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South Carolina.

Portion of the code of statute law of South Carolina. Submitted to the General assembly, as required by A. A., 1859, XII, 762, Section 4 (Volume pt.2-3, bks.2-5) online

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Online LibrarySouth CarolinaPortion of the code of statute law of South Carolina. Submitted to the General assembly, as required by A. A., 1859, XII, 762, Section 4 (Volume pt.2-3, bks.2-5) → online text (page 1 of 54)
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REPORT



OF THE



COMMISSIONER OF THE CODE



BOOK II



PORTION OF THE CODE



OF



STATUTE LAW



OF



SOUTH CAROLINA.



SUBMITTED TO THE GENERAL ASSEMBLY, AS REQUIRED
BY A. A., 1859, XII, 762, §4.

BY

J. L. PETIGRU,

COMMISSION KR OF THK rODF



No. 2.



CHARLESTON:

8TF,AM-POWER PRKSBKS OF KVAN8 k COGSWKLL,
3 Broad and 103 KaMi Bay 8treet<.

i86r



To THE Legislature:

The luidorsigncd hus the honor of submitting to your en-
lightened judgment, a report of his progress in the com])il:i-
tion of a Code of the Statute Law. lie regrets that tlie work-
was not sufficiently forward to enable him to lay his rejiort
before jow at tlie opening of the session. He hopes that
allowance will be made for circumstances which have deprived
the printers of their workmen, and himself of his assistants
A considerable portion of the third book has been retained in
manhscript, owing to scarcity of hands in the publisliei-'s
office ; and the absence in the camp of all those on wliose co-
oi)Ci'alion he depended, has retarded his own labors. The two
fu-st books now completed, comprise the legislation on th'>
])(»iitical and civil organization of the State and the rights of
proi)erty. Nearly one hundred pages of the preceding report
have been reprinted, and incorporated in the present collec-
tion, to remedy defects of arrangement and compilcteness in-
cident to a new undertaking. It is hoped that few errors of
omi.ssion have been allowed to remain, and such as may b«
detected on a careful examination will be open to correction on
the completion of the work — which, it is hoped, will not l>e
protracted beyond the coui-se of another year.

The survey of the boundaiy line between this State and
North Carolina, whieh was confirmed in ]sir>, is necessary to
the completeness of our records. Copies proi>crly certified
iiave been obtained and deposited in the office of the SccVetary
of State ; and trusting to the implied sanction of the Legisla-
ture, it is hoped that the moderate exp«'nse incurred will bo
provided for.

It will be seen upon e.xaminatiou of the work, that few liber
tics have been taken with the sense of what has been enacted,



exropt when called for by reasons of consistency ; and that
brevity and clearness of cxjiression have been sedulounl}- stud-
ied. The design has been to reduce the Statute Law to a brief
and readable compendium ; and if the object has not been
attended with success, it is onh' because the desire of the Edi-
tor exceeded his ability.

All which is most respectfully submitted by,

Your obedient servant,

J. L. PETIGRU.

December 10, 1801.



INDEX.

Appeals :

Court of 458

Librarian of 465

Clerk and messengers of lb.

Assignee of Chose in Action : 374

Assignment for Payment of Debts :

Creditors entitled to appoint agents to act with the assignees. . . 506
The assignees to call a meeting of creditors for the purpose ... lb.

Duties of assignees and agents 607

Commissions 608

Attachment, Foreign :

Definition 375

Of the writ 376

Of the garnishee lb.

Of the assignee 377, 379

Of the declaration 378

Of the issue between plaintiff and garnishee lb.

Attachment, how dissolved and how prevented 379

Judgment lb.

Magistrates in Hamburg, their authority in proceedings lb.

Domestic attachment 380

When it issues lb.

Sheriff's duty 381

Proceedings in , 382

Attachments for sums within justice's jurisdiction lb.

Attorneys and Solicitors :

Qualification and admission 427

Graduate of a college, citizen of another State may be ad-
mitted on three years study and practice Ih.

If not a citizen or practising attorney, four years study neces-
sary lb.

Attorneys of Georgia or North Carolina admitted without

preliminary examination on the certificate of a judge. . .428

All attorneys and solicitors shall be sworn and enrolled, and

for malpractice may be struck off the roll Tb.



Banks



Not bound to pay part of a bill 804

No bills under one dollar to be i.ssued by any individual or

company except the Bank of the State lb.



viii INDEX.

Clerk ok thk CorRT of Common Pleas and General Sessions:

Qualifi«ation 409

Bond lb.

Deputy 410

Duties, clerical 410 — 417

Duties, f>ni< ial 417 — 425

Penahieii for otTicial misconduct 426

Columbia : 356—361

Common Pleas and General Sessions, Courts of:

Juriwlirtion 368

Shall not hi^ar cases where the matter in dispute does not ex-
ceed twenty dollars 392

Circuits, districts Appendix.

Privilcpes of jniitors 370

Appeals from 869

Seals of office lb.

How held when two jndpes attend 370

How htl<l when court-house is burnt lb.

Special courts lb.

Power to change names 371

Practice 372

Process — How issued, how returnable lb.

To try title or q. c. f. served in any district, and

tried where cause of action arose 373

Apainst railroail, may be served on the president
in any district, and tried where cause of action

arose lb.

Writs of attachment, summons in dower, and par-
tition, to issue of course lb.

Final j)r{XH'SS returnable to the court from which it

issues, may be servetl anywhere 373

Service on executors gooil if served on those in the

State lb.

In all cases of joint contra<'t,s, service on those within

the State poo<i 374

Form of process lb.

No witness rc(iuired to .service of scire facias lb.

Process served after return-day pood for next term. .375
liail — None but transient persons to be held to bail for less
than thirty dollars sixty-one cents, nor without affi-
davit of debt 383

When not demandable of course, may be granted by

a judge, the clerk, or a conimi.ssioner of sj)e(i;il bail. . Fb.
May be had on same terms at any stage of the pro-
ceedings 384

Bail to sherifl' entitled to the rights and subject to the

liabilities of special bail lb-

Commissioners of special bail lb-



INDEX.



IX



In what cases bail for dobt not due allowed 385

Exemption from, of persons on militia dutv 336

Persons called into service exempt from all process lb.

Proceedings before trial— Appearance due at the term to

which writ is retuniable 337

Declaration to be filed by the next term J}j_

One month allowed «lcfen(Iant to plead lb.

In actions for land, survey may be ordered Jb.

Examiners may be ap))ointed to view the premises in dispute. . lb.
Commissioners to examine witnesses may be granted upon ten

days notice and affidavit 3^8

Trial— In actions on liciuidated demands, after an interlocu-
tory judgment, no proof necessary, but the case

shall be referred to the clerk 39O

On bonds conditioned for performance of covenants,

plaintiti" shall submit the condition to the jury lb.

Handwriting may be. proved without the attesting wit-
ness Tl^

Under the general issue, evidence may be given to

show that the bond was void ab iniiii lb.

All disputes, except where the title of land is iu ques-
tion, where the amount does not exceed one hun-
dred dollar.s, shall l)e heard on petition, and jilaced
on the summary process docket, and tried without a

jury, unless desired by either party 392

On tlie call of the sunnnary j)rocess docket, no proof
of handwriting required, unless defendant denies

the signature on oath Jb.

No costs, where the verdict is under tliirteen dollars,
except where the right of projierty is in dispute, in

which case four dollars shall carry co.«ts lb.

Xo abatement after interlocutory judgment 393

Nor after death of joint plaintiif if action survives. . . lb.
A bill of exceptions may be tendered before verdict,

and if correct, shall be signed by the jud-je 302

Judgments— Powers of attorney to confess before action

brought, void 303

All judgments bear interest lb.

No lien beyond the district in which it is entered

up, except where execution is lodged lb.

Judgments before clerk 394

Lien of decrees on sum. pro lb.

Satisfaction 421

Executions— May issue within three years after signing judg-

rai'»t 396

Articles exempt from lb.

.SJiall Ihj rcturnAblc iwcording to law lb.

Shall run four years lb.

R



%• INDEX.

Duty of <oroner or shoriiT as to returns of 397

May be exefut«<l l)_v a pi'i-son appointed by the

tourt 39K

Judicial Sale* — TLo associate judge? of the court of coranion
picas to direct tin- places where slierifT

shall sell |)roperfy taken in execution 40.*»

All sales to 1h' on the first Monday and Tues-
day of omh mouth, between 11, A. M., and
S, p. M., in Charleston ; in other plat-es be-
tween II. A. M., and j. p. M lb.

Mort;iai:til property to be sold at the same
limes and places lb.

COTRT OK SKSSION8:

At the first term the pris<mer m.Tv demand trial. If not
indicted at the s('<-ond term, he shall be bailed : and if
not tried at the next term. <lischar<xed 4U6

Challenpes allowed lb.

Copy of indictment an<l benefit of counsel to prisoner lb.

Al!«o ]»rwe«« for witness<'s 407

Not recpiired to app<*ar in person bofi^re thi' court of appeals. . lb.

Not to Ix" detained for fees lb.

No habea.'< «'orpU8 necessary to bring jjrisoner into court as a

wilnefls lb.

Duty of the elerk as to execution*, ete lb.

Of c(uit«'inpt8 in presence of the court lb.

Of rea<ling over the daily entries lb.

C0MMI8810NKK IN Equity:

In districts where there is no master, his duties, rights timl lia-
bilities devolve on tlie commissioner in ecjuity 444

How elected lb.

Commissioner in ecjuity shall give bond in twenty thousand

dollars '. lb.

Pra<tic» — Gcner.d rules 44.*)

PrfK-ess 446

Plea, answer or «Ien>urn r 44 7

' c
Sul»se<iiicnt pHK-eedings lb.

Testimony 44H

InjtnK-tions 449

Decree* 4;il

Api)eaU lb.

Final process . ' lb.

Costs 4 ■")2

CoMMIS8IO.NK.RS:

To ajiprove securities ... 28G

To take proof of deeds lb.

llow appointi'd and commimioood lb.

Their powers lb.



INDEX. XI

Common Law:

Estates of inheritance not afiected by Stat, of Westminster the

Second 479

Tenures lb.

Warranty of tenant for life without assets, void. Jit K-:t.JlC>?iilW
Collateral done away .-.Cvi'} lb.

Contracts:

Parol lea.«es shall have the force of estates at will only 510

No leases or estates of freehold shall be granted or assigned

by parol 511

No special promises in the specified cases binding, without

some memorandum thereof in writing lb.

Nor contract for sale of goods of the value of fifty dollars or

upwards, without delivery, earnest or writing Ih.

Nor contracts for sale or purchase of slaves lb.

No trust of real estate, except resulting trusts, created or

assigned, without writing 512

Estates pur auler vie devisable Tb.

Judgments bind from date; fi. fa. from delivery to the sheriff . lb.
Parol gifts lb.

COKPOKATIONS, MUNICIPAL:

Who are corporators, and how governed 297

The intendant and wardens, how elected lb.

The charter-day lb.

Qualifications of voters lb.

Of lutendant and Wardens, their powers 2(tH — 300

Cross Roads on Charleston Nkck, Commissioners ok:

Election, organization '.\ .'. .' 212

Clerk and treasurer, his bond, compensation. lb.

Marshal, duty of board to report 213

Assessments lb.

Powers 214

Justices of the jieace ex-ofllcio lb.

Exemption from militia duty lb.

Qualification of commissioners Appendix.

Cuts, Commissioners of:

The scope of their authority 214

How appointed 2M>

Fines for refusing to serve lb.

Their duties lb.

Jurisdiction over laljorers and inhabitants 216

Penalty on defaulters 217

May let out the work and lay a-ssessments 218

Duty of tax collector in respect of assessments lb.

Fines, how eollecteil lb.

Dams :

llegulation of them in rice fields ,....«.«•..• 261



xn INDEX.

Deak, Di'Mit AM) Hlind:

Trm<tcos of 2.T 7

Deer : Si-i- Game Lawn.

Deutob and Cueditor :

Rights of creditor against heir and <lt'vis«'p .i08

Interest at 7 per cent lb.

Beyond 7 per cent., usurious lb.

Interest allowed on tlie whole sum reeovered on judgment. . ..")09

Borrower goo<l witness to prove usury lb.

^o interest allowed on usurious demands lb.

Recovery without costs lb.

L)E LA Howe:

I Trustees of his charity 245

Dower :

Married womnn eloping, not entitled to 496

Nor to thirds in real estate of husband .'Jl 7

Not to have dower and jointure too 4 96

Nor thirds and dower 517

How dower may bo renounced 488 — 191

If evicted from jointure, right to dower revives 496

Jointure after marriage may be waived lb.

Writ of admeasurement of dower and proceedings 495

Return, division into lots, and if division into lots be impracti-
cable, a sum to be assessed to the widow in lieu of dower. lb.

Surveyor may be calletl in 496

Dower forfeited by adultery of wife lb.

The value of land at the time of alienation by the husband

and interest, the mea.sure of widow's dower 496

Drainage:

Associations for draining swamps iiuorjioralcd 258

Their privileges lb.

May take private pro})crty, paying for it 259

( Individual allowed to drain through swamp at his own expense . lb.

Eminent Domain : 484

Escheator: See Lands.

Equity, Court of:

Shall consist of three judges, styled clianci'llors ; their elec-
tion, salary and oath of oflice 429

Circuits, duties of chauecllors 430

Suitors may do their own business 4.31

Court always opeu, and any rules may be uiade iu vacation.. . lb.
The solemn hearing of causes in the several districts on the
days aj)j)(iiiite(l by the legislature at the court-houses, or
if the court-house be burnt, iu a neighboring building ... lb.

Special courts r ■ • • ^

Jurisdiction extends to all subjects 6f equitable cognizance . . .432



INDliX.



XIU



In quL'stions of la'w, e(iuity shall follow tho law lb.

May hear applications to change name lb.

Shall hear appeals from ordinary which relate to accounts lb.

Eruorm, Court ok : ^^„

ESTATKS OF InIIKKITANCK :

Not aft'ected by Stat. West. 2 479

ESTRAY.S :

May be taken up In- any freeholder 256

To be first advertised by the taker lb.

Then tolled and advertised by the justice lb.

If no owner appears, to be sold 267

Duties of justice and clerk Jb.

Evidence:

Commissions to take evidence from abroad, how executed 388

Fences :

Lawful fence defined 270

Every planter to keep his stock from breaking lawful fence. . . lb.

Cattle trespassing may be distrained 271

Penalty for injuring cattle for trespassing on a field not en-
closed by lawful fence Jb.

Fish : See Game Laws.

Fire Hunting : See Ganu* Law.s.

Fbaudulent Deeds:

Deeds to hinder or delay creditors or purchasers, void .510

Penalties on those setting them up - lb.

Conveyances with power of revocation void against creditors
and subse<|uent purcha.sers lb.

Free Schools, Commissioners of:

Organization of boards 21 X

Annual meetings on fourth Monday in January, and quarterly

meetings on fourth Monday in April. July and October . .220

Treasurer's bond and duties Jb.

Secretary, his duties . jb

Three hundre<l dollars annually ajiprojiriatcd to ca.li s<iir>ol . .221

One commissioner and three trustees to every wbool lb.

One school to every member Jb.

No school tinless inhabitants supply school-hounc lb.

Schools may l)e removed from one part of the di!>itnct to

another jjj

Branches taught 222

Oj)en to all, but preference to orphans and ehildrpti of indi-
gent ])arent« Jb.

Powers of coinmis*iinner« ||,

Teachers to undergo examination. . . ... lb.

Probationary teachers ... lb.

Regulations peculiar to St. Philip and St. Micha*! 25W



xiv rxDKX.

Commissionprs may lay an assi'Sgrnent of thirty per cent, on

till' giMHTcil tax II).

Tlieir juri.<dirtion Ih.

Normal school lb.

Mutual flutit'8 of connnissioners and the treasurer 225

Rtturtis to lie matlo lb.

IVnaltit'.-i for refusing to serve 224

For ncgk-ctinp to attend lb.

For abuse of power lb.

For not niakiup returns lb.

For not aecountinp for money lb.

See Lauds, vacant.

Game Laws :

No doe or fawn to be killed between 1st January and 3lBt
July, nor buck between Ist September and la.st Friday
in October, nor between 1st March and 3()th April 265

Penalties, how recovered lb.

Proviso in favor of persons in want of meat lb.

Saving in favor of any person hunting on his own land lb.

Fire hunting 2G7

Hunting on land of others more than seven miles from home

forbidden 268

Nonresidents forbidden fnini liunting II).

Fish not to be poi.soned 269

Nor taken out of another's trap lb.

Not lawful to fish within eighty yards of a ])ublic dam lb.

Fine of one hundred dollars for obstru<!ting fish sluice lb.

(lEOBGETOW.N : 344 — '^f)\

Gifts. Parol : 512

guakdians:

To account annually, and furnish a complete schedule and be
charged with all sums detained more than si.x months as

defaulters 440

Chancellor may order any balance in guardian's hands to be

invested forthwith lb.

Uawkkks an'u Pkdlkks:

No person shall follow the business without a license 268

License granted by the boanl of commissioners of roads lb.

To none but a citizen a resident, and if a man a voter; not
a.ssignable nor confer any privilege beyond the district or
parish lb.

Pedler must produce his license when required by a justice

of the peace ; consequences of refusal 209

Transient dealers to make returns lb.

Not to prevejit free sale of corn, peas and grain in Charles-
ton, nor merchandize in any jtublic market 210

HujfTiNO — By nonresidents: See Game Laws.



INDEX. XV

I]UhBANI> AND WxKK:

A married woman may ajjpoint an attorney tio prosecute her
claim to land or any othi-r action, and the Imsband shall
have no power to discontinue or release without her con-
sent in o])en court 278

No married woman shall be ontitletl to the rights of a sole
trader without publishing notice, which shall include the
name and jirof'cssion of her husband. If there is no
newspaper in the district, the notice must be posted at
the court-house door and in two other places of ])ubjic
resort in the district «... .279

Sole trader may sue and be sued, naming the husband for

conformity lb.

1nti:statks' Estates:

Primogeniture abolished, estates of which the deceased had

a beneficial interest, distributed as follows CAH

Between widow and children: one-third to widow, two-thirds

to children lb.

Representation unlimited in the descending line lb.

Between widow, father and brothers and brother's children :
widow one-half; father and brothers and brother's chil-
dren the other ; mother in father's place if he be dead . . . lb.

Children of brother or sister of whole blood represent the
parents, but no representation among collaterals beyond
the second degree lb.

Between half brother and nephews, distribution per capita... ..516

Between widow and ancestor, in moities 517

Between widow and more distant kindred: two-thirds to

widow, the rest to next of kin lb.

Widow's share in lieu of dower ; if shv has forfeited her
dower, shall also forfeit her distributory share of her hus-
l)and's land lb.

In reckoning the degrees of kindred computation begins
with intestate, continued through rommon ancestor to
claimant lb.

If intestate leave no widow, father or mother, their shares go

as the rest lb.

Married woman's estate distributed by same rules lb.

If she leave no husVjand, his share goes as the rest 51 M

The estate by the curte.'!)- al»olished lb.

Real and i»er?onal distributed alike lb.

So estates pur auter vie and for years lb.

Portions advanced to be brought into botch pot lb.

After-accjuired lands shall not pa,ss, unless the will be repub-
lished lb.

Estates in joint tenancy disfributabli •''•19

No escheat if husband or wife b<' left lb.

Alien widows entitled to the widow's share lb.



XVI INDBX.

The estate of a niore tnistot- desconds according to the com-
mon law Ih.

A posthumous (rhild shall take undtr a limitation to children. .520

Natural-born citizens may inherit throii<rh an alien lb.

Itinerant Sai.ksmkn, ktc:

Itinerant salesmen required tn take out lieense from one of

the treasurers 21 <i

I'enalty for infraetion of the law III.

Conditions on which sueh license pranted lb.

Account of all such licenses to be kept 217

Insolvknts and Poor Prisoxkr.-* :

Entitled to the benefit of the jirison rules ."J'.tH

Sureties for the rules ■'^I^I'

Forfeiture of tlu' privilejre lb.

Insolvent debtor may surrender his property in diseharpe of

his debts on petition and notice lb.

His oath 400

Articles allowed him lb.

As.si<rnment and its effects 401

Duty of assignee lb.

Persons excluded from tin- l)enefit of the insolvent's oath 402

Opposed by creditors, how tried 403

Penalty in ca.se of conviction lb.

Poor Prisonkrs :

May file a schedule and move for summons 40i

Pro])erty in schedule assigned and prisoner enlarged if no

opposition lb.

Of trial in case creditors oppose (lie discharge 10')

Effects of discharge lb.

Joint-Stock CoMPAMiis :

How organized, scale of voting 311

Elections -513

Joint Contracts •"^"4

Joint Tenant.s and Tknants in Common :

Compelled to make partition 4!>2

Death of joint tenant severs the joint tenancy lb.

Proceedings in partition where lands or negroes are held in

joint tenancy 11^-

Tenancy in common or coparcenary lb.

Writ of partition to five commissioners 493

A sj)ecial return in case the estate cannot be divid(^d lb.

Sale for partition to be made by sheriff or master lb.

Commis.sions in nature of writs of partition may be granted by
master, subject to the approval of the court lb.

Judiciax> Dicpartment — Judges :

The judicial power vested in such superior and inferior courts

of law and ecpiity as the legislature may direct 3(j(;



INDEX. xvii

Judges of'eacli to hold during good behavior lb.

Qualification, election 367

Not to leave the State, salary 368

Law judges' power at chambers 389

JcuiKS :

Their power and dignity 457

Qualifications Ih

Exemptions from jury duty lb.

Organization 4^8

Challenges 462

Compensation 463

Fine for neglecting to serve 464

AMiere the term exceeds a week, jurors to be drawn for every

week 464

AVho liable to serve in the city court Tl).

Lanpi.ord and Tenant:

Replevin bond shall bind the parties for payment of the debt,

as well as the return of the goods 497

PlaintiflT shall declare in one month lb.

Defendant may avow or make conusance generally lb.

Further ])roceedings 498

Parol leases Jl,.

Leases foi more than three years to be recorded lb.

Tenant holding over may be ejected by justices and free-
holders lb.

Tenants shall forfeit lease by waste 500

Lani).s :

Waste or vacant, and escheated and derelict property, shall

be appropriated to edu<ation 480

Commissioners of free schools re<juired to take care of the in-
terest of the public in such lb.

Duty of attorney-general and circuit solicitors lb.

Inquisitions of escheat and vacancy lb.

May be traversed 481

Costs of the traverse to the victorious party; appeal lU

Final judgment, sale, etc lb.

Oflice of locator and esdieator abolished Tb.

If trust fails for want of cestui que trust, land escheats 428

Real estate assets for payment of debts Tb.

Ivand covered by water lb.

(irants for land on SullivanV island, or any land appropriated

to public use, void lb.

Possession five years before 4th July. 1 77fi. n good title lb.

(irants good without great seal lb.

Obtained by deception, void Ih.

Land ok thk CATAwnAs:

Note on derivation of title . .48.1

Grants to be issued to lessees 484



XVlll INDEX.

Eminent Domain — How to proceed •when private property i«

to be taken for publie use U».

Petition to be fileil. ami notii-e to tlie opposite party 48o

Tlie eourt, or a judjre in cliambers. to hear petition; and. if

satisfied, to a]>point conimissioiu rs to value tin- property. . Jb.
Commissioners, tin- principles on which they are to proceed. . lb.

Their return if a<-quios<-ed in, to be confirmed 486

If either party desire it, a trial by jury to be pranti?d lb.

, Security to be piven by the petitioner if he appeals, in wliiih

case the appeal shall not suspend the work lb-

Locations, Commissioxku ok: See Lands.

Main Roads, Commissioxkks of on Chari.kston Nkck :

Oripin of the Hoard 211

How appointed lb.

Their power*' and duties lb.

Mandamus:

May 1h' prantcd at clianibers 3«'J

MASTKK and Al'I'KKNTICK :

How inlunt may be bound '2\)0

Indenture may be assigned lb.

Complaints to be heard by two justices of tiie peace, with

appeal to the judge 20"J

The binding of paupers and bastards belongs to commissioners



Online LibrarySouth CarolinaPortion of the code of statute law of South Carolina. Submitted to the General assembly, as required by A. A., 1859, XII, 762, Section 4 (Volume pt.2-3, bks.2-5) → online text (page 1 of 54)