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Effect on writs,

Court to st as

1785, VII, 218,

§ 15.

SEC. 12. No process depending in any Court shall be discon&c., of failure of tinued for or by reason of the failure to hold the Court upon the day required by law. appointed by law, but in such case, all suits, process, matters and things depending, shall be made to the next succeeding Court in course, in the same manner as if such succeeding Court had been the same Court to which such process stood continued, or such returns or appearances should have been made; and all recognizances, bonds and obligations for appearances, and all returns, shall be of the same force and validity for the appearance of any person or persons at such succeeding Court, and all summonses for witnesses, as effectual, as if the succeeding Court had been expressly mentioned therein; and all causes depending on the docket, and undetermined at any adjournment to the Court in course, shall stand continued in the same order, to such Court, as fully as if such causes were called over and continued by order of Court.

Confirmat on

&c., by military

rights under

SEC. 13. All rights of property vested, acquired, or in action, by of judgments, virtue of the judgments, orders or decrees of military tribunals, or courts, and by virtue of general or special orders issued by the military com military orders, manders on duty in the State, since the first day of March, 1865, 1868, XIV, 87, and up to the time of the expiration of the late Provisional Government of South Carolina, are affirmed and declared valid, and the same shall be unquestioned in the Courts of the State.




CHAPTER CIX. Of Actions by and Against Executors and Admin

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Papers to be furutors, &c.; to be

n'shed to Exec


1789, V, 109. 18; 1839, XI, 62,

SECTION 1. That it shall be the duty of the Judge of Probate, on application by the executor or administrator of any deceased person, to whom letters testamentary or of administration have been respectively granted, to furnish a true copy of such order as he may 17. make, concerning the probate of the will, or granting of adminis tration, certified under his hand, which shall be sufficient evidence of the appointment of such executor or administrator in any Court in this State.

To Sue in Certain Cases.

SEC. 2. Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect

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For whose ben

thereof, then, and in every such case, the person or corporation who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such cir cumstances as make the killing in law a felony.

SEC. 3. Every such action shall be for the benefit of the wife, efit to be brought husband, parent and children of the person whose death shall have cutor, &c.; dam- been so caused, and shall be brought by, or in the name of, the

in name of Exe


Ib., 826,2 2. executor or administrator of such person, and, in every such action,

15 Rich., 201.

costs. ib.


When act on

bar ed.

Ib., 23.

Actions against trespassers.

4 E1. 3, 7;

1712, II, 425;

Hav, 56; 2 Bay,

166; 8 Rich, 43;

10 Rich., 91.

Action for debts.

? 8.

the jury may give such damages as they may think proportioned to the injury resulting from such death, to the parties respectively for whom and for whose benefit such action shall be brought, and the amount so recovered shall be divided among the before-mentioned parties in such shares as they would have been entitled to if the deceased had died intestate, and the amount recovered had been personal assets of his or her estate.

SEC. 4. All such actions must be brought within two years from the death of such person, and the executor or administrator, plaintiff in the action, shall be liable to costs, in case there be a verdict for the defendant, or non-suit, or discontinuance, out of the goods, chattels and lands of the testator or intestate, if any, and if none, then out of the proper goods and chattels of such executor or administrator.

SEC. 5. The provisions of Sections 2, 3 and 4 of this Chapter shall not apply to any case where the person injured has, for such injury, brought action, which has proceeded to trial and final judg ment before his or her death.

SEC. 6. Executors in cases of trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, shall have an action against the trespassers, and recover their damages in like manner as they whose executors they are should have had if they were in life.

SEC. 7. Every creditor who may be appointed administrator shall 1745, 111, 667. be obliged to sue for such debts as he may reasonably expect to recover, or at the request and proper charges of any of the creditors of the intestate, assign and impower them, or any of them, to sue for the debts outstanding to the estate of such intestate.

Executions on judgments oltained, by de

SEC. 8. Where any judgment after a verdict shall be had, by or ceised Execu- in the name of any executor or administrator, an administrator de bonis non may take out execution upon such judgment.

tors, &c.

17 C. 2, c. 8; 1712, II, 521. 1 Bay, 441.

Actions Against.

one or more are

1793, VII, 282,

SEC. 9. In cases where there are two or more executors or admin- Actions against istrators to any estate, and any one or more of them has withdrawn, Executors, when or shall withdraw, or reside out of the State, it shall and may be out of the State. lawful for any creditor or person having right or cause of action ¿ 4. against such estate, to commence his action against all the executors or administrators, naming and setting forth therein the executor or administrator, one or more, who is or are out of the State; and the summons being served in the usual form upon those who are within the State, the suit shall be deemed to be good and effectual in law, to all intents and purposes; saving only, that the judgment in such cases shall not extend to work any devastavit upon the person or persons so absent, or to effect him, her or them in their private right.


be com

SEC. 10. No action shall be commenced against any executor or administrator for the recovery of the debts due by the testator or When actions intestate, until nine months after such testator or intestate's death. me ced. 251; 2 N. & M.C., 259; 2 McC., 331; 3 McC., 455; Harper, 135; 1 McM., 333; 3 Rich., 182; 2 Strobl 190.

1789, V, 112, 27.2 Brev., Actions upon and

agreements by

II, 526, 4; 3

SEC. 11. No action shall be brought whereby to charge any pr miss executor or administrator upon any special promise, to answer any paro. damages out of his own estate, unless the agreement upon which 181712, such action shall be brought, or some memorandum or note thereof, srob., 486; 3 shall be in writing, and signed by the party to be charged therewith, Rich, 60. or some other person thereunto by him lawfully authorized.


129; 7

Rich., 67; 10

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Attendance and Liability of Witnesses.
1. Allowance of charge for witnesses,

2. Clerks of Courts to subpoena wit-
nesses; what to be expressed in

3. How subpoenaed when living in another County.

4. Pay of witnesses in civil and State cases; to be paid by party summoning.

5. Person summoned, and failing to
attend, to be fined for contempt, |
and liable for damages sustained
for want of testimony.

6 Penalty for not answering.
7. Penalty for not obeying subpoena,
or refusing to answer in criminal


8. Prisoners-how to be brought into Court as witnesses.


Commissions to Tuke Testimony.

9. Judges and Clerks may grant com-
missions to examine witnesses in
certain cases; ten days' notice of
application to be served on oppo-
site party; other provisoes.
10. Testimony of officers of State Lu-
natic Asylum may be taken by
commission in civil causes.
11. Where commiss on issues, sub-
pena for witnesses to be issued.
12. Such subpœna to be served two
days before attendance of wit-
nesses is required; fees of wit-


13. How witnesses to be punished for
contempt in not attending be.ore

14. Witnesses to attend and give evi-
dence on commission from other


15. To have same fees and be liable to
same penalties as witnesses in
cases pending in this State.

16. Persons unable to leave home, by
reason of age, &c, to be attended
by Commissioners; liable for
damages for injury received for
want of their testimony.

Competency of Certain Testimony.

17. Plaintiffs, defendants and persons
interested in suit empowered to
give testimony; their testimony
may be impeached.

18. In absence of witnesses to bond or
note, signature may be proved
by other testimony, unless de-
fendant swears that signature is
not his.

19. If defendant is executor, &c., cause
not to be postponed unless he
swears that he believes signature
is not testator's.

20. Notary's protest sufficient evi-
dence if Notary be dead, or lives
in another County.

21. Affidavit may be filed as evidence
in actions against common car-

Proof of Statutes and Public Records,
Books of Accounts, &c.

22. Attested copies of Acts, records,
&c., good evidence.


23. Transcripts from minute books of former County Couris.

24. Copies of certain instruments kept in a public office; thirty days' notice required, &c.

25. Certificates of State Superintendent of Education.

26. Certified copies of entries in Sheriff's books; ten days' notice required, &c.

27. No devise of real estate evidence until after probate.

28. Copies of grants and plats issued by this State and North Carolina.

29. Copies of deeds.

30. Foreign instruments.

31. Restriction upon use of copies of foreign instruments.

32. Farmers' and planters' books receivable in evidence

33. Account books not admissible to prove debt for liquors sold in less quantity than a quart.

Certain Testimony in Criminal Cas s.

34. Defendants may testify in criminal cases if they desire.

35. No person required to criminate himself; rights of husband and wife.

36. Testimony given under Sections 17. 34 and 35, not to be used, &c.

Attendance and Liability of Witnesses.

SECTION 1. That in any bill of costs there shall not be allowed Charge for the charge of more than three witnesses to the proof of any one 1755, VII, 219, particular matter of fact.



Clerk of Court

nesses; what to


SEC. 2. The Clerk of every Circuit Court shall, upon the request of to subpoena wit- either party, issue one or more subpoena or subpoenas for any perbe expressed in son or persons to attend as witnesses in any cause or matter depending in the same, expressing, in every subpoena, the time and place when the witnesses are to appear, the names of the parties to the suit or cause wherein they are to give evidence, and at whose request they are summoned.


How subpo

ing in another county.

SEC. 3. If any witness shall be an inhabitant of another County, need when liv- the Clerk shall issue a subpoena directed to the Sheriff of such County where such witness usually resides, which shall be by such officer executed, and returned to the office whence the same issued.


Pay of witnesses in evil


170, § 18;179. V,

SEC. 4. Every person summoned to appear as a witness, at any rises; to be pud Court, shall be paid, by the person or persons at whose suit the by party sum- summons issued, one dollar for every day's attendance on such sunIb; 1721, VII, mons, and, also, the sum of five cents per mile for coming to Court, 155; 1870, XIV, and the same for returning, besides ferriages, to be paid by the party 187; 2 Bal., 272, summoning such witness, which said allowances shall be ordered by the Court, upon motion, and a copy thereof issued and tested by the Clerk, at any time, upon request.

399. 25: 1 Bl

131; Harper, 454; Cheves,

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Hill, 394;
Speirs. 74:
Rich, 151.


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