S. W. and C. V., and of a fifth arbitrator whom a majority of these four
shall choose : and that the award which the five arbitrators, or a majority
of them may make and sign, shall be returned to become the judg-
ment of the Court.
35. Order for Survey.
A. B. v. C. D. Trespass to try Titles. '
On motion of D. D., Plff's Att'y, [and by the consent of R. T., Dei't's
Att'y,] ordered, that a rule of survey do issue, directed to — [A S.,
joint surveyor, or, to A. S. on the part of the plaintiff, and N. C. on the
part of the defendant,] requiring him [or them] to survey and locate
the land in dispute, and such adjoining lands as may be necessary, and
to return a plat [or plats] thereof, containing such representations as
may explain the matters of controversy, to be used in evidence on the
trial.
In preparing the rule of survey to be served upon the Surveyor, let the Clerk make a
copy of the above order, or such similar order as may be required by the Judge; pre-
fixing, " South-Carolina, District. In the Common Pleas," and subjoining, " By
order of the Court. D. H., c. c. p." To this should be annexed the 45, 46 and 47
Rules of Court for the information of the Surveyors. See iN'o. 2.
36. Order for sale of goods attached.3,
A. B, v. C. D. Attachment.
It appearing that the Sheriff has in his possession certain goods and
chattels of the defendant, to-wit : a negro man Isaac, &c, which have
a See 67th Rule of Court. For cases in which a plaintiff in Sum. Fro. will be re-
quired to declare, see 2 Speer 631 ; 1 Bail. 121 ; 1 McC. 490.
b Stat. Ann, c 20 § 4. 2 Stat. 433. Hext v. Jan-ell, 2 Strob.
c See 61st Rule of Court. If power of umpirage be given, the rights and duties of
an umpire, and the proper course of proceeding, should be carefully considered.
d See 1744, 3 Stat. 619 $ 7 ; 1844, 11 Stat. 291 $ 4.
CLERK. COMMON PLEAS JOURNAL. 143
teen attached in this case, and that a sale is likely to he more advan-
tageous to all parties than any other course, which under the circum-
stances can be taken ; on motion of E. L., PlfP s Att'y, it is ordered,
that the Sheriff* after due advertisement, do sell the goods aforesaid,
at the Court-house of his district on the first Monday of next, (or
some succeeding Monday if there be cause for necessary delay :) and
that the proceeds of sale, after deduction of the necessary expenses of
sale, be paid into Court to abide the further order thereof.
Order for payment and delivery of moneys, goods, <$r. to the Plaintiff'.'1 37.
A. C. v. C. D. Attachment.
The plaintiffhaving entered final judgment in this action, it is order-
ed that [the money in Court which arose from a sale heretofore order-
en, andj the moneys, goods, chattels, debts and books of account which
[were attached in the hands ofE. F. garnishee and which] are now in
the hands of the Sheriff, be paid and delivered into the bands of A.B.
the plaintiff, the same being first inventoried and appraised by E. M.,
R. H. and S. B., or any two of them : the said plaintiff before any such
payment or delivery to him, having entered into recognizance with
two good sureties ( payable to the State) in double the value of the
goods attached as aforesaid, that the moneys, and the appraised value
of the goods and chattels, and also the debts and books of account,
which shall be paid and delivered to him, shall be forthcoming in case
the said C. D. the absent debtor, shall appear in Court, within the time
allowed by law and discharge himself of the demand of the said A.B.
against him : and if the said C. D. shall not appear as aforesaid, that
he tie said A. B. will render and deliver into the hands of the Clerk of
this Court the residue of all such moneys, goods, chattels and debts,
and s-aid books of accounts, after payment and satisfaction of his judg-
ment entered as aforesaid : which said residue shall be subject to the
order of this Court. (See Nos. 125 Sf 127. )
Order for appointment of Assignees under the Attachment Act o/"1844.* 38.
A. B. v. C. D. Attachment.
The return of the Sheriff [and of E. F., Garnishee] having been
heard, it is ordered, that M. D. and P. S. be appointed assignees, ac-
cording to the provisions of the Act of the General Assembly passed
A. D. 1844, entitled " an Act to amend the attachment laws of this
State :" and that upon such assignees entering into recognizance, with
two good sureties, each in the sum of one thousand dollars, in manner
and form as by the said Act is required, they shall have such right3
and powers and be subject to such duties, as by the said Act are de-
clared.
a 1744, 3 Stat. 618 § 3; 1844, 11 Stat. 291 $ 4.
b 11 Stat. 291.
144 CLERK. COMMON PLEAS JOURNAL.
Rule and Attachment for Contempt. a
39. Order for payment of money hy Garnishee in Attachment. *
A. B. v. C. D. Attachment.
It appearing by the return of E. F., Garnishee in this case, (as the
same has been corrected and amended by the verdict found upon the
issue which was made on the suggestion contesting the said return,)
that the sum of one thousand dollars and a gold watch of the proper
goods and chattels of C. D. the absent debtor, were attached in the
hands of the said E. F., on motion of E. R., Plff's ^tt'y, it is ordered,
that the said E. F. do forthwith upon receiving notice of this order,
pay and deliver the said sum of money and the said gold watch to the
Clerk of this Court, (to abide further order,) and that unless the said
E. F. do pay and deliver as above ordered, he do shew cause on
next, why he should not be attached for a contempt of the Court.
40. Order for Attachment for Contempt.
A. B. v. C. D. Attachment.
A copy of the order heretofore made, requiring E. F., Garnishee,
to pay and deliver to the Clerk of this Court, the sum of one thou- and
dollars and a gold watch, of the proper goods and chattels of C. D.,
the absent debtor, which were attached in his hands, having been serv-
ed upon the said E. F., and he not having complied with the said order,
and at this time, when by the said order he was required to shew cause,
shewing no (sufficient) cause to the contrary. On motion ofE. R.,
Plff's Att'y, it is ordered, that an attachment do issue against the said
E. F. for his contempt in refusing to obey the order aforesaid.
A..
... B....
v.
C.
...P....
41, Rule to shew cause 7chy satisfaction of a judgment should not he entered.
In Common Pleas. District.
Xo. Roll 3763. Judgment entered day of
1840, for 6500 with interest from and costs,
R. S.. PlfTs Attorney.
On motion of E. R., Attorney in behalf of the defendant, ordered,
that E. F. who is the administrator of the said A. B. now deceased, do
shew cause in this Court on day next, why satisfaction of this
judgment should not be entered.
To be served on the " Plaintiff, his legal representatives, or his or their attorney." —
1817. 6 Stat. 61.
a This is a form of proceeding much nsed in the English practice in cases where we
have substituted a Fi. Fa., as in enfo cins: awards ; making security for costs available,
and the like. In cases where a real plaintiff becomes answerable for thp costs of a no-
minal plaintiff, whose name he has used, in orders against garnishees and other such
case?., in which the dutv of payment and amount to be paid are clear, if no new matter
of excuse can be urged, it is still a convenient and effective mode of obtaining summary
justice.
* See Sherman v. Cohen, 2 Speer 529 ; 1 Rich. 457 ; 2 Strob.
CLERK. COMMON PLEAS JOURNAL.
Order for entry of satisfaction of judgment. 42.
A B , ^ In the Com. Pleas. District. No. Roll 3763.
v. >
C D , } Judgment entered day.
It appearing by the Sheriff's return, that a copy of the rule to shew
cause why satisfaction of this judgment should not be entered, was on
day delivered to E. F., and the said E. F. having failed
to attend at this time which by the said rule was appointed, and it
appearing from affidavits and evidence adduced on the part of C. D.,
the defendant, that the said E. F is administrator of the said A. B.,
now deceased, and that the said judgment has been fully paid, on mo-
tion of E. JR., in behalf of the said defendant, 'it is ordered, that the
Clerk of this Court, do enter satisfaction on the said judgment.
(See Nos. 169, 168, U.)
Like order as to a mortgage. 43..
N P , ^ Mortgage of a tract of land called CI oburn, con-
to > tabling 500 acres, situate on Flat Creek in this dis-
S R , ) trict, and often slaves, Peter, &c, to secure the
payment of three note -. to wit : one for dated second for
dated third for dated : which mortgage is
dated 10th June 1S40, and recorded in the office of the Register of
Mesne Conveyances for this district, on 5th October 1841, Book K.
473.
S. R., the mortgagee, having been served with a rule to shew cause
why satisfaction should not be entered on this mortgage, and now at-
tending— * but shewing insufficient cause, and it appearing from affi-
davits and evidence adduced in behalf of N. P., the mortgagor, that
the mortgage aforesaid, and the sums of money secured thereby, have
been fully paid, on motion of E. L. in behalf of the said N. P., it is
ordered, that the Clerk of this Court, ex officio Register of Mesne Con-
veyances, do enter in the Registry where the said mortgage is record-
ed, satisfaction thereon. (See No. 187.^
(Issue thereon ordered, verdict and order. ■ 44*
(As in No. 43 to*) and shewing cause, concerning which it appears that
matters proper for the decision of a Jury are involved : at the request
of the said S. R. the same is submitted to a Jury. And Jury No. 1,
(with these changes, A. and L. substituted in room of E. and P. who
were challenged peremptorily on the part of the said S. P., and O. and
W. substituted in room of M., who was challenged for cause by the
said N. P. and Q,. who was absent) having been sworn to try whether
the said mortgage is fully paid, and after hearing evidence and argu-
ment, having returned the following verdict, to-wit : " We find that
the said mortgage is fully paid." 0n motion of E. L. in behalf of N.
P., it is ordered, [As in No. 43.] /(See No. 45.)
The various orders, 31 to 44, both inclusive, must be signed by the Judge and copied.
These forms are intended only to shew how in suitable cases, such orders might be
drawn and entered.
145
146
X
CLERK. COMMON PLEAS JOURNAL,
45* Collateral issues, and issues for the trial of special facts, a
These issues are often tried — sometimes mnde up by the parties of right, sometimes
ordered by the Court : sometimes being in writing, and of regular form, under a sugges-
tion and pleading thereto, sometimes being merely oral.
In these the plaintiff cannot be nonsuited. 3 Rich. 210 See 1 Speer 329.
The Act of 1846, 11 Stat. 359, directs a summary issue as to the question of a Sheriff's
diligence upon a ride against him : and the Act of 1817, 6 Stat. 61, directs a summary
issue to try whether a judgment or mortgage has been satisfied. See 3 Rich. 220 and
No. 44.
Cooper v. Scott, 2 McMul. 150, gives an instance of an issue ordered upon a Sheriff's
return to a rule. See also Taylor v. Easterling, 1 Rich. 310. Maddox v. Williamson,
1 Strob. 23, an issue ordered to try the validity of an assignment, under which money in
the Sheriff's hands was claimed. Posey v. Underwood, 1 Hill 262, an issue to try the
validity of a judgment. Haigler v Way, 2 Rich. 326. an issue to try whether the de-
fendant was an infant when judgment was rendered against him. Issues upon the
returns of garnishees, (See 1 Strob. 239) and those upon allegations made against the
petition, of one claiming the benefit of the insolvent debtor's or prison bounds acts, (see
Schroder's case 2 Strob.) are prescribed by statute and regulated by many decisions.
Concerning affidavits and the form of proceeding for leave to file a suggestion, see 1
Rich. 3; Rice 268; 1 McMul.66
Issues as to caste are frequent; when they arise under proceedings in prohibition, or
concerning one who is a party to a record, they are in writing and somewhat formal. —
(For the leading cases, see State v. Davis, 2 Bail. 558 ; State v. Scott. 1 Bail. 270 ; State
v. Cantey, 2 Hill 614; State v. Managers of Elections for York, 1 Bail. 215; Miller v.
Dawson & Brown, Dud. 174; and Ambrosia Belmont's case, 2 Strob. The person of
color should be exhibited in Court, if it be required. 1 Speer 268.) But when such
an issue arises as to a person offered as a witness, and objected to for color, it is usually
presented in a summary and informal manner, and the evidence of its trial and result,
should plainly appear in the Journal. Thus :
A B , ^
v. > Assumpsit.
C D , )
In the trial of this case, E. F. was offered as a witness on the part of
the defendant, and objection on the part of the plaintiff having been
made, that the said E. F. was a person of color, incompetent to give
testimony in Court the Judge, not having decided upon inspection,
ordered an issue to try the fact involved in the objection aforesaid :
whereupon the Jury [charged with the case aforesaid, or, No. 1, or,
which rendered the last verdict, with these changes, to- wit : that O. P.
and L. R. were drawn and substituted in room of E. D. and ;>. B. who
had been challenged on the part of the plaintiff,] was swomto try the
said issue — and after hearing evidence and argument returned the fol-
verdict.
" We find that E. F. is a person of color, incompetent to give tes-
timony."
" We find that E F. is a free white man."
" We find that E. F. is a free indian in amity with this government,
and is competent to give testimony in Court."
" We find that K. F. is so descended from indians in amity with this
government, as to he competent to give testimony in Court."
11 We find that E. F. is a free person, and has no such admixture of
African blood, as to be incompetent to give testimony in Court."
46.
The Common Pleas Journal must also contain " copies of all orders passed, or motions
granted, and other matters specially ordered by the Court to be entered," as well as the
matters in No. 8. See 1 1 Stat. 71.
For orders in case of an insolvent debtor, see Nos. 137, 139.
For orders in naturalization, see No. 178.
For orders in escheat, see No. 182.
a Sec No. 66 and Notes to 85 and 90.
CLERK. — GENERAL SESSIONS JOURNAL. 147
General Sessions Journal. a
Bills given out. 47.
The State v. A. B. Murder.
The State v. C. D. Grand Larceny.
The State v. E. F., G. H. & L. M. Riot and Assault and Battery.
Bills of indictment in these cases were given out to the Grand Jury.
Order for bringing up a prisoner. b 48.
The State v. A. B. Murder.
O. M., a witness in behalf the State, being in jail for want of recogni-
zance with security, it is ordered, that he be brought into Court to tes-
tify before the Grand Jury.
(Signed by the Judge.)
Findings of Grand Jury. e 49.
The Grand Jury returned bills as follows:
The State v. A. B. Murder.
A true bill. S. L. Foreman.
The State v. C. D. Grand Larceny.
A true bill. S. L., Foreman.
The State v. E. F., G. H., and L. M. Riot and Assault & Battery.
The first count not a true bi'l : the second count a true bill as to
E. F. : not a true bill d as to G. H. and L. M. S. L., Foreman.
Order of Commitment. rn
The State v. A. B. Murder.
Ordered, that A. B , who has heretofore been at large on bail, be
committed to close custody.
(Signed by the Judge.)
a See No. 8.
b In every case of bringing up a prisoner, committing or remanding one, an order
signed may be useful in obtainiug the turnkey's fees.
c When a Grand Jury is ready to make any presentment, the Clerk calls over the
names of the Jurors and demands of the Foreman in their presence, Have you any bills
to present ? Then, when the bills have been disposed of, or if no bills be preseuted,
(and always before the Jury is dismissed ) Have you any further presentment to make ?
Any presentments made must be read by the Clerk in open Coifrt.
The Foreman hauds the bills to the Clerk, and the Clerk reads the title of each case
and what the Jury hive writteii : taking care that the raiding be written on the indict-
ment. 'The Clerk may then ask, Gentlemen, you agree that the Court shall amend
matter of form, altering no matter of substance? To which the Foreman may reply.
Yes. This, not usually done in this State, is always supposed to have been done, (see 2
McC. 301 ; 1 Bail. 65,) and is always done in England. 1 Chit. Cr. Law 325.
d. It is usual to say No Bill: but not found, or not a true bill, is the form prescribed
in every book of criminal law The Grand Jury cannot find part and ignore part of the
same count. Finding not signed by the Foreman, held good. 1 N. & McC. 256.
148 CLERK. GENERAL SESSIONS JOURNAL.
51. Additional Constables.
The Court directed that the Sheriff should have eisfht Constahles in
attendance upon the Court for this and the next three days, and the
following were appointed, viz :
52. Adjournment.
The Court adjourned until 10 o'clock, to-morrow.
53. Arraignment, (see No. 85J not guilty — day assigned.
The State v. A. B. Murder.
The prisoner is put to the bar and arraigned, and upon his arraign-
ment pleads — * not guilty, and for trial puts himself upon God and
his Country. Thursday next is assigned for his trial.
"*• Arraignment — plea of guilty. (See No. 85.)
{As in No. 53 to — *) guilty. After admonition from the Court, he per-
sists in his confession of guilt, and it is ordered that his plea of guilty
be recorded. He is remanded for sentence.
Present tense. — It has been held matter of error that in the record these various pro-
ceedings were stated in the past and not in the present tense. 2 Saund. 393 n.; 1 T.
E. 320.
**<>' On Bail — arraigned — non cul. — -put on trial — ( See No. S6J — chal-
lenges— Jury — adjournment.
The State v. C. D. Grand Larceny.
The accused having been upon bail appears at the bar, and is ar-
raigned— pleads not guilty, and for trial put- himself upon God and his
country : expresses his readiness to come to trial immediately, and is
put upou his trial.
After various challenges, the following Jury is formed, viz :
1. N. G., Foreman ; 2. H. I., &c. Tliis Jury is charged with the
trial. After some progress made, the Court adjourned, &c.
56. Evidence-^-summing up and adjournment.
Wednesday, 10th March 1S48.
The Court meets according to adjournment.
The State v. CD. Grand Lar?eny.
The evidence being closed, and argument heard, his Honor the
Judge sums up, and the Jury retires.
57. Verdict — surrender by bail — commitment.
Thursday, 11th March 1848.
The State v. C. D. Grand Larceny.
The Jury returns the following verdict. Guilty, N. G., Foreman.
(See note No. 27 and No. 89.)
His bail L. O., having surrendered the defendant, Ordered, that the
said C. D. be committed to close custody.
A h
'
CLERK. GENERAL SESSIONS JOURNAL. 149
Challenges — tales — verdict — (See No. 89) — remanded. 58.
The State v. A. B. Murder.
The prisoner is put upon his trial. After various challenges, and
drawings of tales, a the following Jury is formed, viz : 1. &c.
This Jury is charged with the trial, and returns the following ver-
dict, "Guilty," L. O., Foreman.
The prisoner is remanded for sentence.
Misdemeanor — changes injury — (See Nos. 24 — 2S) — verdict. 59.
The State v. E. F. Assault and Battery.
Of Jury No. 1, "E D. is excused from sitting, E. L. being a kinsman
of defendant is challenged for cause on the part of the State, and G
T. and T L., supernumeraries substituted : E. P. and M. J. are pe-
remptorily challenged by the defendant, and A. R. and S. B. drawn
from the supernumeraries in their room. The Jury then consisting of,
1. E. M., Foreman, &c, is charged with the trial of the issue, and
return the following verdict * " Guilty."
Acquittal and discharge. 60.
(As in No. 59 to — *) « Not Guilty." \piereupon, it is ordered, that the
defendant go thereof without a day.
Sentence for misdemeanor. Lnprisonment and fine. Security J or gj
good behavior and the peace.
The State v. E. F. Assault and Battery.
The defendant appealing to receive sentence, (1) let the defendant
[or, (2) It is ordered, that the defendant, or (3) It is considered that
the defendant ] be imprisoned three months, [to commence at the ex-
piration of the imprisonment to which he has been sentenced in the
case next preceding,] and be fined one hundred dollars : and that be-
fore his discharge from imprisonment, he enter into recognizance,
hniiself in the penalty of one thousand dollars, and two sureties, each
in the penalty of five hundred dollars, with condition that for twelve
months he be of good behavior and keep the peace towards all the
citizens of this State, and especially towards the prosecutor N. R. and
his wife E. R.
Demand why 'sentence of death should not be passed. (See No. 90. J fi9
Nothing\mid~-judgme?it to be hanged— prisoner remanded.
The State v. A. B. Murder.
It being solemnly demanded of the prisoner at the bar, if he hath
any thing to say why sentence of death should not be passed upon him,
he saith nothing farther unless as he had before said. Wherefore, it is
considered by the Court, (and pronounced as the judgment of the law,)
that the said A. B. be taken hence to the place whence last he came,
there to be kept in close and safe custody until Friday day of
next: and that on that said Friday, between the hours of ten in the
a See the State v. Williams, 2 Hill 384. No. 86.
1. 2. 3. Of these forms the first is easiest and most common : the third most technical.
150 CLERK. GENERAL SESSIONS JOURNAL.
forenoon and two in the afternoon, he be taken to the place of public
execution in this district, and then be hanged by the neck until his
body be dead. And may God have mercy on his soul.
The prisoner is remanded for execution.
Benefit of Clergy.
63. Demand why not judgment, (See No. 90J — Prays benefit of Clergy—
allowed. To be imprisoned and whipped.
The State v. C. D. Grand Larceny.
It being solemnly demanded of the prisoner if he hath any thing to
say why the Court should not proceed to judgment and execution
against him, he prayeth that the benefit of Clergy may be allowed to
him — * and it is allowed : whereupon it is considered by the Court
here, that the said C. D. be imprisoned for six months, and on the first
Monday of next, at the public whipping post for this district, (at
the market place) receive thirty-nine lashes on his bare back.
64. Counter plea filed — Judgmenwprayed.
( As in No. 63 to — *) But , Esquire, the Solicitor in behalf of the
State, filed a counter plea, stating that he the said C. D. was not enti-
tled to the benefit of Clergy, because at &c. he was indicted for
that : thereupon he was convicted and prayed that the benefit
of Clergy might be allowed to him, and the same was allowed accor-
dingly, and it was considered by the Court last mentioned, that he the
said C. D. should be imprisoned, &c. and that the said C. D. who
stands convicted of Grand Larceny" at the Court of General Sessions
now here holden, is the same person who was convicted of manslaugh-
ter at &c. on &c, as aforesaid, and not another and different
person: wherefore since the said C. D. hath already been admitted to
his Clergy, the said , Esquire, for the State prayeth judgment of
the Court here, and that the said C. D, may receive judgment to die
according to law. — t
65. Inspection: Certificate : (21 § Clerk's Act 1839, 11 Stat. 11, See No.
84, ) no denial : sentence of death.
(As in No. 64 to — f) And because by the inspection of the record, [or, by
the certificate of D. H., Clerk of the Court of General Sessions and
Common Pleas for the district of where the record of conviction
set forth in said counter plea is kept,] it appears that the said C. D was
convicted and did receive the benefit of Clergy as set forth in the said
counter plea, and that he is the same person, and this he the said C.
D. does not deny : therefore it is considered that the benefit of Clergy
be not allowed to the said C. D.: but that he be taken hence, &c. (As
in No. 62.)
a See Acts 1833, 6 Stat. 489 ; 1834, 6 Stat. 503 ; 1845, 11 Stat. 341 ; and case 2 Rich.
422.
CLERK. GENERAL SESSIONS JOURNAL. 151
Answer to counter flea. Nul tiel record, and identity denied. Jury or- 66.
dered. Changes of Jury. Verdict. Clergy denied. Sentence of death.
(As in No. 64 to — f) To this counter plea the prisoner pleads nul tiel re-
cord, and denies that he is the person named in the said counter plea,
and for the State, the Solicitor aforesaid joins issue thereupon. Where-
upon, for the trial of the said issue, a Jury is ordered. Of Jury No. 2,
E. T. and M. R. are challenged for cause by the Slate; A. C. and G.
T. challenged for cause by the prisoner, and O. H. and J. D. chal-
lenged peremptorily by the prisoner, and a Jury is formed consisting
of (1. &c.,) who, having been sworn to speak the truth of and concern-
ing the matters in issue, a and having heard the said record of convic-
tion \or, the said certificate of the said conviction] and the testimony
of witnesses upon oath in open Court, do say upon their oaths that
the prisoner is the same identical C. D. in the said record and convic-
tion [or, in the said certificate of conviction] named, who on, &c, at
&c, was convicted of and then and there received the benefit
of Clergy, as in the said counterplea is alleged. Therefore, it is con-
sidered that the benefit of Clergy be not allowed to the said C. D.,
but that he be taken, &c. (As in No. 62.)
See No. 45 and note to No. 85, concerning peremptory challenges on the trial of col-
lateral issues.
Oath of Juror on trial of identity. 67,
You shall well and truly try whether [the prisoner at the bar was
convicted of at C. H. in this State, on : and whether
he is the same person who then and there was tried and convicted anti
received the benefit of Clergy :] and a true verdict give according to
the evidence. So help you God !
Varying the matter between brackets, the same form of oath will serve for the trial of
any fact collaterally presented.
Entries when a prisoner is brought up to receive award of execution,
or assignment of new day, where sentence of death has before been passed
upon him, but not been executed at the day appointed. See No. 92.
Recital of conviction and judgment. Solemn demand.
The State v. A. B. Murder.
The prisoner having fas it is said, J been convicted at term
of this Court of murder, and senteuce of death having then been pass-
ed upon him, fas it is said, h) is now by the Sheriff (undf r the warrant
of ) put to the bar, and it being solemnly demanded of him if he
hath any thing to say why the Court should not proceed to award exe-
cution of the judgment before pronounced against him *
a See oath of Jury, No. 67.
b To be inserted if the question of identity be found in favor of the prisoner.
68.
152
CLERK. GENERAL SESSIONS JOURNAL.
69. Award of execution.
(As in No. 68 to _ *) saitn nothing. Therefore, it is considered that ex-
ecution be done upon the said A. B. the prisoner, according to the said
judgment : and that he be taken hence to [the place whence last he
came,] (the common jail of this district,) there to be kept in close and
safe custody until, &c. (As in sentence of death, No. 62.J
70. Identity denied— issue joined.
{As in No. G3 to — *) saith that he is not the person named in the record
of conviction, and the judgment pronounced at term as aforesaid :
and in behalf of the State, the Solicitor saith that he is the identical
same person so named in the said record; and issue is joined thereup-
on. Wherefore for the trial of the said issue, &c, [As in i\o. 66,
leaving out what relates to the benefit of Clergy.)
71. Pardon pleaded, «
(As in No. 68 to — *) 8aitb that he hath been pardoned of the said (mur-
der and) felony whereof he was convicted and sentenced as aforesaid,
and produces the pardon of his Excellency Governor of
this State : dated and under the seal of the State : — t
72. Pardon allowed — discharge.
(At in No. 71 to — f) Whereupon all and singular the premises being seen
and by the Court here understood, it is considered that the said A. B.
he discharged and go thereof without a day.
73. Condition of pardon : imprisonment, then discharge.
{As in No. 71 to — f) made upon condition that he be imprisoned, &c.
Whereupon it is considered that the said A. B. be imprisoned, &c,
and afterwards go thereof without h day.
74. Replication — condition : broken — award of execution prayed.
{As in No. 71 to — f) but Esquire, the Solicitor in behalf of the
State, saith that the said pardon was granted upon ^a condition insert-
ed therein, that the said A. B. should, within two months from the date
of the said pardon, depart from the limits of this State, and not return
to the same afterwards : and that, in violation of the said condition, the
said A. B. having departed from the limits of this State, did afterwards,
to- wit : on at return to the said State, and was within the
Kmus thereof: Whereupon, the said Esquire, prayeth award of
execution, that the said A. B. may die according to the judgment of
the law pronounced against him as aforesaid. — t
a If a pardon be produced in Court, it should be kept by the Clerk, and filed as a part
of the record in the case.
If a pardon be produced to a. Sheriff", it is in the nature of a supersedeas, and some-
times of a precept, and should be kept by him as his warrant for doing wh; t it directs,
and be returned to the Clerk to be filed, as the Sheriff's return of the reason why the
order of the Court was not obeyed.
CLERK. — GENERAL SESSIONS JOUNAL. 153
No denial — execution awarded.
75.
(As in No. 74 to — |) Arul this the said A. B. cannot deny. Whereupon
it is considered, that execution be done upon the said A. B.the prison-
er, according to the judgment aforesaid: and that he be taken, &c.
(As in No. 62. J
Breach denied. Issue. '"•
(As in No. 74 to — |) And to this the said A. B. saith, he did not violate
the condition of the pardon aforesaid, in manner and form as the Soli-
citor hath alleged, and prays that inquiry thereof may be had by the
country. And the said Esquire, Solicitor doth so likewise.
Wherefore, for trial of the issue thus joined, a Jury is ordered, (and so
on as in No. 66, varying to suit the case.)
Order after conviction in Bastardy. a 77.
The State v. C. D. Bastardy.
The defendant C. D. having been by the verdict of a Jury convicted
of beitio- the father of a (male) bastard child, begotten on the body of
E. F. (spinster) and born day : It is ordered, that the
said C. D. do enfer into recognizance for the maintenance of the said
child, as required by law, on or before next; and that failing
therein he be liable to execution according to law.
(Signed by the Judge.)
For the recognizance and execution, see Nos. 153 — 160.
The Sessions Journal must likewise contain :6 7g
All orders of estreat, and fines imposed, for contempt of Court or otherwise.
Every order made on any presentment of the Grand Jurv — as it may be written, if
written; otherwise, as it may be pronounced.
Every order for a copy of an indictment to be furnished to a defendant after his final
discharge from a prosecution for felony, and every other order relative to business in the
Sessions which may be signed by the Judge.
Every entry (which disposes of a case or matter on the docket,) made by the Judge
on either the Sessions or Contingent Docket, which is not reduced to a special order
and signed.
The Common Rules in the Sessions,
And in the form in which the Solicitor procures them to be signed:
this being the usual form, to-wit :
In the General Sessions, ) T 1R4. "^»
District. /
On motion of the Attorney-General, ordered:
1. That all recognizances which have not been specially discharged,
be continued over to the next term.
a See Act of 1795, 5 Stat. 270 ; 1830, 6 Stat. 410; 1831, 6 Stat. 433; Mag. Act of
1839, 11 Stat. 16; Act of 1847. 11 Slat: 436; Commissioners of the Foot vs. Gains, 3
Brev. 396: Commissioners v. Gilbert. Case from Darlington, Dec. 1847,2 Sirob. — — .
State v. Derrick, 1 McMul. 338 ; Exparte Harrington, 1 N.&McC. 203.
b Act of 1839, 11 Stat. 71.
V
154 CLERK. CERTIFICATE OP CONVICTION.
80. 2. That bench-warrants issue against all persons against whom "bills
of indictment have been found at this, or any former term, and who have
not yet been bound over to answer the same ; and against all persons
who have been convicted at this, or any former term, and have not ap-
peared to receive judgment. And if any of the said persons have re-
moved from, or are without the limits of this district, that the bench-
warrants against them, or any of them, be forwarded by the Clerk to
the Sheriff of any and every district in this State, in which such persons,
or any of them, respectively, reside, or may be found.
81. 3. That scire facias issue against all persons who have been bound
over to prosecute, or to answer, or to give evidence, and who have not
appeared, pursuant to the condition of their respective recognizances;
and also against all persons who have been summoned to attend Court
as Grand or Petit Jurors, and who have net attended, or been excused.
82. 4. That process of execution issue against all persons who at this,
or any former term, have been fined, and have not paid their fines ; or
who have been convicted, or pleaded guilty, and have not paid the fees
and' costs, taxed and due upon their respective persecutions.
83. 5. That the Clerk issue process to bind over all witnesses, who have
not been bound over, not only in prosecutions already returned to this
Court, and not finally disposed of, but also in all prosecutions which
may be returned into his office, by competent authority, before the
next term.
Certificate of Conviction.
84. Certificate of Conviction, granted by a Clerk to exclude a felon from bene6t of Cler-
gy—under 27th section of Clerk's Act of 1830. 11 Stat. 77.
The State of South-Carolina, ) To the Hon'ble the Court of Gen'l
District. y Sessions for District.
These are to certify, That at a Court of General Sessions begun to
be holden, &c, and thence continued, &c, on the said A. B.
was indicted for that \copying indictment :] upon this indictment he
was on in the said Court arraigned, and for trial put himself
upon God and his Country : and afterwards on in the said Court
he was convicted of the said felony : the Jury having returned the fol-
lowing verdict, We, &c. and on in the said Court he was put
to the bar, and it being solemnly demanded of him to say why the
judgment of the law should not be pronounced against him, he prayed
the benefit of his Clergy, and it was allowed : all which appears by
the record remaining in my office.
In witness whereof, I have hereunto set my hand and seal of office,
this day, &c. D. H„ Clerk, G. S.
This is the usual form : but it would be easier and equally short, to copy the whole
proceedings : — style of the Court, indictment, finding oi the (hand Jury, arraignment,
and every entry concerning the case io the Journal :and, to this exemplification, add a
certificate that it contains the whole proceedings had, <fco»> as in No. 197.
The necessity of' making full entiles in the Journal, where no separate record is made
up, appears from what this certificate requires.
CLERK. ARRAIGNMENT, TRIAL, &C. FOR FELONY. 155
Form of arraignment for any felony. 85.
The accused having been placed in the prisoner's dock, and silence having been com-
manded by the Sheriff, the Clerk having the indictment before him, addresses the pri-
soner by the name used for him in the indictment.
" A. B., if thou answerest to that name, hold up thy right hand."
(See note below. )
The prisoner having raised his hand, or othciwise signified his acknowledgment of
the name, —
Clerk. — " Put down thy hand. Thou standest indicted by the
name of A. B., for that thou A. B. late of the district of "
[Here read the whole indictment from ' that' onward, changing it from the third to
the second person. Where the words, '■and so the Jurors aforesaid do on their oaths
say,'' occur towards the end of a count, change them to " and so thou art charged: At
the beginning of a second or any subsequent count, instead of the words, ' and the Ju-
rors aforesaid do further present that he,'' say, " and thou art further indicted for that
thou."']
The indictment having been thus read :
Clerk. — " How sayest thou A. B. — art thou guilty of the (murder
and) felony whereof thou standest indicted, or not guilty V
(If the prisoner should say " Guilty" after admonition from the Court, his plea of guilty,
if persisted in, would, under the direction of the Court, be entered on the Journal, and
the prisoner be ordered for sentence.)
Prisoner, — " Not guilty."
Clerk. — " Culprit : How wilt thou be tried."
Prisoner. — " By God and my Country."
Clerk. — " God send thee a good deliverance ! Art thou ready to
come to trial."
(The prisoner's counsel then speaks: — ) See Nos. 53 — 55, for the entries.
Form at the Trial.
Jurors offered and challenged or sworn. 86.
Clerk — Having a list of all the Jurors in attendance, arranged in their order, (2 Bail.
32,) to-wit: first, Jury No. 1: second, Jury No. 2: third, supernumeraries, as they
were originally drawn (in which order the names should have been previously given to
the prisoner or his counsel, if asked for,") and having called all over so as to ascertain
which are in attendance, addresses the prisoner in the dock : '
"A. B., prisoner at the bar, these good and lawful men, whose
names thou wilt now hear called over, are the Jury who are to pass
between the State and thee, upon thy trial for thy life or thy death :
if thou wouldst challenge them, or any of them, thou must do so as
each one comes to the book to be sworn, and before he is sworn."
Note. — Now the prisoner's counsel should interfere if a plea of misnomer, any other
plea in abatement, or any special matter in bar, as autrefois acquit, autrefois convict,
(possibly pardon) be contemplated.
Novv, aUo, inquiry should be made, if the prisoner stands mute, whether it be ex visi-
tationc Dei : if it be suggested that he is insane, whether he be turn compos, $c.
If a Jury be called to try any issue of fact here made, they will be sworn specially,
well and truly to try and determine between the State and prisoner at the bar, whether
&c. See Nos, 66 and 67,
As to the right of peremptory challenge on the trial of collateral issues, see 2 Hale,
267. Fost. 42; Bacon Abt. juries E. 9 ; 4 Black. Com. 353, N.7; contra, Co. Litt.
157 b. Hawk, b, 2 c. 43, § 6. See also 1 Chit. Cr. law 688 ; 777 ; 535.
a Semi, contra, 2 Hill 384.
156 CLERK. ARRAIGNMENT. TRIAL, &C. FOR FELONY.
The Foreman of Jury No. 1. being called by the Clerk and appearing :
Clerk to the Juror. — " Lay thy hand on the Book."
[Here a short pause for the Solicitor to decide as to the .Tnror. He may direct any
Juror to stand aside, and the Juror must do so, and cannot be again presented until all
the Jurors in attendance have been presented, when, the Solicitor must shew cause of
challenge against the Juror, orpermit the prisoner to accept him if he \v ill . a
It would be unfair to allow the Solicitor to exercise his right after a Juror has been
accepted by the prisoner. *]
Clerk to the Juror. — " Look on the Prisoner."
Clerk to the Prisoner. — " Look on the Juror. What sayest thou !"
(If a peremptory challenge be made, the prisoner speaking for himself, and not by
counsel, c says, I challenge liim. If challenge for cause be intended, counsel are heard.)
Prisoner. — (If no challenge.) " Swear him."
Clerk. — (Oath of the Juror.) You shall well and truly try, and
true deliverance make, between the State of South-Carolina and the
prisoner at the bar. whom you shall have in charge, and a true verdict
give according to the evidence. So help you God !
(So on until twelve are sworn.)
The twelve having been sworn, and a Foreman appointed, the Clerk call:? over the
names ol the twelve slowly : the Sheriff, in an audible voice, counting one, when the
first Juror answers; tiro, when the second answers, and so on to twelve: when the
Clerk answers, ;' and all sworn." <* Silence ordered.
G7. Jury charged.
Clerk to the Prisoner. — "A. B., prisoner at the bar, hold up thy
hand : put it down.''
Clerk to the Jury. — "Gentlemen of the Jury, that have been
sworn, look upon the prisoner at the bar, and heaiken to his charge :
A. B. now prisoner at the bar, stands indicted by the name of A. B., for
that he A. B., late of the district, ice."
[Recite the whole indictment from " that' onward. TVhTe the words " and so the
Jurors aforesaid do on their oaths say.'' occur towards the end ofa count, change them
to 'and so he is charged ;" at the beginning of a second, or any subsequent count, in-
stead of tue words " and the Jurors aforesaid do further present that he," say, " and he
stands further indicted that Se."]
" Upon this indictment he hath been arraigned, and upon his arraign-
ment he hath pleaded not guilty, and for trial hath put himself upon
God and his Country, of which country you are: so that your business
is to inquire whether the prisoner at the bar be guilty of the (murder
and) felony whereof he stands indicted, or not guilty. If you find him
guilty, you shall say so : if you find him not guilty, you shall say
so, and no more. So hearken to the evidence."
a The Slate v. Barroutine. 2 X. & McC. 553.
b See Joy on Confessions and Challenges. 110 — 230. (Law Lib.)
A Juror cannot be examined on his roir dire, as to opinions formed or expressed,
State v. Baldwin. 3 Brew 309 ; State v. Sims. 2 Bail. 33.
If the panel be exhausted, and Jury not formed, there must be consecutive drawings of
tales (see No. 5 and notes to Rule 36 :) as each of the tales is drawn, he is called ; if he
appears, he is presented and accepted or rejected : if he does not appear, another is
called, and so on. The State v. Williams, 2 Hill 384.
e 2 Hawk. 413.
d See Nos. 55 — 53 for the entries.
CLERK. ARRAIGNMENT, TRIAL, &C. FOR FELONY. 157
Oath of a witness on trial of a felony. 88.
The evidence you shall give to the Court and Jury on this trial, now
to be had between the State of South-Carolina and the prisoner at the
bar, shall be the truth, the whole truth, and nothing but the truth. So
help you God ! *
Verdict rendered and recorded. 89.
The Jury having returned into Court, the prisoner being in the dock, the Clerk calls
over the names slowly, — the Sheriff counting as in No. 86.
Clerk to the Jury. — "Gentlemen of the Jury, have you agreed
upon your verdict ?"
The Foreman answering " Yes,'" and handing the record to the Clerk, the Clerk
reads the title of the case :
The State, }
v. > Indictment. (Murder or other felony.)
A... B..., )
(Then the verdict.) " We find, &c. Foreman."
Clerk to the Jury. — " That is your verdict, and so ye say all."
If no contradiction be made the verdict is recorded. See Nos. 57 and 58.
(See note beloio.)
When the prisoner is called for sentence. See Nos. 62 — 67. 90.
Clerk. — "A. B. bold up thy hand : put it down: thou hast been
indicted by the name of A. B., for that." [Here recite the indictment as upon
the arraignment, (No. 85,) saying, "thou hast been charged,'" instead of "thou art
charged:" and " thou hast been further indicted," instead of ' thou art further indicted.'']
Thou wast upon this indictment arraigned, and upon thy arraignment
thou didst plead not guilty, and for thy trial didst put thyself upon God
and thy Country, which country — * hath found thee guilty (of man-
slaughter.) What hast thou now to say why sentence of death should
not be passed upon thee 1"
The prisoner prays benefit of Clergy, a if entitled to it, or pleads other matter which
may arrest the judgment, as notice of appeal (if he be put thus to plead it ;) perhaps
pardon. See 1 Strob. 350.
Note. — Polling a Jury is not the right of any party in either a civil or a criminal case,
but may be resoited toby the Court at its discretion. 1 McC. 24,525; 1 Bail. 3.—
See No. 27.
a If the Solicitor should intend to resist the plea of Clergy, on account of a former
grant of the benefit, prior to the commission of the felony, of which the prisoner is now
convicted, he should have procured a certificate of the former proceedings and convic-
tion Irom the Clerk of the district where they were had : (See Nos. 64, 84.) — (If they
were not had in this district where the originals may be in Court) — and should have
prepared a regular counter plea, to which the prisoner should answer. II however, all
the pleadings in such matter be ore tenus, great care on the part of the Cleik is neces-
sary in making the proper entries in the Journal, for no other record is ni£.de up in
this State. See Nos 63 — 66.
At this stage too, inquiry might be had concerning the sanity of the prisoner, and
trial of any collateral issue be had before a Jury. See No. 85.
158 CLERK. ARRAIGNMENT, TRIAL, &C. FOR FELONY.
91. In the Court of Appeals.
(As in No. 90 to *) " then did find thee guilty (of manslaughter.) Thou
didst iben appeal to this Court and submit here a motion (or motions)
for new trial (and in arrest of judgment.) Thy motions, after patient
hearing and careful consideration, have been dismissed. What hast
thou now to say, why sentence of death should not be passed upon
thee V
92. Where judgment of death has been lej "ore pronounced upan a prisoner,
and he is called upon to shew cause tchy a neic day for execution should
not he assigned. °
Clerk. — " A. B. hold up thy hand. Put it down. Thou wast here-
tofore indicted for that thou," (read the indictment as in No. 72,) "upon
that indictment, (by the plea of guilty, thou wast convicted : or,) hav-
ing put thyself upon God and liiy Country, thou wast convicted (of
manslaughter :) upon that conviction, thou wast solemnly demanded to
shew cause, if any thou liadst, why sentence of death should not be
passed upon thee : and no sufficient cause to the contrary having been
shewn, the judgment of the law was pronounced, that thou shouldst
be hanged by the neck until thy body be dead. What hast thou now
to say, why the Court should not proceed to award execution against
thee on the said judgment V
Here the prisoner may plead a pardon and it may be allowed: or the Solicitor may
counterplead a breach of some condition in the pardon, which the prisoner may admit
or deny. Or, if the prisoner has been oat of custody since the judgment, he may allege
that he is not the person against whom the seulence was given. Insanity may here
again be suggested. Any collateral issue of fact is to be tried by a jury sworn specially
as in No. 67.
The Clerk must be very careful in the entries. See Jsos. 6S — 76.
93. In case of a v:oman, after judgment.
Clerk — "A. B., hold up thy hand. Put it down. * What
canst thou say for thyself in stay of the execution of the judgment
which hath been given against thee ?"
If sentence has not been j>ronounced immediately before, introduce im-
mediately after the * above, " thou wast heretofore convicted for that,
•Sec." as in No. 92 down to " dead."
94. The Fore-matron's oath.
You, as Fore-matron of this Jury, do swear, that you will search and
try the prisoner at the bar, whether she be with child of a quick child,
and thereof a true verdict give according to your skill and undemand-
ing. So help you God !
95. The rest of the same Jury : one by one.
The same oath your Fore-matron hath taken on her part, you shall
well and truly observe aud keep on your part. So help you God !
a See The State v. Chancellor, 1 Strob. 347 : The State v. Kilchins, 2 Hill 613 ; The
State v. Addington, 2 Bail. 516; The State v. Smith, 1 Bail. 283; The State v. Fuller,
1 McC. 178.
CLERK. — OATHS. 159
Oath of an Officer to keep the Jury of Matrons. 96.
Just like the oath of officer to keep any other Jury, (No. 108,) except that, instead of
" thai you will suffer no person to speak to them, $c." any, that ijou will suffer no person
but the prisoner to speak to them, S,-c.
Verdict of the Jury of Matrons. 97.
We find that A. B. is [or, is not) pregnant with quick child. ,
, Forematron.
Jf the verdict be that she is pregnant, a reprieve until the next term is of course gran-
ted : and the whole proceedings are carefully entered by the Clerk. At the next term
she is again presented. See 1 Oh. Cr. Law 760;
Oaths. a
Oath of the Foreman of the Grand Jury. 98.
You, as Foreman of this Grand Inquest, shall diligently inquire and
tru presentment make of all such matters and things as shall be given
you in charge : the State's counsel, your fellows, and your own, you
shall well and truly keep secret. You shall present no one for envy,
hatred, or malice ; nor shall you leave any one unpresented for fear,
favor, affection, reward, or hope of reward: but you shall present all
things truly as they come to your knowledge, according to the best of
your understanding. So help you God.
The same oath, saying " one" instead of" Foreman," must be administered to any
Grand Juror who did not hear the Foreman swear.
Oath of the rest of the Grand Jury : sworn three or four at a time. 99.
The same oath which your Foreman hath taken on his part, every
of you (if one, you) shall well and truly observe and keep on your
part.
Oath of a witness to give evidence to the Grand Jury, on a Bill of 100.
Indictment.
The evidence you shall give to the Grand Jury on this bill of indict-
ment, shall be the truth, the whole truth, and nothing but the truth.
Oath of a witness sent to a Grand Jury to give information on some 101.
matter besides a Bill of Indictment.
The evidence you shall give the Grand Jury touching the matters
of which you shall be questioned, or shall speak before them, shall be
the truth, the whole truth and nothing but the truth.
a The form of every oath administered, in the second person, concludes " So help you
God!" Just before these words, if the person to be sworn uses any form of oath or affir-
mation different from the usual form of laying the right hand on the Holy Evangelists,
introduce the words, " this you solemnly swear (or, affirm) according to the form of
your religious persuasion." Or, instead of saying at the beginning. "You do solemnly
swear that, &c." say, " You do solemnly swear, ( or affirm,) according to the form of your
religious persuasion, that, &c." See 3 Stat. 28 I.
Swear or Affirm. — Swear, in the case of one, who scruples not at an oath, but rejects
the form: Affirm, if there be any tenderness of conscience about swearing.
160 CLERK. OATHS.
102. Oath of the Petit Jury in the Common Pleas.
To be administered to the furors, three at a time, when the Jurv is first organised, or
to any Juror when afterwards he first takes his seat, fur ordinary busin^-.
You shall well and truly try all issues, £oi mim>mu"lW mill* uf jti^»
tfmmf which shall come before you during the present term, and true
verdict g-ive according to the evidence.
, a o
103. Oath of the Petit Jury charged with the trial of a misdemeanor in the
Sessions.
You shall well and truly try the issxie joined in this case, the State
against C. D. and F. H. for ,and a true verdict give according
to the evidence.
If the case has been traversed, yon may say " the issue of this traverse, the State vs.
&c." In every case, even where a defendant does not attend, an issue is supposed to
be joined.
104. Oath of a icitness on the trial of a misdemeanor in the Sessions.
The evidence you shall gfive the Court and Jury in this case, the
State against C. D. and F. H , for , shall be the truth, the whole
truth and nothing but the truth.
105. Oath of a witness in the Common Pleas before Jury.
The evidence you shall give the Court and Jury upon this (Sum.
Pro.— Inquiry— Issue,) between A. B., Plaintiff, and C. D., Defend-
ant, shall be the truth, the whole truth and nothing but the truth.
106. Oath of a witness on trial of Sum. Pro. before a Judge.
The evidence you shall give the Court upon this Sum. Pro. between
A. B. Plaintiff, and C. D., Defendant, shall be the truth, the whole
truth and nothing but the truth.
107 "Voir dire.
Oath to be administered to a person called as a witness and examined touching his
interest, or to any person who is to be examined touching a collateral matter before the
Judge, or who is ordered by the Court to be sworn in this form.
You shall true answer make to all such questions as shall be de-
manded of you (touching the matter now before the Court, by the.
A Court, or by order thereof.) You shall speak the truth, the whole
truth and nothing; but the truth.
108. Oath of a Constable to keep a Jury.
To be administered whenever the Judge leaves the Conrt-house, whilst the Jury is
out. or when the Jury room is not within view of the Court, or whenever ordered by
the Court.
You \or, each of you] swear, that you will keep the Jurors .-sworn
of this Jury in the room appointed for them, [or, in some quiet conve-
nient place.] without meat drink, or fire, (water and candle-light only
excepted,) until they shall have agreed on their verdict, or you shall
have been otherwise ordered by the Court : that you will suffer no
CLERK. OATHS. 161
person to speak to them, nor any of them, without leave of the Court :
neither speak to them, or any of them yourself, without such leave,
except yourself to ask whether they have agreed on their verdict. —
So help you God !
Oath of an Interpreter to a deaf and dumb witness. 109.
On this trial, now to be had between the State and the prisoner at
the bar, [or, On the trial of the issue joined in this case, the State
against E. B. for assault and battery : or, Before the Grand Jury, on
this bill of indictment, the State against E. F. for forgery : or, On this
trial of the issue (writ of inquiry, or, summary process,) between A.
B., Plaintiff, and C. D., Defendant:] You shall well and truly inter-
pret to G. H., a witness here produced, the questions and demands
which shall be made to him, and you shall well and truly interpret to
the Court and Jury for, Court or Jury) the answers which this witness
shall make. So help you God !
Oath of an Interpreter in general sworn in any case. 110.
On, &c. fas in the preceding No.) You shall true interpretation make
of the evidence, about which your assistance shall be asked, or you
shall speak, to the best of your skill and understanding. So help you
God!
Oath under Constitution of the State, 111.
To be taken by any person chosen or appointed to any office of profit or trust, before
entering in the execution of his office.
I do solemnly swear, (or affirm) that I will be faithful, and true al-
legiance bear to the State of South-Carolina, so long as I may continue
a citizen thereof: and that I am duly qualified, according to the Con-
stitution of this State, to exercise the office to which I have been ap-
pointed; and that I will, to the best of my abilities, discharge the duties
thereof, and preserve, protect and defend the Constitution of this State,
and of the United States. So help me God !
Oath against Gaming. 112.
To be taken by every Sheriff", Deputy Sheriff, Coroner, Deputy Coroner, Magistrate
and Constable, before he shall be cnialified to act in his office. See Act of 1816, 6 Stat. 27. '
I further swear, that I will enforce, and to the extent of my power
and ability carry into effect, the Act of the General Assembly, passed
in 1816, entitled " An Act the more effectually to prevent the pernici-
ous practice of gaming," and in all cases will bring to justice violators
of the same, whenever such violations shall come within my view and j
knowledge : So help me God!
Oath to be taken by Judges, Clerhs, Sheriff's, Deputy Sheriffs, Tax- 113.
Collectors, and all officers " who are any ways concerned in the drawing,
balloting, impanelling, or summoning of Juries" 1731, 3 Stat. 282 §29,
I do further solemnly swear, that I will to the best of my ability, so
far as I may be concerned in the drawing, balloting, impanelling or
v
162 CLERK. RULES TO PLEAD AND REPLY.
summoning of Juries, truly, diligently and uprightly carry into due
and faithful execution the Act of the General Assembly, commonly
called the Jury law, passed A. D. 1731, as the same has been since al-
tered, or amended, or may be so hereafter.
114. For oaths to be endorsed on the Clei-k's commission, see 11 Stat. 69.
For oath to be taken by him as Commissioner of Locations, see 11 Stat. 81.
Two Magistrates of the District required: Query, as to Notary Public 1 See 5 Stat.
479, 625: 1 Strob. 153 : 11 Stat. 24 § 34 : 11 Stat. 103.)
For oaths to be endorsed on the written deputation of a Deputy Clerk, see 11 Stat. 69.
For oaths to be endorsed on a Sheriff's commission, see 11 Stat. 26.
For oaths to be endorsed on the written deputation of a regular Deputy Sheriff. 11
Stat. 23 : see also infra No. 206.
For oaths of Magistrates (including oath against gaming) see 11 Stat. 14, 78. " Shall
sign roll to be kept by the Clerk." List to be sent to the Secretary of State first of No-
vember, annually.
As to oaths of Constables, see 11 Stat. 55, 78.
For oath of Jury to try a collateral issue, see No. 67.
Oaths concerning Jury of Matrons : Nos. 94 — 96.
Oath of a Juror in felony; No. 86-
Oath of a witness in felony : No. 38.
Oath of insolvent debtor in open Court: No. 136.
Oath of one of the Commissioners who execute writ of ded . poteslal. to take renuncia-
tion of dower or inheritance. No. 193.
Affidavits : see bail, trover, prison bounds, &c.
•V
115. Rules to Plead and Reply.
Rule to plead. a
A B , )
v. V Assumpsit. N. O., Plff's Att'y. R. S., Deft's Att'y.
C D , )
The plaintiff having this day filed his declaration, Ordered, that the
defendant plead thereto within one month, b or judment by default may
be entered against him.
Rule to reply.
-D ,,
ads. J> Assumpsit. R. S., Deft's Att'y. N. O., Plff's Att'y.
"I
A
B S
The defendant having this day filed his plea, Ordered, that the
plaintiff reply thereto within ten days, or judgment of nonpros, may
be entered against him.
a 1st and 2d Rules of Court, ante, p. 33 ; 1791, 7 Stat. 263 ; 1839, 11 Stat. p. 71 § 8,
p. 75 § 16.
f: b For the meaning of " month," see Alston ads. Alston, 2 Tread. C. R. 608 : William-
son v. Farrow, 1 Bail. 611. In England, when a month is mentioned in a statute, it
signifies a lunar month. 2 Black. Com. 141 ; 6 T. R. 224. In South-Carolina and some
diner States, the English rule has been modified. See cases collected in 3 Kent's Com.
p. 95, n. b.
c 3d Rule of Court, ante p. 33.
CLERK. ATTACHMENTS. 163
Foreign Attachment. a
Rule to plead, when absent debtor has neither wife nor attorney within 116.
the State. b
The State of South-Carolina, ) T ., n tji
n. . ' > In the Common .Pleas.
District. J
A B.....,^
v. > Attachment.
C D ,)
Whereas, the plaintiff did on the day of file his declaration c
against the defendant, who (as it is said) is absent from and without
the limits of this State, and has neither wife nor attorney known within
the same, upon whom a copy of the said declaration might be served :
It is therefore ordered, that the said defendant do appear and plead to
the said declaration, on or before the d day of which will be in
the year of our Lord one thousand eight hundred and otherwise
final and absolute judgment will then be given and awarded against
him. D. H., c. c. p.
Clerk's Office. )
District. )
Rule to plead where absent debtor has either a wife or attorney within \Yl.
the State. e
A. . - B. . . , } In the Common Pleas, }
v. > > Case in Attachment.
C...D...,) District. )
The Plaintiff having on the day of filed his declaration, and
it appearing / that R. D. the wife of the absent debtor, resides [or, that
a See 1744, 3 Stat. 613 ; 1785, 7 Stat. 214 ; 1733, 7 Stat. 246 ; 1839, 1 1 Stat. 76, 29,
18; 1843, 11 Stat. 256; 1844, 11 Stat. 290 ; Nos. 116—127; 290—311 ; 345—349.
Proceedings set aside, on motion, without the appearance of the defendant, where
there was no sufficient service of the writ. Burrellv. Letson, 2 Speer 380.
Foreign attachment quashed upon affidavit that defendant was hi the State when it
was lodged. 2 Hill 631.
Proper course of proceeding upon return of the garnishee — as to discharging the gar-
nishee, or making objections to the return. Martin v. Parham, 1 Hill 213. See also,
as to the time of filing a suggestion, Biirrell v. Letson, 1 Strob. 239.
Time for return allowed to garnishee. 2 Speer 73.
Time to declare, death of absent debtor, and Sci. Fa. Bank v. McRae, 2 Speer 639.
Judgment and execution against gai-nishee. 1 Hill 53 : 2 Speer 529 ; 1 Rich. 457.
Rule and attachment against garnishee, 1 Rich. 457 ; Cohen v. Sherman, 2 Strob. —
See Nos. 39 and 40.
An attachment will not lie against an absent executor or administrator. Harp. 125.
. b 1744, 3 Stat. 618 y 2. Notice shall be given once every three months during the
year and day.
c There should be before declaration an affidavit of the debt. Sec. 5 of Act of 1744.
See Stoney v. McNeill, Harp. Rep. 156 ; Creagh v. Delane, 1 N. & McC. 189 ; Foster v.
Jones, 1 McC. 116 ; Turner v. McDaniel, 1 McC. 152.
The declaration must be filed within two months after the return of the writ. What
is the return ? See Bank v. Torre, 2 Speer 501 ; Aucrum v. Sloan, 1 Rich. 421. When
leave of further time may be granted. Perry v. Aiken, 3 Rich. 60 ; See 67th Rule of
Court ante p. 43.
d A year and a day from the time of filing declaration;
e 2 Sec. Act of 1744, 3 Stat. 618.
/ Of this some evidence should be adduced by affidavit.
164 CLERK. ATTACHMENTS.
E. F. is the attorney in fact of C. DM the absent debtor, and is a resi-
dent,] within the limits of this State, on motion of G. H., Plaintiff's
Attorney, it is ordered, that a copy of the declaration in this case be
served on the said R. D., wife [or, E. F., Attorney] aforesaid, with a
copy of this order endorsed thereon ; and that if the said C. D., the
defendant, shall not appear and make his defence to this action, on or
before the day of next, a judgment shall be given and award-
ed for the plaintiff.
"°" Bond before signing writ. b
By plaintiff or his agent — penalty, double the amount for which the attachment issues,
(viz : double the debt and damages, or damages laid in the writ) payable to defendant,
his executors, administrators, and assigns.
Whereas, A. B., the plaintiff, is about to sue forth from the Court
of Common Pleas for district, a writ of attachment against C.
D., absent debtor :
Now the condition of this obligation is such, that if the said A. B.
shall be answerable for all damages the said C. D. may sustain by
any illegal conduct id obtaining the said writ, then the above obliga-
tion to be void, &;c. A. B., [l.s.]
If by an agent c of the plaintiff, say, " whereas, E. F., as agent of A- B. is about in
the name of A. B., to sue forth, &c." and in the condition, instead of A. B., say, " E. F.
shall be answerable," &c. (Signed,) E. F., [l. s.]
Special Bail for dissolving an Attachment. d
, ■, q Recognizance of Bail.
A B , J
v. > Case in Attachment.
C D ,) Plff's Att'y, $
Be it remembered, that on the day of 18
before me Clerk of the Court of Common Pleas, and ex officio
Commissioner of special bail, appeal's C. D. and acknowledges to owe
a " The Justices shall have power to allow any lime not exceeding a year and a day."
But although it seems that, a day short of the year and a day may be appointed for the
appearance, it does not aj>pear that judgment for the plaintiff for want of appearance
can be awarded before the expiration of the year and a day.
b 1839, 11 Stat. 76 $ 21. A bond substantially conformable to the Act has been held
sufficient. , 2 N. & McO. 110.
The omission of a bond is an irregularity of which only the absent debtor can take ad-
vantage. Wigfall v. Byne, 1 Rich. 412 ; Boyd v. Boyd, 2 N. & McC. 125.
The bond is an additional security and the action at common law, for damages done
by an illegal action, still lies. Sanders v. Hughes, 2 Brev. 495.
c Byne v. Byne, 1 Rich. 438 ; See Dillon v. Watkins, 2 Speer 445 ; Myers v. Lewis,
1 McMul. 54.
d 11 Stat. 77; 2 McMul. 10; 3 Stat. 620; 7 Stat. 214. 3 Black. Com. 291 and
Appendix No. 3 § 5. 1 Sellon's Prac. 139 et seq. 1 Tidd (1 Amer. Edit.) 216 et
seq. Bennett v. Brown, 1 Strob. 303 and cases there cited. By the Act of 1768, the
Judges were authorized 1o appoint Commissioners of special bail, 7 Stat, p, 204.
Magistrates and Clerks of Court are, ex officio. Commissioners of special bail. Act
1791, 7 Stat. p. 275 § 13 ; 1799, 7 Stat. p. 294 § 6 ; 1839, 11 Stat. p. 20 $ 21 ; p. 76
$ 21 ; p. 78 $ 32. As to the effect of putting in special bail, see Fife v. Clark, 3
McC. 347. Croslin v. Reed, 2 McMul. 10. By the Act of 1843, 11 Stat. p. 256, a de-
fendant may appear and plead by attorney without putting in special bail, provided a
warrant of attorney be filed in the Clerk's office, from which the attachment issued.
CLERK. ATTACHMENTS. 165
to the plaintiff A. B. dollars, and R. S. and TV U., who
severally acknowledge to owe to the same person the sum of
dollars, to be levied of their several goods and chattels, lands and ten-
ements, upon condition that, if the defendant C. D., be condemned in
the action aforesaid, he shall pay the condemnation, or render himself
a prisoner to the Sheriff of district, for the same : and if he
fail to do so, that the said R. S, and T. U. do undertake to do it for
him.
Taken and acknowledged before me ^ C. D., [seal.]
this day of A. D. 18 I R. S., [seal.]
D...H..., c. c. p., f T. U., [seal.]
And ex-officio Com'r of Special Bail, j
Bail Viece. a ■ 120.
State of South-Carolina, \
District. )
C. D. is delivered to bail upon the taking of his body to R. S. and
T. U., at the suit of A. B. in a plea of assumpsit in attachment.
Defendant in sum of $ R. S., [seal.]
Each of bail, $ T. U.. [seal.]
Taken and acknowledged this day of A. D. 18 }
D . . H. ., c. c. p. >
And ex-officio Com'r of Special Bail. }
Justification. 6 121.
A.... B....,^
v. > In the Common Pleas, District.
C D ,) Attachment in Asst. dam. $
R. S. and T. U., bail for the defendant, severally make oath and say
each for himself, that each of them is a housekeeper in the district
aforesaid, and worth dollars, over and above what will pay
his debts.
Sworn to before me this day of ) R. S., [seal.]
A. D. 18 j T.U., [seal.]
The law was formerly different. Acock v. Linn, Harp. Rep. 368. Vann v. Frederick,
2 Bail. 303. Such appearance without special bail, does not now dissolve the attach-
ment as the entry of special bail does: nor does the confession ofjudginent. Wigfall v.
Byue. 1 Rich. 412.
The § 8 of the Act of 1794, 3 Stat. 620, seems to contemplate that a dissolution of the
attachment and delivery of the goods may be procured in the absence of the debtor, if
bail to answer the action be put in by any person who shall appear as his attorney :
which person and his security shall be obliged by the recognizance. See Vann v. Fred-
erick, 2 Bail. 304.
All objections to the attachment are waived by appearance. 2 Bail. 454.
a This, in K. B., is taken in lieu of a formal recognizance ; and is unnecessary, if the
recognizance No. 119 be well executed.
b Of the bail given and the intention to justify, with time and place, notice should be
given to the plaintiff 's attorney. See books of practice before cited.
166 CLERK. ATTACHMENTS.
122. Order dissolving the Attachment. «
A.... B.y.; J
v. > In the Common Pleas, District.
C... D . . . ., ) Case in Attachment.
The defendant C. D. having in this case appeared before the Clerk
of the Court and put in special bail, it is ordered, on motion of K. L.,
Deft's Att'y, that the attachment be dissolved.
(Signed by the Judge.)
By order of the Court, this day of A. D. 18
c. c. p.
Order under 2d Sec. of the Attachment Act of 1844. b
123. Affidavit by Plaintiff, or person duly authorized by him.
State of South-Cakolina, ) T , ,-. -,.
t\- ^ ■ ^ > In the Common Jrleas.
District. )
A.... B....,^
v. > Writ of Attachment lodged.
C....D....,)
I, A. B., swear, that I have just cause to believe that E. F., who has
been summoned as a garnishee, has in his possession, custody, power
or control, some property of the absent debtor C. D., to-wit : (two
slaves, a bond on K. W., and two or more books of account, and va-
rious choses in action, the particulars whereof are unknown to me,)
and that the said E. F. is about [to remove all or some of the said pro-
perty from and beyond the limits of this State, or,c] to waste or destroy
all or some of the said property. A. B,
Sworn to before me \
day of )
124- Order. d
State of South-Carolina, ) T *i ^ -m
-r»- . • *. > In the Common .Pleas.
District. )
A.... B....,^
v. > Writ of Attachment lodged day
C....D..-.,)
To all and singular the Sheriffs of the said State :
You and each of you are hereby required to cause E. F. mentioned
a This order is usually taken in Court: but if special bail should be put in during va-
cation, and no Judge be near, it would seem to counteract the intentions of the statute,
if the bail put in should not ipso facto be held to work a dissolution of the attachment.
If the Clerk cannot give an order for dissolution, he may safely give a certificate that
the special bail has been put in and perfected ; and leave to the Sheriff either to deliver
the property upon this certificate, or to take a bond under the 13th section of the She-
riff's Act of 1739, 11 Stat- Stat. 30. See No. 310.
b 11 Stat. 290,
c The affidavit should state one or the other of these intended acts, and not be in the
alternative. See No. 345.
d The phraseology of the second section of the Act of 1844, leaves it doubtful whe-
ther the order may be made by the Clerk : and more doubtful, whether previous service
of a garnishee is necessary to authorize it. This form may be safe : a more effective one
which would prevent the escape of a garnishee after he received notice, might perhaps
be ventured upon. See Byne v. Byne, 1 Rich. 442, and Nos. 300 — 303.
CLERK. ATTACHMENTS. 167
in the annexed affidavit, to enter into bond with good and sufficient
security, in double the amount sued for in the writ to which this order
is annexed, with condition that the saidE. F. shall make the returns a
required by the Act of the General Assembly passed A. D. 1S44, enti-
tled " an Act to amend the Attachment law of this State," and shall
surrender and deliver the property of the above named C. D., the ab-
sent debtor, according to law.
Clerk's Office, day of
D. H., c.c. p.
Affidavit and order should be annexed to the writ.
Recognizances under the Attachment Jlcts.
Recognizance to be entered into by plaintiff, before goods attached are 125.
delivered to him, under 3d Section of Attachment Act of 1744, * amended
by 4th Section of Attachment Act of 1844. c
The State op South-Carolina, )
District. j
Be it remembered, that on this day of in the year of our
Lord, &c. before me, [one of the magistrates of the district aforesaid,]
Clerk of the Court of Common Pleas and General Sessions aforesaid,
appeared A. B. (the Plaintiff) E. F. and G. H., and acknowledge
themselves to owe to C. D. the defendant, the absent debtor, to-wit :
A. B., the sum of dollars, {double the value of the goods attached,
according to the inventory and appraisement required by the Act of 1144)
and E. F. and G. H. severally the sum of (the single value, if the two
sureties : double, if one. It is safe for the Clerk to require two.) dol-
lars, to be levied of their lands, tenements, hereditaments, goods and
chattels, if the above mentioned A. B. shall fail in performing the con-
dition underwritten.
Whereas, A. B. has sued out from the Court of Common Pleas for
this district aforesaid, a writ of attachment against the said C. D., and
certain monies, goods, chattels, debts and books of account, which
have been attached as the property of the said C. D. are now to be
paid and delivered into the hands of the said A. B., the same having
been first inventoried and appraised by the persons appointed by the
Court for that purpose:
Now the Condition of this Recognizance is such, that if the said
A. B. shall prosecute his suit commenced by the writ of attachment
aforesaid, with effect ; and if the monies and the appraised value of the
goods and chattels, and also the debts and books of account, (all accord-
ing to the inventory and appraisement made by the persons appoint-
ed as aforesaid, and filed in the Clerk's office of the Court aforesaid,)
which are now delivered to the said A. B. (according to his receipt on
the said inventory,) shall be forthcoming in case the said C. D. the ab-
a What are the "returns hereinbefore required," mentioned in the Act ? Is a sche-
dule on oath, to be rendered to the Sheriff, one ?
b 3 Stat. 618.
c 11 Stat. 291.
168 CLERK. ATTACHMENTS.
sent debtor, shall appear in Court within the time allowed by law and
discharge himself of the demand of the said A. B. against him; and if
the said absent debtor shall not appear as aforesaid, and the said A.B.
shall render and deliver into the hands of the Clerk of the Court afore-
said, the residue of such monies, goods, chattels and debts, and the
said books of account, after payment and satisfaction of such sum as
has been awarded him, [or her or them] by thejudment of the Court:
which residue of the monies, goods, chattels and other things shall be
subject to the order of the said Court. Then this Recognizance shall
be null and void, else to remain in full force and virtue.
Taken and acknowledged this day ~~\ A. B., [l.s.]
of in the year above written, &:c. > E. F., [l.s.J
D. H., c. c. p. [or Magistrate, j G. H., [l.s.]
See Nos. 37, 127.
126. Recognizance to be entered into before the Clerk of the Court, by any
Assignee or Assignees appointed under the 5th Section of the Attachment
Act of IS 'ii, a before such Assignee or Assignees shall have authority to
act under the appointment. See Nos. 38. 127.
The State of South-Carolina, J
District. J
Be it remembered, that on this day of in the year of our
Lord before me, Clerk of the Court of Common Pleas for the
district aforesaid, appear T. J. S. and W. P. S., (the assignees) and
W. Y. and Y. X. (their sureties, b) and acknowledge themselves to
owe to the State of South-Carolina, that is to say, the said T. J. S. and
W. P. S., severally the sum of c dollars, and the said W. Y. and Y.
X. the sum ofc dollars, to be levied of their and every of their
lands, tenements, hereditaments, goods and chattels, if the above-
mentioned T. J. S. and W. P. S. shall fail in performing the condition
underwritten.
Whereas, under a writ of attachment sued out in the Court afore-
said, for the district aforesaid, by A.B. against C. D., the absent deb-
tor, certain property of the said C. D. [has been attached and is in the
hands of the Sheriff, or by the return of O. L., Garnishee, (and the
verdict which has been found upon an issue made thereon,) appears to
be in the hands of the said O. L.,] and an order has been made [by
the Court aforesaid, or, by the Honorable one of the Law Judges
of the said State at Chambers,] appointing the said T. J. S. and W.
P. S., Assignees, according to the Act of the General Assembly pass-
ed in 1844, entitled " an Act to amend the Attachment laws of the
State."
Now the Condition of this Recognizance is such, that if the said
T. J. S. and W. P. S., of the property attached under the writ afore-
said, which has come, of shall come to their possession or power,
a 11 Stat. 291.
b Sufficient security, to be approved by the Clerk.
c " Such sum as shall be fixed by the Court or Judge," that make3 the appointment
of Assignees.
CLERK. BAIL
169
shall receive, pay over and deliver the monies, goods, chattels, debt3,
books of account, lands, leasehold estates, hereditaments, chattels re-
al, rents, issues, profits, and all other monies which they may receive,
as assignees as aforesaid, in such manner as may be ordered by the
Court aforesaid. Then this Recognizance shall be void, else to re-
main in full force and virtue.
Taken and acknowledged the day and
year above written.
D. H., c. c. p.
T.J. S.,
W. P. S.
W. Y.,
Y.X.,
[l.s.
[l.s.
[l.s.
[l.s.
The receipt of the Assignees should be taken for whatever may be delivered to them.
Note.
It is doubtful to whom either of these two Recognizances (Nos. 125 and 126,) should
be made payable : one is here made payable to the absent debtor, the other to the
State, that both forms might be seen and choice be taken, according to the judgment of
the practitioner. The first is by the Act of 1844, incidentally called a Bond, but it is
called a recognizance by the Act of 1744 in the 3d Section, which is referred to and
amended by the 4th Section of the Act of 1344. In 1744, the analogy of the Recogni-
zance of bail, payable to the plaintiff, was probably in the mind of the penman. In
1844, the term recognizance may have been associated with a remembrance of decisions
which had been made concerning recognizances, in the cases of Commissioners of the
Poor v. Gaines, 3 Brev. 396, and Exparte Harrington, 1 N. &McC203, which imply, if
not express, that where an act requires a recognizance and does not declare to whom it
shall be payable, it mast be made payable to the State. The assignee- is an appointee,
in fact an agent, of the Court, selected to take charge of funds in Court; and required to
dispose of them as ordered by the Court : in liis fidelity, other creditors, garnishees and
assignees of the debtor, may have interest as well aa the absent debtor : and it seems
right, that a security, in the name of the State, shoidd be taken, to which any one having
interest may resort.
Much of the same observations, however, applies with equal force to the case of goods
attached being delivered to the plaintiff upon a security : and it would be safe, in taking
an order from the Court for such delivery, to express that the Recognizance should be
made payable to the State, for the use of all concerned ; in which case the last of these
forms would be used, having been first modified to suit the circumstances. See Nos.
37 and 38.
127.
Bail. a
Bail desired before suit commenced, b
An affidavit mnstbe endorsed on, or annexed to the writ or process, of the sum really
due, ( which must exceed $30.60, except in case of a transient defendant,) or, there
must be an order of a Judge, Magistrate or Clerk, expressing the sum for which bail
shall be given, on probable cause shewn, to be endorsed on or annexed to the writ or
process.
See concerning the requisites of the affidavit, 3 Rich. 145 ; 1 McMul. 103 ; 1 N. &
McC. 580 ; 2 N. & McC. 585; 3 McC. 313. Affidavit by agent. 2 Rich. 197, and the
cases cited in the opinion and dissenting opinion. Mode of authentication when it is
made out of the State. 1 M.Cons. Rep. 280.
123.
a Bail is not allowed, when a defendant ha.s given a bail bond in the first action and is
in a second action sued upon the judgment recovered in the first. Bank v. Green, 2 Rich.
336. Nor perhaps in actions on bail bonds, and replevin bonds. 6 T. R. 336 ; 8 T. R,
85, 450.
b 1768, 75 Stat. 204 § 20 : 1791, 7 Stat. 275 * 13 ; 1799, 7 Stat. 294 $ 6 ; 1339, 1 1 Star.
73 $ 32 : 20 § 21.
W
4 ^
170 CLERK. — TROVEH.
Order for Bail.
Let the defendant be held to bail in the penalty of (twice the sum
sworn to, if the demand he one capable of exact estimation in money :
twice the least damages, which, according to the circumstances, seem to
have been sustained, if the action be one sounding merely in damages.)
Clerk's Office Common Pleas, \
District day \ D- H-» c- c« p-
129. Bail pending action. °
(Affidavit as in No. 128.)
Order.
The State of South-Carolina, ) T .i n ~ „ t>iQoD
p.. . ' > In the Common .Fleas.
District. )
Assumpsit Note, or Debt, or Covenant, &c.
Writ lodged day : Declaration filed
day : Order for judgment day : Issue
joined Term : On Issue Docket for the fourth time October Term
1848, (according to the state of the case.)
All and singular the Sheriffs of the State aforesaid, are hereby re-
quired to hold the defendant C. D. to bail in the case above-mentioned,
in the penalty (as in No. 12S.)
Clerk's Office, i
day ) D. H., c. c. p.
For Special Bail see No. 119.
Trover. h
130. Affidavit.
That the chattel belongs to the Plaintiff, that it has been converted by the defendant,
and that it is of the value of dollars.
131. Bond to be taken by the Clerk on granting the order. c
By plaintiff, or his agent, with good surety, in a penalty equal to double the value
6wom to : payable to the defendant, <* his executors, administrators and assigns.
Condition : Whereas, the above bound (Plaintiff) intends to com-
mence [or, has brought and has now pending] an action of Trover in
the Court of Common Pleas for district, against the above
named (Defendant) for the conversion of a slave, named Tom ; and the
said plaintiff desires an order, by which he may have a bond for the
a 1827, 6 Stat. 337 : 1339, 11 Stat. 78,
b 20th Sect. Clerk's Act 1839, 11 Stat. 76 ; 1827, 6 Stat. 337.
c This bond is not assignable. Smith v. Cook & Norris, 2 McMul. 58. For other
cases upon this bond, shewing what is illegal conduct, and what damages may be re-
covered, sec Dehay v. Ferguson & Dangerfield, 2 McMul. 228 ; Brown v. Spann, 3 Hill
d If several defendants, " to them, or either of them, his and their executors, &c:"
CLERK. — INSOLVENT DEBTORS. 171
production of the chattel sued for, to satisfy his judgment in case he
should recover : Now the Condition of this obligation is such, that if
the said (obligors) shall jointly and severally be answerable for all
damages, which have been or may be sustained by (the Defendant a)
by any illegal conduct in commencing and conducting the said action,
then this obligation to be void, &c.
(Seals.)
Order. 132.
To be annexed to the writ, if made before the commencement of the action ; but se-
parate, if made afterwards.
The State of South-Carolina, ) T - ^ -m
-rv . . . ' > In the Common Pleas.
District. J
To all and singular the Sheriffs of the said State :
"Whereas, {the Plaintiff) intends to commence [or, has brought and
has now pending] in the Court of Common Pleas for district,
an action of Trover against (the Defendant) for the conversion of a
slave, named Tom, and having given the necessary bond on his part,
desires the bond of (the Defendant) in such case obtainable :
You and each of you are hereby required, without delay, to arrest
the said (Defendant) and cause him to enter into bond with sufficient
eurety, payable to the Sheriff of the district aforesaid, in the penalty of
dollars, b conditioned for the production of the said slave, the
chattel sued for, to satisfy the judgment of the 6aid plaintiff in case he
should recover in the action aforesaid.
Clerk's Office, »
day of J D. H., c. c. p.
6ee No. 312.
Insolvent Debtors. c
Notice under the Insolvent Debtors Act. ' 133.
To be published once a month, or oftener, for three months. 1 Rich. 192.
The State of South-Carolina, {
District.
C D., who is in the custody of the Sheriff of district, by virtue
of a writ of at the suit of A. B., having filed in my office, togeth-
er with a schedule, on oath, d of his estate and effects, his petition to
the Court of Common Pleas, praying that he may be admitted to the
benefit of the Acts of the General Assembly made for the relief of
insolvent debtors. It is ordered, that the said A. B., and all other the
a If several defendants, " the defendants (naming them,) or either of them."
b Twice the value sworn to.
c See Act of 1759, commonly called the Insolvent Debtors Act, 4 Stat. 87. See Act
1788, commonly called the Prison Bounds Act, 5 Stat. 78 ; 1836, 6 Stat. 556 : 1840, 11
Stat. 121; 1841,11 Stat. 153.
In what cases the benefit of the Insolvent Acts is denied. See Act of 1788, $ 7 :
Smith v. Blair & Hogg, 2 Rich. 86, and cases cited. See Note to No. 147.
d 3d Sec. of Act of 1788. 2 McMul. 363. 1 Rich. 39.
172 CLERK. INSOLVENT DEBTORS.
creditors to whom the said C. D. is in anywise indebted, be, and they
are hereby summoned, and have notice to appear, before the said Court
at Court-house, on the day of a next, to shew cause,
if any they can, why the prayer of the petition aforesaid, should not be
granted.
Office of Common Pleas, ) D. H., c. c. p.
District day of
134. Affidavit to be , subjoined to Schedule :
I, C. D.. swear, that the preceding schedule contains a full and true
account of my whole estate real and personal, with the dates of the
securities wherein any part of it consists, and the deeds, notes or vou-
chers relating thereto, and the names of the witnesses to the same so
far as my knowledge extends therein.6
135. Affidavit of service of Rule. c
I, E. F., swear, that for three months next preceding day of
the order, of which a copy is annexed, was published (daily or
weekly, as the case may be,) in a gazette published in
133. ' Oath to be taken by the Insolvent in open Court, d
You, C. D., do solemnly swear, in the presence of Almighty God,
that you have been a prisoner e within the prison bounds of this dis-
trict, from the time of your being arrested {or, surrendered,) at the
suit of without your consent or
procurement,-^ and without any fraud or collusion whatsoever; and
that the account by you delivered into this Honorable Court, with your
petition to this Court, doth contain a true and full account of all your
real and pei-sonal estate, debts, credits and effects whatsoever, without
exception, which you or any person in trust for you have, or at the time
of your said petition had, or are, or were in any respect entitled unto,
in possession, remainder, or reversion; and that you have not at any
time since your being sued, arrested or imprisoned, or before, directly
or indirectly, sold, leased, assigned, or otherwise disposed of, or made
over in trust for yourself or otherwise, other than as mentioned in such
account, any part of your lands, estate, goods, stock, money, debts, or
other real or personal estate, whereby to have or expect any benefit
or profit to yourself, or to defraud any of your creditors to whom you
are indebted : and that you will to the utmost of your power, endeavor
to collect all and singular the title deeds to your lands, together with
the remainder of your goods and effects contained in your said account,
a See Bettisv. Nixon, 1 Strob. 148. The Clerk may grant this Rule: a particular
day in the term should be specified, and if the petition be not. heard on that day, it
should be continued to some subsequent day. See 15th Rule of Court.
b 1st Sect. Act of 1759, 4 Stat. 87. 3d Sect. Act of 1788, 5 Stat. 78.
c 1st Sect. Act of 1759, 4 Stat. 87 ; 1 Stroh. 152.
d Act of 1759, 4 Stat. 87.
e Gth Sect. Act of 1778, 5 Stat. 79.
/ A plaintifFmay deprive a defendant of the benefit of tho act by discharging him
from Confinement without his consent, if he has been arrested under mesne process ; but
cannot afterwards arrest him again. 1 McMul, 2SG.
CLERK. INSOLVENT DEBTORS. 173
and the vouchers relating to or concerning the same, wheresoever, or
in whosoever hands they may be, within this State, and will surrender
the same to your assignee or assignees, as soon as possible after your
discharge : and that you have not expended more than a two shillings
and sixpence per diem, out of your estate for your subsistence, since
you have been a prisoner as aforesaid. So help you God !
Order of Court, allowing certain articles to be retained by the peti- 137.
tioner. h
To be entered on the minutes of C. P.
Exp arte, }
> Petition for the benefit of the Insol'vt Debtors Acts.
C. D...)
It is ordered, that the petitioner be allowed to retain of the articles
in his schedule, two beds with necessary bedding, two bedsteads, one
spinning wheel, two pair of cards, one loom, and one cow and calf: [if
a farmer, the necessary farming utensils :] [if a mechanic, the tools of
his trade :] the ordinary cooking utensils, ten dollars worth of provi-
sion ;« the wearing apparel of himself and family, d and the arms, ac-
coutrements and horse required by law, and used by him in perform-
ance of militia duty. e
Assignment to be indorsed on the Schedule. 138,
South-Carolina, i
District, j
I hereby assign and convey all the articles and property mentioned '
in my annexed schedule, (subject to the order made allowing me to
retain certain articles,) to (his or their) heirs, executors, admin-
istrators and assigns, in trust for certain of my creditors, according to
the provisions of the Acts of the General Assembly, commonly called
the Insolvent Debtors Acts.
Given under my hand and seal, this day of
Signed, sealed and delivered )
in presence of § (l.s.)
Two witnesses, if lands in schedule. 1 McMul, 373.
Order qf discharge, f 139.
To be entered on the minutes of C. P.
Exparte, ^
> Petition for the benefit of the Insolv't Debtors' Acts.
CD..., )
The petitioner having taken the oath prescribed, made an assign-
a 53 cents. See 7th Sec. of Act 1788, 5 Stat. 79.
b 1st Sec. Act 1759.
c Act of 1823, 6 Stat. 214: 4 McC. 373.
d 1st Sec. of Act of 1759.
c Militia Act of 1841, 11 Stat. 210 § 161. 2 McC. 352 : 3 Rich. 180.
/ See § 6 of Act of 1833, G Stat. 493. $ 2 of Act of 183G, G Stat. 55G, See No. 147,
and many decided cases.
:
174 CLERK. — PRISON BOUNDS.
ment and complied with the other requisitions of the law, it is ordered
that he be discharged, and have all the benefits to which the Acts of
the General Assembly for relief of Insolvent Debtors' may entitle him.
(Signed by Judge.)
If there be suggestion and trial, there will be other entries. See No. 45. 1 McMul.
66. 1 Rich. 3. Rice 268.
Prison Bounds. a
140. A schedule on oath of the prisoner's estate having been filed with the Clerk, no peti-
tion is necessary, if the election be made to proceed under the prison bounds act, rather
than the insolvent debtors act ; but it is the Clerk's duty (such election having been
signified,) to give the notice within ten days. See Muldrow v. Bacot, 2 McMul. 359.
To save all doubts as to the fact of the election, it will however be safe for the Clerk to
require some distinct expression of the prisoner's intention, to be made in writing, by
petition or other instrument.
141. Form of the Notice.
To be published on the Court-house door, and otherwise made public.
The State of South-Carolina,
na, )
District
C. D., who is the custody of the Sheriff of district, by virtue
of (process mesne or final in a civil case,) from the Court of Common
Pleas for district, at the suit of A. B., having, in order that he
may obtain his discharge from confinement under the Acts of the Ge-
neral Assembly, commonly called the Prison Bounds Acts, rendered
on oath a schedule of his whole estate and effects, or of so much there-
of as will pay and satisfy the sum really due on the action on which
he is confined : public notice is hereby given, that unless satisfactory
cause to the contrary be she'wn, before [the Honorable one of
the Judges of the Court aforesaid, at his Chambers,6 or the Clerk of the
Court aforesaid, for this district, in the Court-house of this district,] on
next, at eleven o'clock in the forenoon, the property mentioned
in the schedule aforesaid, will be assigned to the said A. B., and the
said CD. liberated according to the acts aforesaid.
Office of Common Pleas, }
District. £ C. C. P.
day of ) «
142. If at the time appointed no accusation by the plaintiff, such as is mentioned in tho
1st Sec. of the Act of 1833, be made, and no satisfactoiy cause to the contrary be shewn,
the Clerk or Magistrate, (acting as Commissioner of Special Bail,) should require an
affidavit, that ten days public notico has been given, and then annex to the schedule an
order to the following effect :
a See Acts 1788, 5 Stat. 78: 1833, 6 Stat. 491: 183G. 6 Stat. broG: 1810, 11 Stat.
121 ; 1841, 11 Stat. 153.
b Any Magistrate may hear, " in cases where the acting Clerk of the Court for the
district cannot hear and determine such application, either on account of interest, sick-
ness, or absence, and in no other cases whatever." 1 1 Stat. 20—32.
CLERK. — PRISON BOUNDS. 175
Order for assignment. a ^^143.
Public notice having been given, and no satisfactory cause to the
contrary having been shewn, it is ordered, that the prisoner C. D., do
make an assignment according to the Prison Bounds Acts.
(Signed by Clerk or Magistrate.)
Assignment. b 144.
}
South-Carolina,
District.
I hereby assign and convey the estate and effects mentioned in the
annexed schedule to A. B. (the plaintiff,) at whose suit I am confined,
subject, nevertheless, to all prior incumbrances.
Given under my hand and seal, this day of
In Presence of (L. S.)
Two witnesses, if land.
Order of discliar ge. c 145.
The prisoner C. D., having complied with the provisions of the Pri-
son Bounds Acts, is discharged in conformity therewith.
C. C. P.
If the prisoner be a prisoner in execution, and after the order for assignment, refuse i /\a
to assign and surrender, an order may be made that he be committed to' the body of the -liD.
jail, if the plaintiff require such order. Act of 1S41, 11 Stat. 153
If for ten days he refuse to make the assignment ordered, " he shall be re-committed
to close confiuemeut by the Sheriff, and so kept uutU, &c." for which an order or certi-
ficate from the Commissioner of special bail would seem to be necessary as authority for
the Sheriff. Act of 1840, 11 Stat. 121.
By Act of 1G33, whenever a prisoner, confined on mesne or final process, applying for i Af
the benefit of the (Prison Bounds) Act shall be accused by the plaintiff or his agent of
fraud, or of having given an undue preference to one creditor to the prejudice of the
plaintiff, or of having made a false return, or having gone without the prison walls or
Erison rules, as the case may be, it shall be lawful for the Judge, Sec-, to cause a Jury to
e summoned.
For forms follow the Act closely, and for many epiestions under this Act see decided
cases, d
a See Act of 1836, 6 Stat. 556, as to the creditors right to examine and cross-examine
the applicant on oath, and as to the effect of the applicant's refusal to answer fully and
directly.
b This assignment operates as a power to convey. Jones v. Crawford, 1 McMul. 373.
After assignment, suit may be either in the name of the assignor or assignee, and
payment to the assignor after notice will not avail to defeat an action in the name of the
assignor. 1 Kich. 395.
c 6th Sec. Act of 1833, 6 Stat. 493 ; 2d Sec. Act of 1836, 6 Stat. 556.
d There is no appeal from the decision of the Commissioner of Special Bail, except
under the Act of 1833, from the verdict of a Jury. 2 Speer 65. Eice 44,
Other judgment creditors, as well as the plaintiff at whose suit the arrest was made,
are incompetent to be witnesses against the applicant. 2 Speer 686. Cheves 241.
Semb. a surety for the defendant, judgment against both, a competent witness for the
defendant. 3 Rich. 97.
A preference to be undue must be fraudulent, Robinson v. Amy, 1 Rich. 289, and
cases cited.
There must be an order for dischar~e made by the Commissioner, the verdict in favor
of the applicant is not ipso facto a discharge. Harley v. Neilson, 1 Rich, 483.
The Jury may alter the verdict before separation. 1 Rich. 483.
176 CLERK. PRISON ROUNDS.
14S.^P Bond to be taken by Commissioner of Bail, under Act of 1833, where
the prisoner is discharged from confinement, if the verdict be in favor of
the prisoner and the plaintiff appeal.
Bond by prisoner and two or more sufficient sureties, in a penalty equal to twice the
amount of the sum due to the plaintiff on the process, payable to the plaintiff, his execu-
tors, administrators, and assigns.
Recital. — Whereas, the above bound C. D., {the prisoner,) having
been in the custody of the Sheriff of district, under {the process)
at the suit of the said A. B., {the plaintiff) has made application for the
benefit of the Prison Bounds Acts, and after accusation by the said A.
B., there has been trial by a jury and a verdict in favor of the said C.
D., from which the said A. B. has taken an appeal, and at his desire the
said C. D. is now to be discharged from confinement upon giving this
bond.
Now the condition of this obligation is such, that if the said C. D. shall
In case of a mistrial, proceedings should be as if there had been no attempt at trial.
Caldwell v. Metz, 2 Speer 94.
Amendment, of the schedule is a matter for the discretion of the Commissioner ; should
be granted where no surprise or delay is effected by it. Craig v. Piuson, 2 Speer 180.
The Commissioner has a discretion as to postponement of trial, and additions to the
suggestion. 2 McMul. 52.
If the schedule mention property, and there be an offer to assign whatever interest the
prisoner has in it, there is no use of assaying the schedule by showing that the statement
made of his interest is incorrect. He should be discharged without a Jury, if there be
no other objection. 2 Speer ISO.
Even a contingent remainder must be included in the schedule. 2 Speer 686.
The prisoner may be examined and cross-exantined under the Act of 1836, (6 Stat.
556.) before the Commissioner, although no accusation be made or cause be shewn by
the plaintiff, 2 McMul. 55 ; and if upon such examination it appears to the Commission-
er, that the pi-isoner is not entitled to his discharge, it may be refused for a reasonable
time, and the plaintiff be required to file a suggestion : after the suggestion, a Jury bo
summoned. Scmble. Rosser v. Moye, 1 Rich. 64.
The suggestion should contain general charges and specifications : and there should
be a finding as to every specification in the verdict. Hedley & Street v. Jordan, 2 Rich.
4-34. Case of Schroeder, 2 Strob. Further concerning the verdict, See 2 Speer 617 ; 1
Hill 291.
Whenever there is an accusation of fraud, or of other matter mentioned in the first
section of the Act of 1333, the Commissioner is bouud to refer the matter to a Jury,
whether the process be mesne or final : the distinction formerly made, 2 Hill 433, is
overruled by the Act. Cheves 27.
Making a fraudulent assignment is not like a conviction of a fulse schedule, an entiro
bar to any subsequent discharge. Cheves 241.
The discharge, is a conclusive adjudication of all matters preceding, which might have
been urged hi objection to it. Hibler v. Hammond, 2 Strob.
After a discharge under the Prison Bounds Act, the defendant is not liable to be ar-
rested again by the plaintiff from whose arrest he was discharged. 1 Hill 432.
As to order of the Commissioner to arrest agaiu, see 1 Hill 432 : Dud. 368 : 1 McMul.
10. Query — Coidd the Sheriff, without au order, arrest a defendant who had broken
bounds, now that the bounds are co-extensive with the district ? See No. 146.
An applicant against whom the Jury find a verdict, may appeal : but is not entitled to
his enlargement pending the appeal: he may, if no other order be toade, remain within
bounds on his former bond. Hall v. Tasrsurt, Dud. 368; See Baker, Johnson &, Co.
v. Bushnell. 2 McMul. 21.
For the cases in which the beuefit of the Acts for relief of insolvents is denied, sec
Smith & Blair v. Hogg, 2 Rich. 86, and cases cited.
In computing the 40 days, the day of the date of the bond is excluded. McElwee v.
White, 8 Rich. 95.
The extreme sickness of the prisoner has been taken as an excuse for his not render-
ing within time. Blackwell v. Wilson, 2 Rich. 322i So sickness of attor-
ney, Crovatv. Coburn, 3 McC. 14.
CLERK. JURORS. 177
be forthcoming, and shall abide the decision of the Court of Appeals,
upon the appeal aforesaid : then this obligation shall be void, or- else
remain in full force and virtue.
Signed, sealed and delivered ) [l.s.]
in the presence of ) [l.s.]
[L.S.j
If the appeal should be determined against the prisoner, he must be surrendered (the
sureties having the right to surrender,) on or before the first day of the Circuit Court
next after the appeal. If no surrender, the Clerk must issue Scire Facias, (as in case
of estreated recognizance ) If surrender, then new trial by Jury. If verdict be against
prisoner he is not entitled to discharge on bond. See Dud. 370.
Scire Facias on above bond : under Act o/*lS33. 149
The State of South-Carolina, \
District. j Tlie State of South- Carolina :
To all and singular the Sheriffs of the said State :
Whereas, C. D., having been in the custody of Sheriff of
district, under (process) at the suit of , made application
for the benefit of the Prison Bounds Acts, and after accusation by the
said A. B., there was a trial by. a Jury, a verdict in favor of the said
C. D. and an appeal by the said A. B.: and whereas, according to the
Act of the General Assembly in such case made and provided, the
said C. D., with E. F. and G. H. his sureties, on the day of
in the year of our Lord one thousand eight hundred and forty
by their bond of that day, became bound to the said A. B. in the pe-
nal sum of dollars, conditioned that the said C. D. should be
forthcoming, and should abide the decision of the Court of Appeals,
upon the appeal aforesaid: And whereas, now, on the application of
the said A. B., the Courtis given to understand, that the Court of Ap-
peals (at Columbia in May last) determined the said appeal against the
said C. D., and that the said C. D. was not surrendered before the
first day of the Circuit Court of Common Pleas and General Sessions,
which was held for district aforesaid, next ensuing the determi-
nation of the said appeal, to-vvit : on at Court-house. — You
and each of you are hereby commanded, to summon the said C. D.,
E. F. and G. H., to appear before the Court of Common Pleas and
General Sessions for district, to be holden at on
next, to shew cause, if any they can, why the penalty of their bond
aforementioned should not be forfeited, and execution be had against
them, pursuant to the Act of the General Assembly in such case made
and provided. And have you there this writ.
Witness Esq., &c.
(Seal of Court.) D. H., c. c. p.
Jurors.
Writ of Venire Facias. a
The State op South-Carolina, ^
District. ) The State of South- Carolina :
To the Sheriff of district, Greeting :
You are hereby strictly required and commanded to summon the
a 11 Stat. 73: 93d Rule of Court; State v. Dozier, 2 Speer, 811. State v. Voss. 1
Rich. 188.
150.
♦V*
178 CLERK. JURORS.
several persons named in the panel to this writ annexed, a to be and
appear before the Court of Common Pleas and General Sessions for
the district aforesaid, to be holden at on next, at 10 o'clock
in the forenoon, to serve as Grand {or Petit) Jurors. Herein fail not,
on pain of the penalties that will fall thereon.
Witness D. H., Esq., Clerk of the said Court at this
day of in the year of our Lord one thousand eight hundred and
and in the year of the Sovereignty and Independence of
the United States of America.
(Seal of the Court.) D. H., c. c. p.
151. ^re Facias against a defaulting Juror for not attending Court. b
State op Soutu-Carolina, )
District. ) The State of South- Carolina :
To all and singular the Sheriffs of the said State :
You and each of you are hereby commanded to summon C. D., to
shew cause by affidavit at 10 o'clock, on the first day of the next suc-
ceeding Term of the Court of General Sessions and Common Pleas,
for district, to be holden at on Monday next,
why he should not be fined according to law, — * for failing to attend
at (March) Term of the Court aforesaid, and serve as a Grand or (Com-
mon Pleas and Petit) Juror, according to the summons served upon him.
Witness Esq., Clerk of the said Court at &c.
D. H., c.c.p.
152. For not attending to a Magistrate's summons.
{ As in No. 151 to — *) for failing to attend on last when duly sum-
moned by order of Esq., Magistrate, to form a component
part of a Court, which the said Magistrate was authorized to organize. c
i ko Fi. Fa. for fine imposed upon a defaulting juryman.
The State op South-Carolina, )
District. ) The State of South- Carolina:
To all and singular the Sheriffs of the said State, Greeting :
You and each of you, are hereby required to levy of the goods and
chattels, houses, lands, tenements, hereditaments, and real estates of
C. D., the sum of [d twenty dollars, and seven per cent, on his last ge-
neral tax,] which, at a Court of Common Pleas and General Sessions,
held for the district aforesaid, at on was, after due pro-
ceedings had thereon, by the judgment of the said Court imposed
upon the said C. D. as a fine for his default in not attending the said
Court as a (Grand) Juror at Term A. D. 1848, after having been
duly summoned: and also the sum of for the costs and
a Panel annexed contains names of 24 Grand Jurors, or 48 Petit Jurors. For sum-
mons and return, see Sheriff Nos. 343, 311.
b Clerk's Act 1839, 11 Stat. 74.
c § 1 1 of Magistrate's Act of 1839, 11 Stat. 22.
d 1799, 7 Stat. 291.
CLERK. PAPERS IN THE SESSIONS. 179
charges of the proceedings aforesaid — all which appears by the record
thereof remaining in the said Court.
And have you the said monies, together with this writ, before the
Clerk of the said Court according to law.
Witness D. H., Esq., &c.
(Seal of Court.) Solicitor.
See Note to No. 155. No. 350.
Papers in the Sessions.
Sri. Fa. upon Recognizance. a 154.
The State of South-Carolina, )
District. j The State of South- Carolina :
To all and singular the Sheriffs of the said State, Greeting :
Whereas, A. B., C. D. andE.F. lately entered into Recognizance,
to-wit, A. B. in the penal sum of one thousand dollars, and C. D. and
E. F. each in the penal sum of five hundred dollars, conditioned that
the said A. B. would appear at the Coui-t of General Sessions, for the
District of at , to testify in behalf of the State, {or, to
prosecute, or, to answer a bill of indictment, or, to receive sentence,
&c.,) in a certain prosecution, had against for [murder, assault
and battery, &c] and not depart without leave of the said Court, which
said Recognizance has not been discharged ; and now it is said, that
the said Recognizance has been forfeited, for that the said A. B. failed
to appear, as therein bound to do, at the (March) term of the said
Court, in the year IS . These are, therefore, to command you, in
the name of the State, that you summon the said A. B., C. D. and E. F.
personally to be and appear before the Court of General Sessions, to
be holden on the day of next, at for the district of to
shew cause, if any they have, why the said Recognizance should not
be estreated, and adjudged to be forfeited; judgment be confirmed
and execution issue against them, pui-suant to the Act of the General
Assembly, in that case made and provided. And have you this writ
before the Clerk of the said Court, fifteen days next before the sitting
thereof.
Witness Esq., Clerk of the said Court, at the
day of in the year of our Lord one thousand eight hundred and
and in the year of the Sovereignty and Independence of
the United States of America.
Solicitor.
Fi. Fa. upon Judgment confirmed on Recognizance. b 155.
State op South-Carolina, )
District. J The State of South- Carolina :
To all and singular the Sheriffs of the said State, Greeting:
Whereas, a Recognizance lately entered into by A. B., C. D. and
E. F., for the appearance of A. B. at the Court of General Sessions,
. a 1787, 5 Stat- 13 ; 1339, 11 Stat. 75 § 16.
b 1787 5 Stat. 13 ; 1835, 1! Stat. 75 $ 16.
180 CLERK. PAPERS IN THE SESSIONS.
for district, as [a witness, or, prosecutor, or, a party prosecuted]
in a prosecution against for , was forfeited by non-com-
pliance with the condition thereof: and, after a Scire Facias served
upon the said , no satisfactory cause to the contrary having been
shewn, at a Court of General Sessions held for the said district, on
last, judgment on the said Recognizance was confirmed, to-wit, for the
sum of dollars, against the said A. B., and for the sum of
dollars against the said C. D. and E. F. severally, besides the costs
of the said Scire Facias and proceedings had thereon :
You and each of you are, therefore, hereby commanded without de-
lay, that of the goods and chattels, houses, lands tenements, and here-
ditaments of the said A. B. a you levy the said sum of dollars,
and also the further sum of for the costs aforesaid.
And have you the said monies, together with this writ, before the
Clerk of the Court of General Sessions for the district aforesaid, ac-
cording to law.
Witness D. H., Esq. Clerk of the said Court, at &c.
(Seal of Court.) Solicitor.
156. @a- Sa. for fine and Costs.
State of South-Carolina, ^
District. j The State of South-Carolina :
To all and singular the Sheriffs of the said State, Greeting :
You and each of you are hereby commanded to take C. D., if he
shall be found within your districts, severally, and him safely keep, so
that you have his body before the Court of General Sessions, for
district, to be holden at to satisfy the sum of dollars,
for a fine, and the further sum of dollars for costs and charges,
which sums, in a prosecution lately had in the said Court against the
said C. D. for (assault,) the said C. D. has been adjudged to pay as
appears by the records of the said Court.
And have you this writ, and the said monies before the Clerk of
the said Court according to law.
Witness D, H., Esq., Clerk of the said Court, at day of
See Note to No. 155. No. 350.
157^ Bench Warrant.
State of South-Carolina, )
District. ) The State of South- Carolina :
To all and singular the Sheriffs, Deputy Sheriffs, Constables,
and other Peace Officers of the said State, Greeting :
Whereas, at the last term of the Court of General Sessions and
Common Pleas for the district aforesaid, it was, amongst other things,
Ordered, that a Bench Warrant should issue for the arrest of C. WM
a Separate writs of Fi. Fa. seem more convenient and conformable to the Act of
17S7, than a, common one against principal and sureties for diverae sums.
After return of the Fi. Fa. there may he a Ca. Sa. See No. 350. Every part of the per-
sonal estate, according to the Act, must be sold under this Fi. Fa. WHqreany negro can
be sold. Fi. Fa. for a fine is regulated by the same Act. See No. 350.
CLERK. PAPERS IN THE SESSIONS. 181
against whom [a true bill for murder lias been found.] These are,
therefore, to command you, and every of you, to make diligent search
after the said C. W., and him to take and safely keep until he be de-
livered to the keeper of the Common Jail of this district, or discharged
by due course of law. And this shall be a good and sufficient war-
rant for your doing so, and for the keeper of the said jail receiving the
said C. W. from you, and keeping him safely until he be discharged
by due course of law.
"Witness D. H., Esq, Clerk of the said Court, at &c.
(Seal of the Court.)
Recogniza?ice,for the maintenance of a Bastard child. a 258
Payable to the State by C. D., (the father of the child,) and two good and sufficient
sureties. Penalty $300 each.
Recital. — [Whereas, at a late term of the Court of General Sessions
for district, the said C. D. was convicted of] being the father
of a (male) bastard child, begotten on the body of E. F. (spinster) and
born day :
Condition. — Now the Condition of this Recognizance is such, That
if the said C. D. shall annually pay twenty-five dollars for the mainte-
nance of the bastard child aforesaid, until it attains the age of twelve
years, and shall save harmless the district aforesaid, then this Recogni-
zance, &c.
Query. — When shall the annu 1 payment commence, if the conviction be long after
the birth of the child, and the district have received no harm ? See State v. M'Cleary,
MBS. Columbia, December 1329. 1 Rice's Dig. 110 $ 7.
■ If the Recognizance be given before conviction, in the recital, instead of what is
Within brackets, say,
"Whereas, the said C. D. has been charged with."
Fi. Fa. after failure of a defendant convicted of Bastard?/ to enter 1 ^Q
into Recognizance. * "
The State of South-Carolina, >
District. j The State of South- Carolina :
To all and singular the Sheriffs of the said State, Greeting :
Whereas, at a Court of General Sessions lately held for the district
aforesaid, C. D. was convicted of being the father of a (male) bastard
child, begotten on the body of E.F., (spinster,! and born day
: and the said C. D. having failed to enter into recognizance as
required, is by the order of the Court aforesaid liable to execution :
You and each of you are, therefore, hereby commanded without de-
lay, to levy of the goods and chattels, houses, (&c.) of the said C. D. the
sum of three hundred dollars which he has been adjudged to pay for
the maintenance of the said child, and also the sum of dollars, for
the costs and charges which have accrued on the prosecution of the
said C. D. for. the matter aforementioned. And have you the said
monies, together with this writ, before the Clerk of the said Court, ac-
cording to law.
Witness D. H., Clerk of the said Court, &c.
(Seal of Court.)
. *_ _____^„ ,___
a See No. 77, and Statutes, and cases cited;
b Act of 1847, 11 Stat. 436.
1S2 CLERK. GUARDIAN OF FREE PERSON OF COLOR.
160. On the execution should be indorsed:
" When the defendant has satisfied the costs and the instalment of
twenty-five dollars, which shall next fall due, « this execution shall be
stayed until another instalment falls due, and so on annually : the in-
stalments being twenty-five dollars, payable annually on the birth day
of the child, until it attains the age of twelve years. day IS .
D. H., c. c.p."
The defendant is liable to execution "as defendants convicted of misdemeanors now
are." See Note 155 and No. 350.
IQl Executiofi against Players, Showmen, fyc, who have not paid the tax
required by law. h
The State of South-Carolina, }
District. \ The State of South- Carolina :
To any Sheriff or Constable of the said State :
Whereas, A. B. on at in the district aforesaid,
(represented publicly, for g*ain, part of a stage play, or, exhibited for
gain, a certain show called ) without having paid (ten dollars)
the tax required by law to be paid before such representation (exhibi-
tion.) These are to require you without delay, either to levy of the
goods of the said A. B. the sum of (twenty) dollars, or to take the body
of the said A. B. and bim safely keep to answer to the State for the
sum of (twenty) dollars : And this writ with the said monies, if made,
to return according to law, to the Clerk of the Court of Common Pleas
and General Sessions for district aforesaid.
Witness Clerk of the Court of General Sessions and Common
Pleas, this day of
Money to be paid into Public Treasury. 1 1 Stat. p. 246 § 3.
162.
Appointment of Guardian of Free Person of Color. c
Petition of Person of Color.
South-Carolina, )
District. )
To D. H., Esq., Clerk of the Court of Common Pleas and General
Sessions for the district aforesaid.
I, A. B., a male free person of color, over the age of fifteen years,
to-wit, of the age of years, humbly pray that Mr. E. F., a free-
holder of the said district, maybe appointed my Guardian.
Witness : A. B. (signed by mark or otherwise.)
a Before he can satisfy this, must not all previous instalments be paid ? The Clerk
does not decide.
b Act 1839, 11 Stat. p. 78 § 34. Act of 1843, 11 Stat. p. 246 $ 3.
c Act of 1822, 7 Stat. p. 462 $ 7 ; 1839, 11 Stat. p. 77 $ 25; 1799. 7 Stat. 299 $ 34 ;
1740, 7 Stat. 398 § 1.
CLERK. — ELECTIONS. 138
Acceptance by Guardian. 163.
I, E. F., do hereby accept the trust as Guardian of the above named
A. B., and certify, that he is a free person of good character and correct
habits. E. F.
Order. 164.
The prayer of the petitioner is granted and the appointment made
as prayed. c. c.p.
The above Nos. 162—164 to be filed.
Certificate may be given to the Guardian and Free Person of Color, 165,
one or both, as follows :
South-Carolina, )
District. )
I, D. H., Clerk of the Court of Common Pleas and General Sessions,
do hereby certify, that this day, E. F. was regularly appointed Guar-
dian of A. B., a male free person of color, aged about years.
(seal.) In witness whereof, I have hereunto set my hand and seal
of office, this day of A. D. 18
D. H., c. c. p. & g. s.
Elections.
Notice of Election. a 166.
To be posted at the Court-house door and five othdl" public places in the district, and
also to be advertised in newspaper of the district. Act of 1839, p. 24 § 1.
State op South-Carolina, ) Office Court of General Sessions and
District. ) Common Pleas.
I, D. H., Clerk of said Court, itt pursuance of the directions of the
Act of the Legislature, in such case made and provided, do hereby give
public notice, that an election for for district, will be held
on Monday the day of next, at the usual places of election
throughout the said district.
Witness my hand at this day of A. D. 18
D. H., c.g. s. &c. p.
Notice to the Managers of Election: h j g7
State op South-Carolina, ) Office Court of General Sessions and
District. ) Common Pleas.
ToO. P., R. S. & T. M., Managers of Election, at (TimberCross
Roads) in the said District.
By direction of an Act of the General Assembly, I hereby notify
you severally to attend at the place of election, for which you are Man-
a Notice must be given at least two months before the expiration of the time of the
incumbent, and at least 30 days before the election : and the Monday fixed, as the day
of election, must be after the expiration of the 30 and before the expiration of 60 days.
b See Act of 1839, 11 Stat. 24, prescribing the mode of electing Clerks, Sheriffs, and
Ordinaries. Act of 1846, 11 Stat. 362, prescribing the mode of electing Tax-Collec-
tors,
Ib4 CLERK. SATISFACTION OF JUDGMENT.
agers, on the Monday of next, open the polls and hold an
electton for for district, to fill the vacancy which will
occur in said office, by the expiration of the term of the present in-
cumbent.
It will be your duty to attend as directed, and open the polls
between the same hours, and in other respects conduct the elec-
tion in the same maimer as is prescribed for the election of members
of either Branch of the Legislature, (except that the polls must be
opened on Monday only a) : also to meet on the Wednesday after the
votes are received, at the Court-house of district, count the votes,
declare the election, if no notice of intention to contest it be given, and
certify to the Governor the name of the person who may be duly
elected.
In witness whereof, I have hereunto subscribed my name, and affix-
ed the seal of said Court, at this day of
D. H., c. c. p. & g. s.
For further information the Managers will see reports and resolu-
tions of the General Assembly of 1841, p. 107.
168.
Satisfaction of Judgment.
Satisfaction entered by Plaintiff or 7tis Attorney.
The State of South-Carolina, ) T ., n ^
-rv *. • .. > In the Common Jrleas.
District. j
A.... B...., j
v. > Roll No. Judgment entered day of 18
C... D ,S
Afterwards, to-wit, this day of in the year of our Lord
one thousand eight hundred and comes the said A. B., the
plaintiff above named, [by A. K. his Attorney,] and acknowledges to
have received of, and from the said CD., full satisfaction of the [debt
and] damages, costs b and charges aforesaid. Thei'efore, be the said
C. D., therefrom, henceforth, forever discharged; and so forth.
1 ggt Satisfaction entered by Cleric under order of Court. c
[Copy the Order on the record.]
And now, to-wit, this day of according to the order above
copied, it is declared that full satisfaction hath been made to the above
named (Plaintiff,) of the [debt and] damages, costs and charges afore-
said. Therefore, be the said (Defendant) therefrom, henceforth, for-
ever discharged ; and so forth.
D. H., c. c. p.
a Act of 1844, 11 Stat. 296. As to contest, see State v. Cockrell, 2 Rich. 6 ; Cheves
241.
b As to the effect on costs, see Sharlock v. Olaud, 1 Rich. 207.
c 1817, 6 Stat. 61. 1839, 11 Stat, 7C. No. 42.
CLERK NATURALIZATION. 185
Satisfaction entered by the Cleric, after execution has been returned 170
satisfied. °
The Fi. Fa. (or Ca. Sa.) in this case having been returned by T. S.,
Sheriff, fully satisfied, satisfaction is accordingly entered on the record.
Be the Defendant henceforth forever discharged.
D. H., c. c. p.
Naturalization. b
Declaration of Intention, before Clerk, c 171
United States of America.
State of South- Carolina.
Office Court Common Pleas and General Sessions, )
District. )
Before me, A. B., Clerk of said Court, personally appeared E. F.,
a native of , about the age of years, who being duly sworn
according to law, upon his solemn oath, declares, that it is, bona fide,
his intention to become a citizen of the United States, and to renounce
forever all allegiance and fidelity to every foreign Prince, Potentate,
State, or Sovereignty, whatever, and particularly to , of whom
he is a subject.
Sworn to before me this day ) E. F.
of A. D., I
A. B., c. g. s. & c. p. )
This declaration may also be made in open Court.
Certificate of Declaration of Intention. A7^
United States of America.
State of South- Carolina. )
District. )
Office, Court of General Sessions of the Peace, and of Common Pleas,
for District.
I, A. B., Clerk of said Court, (the same being a Court of Record,
having Common Law jurisdiction, and a Clerk and Seal,) do hereby
certify, That E. F., a native of , about the age of years,
appeared before me in the office of said Court, and being duly sworn
according to law, upon his solemn oath, did declare, that it is, bona
fide, his intention to become a citizen of the United States, and to re-
a 1839, 11 Stat. 76 § 19.
b As to an Alien's rights to take, hold and sue for land, see 1 Speer. 356 and cases
cited; 2 McMul. 304; Act of 1807, 5 Stat. 547 ; 1 Mills C. R. 411; 2 Mills C. R. 18.
Concerning an Alien wife, 1 Speer 525; 1 M'C. 187. Irregularities in the proceed-
ings of naturalization, 2 N. & M. 351 ; 1 M'C. 187. Children born abroad of citizen pa-
rents, 1 N. & M. 294. Foreigners resident here before 1776, 3 M'C. 29. British subject
born before 1776, resident abroad, 1 Tr. C R 61 ; S. C. 3 Brev 29. A naturalized heir
and nearer next of kin, 2 N & M'C 293; 1 Speer 536.
c Act of Congress 1302, chap. 28, §1, §3 ; 1824 chap. 186, §3, §4. •
Y
\Q(j 0 LEKK NATURALIZATION.
nounce forever all allegiance and fidelity to every foreign Prince,
Potentate, State, or Sovereignty, whatever, particularly to , of
•whom he is a subject.
In witness whereof, I have hereunto set my hand, and affixed the
seal of said Court, at , this day of , in the year of
our Lord , and in the year of the Sovereignty and Inde-
pendence of the United States of America.
173. Notice ofintention is unnecessary if Alien came to tlii.s country prior to the 12th of
June, 1812, and has since continued to reside here. Such residence must be proved to
the satisfaction of the Court, by two citizens, witnesses, on oath, whose names, together
with the place where ihe applicant has resided for the last live years, are to be set forth
in the record of the Court. Act of Congress, 1828, ch. 1 16, § 2.
Notice ofintention is also dispensed with if applicant arrived in this country under
the ase of eighteen years, and will declare, on oath, and prove to the satisfaction of the
Court, at the time of his application, that, for three years next preceding, it had been,
bona fide, his intention to become a citizen : and, in all other respects, comply with the
laws in regard to naturalization. Act of Congress, 1824, ch. ,186, §1. In all other cases
a previous declaration ofintention is necessary. This declaration may be made before
a Clerk of a State Court, being a Court oi' Record, &c., as well as before a Judi;e. Act
of Congress 1802, ch.28, $ 1", $3; 182 i ch. 18G, $3.
The party, upon application for citizenship, mast satisfy the Court by other proof than
his own oath, that he has resided five years, at least, in the United States, and one year
at least, in the State where he applies. And, if he arrived subsequently to the peace
of IS J 5, his residence must have been continued for five years next preceding his admis-
sion, without being, at any time, during that period, out of the limits of the United States.
He must satisfy the Court, that he is a man of good moral character, attached to the prin-
ciples of the Constitution of the United States and well disposed towards the good order
and happiness of the same. He must, on oath, abjure his native allegiance, and renounce
his title of nobility, if any he hath, and take an oath to support the Constitution of the
United States.
174, Petition for Citizenship.
The United States of America.
State of South- Carolina. \ In the Court of Common Pleas and
District. J General Sessions.
To the Honorable , one of the Law Judges of the said
State, presiding in the said Court.
The petition of A. B., aged years, following the profession or
occupation of , Respectfully sheweth: That your petitioner
was born in : that he arrived in the United States of Ame-
rica, to wit : at on day and has ever since resided
within the United States, to wit, [ years in (New York) and
since ] at in this State, (shewing at least five years residence
in the United States, and one year, last past, in this State) : that on
day in the year of our Lord, (1847) fat least two years before this
petition Jhe fin the Court, or, before the Clerk of the Court] of Common
Pleas and General Sessions for District in this State (or any
other Court of Record a in the United States J declared on oath his bona
fide intention to become a citizen of the United States and renounce
all foreign allegiance, in manner and form as is required by law, (as
will more fully appear by the certificate [of the Clerk of the said
Court, or, of the said Clerk] herewith exhibited).
That your Petitioner is sincerely attached to the Constitution of the
Cnited States, and well disposed to the good order and happiness of
a Any Court having Common Law jurisdiction and a Clerk and Seal.
CLERK NATURALIZATION". 187
the same: of which and of the required residence, evidence is con-
tained iu the certificate hereto annexed. That he has never borne any
hereditary title, or been of any order of nobility whatever.
He, therefore, prays that the oath, which in such case is provided,
may be administered to him, and that he may be admitted as a citizen
of the United States of America.
Be it so. (Signed) A. B.
(the Judge.)
Certificate as to residence and character. 175,
We, the subscribers, citizens of the United States of America, do
hereby certify, that we have known the petitioner, A. B., for
years last past, during which time he has resided within the United
States, to wit : at and within this State upwards of one year.
That he has behaved during that time, as a man of good moral charac-
ter, attached to the principles of the Constitution of the United States,
and well disposed to the good order and happiness of the same.
Oath of allegiance and abjuration. 176.
The United States of America.
State of South- Carolina. \ In the Court of Common Pleas, and
District. J General Sessions.
I do solemnly swear, that the contents of my Petition are just and
true ; that I will support the Constitution of the United States of
America; and that I do hereby absolutely and entirely renounce and
abjure all allegiance and fidelity to every foreign Prince, Potentate
State, or Sovereignty whatever, and particularly to of whom I
was born a subject.
And I do further declare, that I have never borne any hereditary
title, or been of any order of nobility.
Sworn to in open Court, this )
day of IS / A. B.
D. H., c. g. s. & c. p.
Certificate of Citizenship. * „w
United States of America.
State of South-Carolina, ) Court of General Sessions and
District. J Common Pleas.
To all to whom these Presents may come : Greeting.
I, A. B., Clerk of the Court of General Sessions and Common Pleas
for District, do hereby certify, That, at a Court of General
Sessions and Common Pleas, holden for the District of in the
State aforesaid, present, the Honorable , one of the Law
Judges of the said State, presiding in the said Court, on the
day of , Anno Domini, , E. F., a native of , by
profession a , appeared in open Court, and made application
to be made a citizen of the United States of America; and he, having
complied with all the conditions and requisites of the Acts of Cor-
1SS ■ CLERK DENIZENSHIP.
gress, in such case made and provided, for establishing an uniform
rule of naturalization, the oath to support the Constitution of the Uni-
ted States of America, and to renounce all allegiance and fidelity to
every foreign Prince, Potentate. State, or Sovereignty, whatever, and
particularly all allegiance and fidelity to , was administered
to him, in open Court, and he, the said E. F., was admitted to citizen-
ship : and is, by virtue thereof, and the premises, declared and enrolled
a citizen of the United States of America.
In testimony whereof, I have hereunto subscribed my name, and
affixed the Seal of the said Court to these Presents, at , in the
District and State aforesaid, this day of , in the year of
our Lord , and in the year of the Sovereignty and Inde-
pendence of the United States of America.
178 Final Order — to be written on the Petition, and copied on the Jour-
nal of the Court.
Ex parte E. F. Petition for Citizenship.
The Petition and accompanying evidence having been heard, and it
appearing that E. F. is, according: to the naturalization laws, entitled
to become a citizen of the United States, It is ordered that the prayer
of the petitioner be granted. Therefore, the oath of allegiance and
abjuration, in such case made and provided, is administered to the
said E. F., in open Court : and it is ordered, that he be admitted and
enrolled as a citizen of the United States of America, and that the
proceedings in this matter be filed by the Clerk, and be of record.
(Signed by Judge.)
179 Denizenship. a
The State of South-Carolina.
I, A. B., do solemnly swear, that I was born at , in *
on day of , A. D., : and resided there until
when I arrived in the United States at , and after years
residence at in the State of removed to in this
State of South-Carolina, on or about , since which last men-
tioned day I have resided in this State, and now reside therein at
I do further solemnly swear {or, affirm) that I will be faithful and
true allegiance bear to the State of South-Carolina, so long as I may
continue to reside therein ; and that I will preserve, protect and defend
the Constitution of this State, and of the United States. So help mo
God!
Sworn to and subscribed this day of ) A. B.
A. D., at
Before me (Judge).
The State of South-Carolina.
I, E. F., one of the Judges of the Court of Common Pleas for the
State aforesaid, do hereby certify, that A. B., by his foregoing declara-
tion on oath, made before me, appears to be now a resident of this
a 1709.5 Stat. 355.
CLERK ESCHEATS. 189
State: to be of the age of years, and to have formerly resided at
, and at , until the year , when he removed to this
State, in which he has since resided at : and further, that the
said A. B. hath taken and subscribed before me the oath of allegiance,
to the end that he may be deemed a denizen of this State, and be ena-
bled to purchase and hold real property within this State, and be enti-
tled to the like protection from the laws of this State as citizens are
entitled unto. Given under my hand at , this
day of in the year of our Lord, one thousand eight hundred, &c.
The certificate must be recorded in the office of the Secretary of State, either in
Charleston or Columbia, within sixty days, or all benefit under it will be lost.
When the certificate is given to a family, it must contain the name and age,
place of nativity and former residence, of each member of the family, all declared on
oath, by the head of the family.
No right of voting is conferred by denizenship.
Escheats.0
Notification of Escheator. ,Sq
The State of South-Carolina, )
District. \
To the Honorable , one of the Judges of the Court of
Common Pleas, of the State aforesaid:
I, A. B., Escheator for (District) in the State aforesaid,
do hereby notify unto your Honor, that, according to my knowledge
and belief, and the information of others, a certain lot of Land, situate
&c., hath become escheated to the State aforesaid by the
death of E. F., the person last seized in fee simple thereof : the said
E. F. having died without leaving any person who can lawfully claim
such Lot of Land either by purchase or descent from him the said E.
F., the last proprietor thereof. Wherefore, I the said A. B., Escheator
as aforesaid, do hereby issue this my notification of the said supposed
escheated Lot of Land to your Honor, to the intent, that, at the next
meeting of the Court of Common Pleas for the District aforesaid, you
may cause the jury thereof, being first duly sworn, to proceed and
make a true inquest of the said supposed escheated Lot of Land and a
true verdict make thereon, according to the Act of Assembly in such
case made and provided.
A. B., Escheator for
This notice must be issued to the Judge at least two months before the next meeting
of the Court for the District where the lands He.
Inquisition of Escheat. 181.
State op South-Carolina, >
District. }
An Inquisition of Escheat, taken at the usual place of Judicature, in
the Court House in , in the District and State aforesaid, the
day of , in the year of our Lord , pursuant
~ a 1787, 5 Stat. 47, $2. 1805, 5 Stat. 507.
190 CLERK ESCHEATS.
to an order of the Honorable the Court of Common Picas, made on
the notification of A. B., Escheator for in virtue of the Act
of the General Assembly of the State, entitled "An Act to appoint
Escheators and to regulate Escheats," and more particularly in virtue
of further Acts of the said General Assembly, viz: (The Act of 1805,
5 Stat. 507, and the Act or Acts granting the lands supposed to be es-
cheated to the bodi/ corporate which has appointed the Escheator)
Upon the oaths of , good and lawful men of the
said District drawn by lot, pursuant to the form of the Act of the Gen-
eral Assembly of the said State, for the present Term of the Court of
Common Pleas, for IS , who, being charged and sworn
to enquire for and in behalf of the State, of and concerning the Lands,
Tenements and Hereditaments of which E. F., late of , died
seized and possessed : It being heretofore notified by the said A. B.,
Escheator aforesaid, that the said E. F. died seized and possessed of
certain real estate within the said (District) not having in his life time
made any disposition thereof, and without leaving any person who can
legally claim the same by descent or purchase. The said Jurors so
charged as aforesaid and sworn, do, upon their oaths aforesaid, say,
that the said E. F. was born at and died in on the
day of Anno Domini, one thousand eight hundred and ,
and that, at the time of his death, he was seized and possessed of a Lot
of Land situate (&c.) And they are not informed, nor does it appear
in anywise, nor hath it come to their knowledge, that the said E. F. at
the time of his death left any person or persons who can legally claim,
by descent or otherwise, the said Lot of Land. And so the jurors
afoi'esaid, upon their oaths, say, that the said E. F. died on the
day of Anno Domini , without leaving any pei'son or per-
sons who can legally claim by descent or purchase. And that the said
Lot of Land, of which he was seized and possessed, is become es-
cheated.
In witness whereof, we, the Jurors, have to this inquisition set our
hands and seals the day and year first aforesaid.
(Signatures and seals of Jurors.)
jg2> To be entered on the Journal of Common Pleas.
Jury No. 2, having been first duly sworn, proceeded to make inquest
of escheated lands, and returned the following verdict — to- wit : (copy
the whole Inquisition, No. 181.^
183. Judge's Certificate : to be annexed to the Inquisition.
State op South-Carolina, ) In the Common Pleas, )
District. f Term, 18 J
In pursuance of the Act of the General Assembly, entitled "An Act
to regulate Escheats,"* I, , one of the Judges of the Honorable
the Court of Common Pleas, presiding at this present Term, do
hei-eby certify, That the Jury impannelled for the trial of causes
thereat, being first duly swoin to proceed and make true inquest of
a 1787, 5 Stat. 47, & 2.
CLERK — ESCHEATS.
191
all such supposed escheated lands, as should be subjected to their
investigation, by the Escheator of , and a true verdict make
thereon, did return to the said Court, the within verdict and inquisition
by them had and made on the within case of the Real Estate ul E. F.,
then and there submitted to their investigation by the said Escheator.
Given under my hand and seal this day of A. D.
The inquisition and certificate must be recorded by the Escheator, and within two
months from the date of the inquisition, be returned to the Clerk, to be filed and kept
as a record of Court.
Clerk's Advertisement. a 1°*
State of South-Carolina, » ^j- r, c n tji „
-^. . ' > Olhce Court or Common fleas.
District. J
Whereas an inquest of Escheat hath been returned into this office,
whereby, it appears, that E. F., late of who was born in (name
2)lace of birth,) and died about the year , was seized and pos-
sessed at the time of his death of a lot of Land, situate [describe the
land particularly,) without having in his lifetime made any disposition
thereof, and without leaving any person who can legally claim the
same : — Now, in pursuance of the directions of the Act of Assembly,
in such case made and provided, the Heirs of the said E. F., or others
claiming under him, (if any there be), are hereby required to appear
and make claim within eighteen months from the date hereof.
Witness my hand at this day of A. D.,
Clerk's process to Escheator. a
State of South-Carolina, ) T ., ~, -n,
t-. ^ . ' > In the Common I/leas.
District. $
The Escheator for 1
vs. >
The Real Estate of E. F. )
Whereas an inquest of Escheat in the above case hath been made,
certified, returned and advertised according to law, and no person,
within twelve months from the last date of said advertisement, hath
appeared and made title to the lot of land, described in said inquisition
as a lot of Land, &c, whereof E. F., the last proprietor, died seized
in fee, without leaving any person who can lawfully claim the same
either by purchase or descent from him the said E. F. Now, in pur-
suance of the directions of the Act of Assembly, in such case made
and provided, the said Lot of Land is hereby pronounced to be es-
cheated and vested according to law. And the Escheator for
is hereby directed to sell and convey the same upon the usual notice.
In witness whereof, I have hereunto set my hand, and caused the Clerk
of the Court of Common Pleas for the District aforesaid, to affix the
seal of the said Court this day of A. D.,
(Sig. by the Judge).
As to the notice of sale to be given by Escheator, see 1787, 5 Stat. 47, § 4.
a 17S7, 5 Stat. 47, $ 3. 1839, 11 Stat. 77 § 24.
6 1787, 5 Stat. 47, $ 3. 1339, II Stat. 77 6 24.
185
192 CLERK. — EX OFFICIO REGISTER OF MESNE CONVEYANCES.
186. Traverse, Sfc.
For the mode of proceeding in case any claimant comes in, see Cth Sect, of the Act
of 1787. There must be a petition setting forth the claim — a traverse of the Inquisition :
lands committed to the claimant, upon good evidence of his title to hold, until the right
be found, and sufficient security by him : — issue upon the traverse — venire — trial — and
judgment : — costs to follow finding against Escheator, if Jury think there was no proba-
ble cause for supposing the lauds escheated,
Clerk — Ex-officio Register of Mesne Conveyances. a
■*■"'■ Satisfaction of Mortgage : entered hy the Mortgagee.
To be entered in the Kegistry which contains the mortgage, with reference made to
the page where the mortgage will be found, and on that page, reference to the page
where the satisfaction will be found.
The State of South-Carolina, )
District. j
I acknowledge, that I have received full satisfaction of this mort-
gage [or, of the mortgage recorded — book, page from C. D.
to A. B. whose Executor I am,] (and of the bond, [or, note] it was
intended to secure,) and C. D. {the mortgagor,) is therefrom hereby
discharged.
Witness my hand and seal, &c. [l. s.]
In presence of (two witnesses.)
Frobate to be made as of an ordinary deed.
This form is certainly safe, and on many accounts convenient. Against the usage o
permitting the mortgagee, or his attorney, to write satisfaction across the mortgage as
registered, there are strong objections. It is inconsistent with the proper neatness of a
registry, and might lead to abuses. Suppose some one should falsely personate the
mortgagee, or should act under a pretended power from him. Is the Register to be the
■judge of all the cpiestions that might arise ? And if he should be deceived or dishonest,
is a defacing of the copy in the Registry to destroy the original, or only to mislead third
persons who rely upon the entry of satisfaction? If a separate acknowledgment of sa-
tisfaction, executed with like solemnity as the obligation was, and proved by a witness,
be recorded, then the record of it stands with all the presumptions in its favor, which
are made in favor of other such records, to supply the absence or loss of the original,
under the same circumstances as would the record of any other deed. See Note to
No. 189.
1SS. Satisfaction of a Mortgage, entered hy the Clerk under order of
Court, b
To be entered on the margin of the page where the mortgage is registered, or upon
another page with references as in No. 187.
South-Carolina, ) T ., n -r,, ^ - 0
T.. . ^ '} In the Common Pleas, lerm 18 .
District. )
[ Copy of the order of Court.]
According to the order above copied, satisfaction of this mortgage
(of the mortgage therein mentioned) is hereby entered, and the said
(Mortgagor J is therefrom hereby discharged.
D. H., Clerk % Ex-officio Reg. M. C.
a 11. Stat. 80 § 44. See No. 203.
b See No. 43; 1817, 6 Stat. CI : 1839, 11 Stat. 76.
CLERK. EX OFFICIO REGISTER OF MESNE CONVEYANCES. 193
Common probate of Deed. a 189.
State of South-Carolina, i
District. )
I, A. B., (one of the witnesses,) solemnly swear, that I was present
and saw (the maker of the deed,) sign, seal, and, as his act and deed,
deliver the within [Indenture : Release : Conveyance : Acknowledg-
ment of satisfaction : Instrument of writing:] to and for the uses and
purposes therein expressed, and that C. D., ( the other witness) and my-
self subscribed our names thereto as witnesses of its due execution.
Sworn to and subscribed this day of &c. ) A. B.
Before Clerk, or Magistrate. J
See 11 Stat. 80, for further directions.
Renunciation of Dower. * 190.
To be recorded.
State of South-Carolina, )
District. j
I, D. H., Clerk of the Court of Common Pleas and General Ses-
sions, and ex officio, Magistrate for the district aforesaid, do hereby
certify unto all whom it may concern, that E. B., the wife of [the
within named] A. B., did this day appear before me, and upon being
privately and separately examined by me, did declare, that she does
freely, voluntarily, and without any compulsion, dread or fear of any
person, or persons whomsoever, renounce, release, and forever relin-
quish unto [the within named] C. D., his heirs and assigns, all her in-
terest and estate, and also all her right, and claim of dower, of, in or
to all and singular [the premises within mentioned and released.]
In witness whereof, she has signed this in my presence.
Given under my hand and seal, this ) E. B.
day of, &c. /
[l. s.] D. H., Clerk & Ex off. Magistrate.
If the renunciation be on a paper separate from the release, omit the woi-ds in brack-
ets, and after "singular," add, " the land and appurtenances described and conveyed by
a deed from A. B. to C. D., bearing date the day of (and recorded in, &c")
with other sufficient terms of description.
a Copy in the Registry, is good evidence, on the proof of loss. See Statutes cited No.
203 a.; 2 Rich. 19. As to proof of loss : see 2 Speer 17, 62, 661 ; 3 McC. 318 ; Harp. 76.
The object of recording is notice. Deed required to be recorded, good between the
parties without recording. 1 Strob. 552. Good against a subsequent purchaser who had
explicit notice of it. 1 McC. 265 ; 1 Brev. 332,
As to registering deed of personalty in the office of Secretary of State. 1 Strob. 442 ;
1 Bay 332.
Unrecorded mortgage and subsequent judgment. 1 Strob. 442 : 2 Bay 251 ; 1843, 11
Stat. 256.
Marriage Settlements; 1823, 6 Stat. 213: 1832, 6 Stat. 482; 1 Speer's Eq. 236. 1785,
4 Stat. 656 ; 6 Stat. 636 ; 1792, 5 Stat. 203 ; 1 Rich. Eq. 214.
Other recording Acts : 1698, 2 Stat. 137 ; 1785, 7 Stat. 232—4 ; 1788, 7 Stat. 247 ;
1789, 5 Stat. 127.
b 1795, 5 Stat. 256.
z
194 CLERK. EX OFFICIO REGISTER OF MESNE CONVEYANCES.
191. Relinquishment of Inheritance. a
To be recorded. *
State of South-Carolina, )
District. /
I, D. H., Clerk of the Court of Common Pleas and General Ses-
sions, and ex officio, Magistrate for the district aforesaid, do hereby
certify, unto all whom it may concern, that E. B.,' the wife of the
within named A. B, did this day appear before me, and being private-
ly and separately examined by me, did declare, that the release within
written was positively and bona fide executed, at least seven days be-
fore this, her examination ; that she did, at least seven days before
this examination actually join her husband in executing the said re-
lease, and did then, and at the time of her examination still does, free-
ly, voluntarily, and without any manner of compulsion, dread or fear,
of any person or persons whomsoever, renounce, release, and forever
relinquish, all her estate, interest, and inheritance, in the premises
mentioned and conveyed in the said release, unto the said C. D. and
his heirs and assigns.
in witness whereof, she has signed this in my presence.
Given under my hand and seal, ) E. B.
day of, &c. J
[l. s.] D. H., Clerk & Ex of. Magistrate.
Another mode of barring a married -woman of her " dower or thirds," or of .her "right
and inheritance," was provided by the Act of 1731, 3 Stat. 303, and is yet unrepealed.
According to it, the wife should join freely and voluntarily with her husband in the
conveyance, and then acknowledge the same before the Chief Justice, or before any
persons by him thereunto authorized; which being certified by the Chief Justice and
recorded in the office of Pleas, shall be effectual as any fine in the Courts of Westminster.
An Act of 1767, 7 Stat. 196, extends the power of the Chief Justice hi this respect, to
any Assistant Judge of the Court of Common Pleas.
192. yrit of Dedimus Potestatcm, to tahe renunciation of dower, relin-
quishment of inheritance, or probate of the execution of a deed.0
The State of South-Carolina,
To (tico or more Commissioners) of county, in the State of
Greeting :
Know ye, that in consideration of your integrity and skill, full pow-
er is hereby given to you [any two or more of you] *
Doiver . .To take the renunciation of E. B., wife of A. B. of
in the State of , of her dower in the premises described in the
deed [hereunto annexed, or, from A. B. to CD. dated, &c. conveying
a tract of land, situate, <Scc]
Inheritance. — * to take the relinquishment of E. B., wife ofA.B. of
&c, of her estate and inheritance in the premises described, <Jtc.
Probate — * to take probate of the execution of the [said] deed
[hereunto annexed, from A. B. to C. D., dated, &c.l t
a 1795, 5 Stat. 2.37.
b See 1 Strob. 553.
e 1839, 11 Stat. 77 6 .
CLERK. EX OFFICIO REGISTER OF MESNE CONVEYANCES. 195
Dower or Inheritance. — For this purpose, you will cause the said E.
33. to appear before you, and you will examine her privately and se-
parately, apart from all other persons, and if upon such examination,
she shall freely declare that she %
Dower — does freely, voluntarily and without any compulsion, dread
or fear of any person or persons whomsoever, renounce, release, and
forever relinquish to C. D. his heirs and assigns, all her interest and
estate, and also all her right and claim of dower, of, in and to all and
singular the premises described and conveyed in the deed aforesaid.
Inheritance — t did at least seven days before such examination actu-
ally join her husband in executing the deed of release aforesaid ; that
the said release was positively and bona fide executed at least seven
days before such her examination, and that she did then at the execu-
tion of the said release, and still does at the time of examination, free-
ly, voluntarily, and without any manner of compulsion, dread or fear
of any person, or persons whomsoever, renounce, release, and fore-
ver relinquish all her estate, interest and inheritance in the premises
mentioned and conveyed in the said release, unto C. D. and his heirs
and assigns.
Dower or inheritance. Then you shall take under her hand a certi-
ficate of her renunciation (relinquishment) as aforesaid, in the form of
a declaration upon private examination as aforesaid, which certificate,
authenticated by your hands and seals, you shall annex to this writ.
Probate t For this purpose, you shall cause one of the subscribing
witnesses of the deed aforesaid, to appear before you, and having ad-
ministered to him, (as you are hereby fully authorised to do,) an oath,
or solemn affirmation, according to the form of his religious persua-
sion, that his affidavit is true, you shall take under his hand an affida-
vit, that he was personally present, and saw A. B. [and E. B. his wife]
sign, seal and deliver the deed aforesaid, for the uses and intents
therein expressed, and that he and the other subscribing witness sign-
ed their names thereto as witnesses of its due execution: which affida-
vit, authenticated under your hands and seals, you shall annex to this
writ.
Dower, Inheritance, or Probate. And having certified under your
hands and seals, the due execution of this writ, [and verified the same
by the oath a of one of you before some Magistrate, who is authorized
by the laws of your State to administer an oath, and whose official
signature may be properly authenticated.] You shall carefully return
this writ, together with your proceedings thereon, to the Clerk of the
Court of Common Pleas and General Sessions for district, in
the State first aforesaid, to be duly recorded. Herein fail not.
Witness D. H., Clerk of the Court of Common Pleas and General
Sessions for district, at on, &c.
(Seal of the Court.) D. H.
Certificates to be annexed to the Writ in its execution. ^93
Renunciation or relinquishment, taken by Commissioners.
To be annexed to the writ.
a lGth Rule of Court, for dower or inheritance.
196 clerk. ex officio register of mesne conveyances.
The State of )
County. J
• I, E. B., the wife of A. B., upon private and separate examination
before , Commissioners appointed by virtue of the annexed
writ of Dedimus Potestatem from the State of South-Carolina, freely
declare, that I, [Renunciation of Dower, as in writ of ded. potest., or in
No. 190. Relinquishment of Inheritance, as in writ, or No. 191.]
Witness my name signed by my own hand. E. B.
We, , Commissioners appointed by the annexed writ
of Dedimus Potestatem from the State of South-Carolina, under the
seal of the Court for district, in the said State, do hereby certify,
that E. B. the wife of A. B., of, &c, did this day appear before us, and
having been by us privately and separately examined, apart from all
other pei'sons, did freely declare, as appears above under her hand,
and did in our presence subscribe the foregoing declaration and renun-
ciation {or, relinquishment) in manner and form therein stated.
Given under our hands and seals, at this day of, &c.
> [L-s-]
[*•■•]
Probate taken by Commissioners.
The State of )
County. )
I, , oneof the subscribing witnesses to the annexed deed
from A, B. to C. D., do solemnly swear, that I was present (as in No.
1S9.J (Signed by Witness.)
Sworn to and subscribed this day of A. D. 18
before us, Commissioners appointed by virtue, &c. (as above.)
Return of Commissioners.
To be endorsed on writ.
The Statejdf )
County. )
The execution of the within writ to us directed, appears by the
certificates hereunto appended, under our hands and seals.
> [L- s-]
, [l. s.J
Oath of one of the Commissioners. "
The State of )
County. J
I, , one of the Commissioners appointed by virtue «f the
annexed writ, swear, that the commission contained in the said writ
was duly executed ; and that the execution appears in the annexed
certificates, under the hands and seals of(tw-oqf) the Commissioners.
Sworn to and subscribed this day, &c. before (a Magistrate.)
It may be prudent to add certificates authenticating the attestation of the Magistrate :
the certificates of a Clerk and Judge, as No. 200, or of a Judge and Clerk, as No. 199.
(t 16th Rule of Court.
CLERK, ACTING AS ORDINARY. 197
Clerk acting as Ordinary.
For Clerk's duties in case of a vacancy in the office of Sheriff, see 1839, 11 Stat. 79
§ 39 ; 55 § 45. And see the same for his duties in case of a vacancy in the office of Or-
dinary, " whose duties he shall discharge until an Ordinary be elected and commission-
ed." When the Ordinary is Executor or Administrator, the Clerk becomes Ordinaiy as
to that particular estate. 11 Stat. 79 § 38.
Bond by Executor, in case of purchase by himself of his Testator's 194,
estate. a
Bond by C. D., (Executor) and one or more sufficient sureties; penalty twice the
purchase money ; payable to D. H., [Clerk and ex officio Ordinaiy for the said district:
or, Clerk of the said district, and ex officio Ordinary as to the estate of E. F., deceased,
of which C. D., Ordinary for the said District, is Executor,] his executors, administra-
tors, successors in office and assigns.
Whereas, at a sale made on day of the estate of E. F.,
whose Executor the said C. D. is, the said C. D. became the purcha-
ser of two slaves, to-wit : Tom, &c, at the aggregate price of
dollars, payable, according to the terms of the sale, on day 18 .
Now the condition of this obligation is such, that if the said C. D.
shall well and truly account for the purchase money of the property
purchased by him as aforesaid, then this obligation shall be void, else
to remain in full force.
See No. 204 (b.)
Clerk. — Ex-officio Commissioner of Locations. b
Warrant of Survey. 195.
State of South-Carolina, ) ^a? r.^ ^ , e T
-r.. . . ., ' > Office of the Comm r 01 Locations.
District. J
D. H., Clerk of the Court of Common Pleas and General Sessions,
and ex officio, Commissioner of Locations for the district aforesaid :
c
To G. R., or some other lawful Deputy Surveyor for the said district.
You are hereby authorized and required, with proper attention to
the instructions of the Surveyor General, to lay off and locate unto C.
D., a tract of vacant land within the district aforesaid, d which has
been entered by him, and will be shewn to you in his behalf: and to
return this warrant, when executed, together with a true and correct
plat of the survey you may make under it, certified by you, into this
office within two calendar months from the date hereof.
Given under my hand and seal of office, at this day of, &c.
Tke Deputy Surveyor returns his plat as follows :
In pursuance of a warrant from D. H., &c, granted to C. D., on
day of , I have laid off and located to the
said C. D. a tract of land, containing acres,
a 1839, 11 Stat. 62 ; 1 Strob. 36.
b 1839, 11 Stat. 816 49—53 ; Fees, 11 Stat. 10; Fee Bill, ante p. 119 ; see No. 204 (a )
c 1785, 4 Stat. 707 §3.
d Limit to 640 acres by $ 10, Act 1784, 4 Stat. 592, repealed : 1785, 4 Stat. 709.
196.
19S CLERK. EX OFFICIO COMMISSIONER OF LOCATIONS.
situate, &c-, and having such shape, marks, buttings and boundings as
are represented by the annexed plat.
Surveyed day G. R., Deputy Surveyor.
The Commissioner records the warrant in one book, and the return and plat in ano-
ther, and, if the fees are paid, transmits the original plat to the Surveyor General's Olhce,
within three months from its delivery to him — having first endorsed on the said plat, as
follows :
Recorded day 1S4S, in Book A. page 120, and certified
for C. D. D. H., Clerk & Ex off. Comm'r Locations.
Elapsed land: in the Locatioji Office. a
When the limited time has elapsed — six months from survey — and land located has
not after return to the Commissioner, been passed through the Location Office by pay-
ment of the fees, the Commissioner may certify the survey for any person who will ap-
ply for it and pay the fees. This is done by writing on the original plat thus :
I certify for G. H., the within survey made for A. B., and now
elapsed.
D. H., Clerk & Ex off. Comm'r of Locations.
In like manner, under Act 1785, 4 Stat. 710, after six months elapsed from the survey,
and no grant obtained, any person may obtain a grant by paying the fees, if the plat be
in the Surveyor General's Office : or by obtaining a copy of the plat for the Location Of-
fice, if the original plat has been passed through that office, and not transmitted to the
Surveyor General. Upon the copy, the Commissioner should (after exact copy of the
Surveyor's return, and of the certificate of recording,) endorse :
A true copy from my book Certified this day of for
G. H., who applies for it, as a survey of elapsed land.
D. H., Clerk & Ex off. Comm'r of Locations.
Certificates and authentication of Records.
Exemplification of a record, or other judicial proceeding, authenticated
by certificates of Clerk and Judge, under Act of Congress 1790. b
197, Clerk's Certificate.
The State of South-Carolina, i
District. )
I, D. H., Clerk of the Court of Common Pleas and General Ses-
sions for district, in the State aforesaid, do hereby certify, that
the writing hereunto annexed, consisting of pages, doth contain
a full and true exemplification of all the proceedings had in the Court
aforesaid, in a certain case wherein A. B. was plaintiff and C. D., de-
fendant, as appears by the original records remaining in my office-
In testimony whereof, I have hereunto set my hand, and affixed my
seal of office, at on the day of in the year of our Lord one
thousand, <5cc. and in the year of the Sovereignty and Indepen-
dence of the United States of America.
D. H., c. c. p. <5c (
a 1839, 11 Stat. 81 ; 1786,4 Stat. 748.
t 1 Brev. Di?. 317.
CLERK. — CERTIFICATES AND AUTHENTICATION OP RECORDS. 199
Judge's Certificate. 198.
Which the Clerk should write, except the name and date.
The State of South-Carolina.
I, one of the Judges of the said State, and in turn, presiding
Judge of the Court of Common Pleas and General Sessions for
district, in the said State, do hereby certify, that D. H., Esq., whose
attestation is above written, (as appears by his name in his own hand
writing, and under his seal of office thereunto affixed,) was, at the date
thereof, Clerk of the said Court for district aforesaid; that all
due faith should be given to his official attestations as such Clerk : and
that the said attestation is in due form, and by the proper officer.
Given under my hand at this day of A. D.
Authentication of records and copies from office boohs, which records 199.
and boohs are hept in a public office, not appertaining to a Court : as Re-
gister of Mesne Conveyances in Charleston, Surveyor General, perhaps
Ordinary. a
There should be, 1st. the attestation of the Offier who keeps the record or office
book, under his seal of office, if there be any such seal ; and if there be no such seal, a
statement of that fact. 2d. A certificate of the Governor, the Secretary of State, or
Keeper of the Great Seal, tnat the attestation is hi due fomi and by the proper officer.
Instead of the last, there maybe a certificate of the presiding Judge of the district in
which the office is kept, followed by the certificate of the Clerk, under his hand and
seal of office, that the Judge is duly commissioned and qualified. Thus :
Judge's Certificate.
The State of South-Carolina.
I, , one of the Law Judges of the said State, and in turn pre-
siding Judsfe of the Court of Common Pleas and General Sessions for
[Charleston] district, in the said State, (in which district the office of
Register of Mesne Conveyances for Charleston District is kept,) do here-
by certify, that M. K., Esq. whose attestation under his hand [and seal
of office] immediately precedes this my certificate, was at the date
thereof, Register of Mesne Conveyances for Charleston District aforesaid,
[and keeper of the records, books and papers which formerly apper-
tained to the office of Register for the Province of South- Carolina,
which latter office has been superseded (abolished) :] that all due faith
and credit should be given to his official attestations : [that there is no
seal belonging to his office :] and that the preceding attestation is in
due form and by the proper officer.
Given under my hand, &c.
Clerh's Certificate.
The State of South-Carolina, i
District. )
I, D. H., Clerk of the Court of Common Pleas and General Sessions
for district, in the State aforesaid, (in which district the office of
is kept,) do hereby certify, that the Honorable , whose
a Ac? ofCoii&Yesi 1804: 1 Erev Dip 320
200 CLERK. AUTHENTICATION OF A MAGISTRATE'S ATTESTATION.
signature in his own hand-writing is subscribed to the preceding certi-
ficate, was at the date thereof one of the Law Judges of the said
State, and in turn a presiding Judge of the Court aforesaid, for the
district aforesaid, duly commissioned and qualified.
In testimony whereof, &c. (as in No. 197. J
2qq Authentication of a Magistrate's attestation.
Clerk's Certificate.
The State of South-Carolina, )
District. J
I, D. H., Clerk of the Court of Common Pleas and General Sessions
for district, in the State aforesaid, do hereby certify, that E. F.,
Esq., before whom the preceding affidavit was made (as appears by
his name in his own hand writing attesting the same,) was at the date
thereof a Magistrate for the district aforesaid, [who had been duly ap-
pointed and qualified and had signed the roll kept according to law in
my office. a]
In testimony whereof, I have hereunto set my hand and seal of office,
at, &c, (as in No. 197. J
The Judge's certificate should be like No. 198, except that the Clerk's should be
called a certificate instead of an attestation : and that it may be advisable to add :
That, according to the laws of this State, a Magistrate is authorized
to administer an oath, |and to take the probate of deeds,] and the roll
of Magistrates for his district is kept by the Clerk of the Court of Com-
mon Pleas and General Sessions.
^1" Certificate by Clerk as to the records of a County Court.
The State of South-Carolina, ) «
District. /
I, D. H., Clerk of the Court of Common Pleas and General Sessions
for district, in the State aforesaid, and ex officio, keeper of the
records, books and papers which appertained to the County Court of
County, (which Court has been abolished, and its records and
papers transferred to the District Court of which I am Clerk,) do
hereby certify, that, &c., proceedings had in the said County Court, &c.
as appears by the original [records] remaining in my office. ( See No.
197.)
(Seal of office.)
To be sworn to, if for use in this State. See 5 Stat. 381.
Certificate by Clerk as to reeords of a former district, of which hit is
now part.
Clerk, &c, and ex officio, keeper of the records of the Court
for the former district of , which has been divided
into the districts of &c, proceedings had in the [Court of Com-
mon Pleas, or, General Sessions] for the district of in a certain
case, &c, records remaining in my office. (See No. 197 J
a This clause may be omitted if the certificate is intended for use in this State: but
may be material elsewhere to shew the Clerk's right to certify as to the Magistrate.
202.
CLERK. — CERTIFICATES AND AUTHENTICATION OE RECORDS. 201
Certificate by Clerk, ex officio, Register of Mesne Conveyances as to a 203. (a)
copy from the Registry. a
Clerk of the Court of Common Pleas and General Sessions, and*
ex officio, Register of Mesne Conveyances for the district of in the
State aforesaid, hereby certify, that, &c. contain a true copy of a cer-
tain (mortgage) from C. D. to A. B. recorded in the Register's Office
aforesaid, as appears by the book in which the same was registered,
remaining in my office.
In testimony, &c. (See No. 197. J
Certificate by Clerk, ex officio, Register of Mesne Conveyances, that 203. (b)
no paper has been registered.
certify, that no mortgage from C. D. to A. B. of a tract of land
called Black Hill, (situate, Sec. J or any part thereof, has been register-
ed in my office, [or, that no registry of a deed from, &c. can be found
in my office.]
Certificate by Clerk, ex officio, Commissioner of Locations. (See 204 (a)
No. 195.)
ex officio, Commissioner of Locations for the said district, cer-
tify, that the annexed plat is truly copied from Book A. page 120, in1
which book, belonging to the said office of Commissioner of Locations,
are recorded plats returned to the said office under warrants of survey.
Certificate of Clerk, as Ordinary. (See No. 194.J 204. (b)
ex officio, discharging the duties of Ordinary for the said dis-
trict, during a vacaney in the office of the said Ordinary, certify, that
&c, [or, ex officio, Ordinary as to the estate of E. F., deceased, of
which C. D., Ordinary of the district aforesaid, is administrator, certify
that, &c]
Judge's certificate as to either of the six certificates last preceding. 205.
(As in No. 198.) was at the date thereof, Clerk of the said Court
for district, and ex officio, Keeper &c, Register &c, Commis-
sioner &c, Ordinary &c, (according to the description in the Clerk's
certificate ;) that all due credit should be given to his official attestation
as such Clerk and Keeper, &c, Register, &c, and that the said attes-
tation is in due form, and by the proper officer.
Given under my hand, &c.
For certificate of conviction, see No. 84.
For formal transcript from Journal, see No. 2.
For common mode of signing a rule, see No. 35.
Certificates in Naturalization, Nos. 172, 177.
Certificates on warrant of survey, and as to elapsed land, No. 195.
Certificates to be returned with writ of dedimus potestatem, No. ] 93.
a See 187 — 193. Concerning attested copies as evidence, see 1721, 7 Stat. 176 ; 1731,
3 Stat. 285, 303 ; 1800, 5 Stat. 381 ; 1803, 5 Stat. 459, Grants;— 1823, 6 Stat. 209, Wills;
—1843, 11 Stat. 255, Deeds. No. 139.
Aa
202 SHERIFF. DEPUTIES.
SHERIFF.— DEPUTIES.
206, Deputation of a regular Deputy.
State of South-Carolina,
District.
I, J. S., Sheriff of the district aforesaid, do hereby constitute and ap-
point C. D. my regular Deputy, to act, do and execute what to the
office of Deputy Sheriff shall belong or appertain : during our mutual
pleasure.
In witness whereof, I have hereunto set my hand and seal, this
day of A. D. 18
In Presence of) J. S., [l.s.]
See 8th Sec. of Sheriff's Act of 1S39, 11 Stat. 28, for the distinctions between regular
Deputy, special Deputy for whom the Sheriff is responsible, and bailiff or special Depu_
ty for whom the Sheriff is not responsible to the party at whose request he was appoint
ed : (Stone v. Chambers, 1 Strob. 117;) also, for the oaths to be endorsed on the depu"
tation. The deputation and oaths are required to be read in open Court, and recorded
in the Journal of the Court.
The appointment of a Jailor should be in writing, deposited in the Clerk's office. 41
Sec. Sheriff's Act, 1839, 11 Stat. 33.
A Deputy Sheriff is one of the various civil officers, who are, by the Act of 1816, (6
Stat. 27,) required to take an oath to enforce that Act against gaming, " before they be
qualified to act in their respective offices." See that oath, No. 112.
The covenants between the Sheriff and his regular Deputy, respecting compensation
indemnity, limitation of powers, &c, will be binding inter sese, and should be expressed
in a suitable instrument. 2 Hill 647.
207. Deputation of a special Deputy, for whom the Sheriff is responsible. a
The State of South-Carolina,
District.
I, J. S., Sheriff of the district aforesaid, do hereby constitute and ap-
point C. D. my special Deputy,
to execute this writ, — or,
to levy upon and seize a certain negro named of the
property of E. F., under a Fi. Fa. in the case of G. H. against the
eaid E. F., — or,
to serve all mesne process (bail writs excepted,) which may be
handed to him before the next Court of Common Pleas for this dis-
trict,— or,
to do all acts appertaining to the office of Deputy Sheriff, until
the next return day for this district, — or,
to discharge the duties of a Deputy Sheriff within Parish,
(or, Regiment, or, Beat Company,) part of my district, until K. L., my
regular Deputy, shall return from New- York.
Witness my hand and seal, this day of A. D. IS
Done in presence of) J. S., [l.s.]
a Vide, Harp. 23.
SHERIFF. RETURNS OF MESNE PROCESS. 203
These instances will serve to shew how the exigency requiring the appointment, or
the special limitation with which it is made, should be expressed in the deputation. If
only a single writ, or other paper, is to be executed by the special deputy, the deputa-
tion should properly be written on it. o
Deputation of a special Deputy, appointed at the request of a party, 208.
his agent or attorney, which case is exempted froni.the ordinary respon-
sibility of a Sheriff. b
A.. B.., } In the Common Pleas. District.
v. > Ca. Sa. lodged in my office, day of or,
C . . D . . . ) Bail writ in assumpsit, entered in my office day of
(This caption should be particular, if the deputation be written on a separate paper,
but is unnecessary, if it be written on the writ, or other process to be executed.)
At the request of f" party, his agent, or attorney") I hereby depu-
tize E. F., to execute this writ, at the risk of the said {party.)
Witness my hand and seal, this day of
Done in presence of) [l.s.]
}
Sheriff's Returns. — Mesne Process. 209.
In my own person, [or, By my regular deputy A. B., or, By my spe-
cial Deputy C. D.] I did on the day of IS . — *
I swear c to the truth of this retunr. 'J. S., Sheriff.
J. S., or, A. B. or C. D. (he who performed the service.)
Before Clerk, or, Magistrate.
Personal service of Sum. Pro. 210.
(Asin No. 209 to — *) deliver to the defendant, C. D., a copy of this process.
Service of Sum. Pro. by copy left. <j 211.
(Asin No. 209 to—*) leave a copy of this process at the most notorious
place of residence of the defendant.
Personal service of writ of Capias ad Respondendum. 212.
{Asin No. 209 to — *) deliver to the defendant, C. D., a copy of this writ,
with a proper notice e thereon endorsed.
a The Sheriff is liable for the acts of one recognized as his Deputy, although there
may have been no written deputation. Harp. 226. Even the refusal of a deputy to re-
deliver paper, or obey the Sheriff, will not exempt the Sheriff. MSS. Waldhamer v.
Hard, 1827.
b 1839, 11 Stat. 28 % 8.
c As to return on oath, see 1 N. & McC. 125 ; 2 Bail. 492. Return by Deputy, 2 McC.
144 ; 315. The service is good although a writ was signed and sealed" in blank, and ne-
ver entered in the Sheriff's office. 1 Speer 1 ; see 2 Rich. 334.
d 1839, 11 Stat. 28 § 12. See No. 213;
e 1737, 7 Stat. 190 § 5.
204 SHERIFF. RETURNS OF MESNE PROCESS.
213. Service of writ of Cap. ad Resp. by copy left. a
(As in No. 209 fr—*) leave at the most notorious place of residence of the
defendant a copy of this writ, with a proper notice b thereon endorsed.
214. Arrest under Order for Bail on Sum. Pro. or writ, and copy deli-
vered.
[As in No. 209 to—*) take the within named C. D., in my district, and
forthwith deliver to him a copy of the process [or writ with a proper
notice b thereon endorsed.] — t
215. Body held.
(As in No. 214 to— t) and his body I now hold hold in custody.
216. Bail given.
(As in No. 214 to — f) and him I safely kept — f until he gave me bail ac-
cording to law.
The names of the bail must be endorsed on the Mesne Process. 11 Stat. 30 § 34.
217« Discharged upon giving Prison Bounds bond,
(As in No. 216 to — |) untn day , when he entered into a
Prison Bounds bond, with O. & P. his sureties. (See No. 328 for bond.)
21S. Discharged under Prison Bounds Acts without bond, or Insolvent Deb-
tors Acts.
(As in No. 216 to — |) until day of , when he was lawfully
discharged under the Prison Bounds Acts : (See No. 145:) or Insolvent
Debtors Acts. (See No. 139.)
219. Death in Prison.
(As in No.216 to—i) until he died in prison on day of
220. Discharged on supersedeas.
(As in No. 216 to — t) until afterwards, to-wit, on day of by
virtue of a writ, [or order] to this return annexed, I caused the said
to be delivered out of custody, wherefore, I have not his body
as within required.
221. Discharged by order of the Plaintiff.
(As in No. 216 to — f) until afterwards, to-wit, on day of ,
by the (written) order of the plaintiff, (hereunto annexed,) I discharged
him from custody.
a 1839, UStat. 28; 1737, 7 Stat. 190; 1720. 3 Stat. 118. Service good in the tem-
porary absence of the defendant. 2 McMul. 352 ; 3 McC. 85 ; 1 McC. 566 ; see tyo. 236.
i> 1737, 7 Stat. 190 § 5.
SHERIFF. — RETURNS OF MESNE PROCESS. 205
Discharge upon deposit of money. 222.
(At in No. 216 to — j^j until the said C. D. deposited with me a sum of mo-
ney sufficient to cover the (debt) damages, costs and charges which
the plaintiff may in this action recover against him.
This would probably be bold a voluntary escape, as we have no Statute authorizing
the receipt of money as bail : but the money would indemnify the Sheriff.
Tioo or more Defendants. 223.
When there are two or more defendants, if the same Sheriff or Deputy has served
more than one, he can unite in one return the particulars as to those he has sei'ved i
but it is better that there should be a separate return and oath as to any one or more
defendants who have been served by a different officer.
The service of one or more, and any of the following excuses, tarde, languidus , rescue,
injunction, &c. (Nos. 225—233,) as to one or more who have not been served, may also
be united in one return.
Where two or more defendants reside in different districts, (7 Stat. 293 § 3,) the She-
riff may serve a copy without having the original writ. Wallace v. Prince, 3 Rich. 177.
Service of Mesne Process upon one of several partners, under Act of 224
1792.°
In person (or, By, &c. see No. 209,) on the day of I deli-
vered, &c. for left, &c.) the within named C. D., one of the partners of
the within named firm of D., F. & H.: the within named E. F., and the
within named G. H., are not to be found within my district; nor is
either of the said last mentioned persons, or any other partner of the.
firm aforesaid known to me to bs within, or to reside in, this State.
In cases of joint contract under the Act of 1823, 6 Stat. 212, only the contractors with-
in the State should be sued : the plaintiff stating in his declaration and proving on the
trial the residence of the others abroad.
N&n est inventus. 225.
(For a Ca. Sa., bail writ, or any order requiring arrest, omit the latter clause.)
The within named is not to be found within my district, [nor has he
therein any place of residence.]
Tarde : for process mesne or final. 226.
This writ (or, process) came to my hands so late, that it could not be
served for, executed.)
Languidus : for hail process or Ca. Sa. 221.
In person [or, By, &c. see No. 209, J on day of I pro-
ceeded to , where the within named was, in order to arrest him :
and then and there found the said so sick, weak and infirm,
that, without danger to his life, he could not be removed: and in the
same condition, he hath ever since been, and still remains, so that I
cannot have his body as required.
1 — ..■• ■■ — — — — ..I, -.,,„„,. >,^— — <~_ —
a 7 Stat. 281.
206 SHERIFF. RETURNS OF MESNE PROCESS.
228. Languidus and non est inventus.
By virtue of this writ, I, in person [or, By, &c. see No. 209,] did on
the day "of last, at a certain dwelling house of one R. T.
in my district, take the body of the within named C. D. : she, the said
C. D., having been, on the day of aforesaid, brought to bed
of a child, and then being so very ill, weak and diseased therewith,
that I could not remove her from the room in which she was lying,
without the greatest peril of her life : Wherefore, I, from necessity of
the above circumstances, and for fear of occasioning her death in case
I continued her in my custody, immediately relinquished the custody
of the body of her the said C. D., and afterwards, and so soon as it
might be supposed she was so far recovered of her illness, weakness,
and disease, as to be able to be removed without danger to her life, to-
wit, on the day of last, 1 went again in person, [or, By, &c]
to the said house and room for the purpose of taking her into my cus-
tody, in execution of this writ, and she was not there, or ever after
found there or in my district : for which reason, I cannot have the body
of the said C. D. as within required.
229.
Rescue a and non est inventus.
In person [or, By, &c. see No. 209,] on the day of A. D»
within my district, I took and arrested the within named C. D.>
and him safely kept, until J. K. of and divers other persons to
me [or, my Deputy aforesaid,] unknown, on the day of
aforesaid, at aforesaid, with force and arms assaulted and ill-
treated me [or, my Deputy aforesaid,] and the said C. D. out of the
custody of me [or, my Deputy aforesaid,] then and there rescued : and
the said C. D., then and there with force and arms rescued himself, and
escaped out of the custody of me [or, my Deputy aforesaid,] against
the peace and dignity of the State : and afterwards, the said C. D. is
not to be found in my district.
£^' Injunction: b stayed process — mesne or final.
I was ready to do as within commanded : but, on the day of ,
received a copy of an injunction [or, notice of an injunction,] ordered
by the Court of Equity for district, in the case of complain-
ant, against defendants, whereby I was enjoined from further
proceeding in this matter : and therefore, I have not proceeded.
231. Privilege of a member of the Legislature.
For mesne process, or Ca. Sa. Vide 4 McC. 152 ; 1 Hill 396.
The within named is a member of the Senate [or, House of
Representatives] of the General Assembly of this State, and served in
the General Assembly which met at Columbia on — * : so that, at
the time of the delivery of this writ [or, process] to me, and from thence
continually, he hath been under the Constitution of this State protected
in his person and estate, and therefore, I could not execute this writ
[or, serve this process] against him.
a Rescue, good on mesne process. Cro. Eliz. 781. Bad on execution, if Sherifi ia
bound to raise the posse comitalus on execution. 1 Strange 432 ; 11 Stat. 36 § 52.
b Harp. 490.
4
SHERIFF. RETURNS OF MESNE PROCESS. 207
Privilege of a member and N. E. I. 232.
(As in No. 231 to — *) so that, from the time he came into my district, after
the delivery of this writ to me, until he left my district, to-wit, on
he hath been under the Constitution, &c. fas in No. 231 down to 'him/
then say,) and after the said last mentioned day he hath not been
found within my district.
Privilege of suitor or witness in Court. a 233.
For bail process or Ca. Sa.
The within named , at the time of the delivery of this writ,
[or, process,] to me was, and from thence continually hath been, a sui-
tor [or, witness^ in a certain cause which was depending in the Court
of C. P. for this district, between A. B., Pl'ff, and C. D., Deft, and as
such suitor [or, witness] was going to, attending on, or returning from
the said Court, so that I could not arrest him as required.
The Sheriff is not bound to notice this privilege, but the arrest, if made, will be set
aside by the Court. Doug. 672 ; 2 Black. Rep. 1035 & 1190 : 3 Wilson 341 ; 1 Rich. 197.
Addition of personal service. 234.
This, if authorized, may be made on mesne process, b
on by, &c. I delivered to him the said a copy of
this process [or, writ, with a proper notice endorsed.]
Privilege of a suitor or witness and N. E. 1. 235,
The within named at all times when he was in my district,
after the delivery of this writ to me, was, as a suitor [or, witness] in a
certain cause, &c. either attending the said Court, or going to it, or
returning from it, so that I could not arrest him as required. And be-
fore and afterwards, to-wit : before the day of he hath not
been found within my district. (Add service without arrest, if made and
authorized.)
For the privilege of those engaged in the militia service, going and returning, vide
11 Stat. 210 § 161. The former Act, 8 Stat. 489 § 16, expounded in I Bail. 646, is al-
tered, so that now, although there can be no arrest, there may be service upon a militia-
man at muster by copy delivered or copy left. See Act 1839, 11 Stat. 28 § 12.
For the privileges of suitors and witnesses attending the Court of Equity, or the Court
of the Master or Commissioner in Equity, vide Vincent v. Watson, 1 Rich. 197. Either
the Court whose proceedings have been interrupted by the arrest of a witness, or the
Court under whose process the arrrest has been made, may interfere to effect a dis-
charge. It is the personal privilege of the witness which the Sheriff is not bound to no-
tice.
Subpoena Writ. 236*
Service of Subposna writ on one witness.
In my own person, [or, By, &c. see No. 209,] on the , I exhibited
this writ and delivered a subpoena ticket conformable thereto to the
within named C. D.
a 7 Stat. 265 § 15.
b 1839, 11 Stat. 28; Harp. 452;
20S SHERIFF. — RETUBN8 OP MESNE PROCESS.
Non est inventus as to another.
The within named E. F. is not to be found within my district.
Query. — As to service by copy left ?
The Act of 1737, 7 Stat. 190 § 5, contemplates only mesne process by which suit is
commenced. The Sheriff's Act of 1839, II Stat. 27, 28 § 6, Writ Book, and § 12, uses
terms, which do not distinguish between the process that may be served by copy
left, and that which may not be.
Richardson v. Whitefield, 1 McC: 403, refers to a decision, that a writ of attachment
is not included in the Act which authorizes service by copy left. Goday v. Corlies &
Commander, 2 Strob. holds service of interrogatories by copy left, to be insufficient,
without proof of actual notice.
So. St. Packet Company v. Roger, Cheves Eq. R. 48, recognizes the service of a stib-
pasna ad respondendum by copy left, as sufficient under the 2d Rule of the Court of
Equity.
Scire Facias.
237. Return of Nihil, a
The within named C. D. hath nothing within my district by which I
can cause him to be summoned : neither is he to be found in the same.
23g Service of Scire Facias by delivery. b
In my person [or, By, &c, see No. 209,] I delivered a copy of this
writ to the within named C. D.
239. Service by copy posted, of Rule or Scire Facias to revive proceedings. c
The within named E. F. has, since the delivery of this writ to me,
been continually absent from and without the limits of this State :
and on I, in my own person [or, By, &c] posted a copy of this
writ upon the door of the Court-house of this my district, wherein the
said E. F. had his last residence within this State.
Service of Mesne Process on Corporation.
240. Delivery to President. d
In person [or, By, &c, see No. 209,] I delivered a copy of this pro-
cess [or, writ with a proper notice thereon endorsed,] to K. L., Presi-
dent of the , the corporate body within named.
241. Copy delivered to Clerk at place of business. e
In person [or, By, &c. see No. 209,] I, at the , the principal
place of business of the within named corporate body, delivered a copy
of this summary process [or, writ with a proper notice endorsed there-
on,] to M. N. the Cashier [or, Clerk] of the said corporate body.
a Ingraham v. Belk, 2 Strob. and cases cited.
b See 1799, 7 Stat. 297 § 23.
c 1792, 7 Stat. 280 $ 6.
d 1 Strob. 72.
e Meriwether v. Bank of Hamburg, Dud. 36 ; Cromwell v. Insurance Company, 2
Rich. 512.
SHERIFF. RETURNS OF FIERI FACIAS. 209
Returns. Fieri Facias.
Note —A Fi. Fa. creates a lien throughout the State. 3 McC. 241 ; Rice 150. The
Sheriff caunot convey to a purchaser a good title, under an execution which has been ~42.
in fact paid, although it remains unsatisfied on its face : but the Sheriff will not be a
trespasser for acting under it. I Rich. 18 ; see 1 Speer 403 ; 2 MeMul. 335. As to Fi.
Fa. under injunction, see 1 Rich. 145 ; 1 Hill 69 ; Harp. 457. Concerning the renewal
of a Fi. Fa., see Act of 1S27, 6 Stat. 324; 12th Rule of Court, and cases there cited.
The death of the defendant, within the time limited for renewal, does not prevent the
renewal. 1 Speer 346. A Fi. Fa. may be renewed by a Ca. Sa., or a Ca. Sa. by a Fi.
Fa. Robertson v. Shannon, 2 Strob.
The returns required by the Act of 1827, to be made at every term, are dispensed
with. 1847, 11 Stat. 433.
See Notes to Nos. 247, 251, 257, 262, 274, 290.
Nulla Bona.
The within named C. D. hath not any goods or chattels, lands, ten-
ements, or hereditaments within my district, whereof I can levy as
within commanded.
Levy upon lands, goods, &fc. °
Note. — What a sufficient levy, Dud. 19.
Money in Sherifl's hands is subject to levy, not to lien ; may be applied by the Sheriff
to execution against the plaintiff for whom it was collected, but is not applied by the
243.
Nulla bona to Fi. Fa. de bonis testatoris, si non de bonis propriis.
The within named C. D. hath not within my district, any goods,
chattels, lands, tenements or hereditaments, which were of the said E!.
F., whereof I can levy as within commanded : nor hath he, the said
C. D., any of his own proper goods or chattels, lands, tenements, here-
ditaments, whereof I can levy the costs, or any part thereof, as within
commanded.
Payment by defendant in full. _ . .
The within named C. D., hath paid to me the full amount of the
(debt) damages, costs and charges within mentioned.
Payment by defendant, specially applicable to this case : there being
older liens, a 245.
The within named C. D., on day of , paid to me a sum of
money sufficient to cover the full amount of the (debt) damages, costs
and charges within mentioned, (to-wit, the sum of dollars,) which
according to his special directions (in writing hereto annexed) I have
applied to the satisfaction of this case in preference to older liens.
In like manner payment of part and nulla bona a3 to balance ; or nulla bona a3 to
goods of testator, and payment of costs by executor. «i4o.
247.
a Adams v. Crimager, 1 McMul. 309.
If payment be made by one, who desires as assignee to keep the execution open for
his benefit, the transaction must be regarded as a purchase of the execution from the
plaintiff, and tho Sheriff be regarded as the plaintiff's agent, who receives the price, and
not as the officer of the law, who receives satisfaction of the execution: Care must be
taken, lest by receipts given, the transaction may be rendered uncertain, and the pur-
chaser's rights be made doubtful. See Carme v. Richardson, 3 McC. 528 ; Bank v.
Mosely, 1 Strob. 418 ; 1 Hill 309 ; 2 Speer 110.
b See 1839, 11 Stat. 27, Sale Book; 35 % 47: 1 Bay 319.
Bb
210 SHERIFF. RETURNS OF FIERI FACIAS.
law, and if assigned before application, the assignee will take it. 2 Kich. 4, 102, 328 ;
1 Bail. 40 ; 1 McMul. 310 ;2K.& McC. 341.
As to the Sheriff's right to the proceeds of a sale made by a Constable, see Alexander
V. Collins, 3 Rich. 62, and cases cited.
An undivided residuary interest in remainder in personal property, is not subject to
levy and sale : nor any interest in such property which cannot be taken into possession
by the Sheriff, and delivered to the purchaser. Dargan & Bradford v. Richardson, Dud.
62. Nor under an execution against an overseer, who is to receive part of a crop, be-
fore it be severed and delivered. Rogers v. Collin, 2 Bail. 531 Nor any merely equit-
able interest, as land held under a bond for titles ; negroes in the possession of a cestui
que trust, when the whole legal title is in the trustee ; although, what is here improperly
called, the equity of redemption in mortgaged lands, may be sold under execution
against the mortgagor, subject to the mortgage, it being a legal estate. 4 McC. 336;
Bee 1791, 5 Stat. 169 : 1797, 5 Stat. 311. Nor the articles exempted by the Act of 1823,
6 Stat. 214, or by the militia law of 1841, 11 Stat. 219 ; see 3 McC. 352; 3 Rich. 180.
Nor goods in the custody of the law, as those actually distrained : even those replevied
are liable to the rctorno habendo in preference over other Fi. Fas., 1 McMul. 195 ; see
Nos. 281, 290 ; but several Fi. Fas. or a Fi. Fa. and an attachment, may successively be
levied upon the same goods, and will have priority according to dates. 1 McMul. 94.
See No. 242, and references there made.
By virtue of this writ, I levied upon property of the within named
House &Lot. n ,< ,. .. . ti-j i,
(J. D., to-wit, in my own person, on , 1 levied upon a house
and lot No. 6, Bond-street, a in the town of Z., then occupied by O. P.
By my regular Deputy, M. N., on I levied upon a tract
Description, «T of land in this district, on both sides of the public road from
bridge to church, whereon the said C. D. then lived, supposed
to contain acres ; b
248. By my regular Deputy R. T., on , I levied upon the equity of
Equity of Re- re(lernption, or other interest of the said C. D., in another tract of land,
demptioru supposed to contain acres, then unoccupied, whereon O. K.
once lived, and which is said to have been mortgaged by the said C.
D. to L. P., before the entry of judgment in this case.
249# And also upon another tract, adjoining or near to the one last men-
Land convey'd tioned, supposed to contain acres, which was conveyed to the
to defendant said C. D. by H. L., bounded on one part by creek :
by H. L:
250. Also, upon the undivided share of the said C. D., in a tract of land,
Undivided supposed to contain acres, whereon his father, T. D., formerly
share. lived.
251. Also, the interest in remainder, which the said C. D. is entitled to,
Int. in remain- jn a tract of land on, or near river, whereon his mother N. D.
derinland-c then liyed>
a The description of the property in the levy, should be so particular, that it may
thereby be identified. Land, especially, should be described by the names of the occu-
pants, and other circumstances, so that the description being applied by proof, no doubt
of the thing described may remain. This is essential to the purchaser's title. It is all
important, however, that no particular mentioned in the description, should be incor-
rect: better that it should be vague than inaccurate. See Harp. 306 ; 1 Hill 304 ; 2
Rich. 488, 543 ; 1 Bay 320; 3 Rich. 4 ; 2 Speer 62.
b 1 McC. 399 ; 4 McC. 336.
e Harrison v. Maxwell, 2 N. & McC. 347.
SHERIFF. RETURNS OF FIERI FACIAS. 211
By my special Deputy L. P., I levied upon five slaves, to-wit : a 252. 253.
negro man named Tom, a mulatto woman named Harriett and her Slaves.
three children, names unknown : Onildren.
Also, upon a black horse, and on , upon the various 254.
articles mentioned in a schedule hereto annexed. Horse and arti-
cles in sche-
dule.
And on , upon the various articles mentioned in a schedule 255.
which is annexed to a Fi. Fa. in the case of E. F. against the said C. Schedule an-
D., which was lodged in my office. .;*/,'■« tter%x£itio£
J. b., Sheriff, U. D.
Sale and application of the proceeds. b
The sales should be all carefully entered in the book of sales. See '3 6 Sheriff's Act
of 1839, 11 Stat. 27 ; Christie v. Simpson, 1 Eich. 409 ; Elfe v. Gadsden, 2 Rich. 373 ; 2
N. & McC. 563.
Of lands and negroes, especially lands, it would be serviceable to purchasers if a
6uinmary statement of sales was made on the Fi. Fa., thus :
I sold of the foresfoincj levy, to-wit : a nescro named Tom, to M. R., ' ~"'*
for four hundred dollars : woman and children (A. E. & B.) to J. T.,
for twelve hundred dollars. The house and lot to P. T. for one thou-
sand dollars : titles delivered to him. The tract on the public road,
where C. D. lived, called Manton, to G-. H., for two hundred dollars :
titles delivered (by written order of the said G. H.,) to K. R. The Titles to
other articles to various purchasers. Vide, Sale Book . another.
Of the proceeds of sale, I have applied a sufficient sum to satisfy 258.
this Fi. Fa. Application of
J. S., Sheriff CD. FiS
Of the proceeds of sale, after satisfaction [from the sales of the 259. 261.
lands, of a judgment recovered in district by E. F., against the Older judg-
6aid C. D., having a lien older than the lien of this Fi. Fa., and] of va- older exe-
rious writs of Fi. Fa. against the said C. D., having lien prior to this, I cutions. <*
have applied a residue of dollars towards the satisfaction of this Residue to
Fi. Fa. rMi Fi- Fa-
J. S„ Sheriff C. D.
a II Stat. 35 0 47.
b As to the right of third persons to take advantage of irregularities, see 1 N. & McC.
11, 403.
As to the right of the parties; see 2 Bail. 211.
As to resale upon purchaser's refusing to comply with the terms ; see Elfe v. Gads-
den, 1 Strob. 225 j Young, Sh'ff v. Cathcart, 2 Strob. — ; 2 Rich. 464 ; 2 Bail. 291.
As to credit by consent; see Kilgore v. Peden & Johnson, 1 Strob. IS.
Although, in general, an official act will be referred to any valid subsisting authority,
(2 Bail, 361.) a sale which was made under a senior Fi. Fa., that has been since set
aside, will not be supported by junior Fi. Fas., in which they were orders to wait : the
orders to wait, will be considered to embrace the costs, if the contrary be not expressed.
Mouchet v. Brown, 3 Rich. 117 ; see 2 Speer 90.
c Sheriff's Act 1539, 11 Stat. 33 $ 60 ; Davis v. Hunt, 2 Bail. 412,
d 3 Rich. 1.
212 SHERIFF. RETURNS OF FIERI FACIAS.
262. Disposition of levy and further levy.
A presumption of satisfaction arises from a levy, until the disposition of it be shewn.
The Sheriff should be very careful to shew, that a levy, which has not produced satis-
faction, has been disposed of, lest the plaintiff should be injured, or the Sheriff be made
liable.
Sale. Of the property levied, I sold the various tracts of land above men-
Levy dischar- tioned, (vide, Sale Book ,) except the tract which is stated above to
left's. have been conveyed by C. D. to H. L., and in that, C. D. having been
found to have no legal interest, the levy as to it was discharged.
263. And except, also, the interest in remainder above mentioned, as to
Levy discharg- which, by directions of the plaintiff in this case, (in writing and hereto
edbyplff's di- annexed) the levy was discharged :
rections. (?) <*
Older judg- And after satisfaction of a judgment, recovered against the said C.
menti- * D., in district, by V. B.:
Older execu- of an execution recovered in district, by Y. D., and of other
tionsc executions having lien prior to this, there remained a balance of five
hundred and fifty dollars, (which I applied to this case,)
264. which being rateably divided, between this case and others of equal lien,
Rateable the sum of one hundred and twenty-two dollars and twelve cents was
division. applicable to this, —
265. from which, the costs having been retained, seventy-one dollars and
Costs retained. four cents remained, which 1 applied towards the damages [or, debt
a . app le . an(j dainages] within mentioned :
266.
Destruction:
neero died.
The negro man, Tom, after the levy and before he could be sold,
to-wit : on day of , died of disease :
267. the woman Harriett, and her two younger children, E. & B., were
Negroes found found to be included in a mortgage, older than the lien of this Fi. Fa.,
to be mort^'d: from the said C. D. to M. R., and bein^ released from the levy, were
redelivered, to . °
defendant. redelivered to the said C. D. on
26S. the elder child of Harriett, named Ann, was, after the levy, and before
Destruction: : s}ie COuld be sold, to-wit; on the day of , unavoidably
negro own jrowne<j from the accidental upsetting of a boat during a sudden
squall, whilst R. T., my Deputy, was bringing her to the jail :
26J. 2/0. the black horse was on , offered for sale and remained in my hand
Remains tor f. f>i-jj
want of bid'rs.for want ot bidders :
Articles sold the articles mentioned in the schedule annexed to the Fi. Fa. of E. F.
imdcT another y C j)^ fa^ on ( been sold under that Fi. Fa., and applied to it,
by reason of its prior lien :
a 2 McMul. 350.
b See No. 259.
c See No. 260.
J See No '.'01
SHERIFF. RETURNS OF FIERI FACIAS. 213
Of the articles, mentioned in the schedule hereto annexed, a yoke of Mortgage ol-
oxen having been found included in a mortgage, from the said C. D. ^.Fa^ ' 9
to W. T., older than the lien of this Fi. Fa., but junior to another Fi. Prop'r'ty trans-
Fa. against the said C. D. at the suit ofO. H., in my office, were re- lerred to ano-
leased from the levy in this case and transfered to that last mentioned x^er Fi. Fa.
< J older than
case : « mortgage.
A sideboard and a dozen chairs having been found not to be the pro- 271. 272.
perty of the said C. D., but to belong to one R. G\, were on Articles not
delivered to the order of the said R. G.: deft's delivr'd
to owner.
A cow and two beds were exempt from levy and sale by law : Exempt from
sale. «
And the other articles mentioned in the said last mentioned schedule 273.
hereto annexed, having been left in the possession of the said C. D., Articles left
with the dei '£
under his promise to produce them on the day of sale, were not pro- not pr0^>cj# b
duced. Afterwards, on day of , I regained possession of
one clock and four hogs, parcel of the articles in the last mentioned Levy insuffi-
schedule, which with the house, being wholly insufficient to satisfy the cient.
executions in my hands againt the said C. D.,
On by , I made a further levy of the property of the said 274.
C.D.,to-wit,&c. Further levy.
The within named C. D., hath not any other goods, &c. Nulla bona for
(As in No. 242 .)
balance.
Plaintiff"1 s orders to wait. 275.
By directions of the plaintiff, (in writing hereon endorsed,) I have
stayed the execution of this writ.
See Note to No. 256. This return and the next are applicable to Ca. Sa., or any
other final process — indeed, to every process.
Stay by order of Court or Judge. d 276.
By order of the Court, [or, of the Honorable , made at Cham-
bers,] (hereto annexed,) I have stayed the execution of this writ.*
When the orders to stay specify the time of delay, after its expiration, if the active
energy of the writ remain, proceedings should, without further directions, be had as
upon the lodgment of a writ : but if no time be specified, when proceedings may be
desired, the countermand of the former directions should properly be in writing and en-
dorsed on the writ.
a See No. 247.
b This would remove the presumption of satisfaction, and authorize a further levy, but
would not exempt the Sheriff from liability to the plaintiff.
c A Fi. Fa. and a Ca. Sa. may be lodged at the same time, and proceedings be had
on both successively, but not at the same time. Before return of Fi. Fa., after partial
satisfaction from it, the Ca. Sa. may be executed : but not whilst a levy remains undis-
posed of. Mazyck v. Coil, 2 Bail. 101; Miller v. Bagwell, 3 McC. 429.
The lien of a Fi. Fa. is lost or suspended by an arrest under the Ca. Sa. 3 McC. 62 ;
4 McC. 519 ; 2 Hill 502. Revived by discharge of debtor with his consent : 2 Bail. 9 ;
or by the debtor's escape, 1 Hill 310. See 1 Strob. 22 : or by death in prison, 3 Rich.
235. If the plaintiff sues the surety on the Prison Bounds bond, he cannot afterwards
resort to either his Fi. Fa. or Ca. Sa. 1 Rich. 76.
d 1818, 7 Stat. 321 ; 53d Ride of Court.
k*
214 SHERIFF. RETURNS OF FIERI FACIAS.
The subsequent Reram should begin : —
277. The time of delay having expired, [or, The orders to wait having
been countermanded,] I, on &c.
278. Application of money received to Fi. Fa.
From money which I received from the defendant, [or. From money
which came to my hands, from sales made in the case of A. B. v. CD., J
1 applied to this case &c.
279. Preceding Sheriff. «
If personal property has been levied, and not sold by a Sheriff, he should turn it over
to his successor. If by reason of death, destruction, failure of the defendant to produce
it, or other cause, it cannot be turned over, the retiring Sheriff should, by a suitable re-
turn, shew the disposition of the levy.
A neglect of this may sometimes be supplied by the successor, thus : —
On , I sold &c: the other articles mentioned in the said levy
were not turned over to me by my predecessor in office, and I know
were not sold by him : the negro Tom having on or about died
in the possession of : the mule having been left in the posses-
sion of C. D., and not produced afterwards for sale: the carriage hav-
ing been delivered to E. F., who claimed it as his property : the clock
having been, by order of the plaintiff (in writing and hereto annexed,)
redelivered to the said C. D.
280. Afterwards I made a further levy, &c.
Further levy &
nulla bona, The gaid q d hath nQ Qther goods> &c<
(Stay or other return, according to circumstances.)
281; Payment to Landlord, b Tax-collector, §'c.
(Levy and Sale, ut supra.)
Of the proceeds of the sale of the goods aforesaid [or, of the goods
mentioned in Schedule A. hereto annexed,] to-wit: the sum of
dollars, I have paid to G. M., the landlord of the premises,
whereon the said goods were seized, for rent not exceeding one year,
which became due to him for the said premises on
day of last, the sum of * (which sura after deduction of
a 11 Stat. 27 % 7.
b 1839, 11 Stat. 36, " Notice of claim before the sale of such goods." 8th Ann, c. 14
2 Stat. 547, notice before removal of the goods from the premises. 3 McC. 378 (before
1839,) notice before the whole of the goods are removed.
Sheriff entitled to costs of proceeding before notice, even if enough to pay the rent be
not produced. Rent must be due at the time of the levy. 1 Tr. C. R. 121: S. P.
Aiken v. Heery, MSB. Decis. Nov. 1826 ; 2 Hill 484.
The right of the landlord does not exist as to chattels real, 3 McC. 38. Nor as to
any goods not liable to distress. For what are not so liable, see 3 Black. Com. 8 ; 3
Stat. 295. Slave; 1794, 7 Stat. 435. 1823, 6 Stat. 214; 4 McC. 378; 1 Bay 102, 170,
301, overruled; 2 McC. 39, 329 ; 3 McC. 38 : 4 McC 552 ; 1 Bail. 494. Chattel bound
by trover bond. 1 McMul. 252. Any article in custodia legis. See Notes to Nos. 290
and 247.
The landlord's right seems to extend to goods seized under an attachment. 2 Speer
370.
SHERIFF. RETURNS OF CA. SA. 2J.5
the expenses of my proceedings, had before notice of the said rent, was
not sufficient to discharge the rent due as aforesaid :)
(As in No. 281 to—*) further part thereof, I have paid to R. T., Tax-col- 2S2.
lector for the district of for the taxes, which, within one year
before my sale, N. M former owner of the said goods [or lands,] be-
came liable to pay on the said goods [or lands.] a
(As in No. 281 to — *) further part thereof, [or, the residue thereof,] to- 283.
wit : the sum of I have applied towards the satisfaction of this Fi.
Fa. The said C. D. hath no other goods, or chattels, lands, tenements
or hereditaments within my district, whereon I can levy the residue of
the said (debt and J damages, costs and charges as within commanded.
J. S., Sheriff' C. D.
As to funeral expenses and other debts of a deceased defendant, entitled to precedence
over executions. See § 26 Act of 1789, 5 Stat. Ill ; Salvo &. Wade v. Smith, 2 Speer
518.
Returns of Ca. Sa.
Note. — See No. 242 and references there made. 284.
As to the return of Ca. Sa., to fix bail, see Ancrum v. Sloan, 1 Rich. 421, overruling
Sanders v. Hughes, 2 Bail. 514; Also, 3 Rich. 145.
As to arrest under Ca. Sa. from another district, 11 Stat. 29.
As to escape, 1 1 Stat. 31. As to rescue, No. 229.
An arrest is prima facie satisfaction, but escape, discharge by the Sheriff, or death in
prison, removes the presumption. 1 Strob. 22 ; 1 Rich. 76 : and, in the two former ca-
ses, the Sheriff may thereby be made liable. See Note to No. 274.
Non est inventus.
The within named C. D., is not to be found within my district,
Cepi Corpus. 285.
In my own person [or, By &c, see No. 209,] on day of ,
I took the body of the within named C. D., *
Now in custody.
( As above to — *) and now hold it in custody.
(As above to — *) and safely kept it until — t
Satisfaction.
(As above to — f) he paid to me the (debt J damages, costs and charges
within mentioned.
Receipt of money, specially applicable to this case. ° 2fifi
{As in No. 285 to — \j he paid to me a sum of money sufficient to cover the
(debt) damages, costs and charges within mentioned, which, according
a See Act of 1843, 11 Stat. 248 § 15.
b 1 McMul. 309.
2i6
SHERIFF. RETURNS OF CA. SA.
to his special directions, (in writing hereto annexed,) I have applied
to the satisfaction of this case.
Either of the two last returns may, after a statement of the day and name, begin at
" paid," when the money has been paid without arrest. If the whole sum be not paid,
the amount paid must be particularly set down.
2S7. Prison Bounds Bond. a
(As in No. 2S5 to — t and ilien continue as in No. 217. J
Discharge under Prison Bounds Acts, or Insolvent Debtors Acts,
without bond.
(As in No. 218J
Supersedeas.
(As in No. 220. )
Death in Prison. h
(As in No. 219. )
288. Discharge by order of the plaintiff, with consent of the defendant. c
(As in No. 285 to — f) afterwards, to-wit, on day , the plaintiff,
with the consent of the said C. D., (in writing hereto annexed,) direct-
ed me to discharge the said C. D., and I did discharge him accord-
ingly. — $
2S9. Subsequent arrest by order of the Plaintiff.
(As in No. 288 to — |) And afterwards, to-wit, on day , by the
special directions of the said A. B., (the plaintiff,) (the evidence of
which in writing is hereto annexed,) I again took the body of the said
C. D., and [now hold it in custody, or, safely kept it until (satisfaction ,
money paid specially applicable to this case, prison bounds, §c, ut
supra. J]
Other returns may be made of Ca. Se. as of bail writ :
Tarde. No. 226.
Languidus. No. 227—229.
Privilege. Nos. 231—235.
Injunction. No. 230.
Orders to stay, as upon Fi. Fa, Nos. 275 — 2/3.
a See No. 329.
b 1 Brev. R. 185 ; 3 Rich. 235.
c 1815, 6 Stat. 1.
SHERIFF. FOREIGN ATTACHMENT.
Foreign Attachment.
Not*. —See Nos. 116—127 : 345—349: 290—311.
A fund in Court, or goods in custody of the law, are not liable to attachment : as mo- 290.
ney in the hands of the U. S. Marshal. Burrell v. Letson, 1 Strob. 239. Money collec-
ted by a Sheriff under a Fi. Fa., Blair v. Cantey, 2 Speer 34. A distributive share in
the Court of Equity or Ordinary, for distribution or partition, whether in the bond of a
purchaser or other form. Young v. Young, 2 Hill 425 : 3 Hill 12. Goods under distress.
2 Speer 367. A chattel bound by a trover bond, 1 McMul. 252.
Goods levied on by a Sheriff under a Fi. Fa. may however be levied on by attach-
ment, and successive liens be established. 1 McMnl. 94.
The words of the Act of 1823, 6 Stat. 214, seem to include attachment as well as Fi.
Fa., in exempting articles from levy and sale : the words of the Militia Act of 1841, are
less comprehensive. The landlord's rights under Stat. 8 Ann c. 14, seem to extend to
attachment as well as Fi. Fa. 2 Speer 368 : see No. 281.
For the mode qf attaching parmership effects, see 2 Hill 595 : 2 McC. 473.
Neit7ier Goods nor Garnishee found.
I have made diligent search for property of the absent debtor C.
D., and for the garnishees E. F. and G-. H., for whom copies of this
writ were delivered to me, but can find neither within my district.
Lands and goods attached : no person in possession : a and N. E. I. as 291.
to Garnishees.
Notice to be fixed on door of Court-house. See No. 292.
By virtue of this writ, in my own person, [or, by Deputy,] at b
o'clock, A. M., on day of , I attached and took of the
property of the within named C. D., the absent debtor, one tract of
land, c supposed to contain one hundred acres, whereon the said C. D.
lately resided, bounded by river, and lands of R. T., and others,
with the houses and fixtures thereon : also, the unexpired term of the
said C. D., in a house and lot lately occupied by W., in the town of
, which was demised by O. to the said C. D.: also, a negro man,
named Tom, and a negro woman, Dinah, and her children Amy and
Toney : also, a black horse, two mules, a wagon, and two beds : and
no person having the things attached in possession, I fixed up at the
door of the Court-house, in my district, an account of the things attach-
ed and a copy of this writ, with notice for any person or persons claim-
ing the same, to appear as within required, and shew cause according
to law : after diligent search, I could not find within my district, either
of the garnishees, E. F. and G. H., for whom copies of this writ were
delivered to me.
217
Notice on Court-hottse door. d ,
[Copy of the writ of attachment, with the usual notice endorsed, and copy of the
Return.]
Notice. — Any person or persons, who may claim the things attach-
ed as above, or any of them, are required to appear and shew cause,
according to law, at the time and place mentioned in this copy writ,
day of &c. J. S., Sheriff — D.
a 1839, 11 Stat. 30 Q 18.
b See 2 Brev. R. 466 : 2 Bay 8, 272.
* See Note to No. 247.
d 1839, 11 Stat. 30 § 18.
CC
292.
218 SHERIFF. — FOREIGN ATTACHMENTS.
293. Goods, 8fc., attached, in the hands of Garnishee : ° and copy delivered
to Garnishee.
By virtue of this writ, in my own person, [or, by Deputy,] at 10
o'clock, A. M., on day of , I [attached of the property of
the within named C. D., the absent debtor, in the hands, possession,
custody, power or control of E. F., the things mentioned in the sche-
dule A. b hereunto annexed, and at the same time,] delivered to [the
said] E. F., garnishee, a copy c of this writ, with a notice thereon en-
dorsed, pursuant to the Act of the General Assembly in such case
made and provided. — *
If no goods be attached, omit matter in brackets.
294. Things attached claimed by Garnishee on oath, as Creditor in pos-
session.
(Asin No. 293 to — *) And the said E. F., having on oath, claimed the
things attached as creditor in possession, the same was left in his pos-
session.
What kind of a liability or claim will authorize a garnishee to hold against an attach-
ment. See 1 McMul. 431.
Only such property as in fact, or in law, is in the hands of a garnishee, can be attached
in his hands. 1 Strob. 239 : not unliquidated damages which he claims in a suit : but any
bond, note, or other evidence of debt, which may be delivered, can be attached even
after suit brought on it. 2 Speer 380. See No. 290.
295. T/iings attached taken into possession for want of claim on oath, or of
bond : d held by Sheriff.
(Asin No. 293 to — *) And the said E. F. not having claimed, on oath,
as a creditor in possession, the things attached as aforesaid, and hav-
ing refused, upon demand made of him, to enter into bond, as by law
required in such case, I caused him to surrender and give up the said
things and took them into my possession, and — t now hold them.
296. Held until attachment dissolved.
(Asin No. 295 to— -t) held them until afterwards, on day , I
delivered them to [[the said C. D.; or, one G. H., agent for the said
C. D.:] — | an order [of Court, or, of the Honorable [Judge) at Cham-
bers,] having been made, dissolving the attachment, after the entry of
special bail. See No. 122.
297. Held until Clerk certified entry of special bail.
(Asin No. 296 to—%) ' the (annexed) certificate of the Clerk having been
delivered to me, shewing that special bail had been entered, whereby
the attachment was dissolved. See Note to No. 122.
a 1839, 11 Stat. 30 § 13 : 290 § 1- See Nos. 294—300, and notes to them.
b A particular description of the articles attached. See Note to No. 247.
c See 1 McC. 403. Service by copy left not authorized.
d 1844, 11 Stat. 290 § 1. Vide, Moore et al. v. Byne etal., 1 Rich. 94, decided be-
fore Act of 1844 ; Byne v. Byne, 1 Rich. 442, decided after 1844.
SHERIFF. FOREIGN ATTACHMENTS. 219
Held until bond given to the Sheriff. 298.
{As in No. 296 to —\) : the said C. D., (the defendant,) having appeared
and entered into bond to me with R. S. and U. W., sureties, to appear
and answer the judgment and condemnation of the Court in this case, a
Held until sale under^jorder : proceeds ready. Rescue, fye. 299.
(As in No. 295 to — t) held them until afterwards, on day
I sold them under an order made by the Honorable f Judge J at Cham"
bers : b [to- wit, the tract of land lying, &c. I sold to M. R., for
dollars, the negro man Tom, to X. Y., for dollars, or, as will
more fully appear by the account of sales in my Book of Sales.] Of
the proceeds of sale, after payment of expenses, I applied
dollars to the satisfaction of a Fi. Fa., K. L. v. the said C. D., older
than this writ of attachment, and the balance of dollars, I have
ready to be paid, as the Court may direct. (See No. 260. )
(As in No. 295 to— f) held them until (rescue, as in No. 229, or, destruction,
as in No. 268.)
Delivery to the plaintiff under the 4th section of the Act of 1344, 11 Stat. 291, or de-
livery to assignees under the 5th section, may, when ordered, be made by the Sheriff:
and of course, proper evidence in writing, by receipts and entries, would be preserved
of either : but neither of these could ever take place before the return of the writ, so as
to be included in that return. (See Nos. 37, 38, 125 — 127.)
Bond given under the 1st section of the Act o/*1844. P 3qq
(As in No. 293 to— *) And the said E. F., not having claimed on oath,
as creditor in possession, the things attached as aforesaid, he entered
into bond with O. and P., his sureties, not to waste or eloign the said
property so attached, and to render a schedule thereof on oath to me
as Sheriff, and to make due return to this writ according to law, and to
surrender the property attached when thereto required by law, or by
any order of Court made in pursuance of the Attachment law.
To be added, if schedule rendered. 301.
And afterwards, to-wit : , the said E. F., rendered to me the
annexed schedule on oath.
Bond: under 1st section of ActoflSii. e 302,
This bond should be in a penalty double the sum sued for: that is, double the debt or
damages mentioned in the writ with good security, such as the Sheriff will be respon-
sible for: payable to the Sheriff, his successors in office and assigns, for the use of the
plaintiff in the attachment, condition as follows :
Now the condition of this obligation is such, that if the above E. F.,
shall not waste or eloign the property which the said J. S., Sheriff as
afoi'esaid, has attached in his hands, possession, custody, power ox-
control, under the writ of attachment in the case of the said A. B;
a 1339, 11 Stat. 29 § 18. See No. 310 for Bond.
b See No. 36.
< 11 Stat. 290.
220 SHERIFF. FOREIGN ATTACHMENTS.
against C. D., the absent debtor, of which are the following articles,
which have been actually attached, a part in the name of the whole,
to-wit : [the articles mentioned in the schedule annexed, or, on a tract
of land, &c] and shall render a schedule, on oath, to the said J. S.,
Sheriff as aforesaid, and make due return to the writ according to law,
and shall surrender the property attached as aforesaid, when thereto
required by law, or by any order of Court made in pursuance of the
attachment laws: — then this obligation shall be void, else to remain in
full force and virtue.
Signed, sealed and delivered ) [l.s.]
in presence of \ [l.s.]
[l.s.]
The Sheriff may assign this bond to the plaintiff in attachment, and the plaintiff', or
his assigns, may sue on it.
Assignment.
At the request of the within named , plaintiff in attachment.
I assign the within bond to him and his assigns.
Witness my hand and seal, this day of &c.
In presence of ) • J. S., Sheriff — D. [l.s]
Under the 2d section of the Act of 1844, 11 Stat. 290, « after the garnishee has been
summoned, and either no goods have been actually attached, or goods attached have
been left in his hands, after a claim on oath, & an affidavit by the plaintiff, or by some
n person duly authorized by him, such as is mentioned in the section, may be made and
annexed to the writ of attachment with an order, (to be made probably by a Judge, or
any Commissioner of bail,) and thereupon the Sheriff may cause the garnishee to enter
into bond.
Returns upon this order.
2Q2 Non est inventus.
I have made diligent search for the garnishee E. F., named in the
annexed order, and have not been able to find him within my district.
304 Arrest and detention Jbr want of bond, c
I, [by self, or, by deputy,] did on under the annexed order,
arrest the within named E. F., the garnishee, for the purpose of caus-
ing him to enter into the bond required, and he not having done so, I
hold his body in custody.
305 Perhaps prison bounds bond given, discharge under prison bounds or insolvent deb-
tors Acts, discharge on supersedeas, death in prison, tarde, langnidus, rescue and pri-
vilege, as in case of a bail writ, (Nos. 217 — 221 : 226 — 231,) some, or all, would be good
returns to this order. See 2 Hill 667 : 11 Stat. 28 $13.
306.
Bond taken.
Under the annexed order, I did on , [in my proper person, or,
by Deputy,] cause the within named E. F. to enter into bond as re-
quired, in which his sureties are O. and W.
a See Nos. 123, 124.
b See No. 294.
c See Poole v. Vernon, 2 Hill 567 ; 11 Stat. 28 §13.
SHERIFF. FOREIGN ATTACHMENTS.
221
If any schedule be returned to the Sheriff by the Garnishee, let mentiou of this be
made iu the return, and the schedule be annexed as iu No. 301.
Bond: under 2d section of Act o/"lS44. a
This bond should be in a penalty double the amount sued for : that is, double the
debt and damages, or damages, mentioned in the writ ; with security, such as the She-
riff will answer for, payable to the Sheriff, his successors or assigns ; condition as fol-
lows :
Now the condition of the above obligation is such, that if the above
bound E. F., (against whom as garnishee, in a case of attachment, A.
B. against O. D., an order founded upon an affidavit, annexed to the
writ of attachment has been granted under the 2d section of the Act
of the General Assembly in such case made and provided, and enti-
tled " an Act to amend the attachment laws of the State," passed in
1844 :) shall well and truly make the returns required by the said
Act, and surrender and deliver according to law, the property of the
said C. D., the absent debtor, which, since the lodgment of the attach-
ment writ aforesaid, hath been in the hands, possession, power, or
control of the said E. F. — then this obligation shall be void, else to
remain in full force and virtue.
Signed, sealed and delivered )
in presence of )
Assignment of Bond.
To be endorsed on it.
District.
[l.s.
[l.s.
[l.s.
At the request of A. B., (the plaintiff,) I hereby assign the within
bond to him and his assigns.
Given under my hand this day of A. D.
J. S., Sheriff— D.
Notice against garnishee Jailing to make the return required under
3d section of Act of 1844. *
To be served two days before motion for judgment against garnishee, personally or by
copy posted.
Returns thereon.
Notice served personally .
I, [in my own person, or, by Deputy,] on , delivered a copy
of this notice to the within named E. F., garnishee.
Copy posted.
The within named E. F., garnishee, being absent from this State,
[or, perhaps, my district,] I did, on , post a copy of this notice
d L.ie door of the Court-house in my district.
307.
308.
309.
a 11 Stat. 290.
b II Staf 290.
222 SHERIFF. — TROVER.
310. Bond to the SJieriff: replevying goods attached.
By the 18th section of the Sheriff's Act of 1839, 11 Stat. 30, it is provided, that, " in
case any defendant in attachment shall appear while the goods or effects attached are in
possession of the Sheriff, and before judgment shall have been rendered, and shall enter
into bond, with good security to the Sheriff, to appear and answer the judgment and
condemnation of the Court, the Sheriff' shall deliver the goods and effects aforesaid to
such defendant, and the said bond so to be executed, shall be assignable to, and may be
sued in behalf of the plaintiff, as a bail bond may be." What is meant by the first " ap-
pear," is doubtful. This provision was made before the Act of 1843, 11 Stat. 257,
which, first authorized a defendant in attachment to appear in another mode than by
entering special bail, (see 119 — 122) If special bail were given to the Clerk under
the list section of the Clerk's Act of 1839, 11 Stat. 77, the b~ond to the Sheriff would
seern to be unnecesaary.
In a proper case, care should be taken to make the bond in a penalty double the sum
sued on, payable to the Sheriff, his successors or assigns, with such security as the She-
riff is willing to answer for ; and condition, that the defendant shall in the case wherein
the goods were attached, appear and answer the judgment of the Court.
The assignment must be like that of a bail bond, under seal, and in the presence of
two witnesses. (See No. 314.)
312.
Trover.
311. Order in Trover. a
Under an order made, requiring the Sheriff to cause the defendant, in an action of
Trover, to give bond for the production of the chattel sued for, (1839, 11 Stat. 76 §20 :
Trover Act of 1827, 6 Stat. 337,) the returns of the Sheriff will be similar to those which
apply to the preceding order under the 2d section of the attachment law of 1844. (Nos.
303 — 306.) Trover bond taken, injunction, discharge by order of plaintiff, order to stay,
Hon est inventus, arrest and detention, arrest and rescue, arrest and death, languidus,
privilege, tarde, discharge under prison bounds or insolvent debtors Acts, and probably
prison bounds bond taken, would be good returns. See 2 Hill 667 : 3 Rich. 143 ; 11
Stat. 28 §13.
Bond : under order in Trover. b
This bond should be in a penalty equal to double the value of the chattel as sworn
to, payable to the Sheriff, his successors or assigns, with sureties such as the Sheriff is
willing to answer for, conditioned as follows :
Now the condition of this bond is such, that if the above 0. D., (the
defendant) who has been sued in the Court of Common Pleas for
district, in an action of Trover, by A. B., plaintiff, for a certain chattel,
to-wit : a negro man named Jack, shall produce the 6aid chattel, so
sued for, to satisfy the said plaintiff's judgment, in case the said plain-
tiff should recover in the said action : then this bond shall be void, else
to remain in full force and virtue.
Signed, sealed, and delivered ) [l.s.
in presence of j [l.s.1
[l.s.
a See No. 131.
b As to the right of the surety under this bond to surrender to the Sheriff, either the
defendant, or the chattel sued for, see Brown v. Spann, 3 Hill 324. The defendant is
not liable for the natural deterioration of the chattel, arising from ordinary use. Flovd
v. Ervin, 1 Strob. 437.
The Sheriff cannot retake the defendant for insufficiency of the sureties. Dud. 57.
The bond may be discharged by the plaintiff. 3 Rich. 142.
SHERIFF. — BAIL. 223
Bail. a 313.
Under an order for bail, pending an action, (6 Stat. 337,) the returns are similar to
those which are made under a bail writ.
See, for the form of a bail bond, 14th section of Sheriff's Act of 1839, 11 Stat. 29.
Care should be taken to describe correctly, ';the plea expressed in the process of the
plaintiff: as " to answer to A. B., the plaintiff in a Sum. Pro. — " in a plea of debt" — " in
a plea of assumpsit" — " in a plea of covenant" — " in a plea of detinue" — " in a plea of
case" — " in a plea of trover" — " in a plea of trespass vi et armis." * The time of appear-
ance should always be exactly set down, and must be to the term, next after the execu-
tion of the bond, except where the service of the writ, arrest and execution of the bond,
are all between return day and Court, and then the second term afterwards is the time.c
Assignment of Bail Bond. 314.
To be endorsed on the back of the bond. 11 Stat. 30 § 23.
As Sheriff of district, [and successor of former Sheriff
of the said district,] I assign this bond to plaintiff in the action
wherein it was taken, according to the statute in such case made and
provided.
Done in presence of J. S., Sheriff — D. [l. s.]
(" two credible witnesses.")
The Sheriff should t;ike a receipt for the bond when he delivers it.
Render by Bail. 315.
Bail bonds may be taken, not only under arrest made by virtue of writs and orders
requiring bail, but in cases of detention after render by bail, toties quoties : 1 1 Stat. 29.
For the law before that Statute, see Chiswell v. Ellzey, Rice's L. R. 29.
The render may be made to the Sheriff without previous order of the Court, at any
time before the end of the term to which the service of effective process against the bail
has been returned. If the render be made after the return of Ca. Sa. there must be an
order of Court to confirm it. '"The Sheriff has the right to take time for all necessary
enquiries, and (after ascertaining the right of the bail to render and his right to receive,)
to require that the body be delivered in the jail, with exact notice of the case in which
it is rendered. The bail, on their part, have a right to require the means of distinctly
proving what has been done, of which none can be so apt as a receipt from the Sheriff,
containing all necessary particulars. Prudent men will, in general, take care that writ-
ten evidence be had on both sides." Glover v. Gomillion, 2 Rich. 556 : see Bomar v.
Poole, 2 Speer 11J ; Meyers v. Centre, 2 Strob.
Acknowledgment. 316,
To be signed by the principal, rendering himself in discharge of his bail, or by the
bail, rendering their principal in their own discharge : and to be kept by the Sheriff.
A. B..., ^ Action of assumpsit. In the Common Pleas. District,
v. > Writ lodged, not. yet returned, or, On Issue Docket, or,
CD,..,) Judgment entered and Ca. Sa. lodged.
a See Nos. 128, 129.
b See Murrell v. Halbert, 1 Bail. 238 ; Treasurers v: Barksdale, 1 Hill 272.
e 1 Speer 295: A Sheriffis compellable under the Stat, of Henry 6, P. L. No. 1 p. 8,
(not in the Statutes at Large,) to take no less security on a bail bond, than two respon-
sible persons of his district. If he take only one, or take one or more who do not reside
in his district, the bond will not be void : but after the bail have been fixed he will be
answerable to the plaintiff for any damage occasioned by his misconduct, wilful or neg-
ligent. See Dickson v. Coward, 3 Rich. 49 ; Bennet v. Brown, 1 Strob. 303 : Teasdala
v. Kennedy, 1 Bay 322 ; Teasdale v. Hart, 2 Bay 173.
224 SHERIFF. HABERE FACIAS POSSESSIONEM.
E. F. and G. H., Bail for C. D.
C. D. rendered himself this day in discharge of his bail in this case,
day of • C. D.
Witness : or, .
C. D. has been rendered this day by E. F., one of his bail, in this
case. day of
Witness :
317. A receipt in like form should be signed by the Sheriff and given to the principal rr
bail that makes the render.
II the render be intended to apply to more than one caac, all the cases so intended
should be carefully stated.
Returns of render on mesne process.
If the render be made before the return of the mesne process under which the bail
was taken, it should be subjoined to the return of arrest and bail taken : thus:
Afterwards, to-wit, on day of the said having
[rendewed himself in discharge of his bail, or, been rendered by his
bail,] I detained him and — * hold him in custody.
319. (As in No' 318 to — *) him safely kept until he again gave bail according
to law.
Enter on writ, " names of bail in second bail bond."
Other returns, prison bounds bond taken, discharge under prison bounds Act, death in
prison, discharge on supersedeas. &c. as after arrest on bail writ.
320. Returns of render on Ca. Sa.
If the render be made before the lodgment of Ca. Sa., or after its lodgment and be
fore its return, it must be entered on the Ca. Sa., thus :
The body of the within named , being in my custody, under
the render [made by himself in discharge of his bail, or, made of him
by his bail,] at the lodgment of this writ,' was detained by virtue of
this writ — * and I now have it in custody.
321.
[As in No. 320 to— *) and I safely kept it until (prison hounds bond taken,
discharge under prison bounds or insolvent debtors Acts, supersedeas,
death, fyc, as after arrest under Ca. Sa.)
Habere facias possesionem : ivith Fi. Fa. or Ca. Sa.
322. Possession delivered.
By virtue of this writ, [in person, or, by Deputy,] on , I
delivered to the within named A. B., possession — * of the tract of
land within described, as I am within commanded.
323. Possession delivered of an undivided share.
(As in No. 322 to — *) of an undivided fifth part of the house and lot with-
in described, as I am within commanded.
SHERIFF. BONDS OF INDEMNITY.
225
Return of Fi. Fa. or Ca. Sa., joined with liab.fac. p>oss. 324.
To either of the above returns, 322, or 323, as the case may be, add :
And [in person, or, by &c] on , I levied <Scc, \returns as on Fi.
Fa.] or, I took the body, [if Ca. Sa.for damages and costs]: or, The
within named hath no goods, &zc. (as in No. 2i2J or, The within named
is not to be found, Sec. fas in No. 28i.J
Other returns as on Fi. Fa. and Ca. Sa. according to the circumstances.
No person came to point out land and receive possession. 325.
Since the writ of Habere facias piossessionem was delivered to me, I
have always been ready and willing to execute the same : but neither
the said A. B., nor any other person on his part, hath ever come to
me, to shew me the tenements within mentioned, or any part thereof,
or to receive possession of the same, or any part thereof from me.
On Fi. Fa. or Ca. Sa., returns a3 above.
Bond indemnifying the Sheriff for selling goods on a Fi. Fa. 326.
Penalty, twice the value of all the goods taken; payable to J. S., (the Sheriff,) his
executors, administrators and assigns : by the principal and sureties, jointly and seve-
rally, their faeirs, executors, and administrators : dated &c.
Recital. — Whereas, the above named J. S., as Sheriff of district,
by virtue of a writ of Fi. Fa., in the case of A. B. against C. D., lodged
with him on , hath seized and taken divers goods and chattels,
to-wit : , as the proper goods and chattels of the said C. D.,
and the said goods and chattels have been claimed by E. F., who hath
given to the Sheriff notice, not to proceed to a sale of the said goods
and chattels, or to pay over the money which may arise from the sale
thereof, to the said A.B.; and the said A. B* hath applied to the She-
riff, and requested him, notwithstanding such claim and notice, to sell
the said goods and chattels, and pay over the money thence arising to
the said A. B., under the Fi. Fa. aforesaid, which the said J. S. hath
consented to do upon being indemnified for so doing :
Condition. — Now the condition of the above obligation is such, that
if the above bound A. B., his heirs, executors and administrators, do
and shall, from time to time, and at all times hereafter, well and suffi-
ciently save harmless and keep indemnified, the said J. S., his depu-
ties, officers and agents, and each and every of them, of, from and
against all losses, costs, charges, damages, and expenses, which he,
they, or any of them, shall or may sustain, expend, or be put to, for,
or by reason of seizing or selling the said goods and chattels, or any
part thereof, or paying to the said A. B. the money which may arise
from the sale thereof, or any part thereof, towards satisfaction of the
Fi. Fa. aforesaid, and, also, from and against all actions, suits or pro-
ceeding, at law or equity, which now are, or hereafter shall be brought
or had, rightfully or wrongfully, against the said J. S., his deputies,
officers and agents, or any, or either of them, for or by reason of the
seizing, selling or paying as aforesaid, or for, or by means of any other
Dd
226 SHERIFF. — BONDS OF INDEMNITY.
cause, act, matter or thing whatsoever, relating thereto, or to the exe-
cution of the said Fi. Fa. — then this obligation shall be void, else to
remain in full force and effect.
Signed, sealed and delivered ) [l.s.
in the presence of ) [l.s.
[l.s.
327. Bond indemnifying the Sheriff for abandoning Goods, and returning
nulla bona.
Penalty as above. (No. 326.)
Recital. — Whereas, the above bound J. S., as Sheriff of district,
hath, under a writ of Fi. Fa., in the case of A. B. against C. D., lodged
in his office on , seized and taken divers goods and chattels, to
wit: as the proper goods and chattels of the said C. D.: and
whereas, the above bound E. F., hath given notice to the said Sheriff,
and claimed the said goods and chattels, and requested the said Sheriff
to abandon, and quit possession of the said goods and chattels, and de-
liver them to the said E. F., and to make return on the said Fi. Fa. of
nulla bona ; which the Sheriff, honestly believing" that the said goods
and chattels do really belong to the said E. F., but entertaining some
apprehensions, by reason of the doubtfulness of the title thereto, is
willing to do, upon the said E. F., indemnifying him for so doing:
Condition. — Now the condition of the above obligation is such, that
if the above bound E. F., his heirs, executors, and administrators, do
and shall, from time to time, and at all times hereafter, well and suffi-
ciently save harmless, and keep indemnified, the said Sheriff, his de-
puties, officers, and agents, and each and every of them, of and from
all losses, costs, charges, damages, and expenses, which he, or they,
or any of them, shall, or may sanction, pay, or be put to, for, or by
reason of abandoning, quitting possession, and delivering to the said
E. F., the goods and chattels aforesaid, and returning nulla bona on
the said Fi. Fa.: and, also, of, from, and against all actions, suits, and
proceedings, at law or equity, whatsoever, which now are, or here-
after shall be brought, either rightfully or wrongfully, bv the said A.
B., or by any person whomsoever, against the said Sheriff, his depu-
• ties, officers, and agents, or either, or any of them, for, or by reason
of the abandoning, quitting possession, and delivering the said goods
and chattels to the said E. F., and returning nulla bona on the said
Fi. Fa., or for, or by reason of any other act, matter or thing whatso-
ever relating thereto, or to the execution, or return of the said writ of
fieri facias : then this obligation shall be void, else to remain in full
force and virtue.
Signed, sealed and delivered
in the presence of
L.S.
L.S.
L.S.
a Query. Whether even the honest belief of the Sheriff, that the coods belong to
the obligor, would make this a good bond. See 2 Bay 67 : 3 Hill 170 : 2 Speer 19.
SHERIFF. PRISON BOUND3 BOND3. 227
Prison bounds bond, in case of mesne process. 328.
The State of South-Carolina, )
District. {
Know all men by these presents, that we C. D., E. F. and G-. H.,
are held and firmly bound to J. S., Sheriff of district, in the sum
of a dollars, to be paid to the said J. S., his executors, adminis-
trators, successors in office and assigns, to which payment well and
truly to be made, we bind ourselves, and every of us, our and every of
our heirs, executors and administrators, jointly and severally, by these
presents. Sealed with our seals, and dated this day of A. D. 18 .
Whereas, the above bound C. D., has been arrested by the above
named J. S., Sheriff, under a writ of capias ad respondendum, [or, Sum.
Pro.] with an affidavit [or, order,] for bail annexed thereto at the suit
of [or, under an order requiring bail to be taken in a suit pend-
ing between A. B., plaintiff, and the said C. D., defendant, or, under an
order requiring bond to be taken in a certain action of trover brought
by A. B. against the said C. D., — or, perhaps, under an order requiring
bond to be taken from the said C. D., as garnishee, in a case of attach-
ment wherein A. B. is plaintiff, and E. F., absent debtor, is defendant,]
and the said C. D. is desirous of having the benefit of the prison
bounds :
Now the condition of this obligation is such, that if the said C. D.
shall not go, or be without the rules, bounds or limits of the prison for
district aforesaid, until he shall be discharged according to law,
then this obligation shall be void — else to remain in full force and
virtue.
Signed, sealed and delivered \ [l.s.]
in the presence of j [l.s.]
[L.S.]
For form of bond, see Anderson v. Foster, 2 Bail. 500.
This bond of prisoner under mesne process is not assignable. Peek v; Glover, 1 N.
& McC .582. See Note to 329 .
Prison bounds bond — in case of a prisoner in execution on any civil 329.
process.
The State of South-Carolina. )
District. )
Know all men by these presents, that we C. D., E. F. and G-. H..,
are held and firmly bound to J. S., Sheriff of district, in the
penal sum of (twice the amount to be collected by the execution,) dollars,
to be paid to the said J. S., Sheriff, as aforesaid, his executors and ad-
ministrators, successors in office and assigns : to which payment well
and truly to be made, we bind ourselves and every of us, our and every
of our heirs, executors and administrators, jointly and severally, firmly
by these pi'esents. Sealed with our seals, and dated this day of
A. D. 18 .
Whereas, the above bound C. D., was on day of arrested
by the above named J. S., Sheriff, under a writ of capias ad satisfaci-
a Twice the sum sworn to in plaintiff's affidavit.
228 SHERIFF. REPLEVIN.
endum, which issued from the Court of Common Pleas for
district, in a case wherein A. B. was plaintiff, and the said C. D. and
one K. L., were defendants, and was lodged in the office of the Sheriff
aforesaid, on : and the said C. D. is desirous of having the benefit
of the prison bounds:
Now the condition of this obligation is such, that if the said C. D. a
shall remain within the rules, bounds, or limits of the prison of
district aforesaid, until he shall be thence discharged by.lawrand
shall also, within forty days from the date hereof, render to the Clerk
of the Court of this district, a schedule on oath, or affirmation, (agreea-
ble to the form of his religious persuasion,) of his whole estate, or of
so much thereof as will pay and satisfy the sum due on the writ of ex-
ecution aforesaid; and shall also, b at the expiration of the notice pre-
scribed under the insolvent debtors and prison bounds Acts, respec-
tively, assign and surrender, as far as in his power, the property men-
tioned in said schedule : — then this obligation shall be void, else to
remain in full force and virtue.
Signed, sealed and delivered ^ [l.s.]
in presence of ) [l.s.]
[L.S.]
The bond must be given within forty days from the arrest. §3 Act of 1788, 5 Stat.
78. Semb. contra, Muldrow v. Bacot, 2 McMul. 362, if it is not intended to apply for
relief under the Act of 1759.
The assignment of a prison bounds bond, given by a prisoner in execution, may be
as of a bail bond, or with less formality : with one witness, or without a witness, as no
Statute has prescribed the form. See Miller v. Tollison, Harp. 339 ; Powers v. Segur,
2 Bail. 420. The assignment may be made by successor Sheriff. 2 Rich. 95. It must
be to the plaintiff: but, where the bond was defective, evidence aliunde was received
to shew that the assignee was plaintiff.
For former liability of Sheriff as to the sureties. See Yates v. Yeadon, 4 McC. 18. By
Act of 1840, 11 Stat. 121, Sheriff is now liable for the solvency of sureties on prison
bounds bonds, as for the solvency of sureties to bail bonds. See Bennett v. Brown, 1
Strob. 303.
The sureties, where the defendant is in execution, cannot discharge themselves by a
surrender of the defendant within the forty days : — Sheriff has no right to receive him.
Miller v. Bagwell, 3 McC. 429 : see 2 Bay 208 : 3 Hill 324. The sureties are not dis-
charged by the defendant's being committed to jail, after the forty days, for want of a
schedule, 3 McC. 429, and Headman v. O'Niel, 2 Bail. 190. See Dixon v. Vanezara,
1 McC. 373, where these sureties are called bail, and principles applicable to bail are
applied to them.
This bond is a substitute for the body. By proceeding on it, the plaintiff waives his
rights under a Fi. Fa. 1 Rich. 78.
In computing the forty days, the day of the date is excluded. 2 Rich 95. The ex-
treme sickness of the prisoner has been taken as an excuse for his not rendering his
schedule within tirne. 2 Rich. 322. So also, the sickness of the attorney, 3 McC. 14.
See Note to 147 ; No. 146 and Nos. 133—149.
Replevin.
330, Replevin Bond, c
By A. B., the tenant, whose goods have been distrained, and two responsible persons
as sureties. Payable to J. S., the Sheriff, his certain attorney, executors and administra-
tors, successors in office, and assigns. Penalty, double the value of the goods distrained,
to be ascertained by the oath of one or more creditable and disinterested witnesses.
which oath the Sheriff may administer.
a 1788, 5 Stat. 78.
b 1841, 11 Stat. 153.
c 1808, 5 Stat. 565; 1839. 11 Stat. 36 $55.
SHERIFF. REPLEVIN. 229
The Condition of this obligation is such, that if the above bound A.
B., shall, in the Court of Common Pleas for district, prosecute
with effect, and without delay, his suit against C. D. {the landlord,)
[and E. F. (tlie bailiff,)] for the taking and unjustly detaining of his
goods and chattels, to-vvit : {copy the enumeration of the goods distrained
from the ivrit of Replevin.) And, if a return of the said goods and
chattels shall be adjudged, before any deliverance be made of the dis-
tress, shall make return of the same : [a and in case the same shall be
insufficient to satisfy the rent for which the distress has been made, or
in case the same shall be eloigned, shall pay the full amount of the
rent aforesaid, and all costs of suit which may be adjudged against the
said A. B. in the suit aforesaid :] [b and, moreover, if the said A. B.,
shall well and truly keep harmless and indemnified the said J. S., She-
riff as aforesaid, his deputies and agents, touching the replevying and
delivery of the said goods and chattels, and also, from and against all
actions, damages and costs that may arise therefrom,] then this obli-
gation shall be void, else to remain in full force and virtue.
Sealed, &c.
Concerning this bond, and the effect, which one, not formal, may have, see 1 N. &
McG. 331; Harp. 215.
Assignment of bond. 331.
To be endorsed on bond.
District. At the request and costs of (the avowant, or per-
son making cognizance^) I hereby assign this bond to the said (avowant
or person.) Witness my hand and seal, this day of
In presence of J. S., Sheriff. [L.s.]
(" two or more credible witnesses.")
This bond, even before the Statute of 1839, which expressly authorizes the assign-
ment, could be sued in the name of the assignee : 1 McC. 300 : 2 McMul. 196 : and, al-
though no Statute authorizing and regulating the assignment had been expressly enact-
ed, the 23d section of Stat. Geo. 2. ( 2 Stat. 579.) seems to have been adopted in practice.
See Pemble v. Clifford, 2 McC. 31 : Reed v. Stoney, 2 Rich. 402 : Rogers v. Brown &
Sharlock, 1 Speer 286. In like manner the Stat, of 17 Chas. 2 ch. 7, and other British
Statutes, concerning Replevin, not expressly made of force, seem to be adopted. See 1
N. & Mc. 82, and cases referred to in those above cited.
Return of writ of Replevin. Goods replevied, and writ served. ' 332.
By &c, on &c, I replevied the goods and chattels within mention-
ed, and delivered them to the within named A. B., he having executed
a Replevin bond, with O. P. and L. G- , his sureties : on the same day
and by the same Deputy, I delivered a copy of this writ to the within
named E. F., and left a copy for the within named C. D., at his most
notorious place of residence. (See Nos. 213, 223.^
For important distinctions between replevin and other actions, as to the time of filing
the declaration, the return of the Sheriff, the appearance of the defendant, judgment of
non pros., and inquiry after judgment, see the Act of 1808, 5 Stat. 565, the cases of Diig-
a This clause, required by the Act of 1808, is not contained in the Act of 1839, but is
conformable to the liability which, after a verdict for rent in arrear, rests on the sure-
ties, and should be inserted.
b This clause is inserted in late English books of practice — can do no harm, but may
be omitted.
230 SHERIFF. — HABEAS CORPUS.
ganv. England, Harp. 215, and Murphy v. Sumner, 1 Hill 216, and cases there cited.
Every writ of Replevin is returnable immediately ; and the declaration must be filed
one month from the lodgment of the writ, whether it be returned or not : the Court can-
not extend the time. Abatement by death of plaintiff, Harp. 131. For goods not liable
to distress, see Note to No. 281.
333. Return of writ of Replevin. Elongata.
Before the coming of this writ to me, the goods and chattels within
mentioned, were conveyed away by the within named C. D., to places
to me unknown : Wherefore, I cannot cause the same to be delivered
to the said A. B., as I am within commanded.
So there may be return of part replevied and elongata as to part. 2 N. & McC. 444.
334. Return of writ of Replevin — property claimed — Quaere ?
The within named A. B., executed a Replevin bond with responsi-
ble sureties, and I was ready to replevy the goods and chattels as with-
in commanded : but, on the within named C. D., in his own
proper person claimed that the said goods and chattels were of his
own property before the distress made thereof: Wherefore, until the
claim of property be determined, I forebore to replevy as within I am
commanded. (See 3 Black. Com. 148.^
335^ Retorno' habendo.
May be returned, goods returned as oommanded, or elongata, either of them, in whole
or in part. If the retorno habendo be combined with a Fi. Fa., it is usual to return elon-
gata, and proceed to levy and sell as under a common Fi. Fa. If there are, however,
other writs of Fi. Fa. older than the retorno habendo, but junior to the distress, the
goods distrained (as in custody of the law;) will be subject to the retorno habendo cum,
Jl.fa., in preference over the other writs. Harris v. Clayton, 1 McMul. 194 ; 3 McC. 43.
336. Withernam. a
May be returned goods of the value required, taken and delivered as commanded, or
nulla bona : either of them, in whole or in part.
Writ of second deliverance.
May be returned, goods delivered, or elongata : either of them, in whole or in part.
Habeas Corpus. b
337. Return of Habeas Corpus directed to the Sheriff. Body ready with
the cause.
State of South-Carolina, )
District. <|
I, J. S., Sheriff of the said district, do certify and return to [the Ho-
norable one of the Law Judges of the said State, or, to A. B.
and W. P., Esquires, two of the Magistrates of the district aforesaid,]
• named in the writ to this schedule annexed, that, before the said writ
came to me, to- wit : on the day of in the year within written,
a 2 N. & McC. 444. 1 McMul. 194.
* 31 Chs.2 ; 1674, IStat. 117 : Magistrate's Act 1839, 11 Stat. 14 $6, 15 §9: Sheriff's
Act 1839, 11 Stat. 33 $43 : 1 McMul. 456. Dud. 295.
SHERIFF. RETURNS TO RULES AGAINST Him. 231
C. D. in the said writ named* [was taken, and in the jail of the district
aforesaid, is detained by virtue of a writ of capias ad satisfaciendum,
which is in these words, to-wit, " The State of South-Carolina, &c,
{set forth the writ and all endorsements verbatim,) or, was committed to
my custody, by virtue of a certain warrant to the tenor and effect fol-
lowing {warrant, verbatim)] : and these are the causes of the [taking
and] detaining of the said C. D., whose body I have here ready, as by
the annexed writ I am commanded.
J. S., Sheriff.
Indorsement on writ.
The execution of this writ appears in the schedule hereunto annexed.
J. S., Sheriff.
Excuse. Languidus in prisond. 338.
District : to-wit :
, I, J. S., Sheriff of the said district, do certify and return, that C.
D., in the writ to this schedule annexed named, was before the coming
to me of the said writ, to-wit: on [taken and] detained in the jail
of the district aforesaid, by virtue of a certain writ, or, warrant, or or-
der, to the tenor and effect following : {copy verbatim,) and that the
said CD. remains in the jail aforesaid, under my custody, so languid,
that, without great peril and danger of his life, I cannot have his body
at the day and place in the said writ contained, as therein I am com-
manded.
J. S., Sheriff.
Jail destroyed by fire. 339.
District : to-wit :
I, the within named Sheriff of the said district, do hereby return,
that before the coming of this writ to me directed, to-wit, on ,
the jail of the said district, at , in which C D., named in the
said writ was then detained, was destroyed by fire, which I could not
prevent, and the said C. D. escaped and is still at large, against my
will and consent: Wherefore, the body of the said C. D. I cannot have
as I am within commanded.
J. S., Sheriff.
Of the writ of Habeas Corpus, with signature and endorsements, an exact copy should
be taken. The writ directed to the Sheriff may be served by the Coroner, or any dis-
creet person, who can make the affidavit of service, to found an attachment upon hi
case a satisfactory return of the writ be not made. The writ, directed to any other per-
son, should be lodged with the Sheriff and served by him : (Sheriff's Act 1839, 11 Stat.
27 §6, Writ Book. ) The service in every case should be by delivery ; and it seems bet-
ter that the original should be delivered, to be returned with the cause ; and that the
affidavit, shewing service, should be on the copy, and should declare, that the original
signed by the Judge or Magistrates who granted it, had beendelivered on a day certain.
Returns by Sheriff to rule to shew cause why money has not been made 340.
and paid over.
See 1846, 11 Stat. 349 : 1839, 11 Stat. 30 $19, 20, 21.
The Court will not proceed against a Sheriff in a summary way, where the right is not
clear. 2 Rich. 527, 530.
An issue may be ordered to decide the rights of conflicting claimants, (2 McMul. 150)
— otherwise, an order against a Sheriff is no protecticn to him against a suitor not be-
fore the Court. See No. 45.
332 SHERIFF. JURORS.
By sale of the whole of the defendant's property before the day at which lie is order-
ed to be attached, a Sheriff may so purge the contempt, as to be entitled to a discharge
of the order : even if the execution under which he was ruled be not satisfied. Conner
v. Archer. 1 Speer 89 : *ee 1 Bail. 646 : 1 McMul. 316.
A .Sheriff under attachment for contempt, after purging the contempt, is entitled to the
benefit of the insolvent debtors acts. 1 Bail. 605.
342.
South-Carolixa
Distr
:ict. S
The answer and return of J. S., Sheriff of district, to a rule
which has been served upon him at the instance of requiring to
shew cause (copy from rule.) I, J. S., answer on oath as follows : — *
Money made — proceedings to set aside judgment, a
I have made this money as required by the said writ of Fi. Fa., and
have the same ready to be paid to the said A. B., if the Court shall so
order. I received notice (a copy of which is hereunto annexed,) fr»m
Esquire, attorney for E. F., that E. F. alleged on oath, that the
judgment, upon which the said writ is founded, was confessed in fraud
of him, the said.E. F., arid other creditors of the said C. D. : and that
the said E. F. had filed a suggestion in this Honorable Court, for the
purpose of establishing the fraud,|and setting aside the said judgment,
upon which issue has been joined, and a speedy trial is expected.
341. To rule hy assignee of Fi. Fa. Money applied to Fi. Fa. against as-
signor, bej ore assignment. b
As in Xo. 340 to — *) I made the money as required by the said writ of Fi.
Fa., and on before the day when, as I am informed and believe,
the assignment of the said Fi. Fa. was made to the said G. H., I applied
the said money towards satisfaction of a Fi. Fa., in the case of K. L.
'v. C. D., which was lodged in my office on
Short time, and notice to set aside Fi. Fa. c
(As in No. 340 to'— *) I was ready and willing to proceed to- the execu-
tion of the said writ of Fi. Fa., but after its delivery to me, there be.:
barely time for levy and sale, I received on , from the said C.
notice, that he had by his own affidavit, and affidavits of other persons,
shewn sufficient cause for setting aside the said writ of Fi. Fa., and
would at this term, make a motion for that purpose : Wherefore, 1 de-
layed until the decision of this Honorable Court might be had.
Jurors.
>43. Summonsfor a Juror. d
To be served personally, or left at the most notorious place of residence.
The State of South-Carolina : District.
A. B. Sir, — You are hereby summoned, to be and appear person-
ally before the Court of Common Pleas and General Sessions, for the
a 1 McMul. 179.
b 1 Strob. 418 : 2 Rich. 4, 303: 1 Bail. 40 ; 1 McMul. 310. Unnegotiable Note, passed
by verbal transfer. Dud. 111.
r Dud. 292.
d 1039, 11 Stat. 34.
SHERIFF. DOMESTIC ATTACHMENTS. 233
district aforesaid, to be holden on at next, at 10 o'clock in the
forenoon, to serve as a [Grand, or, Petit] Juror.
Herein fail not, on pain of forfeiting " twenty dollars, and seven per
cent, on your general tax for the year last past.
day of 18 . J. S., Sheriff District.
Return of writ of venire facias. b 3bi.
The State of South-Carolina, )
District. )
I, J. S., Sheriff of the district aforesaid, do hereby certify and return,
that the execution of the [within or, annexed] writ, appears by the
schedule [thereto annexed, or, above written :] and we, the said J. S.,
and O. P. and S. K., deputies of the said J. S., severally swear, that
the statement contained in the first and second classes of the said sche-
dule, of different services, by us respectively made, are true : and that,
after diligent search, we have not found the persons named in the third
class, nor ascertained that they, or any of them had any dwelling house
or usual place of residence, in this district. J. S.
Sworn to day of ) O. P.
Before J S. K.
SCHEDULE.
First Class. — Such of the persons named in the panel to the writ *
annexed, as were served personally : every of whom was served by the
Sheriff or Deputy, whose name is placed opposite to his name, and at
the time there mentioned.
Jurors Names.
By whom served. When served.
A. W.
R. G.
S. D.
J. S.
0. P.
S. K.
1 June 1848.
4 June 1843.
3 July 1848.
Second Class. — Such of the persons named in the panel to the writ
annexed, as were served by summonses left at their houses respective-
ly: every of whom, was served by the Sheriff or Deputy, whose name
is placed opposite to his name, leaving a proper summons at his house,
or usual place of residence, on the day there mentioned.
Jurors Names.
By whom served.
When served.
0. T.
T. E.
0. P.
S. K.
1 July 1848.
2 June 1843.
Third Class. — Such of the persons named in the panel to the writ
annexed, as could not after diligent search be found.
M. R.
P. G.
Domestic Attachments,
Domestic Attachments are regulated by the 18th sect, of the Magistrate's Act of 1839, 345.
11 Stat. 18. Great care should be taken, that a proper bond be executed ; that the oath
be positive, not alternative. ("Hagood v. Hunter, 1 Ma<B. 511 :) and that the attachment
be well drawn, properly directed, and properly returnable. JVnere the demand does
not exceed twenty dollars, the whole proceedings are in the Magistrate's Court, whether
a 1799,7 Stat. 291.
b 1839, 11 Stat. 34.
EC
234 SHERIFF. DOMESTIC ATTACHMENTS.
the attachment be foreign or domestic. Where the demand is above twenty dollars, a
domestic attachment may be issued by a Magistrate, and must be returnable to the next
Court of Common Pleas for the district where it is issued, "to be holden at on
Monday next" — directed to " either Sheriff or Constable of the district," if the de-
mand be between twenty and eighty-five dollars seventy-two ceuts; — " to the Sheriff of
the said district," if the demand be above eighty-five dollars seventy-two cents.
In case of a domestic attachment, the oath must be in one of these three forms ; 1st.
That the debtor is removing out of the district privately. 2d. That the debtor absconds
and conceals himself, so that the ordinary process of law cannot be served upon him.
3d. That the plaintiff lias just grounds to suspect, and does verily believe, that such deb-
tor intends to remove his effects. [ Query : lVkat removal .']
As to questioning proceedings upon motion, see Harper v. Scuddy, 1 McMul. 264,
and cases cited.
Under a domestic attachment goods and chattels only can be levied on : not lands : see
2 McC. 208, and the above Act. Queiy : as to books of account. See Chors v. Hill, 3
MeC. 333.
Under any domestic attachment, garnishees may be summoned : the distinction re-
cognized in Chambers & Sadler v. McKee, 1 Hill 229, having been overruled by the
Act. See 117—127 : 290—311, and notes to them.
If a domestic attachment, properly issued, be lodged with a Sheriff, he should pro-
ceed to execute it according to law, and hi returning service, shoidd follow as nearly
as possible the words of the Act before cited.
346. Return of goods seized, which were found when no jierson xoas in pos-
session.
By virtue of this writ [in my own person, or by my regular, orspe-
• cial Deputy,] at o'clock, a. m., on day , I levied upon and
seized of the goods and chattels of the within named C. D., a negro
man, Tom, a bay horse, and a wagon, which articles were found at
the plantation of the said C." D., in my district, when no person be-
sides the said C. D. had possession thereof, or laid claim thereto : and
the said articles — * I now hold.
347. Other returns.
(As in No. 346 to— *) I held until [special bail: see Nos. 296, 297. Bond
to Sheriff: see No. 298. Sale under order : see No. 299. Rescue: see
No. 229. Destruction: see Nos. 266—268.]
348, Returns of goods attached in the hands of a garnishee : and service of
the garnishee.
By virtue &c, at hour on day, I [levied upon one gold
watch of the proper goods and chattels of the within named C. D., in
the hands of E. F., ° and at the same time] summoned the said E. F.
[by delivering to him a copy of this writ with a proper notice endors-
ed thereon,] to appear at the next Court, at the time and place within
mentioned, to answer on oath, what he, the said E. F., may be indeb-
ted to the within named C. D., or what effects, belonging to the said
C. D., he, the said E. F., may have at the time of making his return,
or had at the time of serving this attachment.
If there be no levy, but service of a garnishee, what is between bracket* Trill be_
omitted.
349. Nulla bona and N. E. I., may be returned as in No. 290.
a Not to be seized, unless possession be surrendered by E. F. See Moore & Davis v.
Byne, 1 Rich. 94.
SHERIFF. — SPECIAL EXECUTIONS. INJUNCTION BOND. 235^
350.
Special Executions.
Return of Fi. Fa. upon forfeited, recognizance : Fi. Fa. for fine, or
Fi. Fa on bastard)/ bond. a
The per cent, upon the tax of a juror must be ascertained by the Sheriff. Cheves 71 ;
see militia executions, No. 351.
Levy, sale, application of money, and excuses for not executing, as upon other wits of
Fi. Fa.
To authorize a Ca. Sa., the Sheriff or his Deputy, must return on oath.
1st. Nulla bona, or,
2d. The within named C. D. hath not within my district sufficient
property, whereon to levy as within commanded. or,
3d. The within named C. D. refused upon demand to pay the sum
of money within mentioned.
In levying and selling, the Sheriff must, to authorize the sale of a negro, specify, that
by consent of the defendant he sold the negro ; or thus :
Every other part of the personal estate of the said C. D. having been
sold, and a sufficient sum not made, I sold the slave Tom, levied upon
as before mentioned to R. W., for the sum of dollars.
Militia executions. b
The Sheriff must ascertain the tax of the defendant from the tax list in the office of
the Clerk, and insert the aggregate amotmt of the hue. Levy and proceed a3 upon
another Fi. Fa.: but if an arrest must be made, return :
C. D., the defendant, having neglected, [or, refused,] to pay the fine
within mentioned, and the costs accruing : or, the defendant having
failed to point out sufficient personal property to satisfy the fine with-
in mentioned and costs : I, on by , Deputy, seized the said C.
D., and committed him to jail: [afterwards he paid the said fine and
costs : or, afterwards, on , he was released, upon his swearing
before Esquire, Magistrate, that he was unable to pay the sum
for which he stands committed.
Tax executions. c 352
Proceeding as upon other Fi. Fa.; the lands or goods taxed, being specifically liable
for one year, in whose hands soever they may be, and the tax execution having also a
general lien, as any other Fi. Fa. against the defendant.
These executions must be collected, or returned nulla bona within 6ix months, under
heavy penalties.
351.
Injunction.
Bond: For the return of property, upon notice of intention to apply «^o
for an injunction, d
By C D., the defendant, in execution, and two good sureties. Payable to the She-
riff, his successor and assigns. Penalty double the value of the personal property levied
on.
a 5 Stat. 13. Nos. 155, 159.
b 11 Stat. 196; Cheves71; Riley's L. C. 193.
c 1843, 11 Stat. 247 ; 1839, 1 1 Stat. 37 $67. See 3 Rich. 27, 373, 3 16 : all before the
Act of 1843.
d 1791, 7 Stat. 279.
236 SHERIFF. NE EXEAT. BENCH WARRANT. — SUB. AD RESPOND. IN EQUINY.
Recital. — Whereas, at the Term of the Court of Common Pleas
for district, (which Term was adjourned within forty days last
past,) A. B. recovered a judgment against the above bound C. D., for
the sum of dollars, (besides interest and costs,) and under a Fi.
Fa. issued thereon, J. S., Sheriff as aforesaid, has levied on, of the per-
sonal property of the said C. D., the following goods, to-wit : (enume-
rate : ) which goods still remain unsold : And whereas, the said C. D.,
has given notice, to the Sheriff* aforesaid, that he means to file his bill
in the Court of Equity, praying for a writ of injunction, to which no-
tice is annexed an affidavit of such intent : and in conformity with the
Act of the General Assembly in such case provided, desires, and is now
to be permttted to receive back the goods levied on as aforesaid.
Condition. — Now the condition of this obligation is such, that if the
said C. D., shall return in good order to the Sheriff" aforesaid, the
whole of the goods aforementioned, in case he, the said C. D., shall not
procure from the Court of Equity, and within thirty days from the date
hereof cause to be served on the Sheriff aforesaid, a writ of injunction
commanding him to stay proceedings in the suit wherein judgment was
recovered and Fi. Fa. issued as aforementioned; then this obligation
shall be void, else to remain in full force and virtue.
Sealed, &c. C. D. [l.s.]
and [l.s.]
two sureties, [l.s. J
The Sheriff must enter the notice and affidavit in his books. If the bond be forfeited,
the Sheriff may again seize and sell: upon defendant's failure to surrender, the bond is
assignable to the plaintiff in the Fi. Fa., and no imparlance is allowed in the suit thereon.
Concerning Fi. Fa. under injunction, and its lien. See 1 Hill 69: 1 Rich. 145 ; Harp.
457.
354. An ordinary injunction bond is taken by the Commissioner in Equity, 1840, 11 Stat.
Ill ; and is payable to the plaintiff at law; 1784, 7 Stat. 209 i the Act of 1734, 7 Stat. 188,
which required security to the Register or Master, having been limited to five years du-
ration.
355.
A ne exeat bond, too, is to be taken by the Commissioner. 11 Stat. 111. The She-
riff's proceedings under a writ ofne exeat should be in general similar to those under an
order for a trover bond, except that the person taken, instead of giving bond to the She-
riff, is to be brought before the Commissioner to give bond, as one arrested under a
Bench warrant, for a bailable offence, is carried before a Magistrate to give bail.
The returns upon ne exeat writ, bench warrant, or any other process requiring arrest,
either for the purpose of detention, or of coercing something to be done, (11 Stat. 38
$13,) may according to circumstances, be framed from the forms given under Ca. Sa.,
(Nos. 284 — 290) or those under the 2d section of the Attachment Act of 1344. (Nos.
303— 306.) a
356. Subpoena ad respondendum in Equity.
Must be served at least ten days before the appearance day therein expressed. 180S,
7 Stat. 306 §12.
Personal service upon an ordinary defendant may be returned as the like service of a
writ of capias ad respondendum.
Service by copy left is, under the 2d Rule of Court of Equity, authorized " where the
defendant cannot be found, but is within the State," and has within the Sheriff's dis-
trict Iris " dwelling house, or most usual and notorious place of residence, or habitation;"
which, iu the case of the St. Pack. Co. v. Roger, Cheves Eq. It. 48, was held to apply to a
defendant domiciled in the State, but temporarily absent therefrom, who obtained notice
of the writ. In returning service by copy left, it is advisable for the Sheriff to say, —
SHERIFF. ATTACH. FOR CONTEMPT. NOTICES, &C. FOR THE CRIER. 237
Not being able to find the defendant, on &c, I left a copy at his
dwelling house, [or, most usual and notorious place of residence.]
As to service on infants, married women and lunatics, let the Complainants' Solicitor
be consulted.
Attachment for contempt. 357^
Should be executed and returned as a Ca. Sa.; except that enlargement upon a prison
bounds bond should not be permitted until the contempt as been purged, and the or-
der of the Court, from which the attachment issued, been obtained.
Rules, notices, interrogatories, (I Strob. 199. 433; 3 Hill 10 ; 2 Rich. 119,) citations, 358.
and other mesne process-, for either of the Courts of Ordinary, Law or Equity, not men-
tioned in any previous No., which by the 6th section of the Act of 1839, 11 Stat. 27, the
Sheriff is required to enter in his writ book, should be served and returned : personal
service in every instance being srood, and any other mode of service being doubtful.
See No. 236.
For the Crier.
Form of opening Court. 359.
Oyez ! Oyez ! All manner of persons having business in this Court
of Common Pleas and General Sessions for district, are required
to give attendance, for now this Honorable Court is here holden.
Form of adjourning Court. 3§Q.
Oyez ! Oyez ! All manner of persons having business in this Hon-
orable Court may withdraw their attendance until ten o'clock to-mor-
row morning, to which hour the Court stands adjourned.
FINIS.
s
USC -COLEMAN KARESH
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