Acts relating to Courts.

The Oath of the Clerk or his Deputy.

I, A B, do solemnly swear or affirm, (as the case may be,) that I will well and faithfully do and perform the several duties enjoined me by laws now passed, or which shall hereafter be passed, as clerk, or deputy clerk, of the district court of according to the best of my knowledge and ability; that I will make a true and perfect entry and record of all orders and proceedings of the said court, without fraud or deceit; and that I will not take any other or greater fees than such as are allowed by law. So help me God.

Whereupon, the said clerks and their deputies shall make a fair entry of their commissions and deputations in the record books of their respective district courts, and shall make also an entry of the day on which they shall have so respectively qualified.

VII. And be it further enacted by the authority aforesaid, That none

A. D. 1789.

Oath.

of the clerks of the said courts, or their deputies, nor either of them, shall Clerk not to sit as a justice in a county court, or act as an attorney or solicitor therein, act as justice or in any other court; and the said clerks or their deputies shall, and they or attorney. are hereby obliged to, reside at the place where the court is usually held

in their respective districts.

VIII. And be it further enacted by the authority aforesaid, That none of the fees allowed by law shall be payable by any person whatsoever, until Fees. there shall be produced to the person owing or chargeable with the same, an account in writing, if demanded, containing the particulars of such fees, signed by the sheriff, clerk or other officer to whom such fees shall be due, or by whom the same shall be chargeable respectively; in which said bill or account shall be expressed, in words at length, every fee for which any money is or shall be demanded; and the officer receiving such fee shall give a receipt for the same, if required; and a list of fees shall be hung up in some conspicuous place in the said respective offices.

IX. And be it further enacted by the authority aforesaid, That all and every person or persons shall and may, at all times of the day, from Office hours. nine o'clock in the morning till four o'clock in the afternoon, (Sundays excepted,) have free access to any of the clerk's offices in the respective districts; and that every person shall pay to the clerks for each search for every docketed judgment, six pence.

X. And be it further enacted by the authority aforesaid, That this Act shall not extend to any suits or actions which have been commenced, or This Act not which shall have day in any of the said courts, before the sitting of the to extend to suits already several courts next ensuing in their respective districts, but that all such commenced. actions and suits shall and may be proceeded in and determined in the same manner as if this Act had never been made.

XI. And whereas, great damages and mischiefs happen, as well to persons in their lifetime, but oftener to their heirs, executors and adminis- Abstract of judgments to trators, and also to purchasers and mortgagees, by judgments entered upon be recorded. record in the clerk's office in Charleston, against the persons who are defendants, by reason of the difficulty there is in finding out such judgments; for remedy whereof, Be it enacted by the authority aforesaid, That the clerks of the several district courts of common pleas in this State, (Charleston district excepted,) shall, on the the fifteenth day of January next ensuing, and so on the fifteenth day of every January thereafter, and on the fifteenth day of June, which will be in the year of our Lord one thousand seven hundred and ninety, and so on the fifteenth day of every June thereafter, make out, or cause to be made out, and put into an alphabetical

A. D. 1789.

Penalty.

Acts relating to Courts.

docket, by the defendants's names, which said docket shall be officially subscribed by the clerks of such respective court, and sealed with the seal thereof, a particular account of all judgments entered in the said respective courts, for the terms immediately preceding the days mentioned above for the returns of the judgments as aforesaid; and the docket mentioned as aforesaid shall contain the name and names of the defendantand defendants, his, her and their place or places of abode, and title, trade or profession, (if any such be in the record of the said judgment,) and the debt, damages and costs recovered thereby, and in what district the respective actions were laid, and the number roll of the entry thereof; which said abstract of judgments shall be transmitted by the several clerks of the said several districts, to the clerk of the court of common pleas in Charleston, to the end that the same may, by the clerk of the court of common pleas in Charleston, be entered of record and fairly copied into books to be kept for that purpose, which the said clerk is hereby directed to do.

XII. And be it further enacted by the authority aforesaid, That if any of the clerks of the courts aforesaid shall omit or neglect to do his duty in the premises, he shall forfeit and pay the sum of two hundred pounds, the one moiety to the party or parties aggrieved, and the other moiety to him or them who shall sue for the same in any of the district courts of this State.

XIII. And be it further enacted by the authority aforesaid, That the clerk of the court of Common Pleas in Charleston, shall docket all judgments obtained in the court of Common Pleas in Charleston, in Charleston district, in the same form and manner as is above directed and prescribed for him to docket the abstract of judgments returned him from the clerks of the other courts.

XIV. And be it further enacted by the authority aforesaid, That no Judgments not judgment not docketted and entered in the books of the clerk, at the seat docketted, of of government, shall effect any property, real or personal, as to purchasers no avail, except in the district, or mortgagees, or have any preference against heirs, executors or administrators in their administration of their ancestors, testatators or intestates estates, except the property real and personal within the particular district where such judgment shall be entered up.

trial.

XV. And be it further enacted by the authority aforesaid, That nothing in this Act shall extend, or be construed to extend, to prevent any persons Motion for new who shall think themselves aggrieved by any proceedings in the said district courts, from moving for a new trial or arrest of judgment, under such restrictions and in such manner as the judges may think proper to establish by the rules and orders of court.

Appeals.

XVI. And be it further enacted by the authority aforesaid, That in case any person or persons shall think themselves aggrieved by the judgment or sentence of the justices of the county court, or any person or persons possessing the powers and authorities of Ordinary, it shall and may be lawful for such person or persons to enter an appeal from such judgment or sentence to the court of Common Pleas of the district in which such judgment or sentence shall be given; Provided, the said appeal be entered in the same county court in which the judgment or sentence shall be given, or within twenty days after judgment or sentence by the Ordinary, where no county courts are established, proof being made, to the satisfaction of the said Ordinary, of the adverse party having notice thereof; and the said court of Commun Pleas shall hear and determine the said appeals, according to the customs, usage and practice in cases of appeals from the county

courts.

Acts relating to Courts.

XVII. And be it further enacted by the authority aforesaid, That nothing herein contained shall be construed to extend to displace any of the persons who are now clerks of the circuit courts, they giving security as this Act directs.

In the Senate House, the thirteenth day of March, in the year of our Lord one thousand seven hundred and eighty nine, and in the thirteenth year of the Independence of the United States of America.

D. DESAUSSURE, President of the Senate.

JACOB READ, Speaker of the House of Representatives.

A. D. 1790.

AN ORDINANCE TO PROLONG THE TIME OF THE SITTING of the COURT No. 1476.
OF COMMON PLEAS, NEXT NOVEMBER, AT CAMBRIDGE; AND TO Oblige
SHERIFFS AND GOALERS OF THE SEVERAL COUNTIES WHERE COURTS
ARE HELD, ΤΟ RECEIVE ANY PRISONERS WHICH MAY BE COMMITTED
TO THEIR CHARGE.

WHEREAS, from the increase of the business and suits pending in the court of Common Pleas, in the district of Ninety-Six, it is become necessary to prolong the time for holding that court;

I. Be it ordained by the Honorable the Senate and House of Representatives, now met and sitting in General Assembly, and by the authority of the same, That the judge who shall preside in the courts of General Sessions and Common Pleas at Cambridge, next November, shall and may, and he is hereby authorized and empowered to, hold the said courts, and to adjourn de die in diem until the business of the said courts shall be completed; Provided nevertheless, that the said sitting shall not exceed a longer time than twenty-eight court days.

II. And be it further ordained by the authority aforesaid, That every one of the judges, at the next April court, may draw as many several juries as shall be thought wanting, to try all such causes as shall be at issue in November next, at Cambridge, and to make such other arrangements for the expediting the said business, as he in his discretion shall think proper; provided, that no jury shall be detained longer than one week at the said court, unless such jury shall not have agreed on their verdict.

III. And be it further ordained by the authority aforesaid, That each and every sheriff and goaler to whom the custody of any district or county goal within this State has been or shall be committed, is hereby authorized and required to receive into, and safely keep in such his goal, until delivered by due course of law, any person or persons who shall be committed thereto by a warrant signed by any judge or justice of the United States, or of this State, under the penalty, for such refusal, of fine or imprisonment, or both, as may appear proper in the discretion of the court.

In the Senate House, the twentieth day of January, in the year of our Lord one thousand seven hundred and ninety, and in the fourteenth year of the Independence of the United States of America.

D. DESAUSSURE, President of the Senate.

JACOB READ, Speaker of the House of Representatives.

VOL. VII-33.

A. D. 1791.

No. 1490.

Preamble.

continued.

Acts relating to Courts.

AN ACT TO ESTABLISH A COURT OF EQUITY WITHIN THIS STATE.

WHEREAS, by the Constitution of this State, it is declared that the judicial power shall be vested in such superior and inferior courts of Law and Equity as the Legislature shall from time to time direct and establish : and whereas, it is expedient that a court of Equity, with adequate powers, be established in this State :

I. Be it therefore enacted by the Honorable the Senate and House of Former laws Representatives, now met and sitting in General Assembly, and by the authority of the same, That the laws now of force for establishing and regulating the court of Chancery within this State, be, and they are hereby declared to be and continue, of force in this State, until altered or repealed by the Legislature thereof; subject, nevertheless, to such alterations, amendments and restrictions, as are hereinafter directed.

to sit.

II. And whereas, great inconveniences have been experienced in the Courts, when remote parts of the State, on account of the court of Chancery having been hitherto held in one part of the State only; in remedy thereof, Be it enacted, That all future sittings of the court of Equity, for the full and solemn hearing of causes, shall be held at the times and places hereinafter directed, that is to say: at Columbia, for all causes wherein the defendant shall reside in Camden, Orangeburgh or Cheraw districts, on the fifteenth days of May and December; at Cambridge, for all causes wherein the defendant shall reside in the district of Ninety-Six, on the fifth days of May and December; and at Charleston, for all causes wherein the defendant shall reside in either of the districts of Charleston, Beaufort or Georgetown, on the second Monday in March, the second Monday in June, and the third Monday in September; and the same days in every succeeding year; and that the court shall continue to sit from day to day, (Sundays excepted,) at Columbia and Cambridge, respectively, until all the causes which shall be brought before them shall be heard; provided, the time of their sitting shall not exceed six days at each place; and at Charleston, till all the business ready for the said court shall be heard.

be taken in open court.

III. And whereas, it will be conducive to the more perfect investigation Testimony to of truth, that the testimony of witnesses be taken in open court, in presence of the parties; Be it therefore enacted by the authority aforesaid, That the examination of all witnesses who may be called upon to give evidence in the said court, shall be taken by word of mouth, in open court, subject to such regulations and exceptions as the said court may from time to time order and direct.

Master and commissioners to give bond.

IV. And be it further enacted by the authority aforesaid, That the master of the court of Equity for the district of Charleston, Georgetown and Beaufort, shall give good and sufficient security, to be approved of by the Governor or Commander-in-Chief for the time being, for the faithful discharge of his duty, in the sum of five thousand pounds sterling; which said bond, and any other bond to be given by the commissioners to be appointed by virtue of this Act, shall be deposited in the office of the Secretary of the State, and be liable to be sued on by any party aggrieved by the misfeazance or default of the said master, or any of the said commissioners, respectively.

V. And be it enacted by the authority aforesaid, That there shall be, Comm'rs, to be in each and every of the districts aforesaid, one commissioner, who shall appointed. be commissioned and appointed by the Governor or Commander-in-chief for the time being, during good behavior, and who shall give security, to be approved of by the Governor, in the sum of one thousand pounds, well

Acts relating to Courts.

and faithfully to administer his office, whose business it shall be to file and keep all bills, answers and papers whatever, relating to any cause depending in any of the said districts, respectively; swear and examine all witnesses, where necessary or ordered by the court, upon interrogatories and crossinterrogatories, who may be brought before any of them, touching any mat. ter or thing depending or to be commenced in any of the said several and respective districts; swear defendants to answers; take recognizances and affidavits; and to do and perform all other matters and things which are usually done either by the master or register of said court, previous to the hearing of any cause: Provided always, that where it may be necessary to examine aged, sick or infirm persons, or witnesses out of the State, then, and in every such case, it shall and may be lawful for the said court to issue out one or more commission or commissions to examine the said witnesses upon interrogatories, whose depositions, when taken, shall be read in evidence in any of the districts within this State.

VI. And be it further enacted by the authority aforesaid, That the said commissioners, in their said several and respective districts, shall attend at the sitting of every court to be held in and for the said several districts, and shall there take and enter down orders and minutes thereof, and make up and report upon all mattets and things referred to them by the said court, and shall also make all sales under the decree of the said court.

A. D. 1791.

Their duties.

VII. And be it further enacted by the authority aforesaid, That the said commissioners, respectively, shall be entitled to receive for their servi- Their fees. ces aforesaid, the same fees, perquisites and emoluments as are or may be fixed and established by law for the master or register of said court, for similar services.

VIII. And whereas, in cases under the value of one hundred pounds, and Proceeding by in cases which may not be litigated, it may be unnecessary to proceed by petition. bill and answer in the said court; Be it therefore enacted by the authority aforesaid, that in all such cases it shall and may be lawful for the parties complaining, to present his or their petition to the said court, on oath, setting forth the true nature of the case, or sum really due; a copy of which said petition shall be served on the opposite party, at least thirty days before the sitting of the court, with notice thereon to appear at a certain day in court, in order to answer, if necessary, the contents of said petition: and if the party so served with a copy of said petition, shall not appear at the time and place in the said notice mentioned, or, if appearing, shall not offer some substantial defence, then the said court shall proceed to make such order or decree therein as to justice and equity shall appertain; Provided always, that if the defendant or defendants should appear at the return of said petition, and shew sufficient reasons to the said court, on oath, for going into a more ample investigation of the case, then and in every such case, the said parties shall and may be at liberty to go into the examination of witnesses, to prove and substantiate their respective allegations, as in other

cases.

IX. And be it further enacted by the authority aforesaid, That the judges of the said court are hereby authorized and required to make and establish all such rules, orders and regulations as may be necessary for the better and more effectually carrying into execution the terms of this Act, for the benefit of the citizens of this State.

X. And be it further enacted by the authority aforesaid, That it shall and may be lawful for any one of the judges of the said court, to hear all motions, and to make all orders necessary in any cause, previous to the hear. ing and making the final decree.