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A. D. 1870.

interested

where to ap

or legatee, in any estate which is in a course of settlement, such guardian shall be appointed by the Probate Court before which such estate is in course Guardian of settlement; but afterwards, if the minor shall reside in another County, and is of the age of fourteen years, he may choose and have a point. When guardian appointed in the County where he shall reside; and in that powers of the first guardian shall cease. case the In all other cases guardians shall be appointed by the Probate Court of the County where the persons for whom the guardian shall be appointed shall reside. Authorized SEC. 51. The Probate Court, by which a guardian shall be appointed, and to settle shall have jurisdiction of the estate of the ward, and shall be alone accounts of authorized to permit the sale of such estate, and settle such guardian's

a minor may choose guardian.

to permit sale

guardian.

Judges may appoint times

accounts.

SEC. 52. Except as provided in the first Section, the Probate Court in and places for each County shall appoint such times and places for holding Courts as holding Pro- shall be judged most convenient for all persons interested, and shall give notice of such times and places in one or more newspapers circulating in the County.

bate Courts.

Open at all times for cer

SEC. 53. The Probate Court shall be deemed open at all times for the tam business. transaction of ordinary business which may be necessary, when previous notice is not required to be given to the persons interested. Of adjourn- SEC. 54. A Probate Court may be adjourned as occasion may require; when by the and when the Judge is absent at the time for holding a Court the Clerk may adjourn it.

ment of Court

Clerk.

risdiction of

Appellate ju- SEC. 55. The Circuit Court shall have appellate jurisdiction of all matCircuit Court. ters originally within the jurisdiction of the Probate Court.

Court in Pro

Jurisdiction SEC. 56. The Supreme Court shall have jurisdiction of all questions of of Supreme law arising in the course of the proceedings of the Circuit Court, in Probate matters. bate matters, in the same manner as provided by law in other cases. Appeal to the SEC. 57. Any person interested in any final order, sentence or decree Circuit Court of any Probate Court, and considering himself injured thereby, may ap within fifteen peal therefrom to the Circuit Court in the same County, at the stated session next after such appeal, and such appeal shall be granted by the Probate Court, if application be made and filed in the Clerk's Office within fifteen days from the date of the decision appealed from.

to be taken

days.

Appellant to give bond to peal.

SEC. 58. In all cases of appeal from the proceedings of the Probate prosecute ap- Court, before such appeal shall be allowed, the person appealing shall give a bond to the satisfaction of the Probate Court, with a condition that he shall prosecute such appeal to effect, and pay all intervening damages and costs occasioned by such appeal.

Grounds of

SEC. 59. In all cases of appeal the appellant shall file in the Probate Of appeal to be fice his grounds of appeal, and cause a copy thereof to be served on the adverse party, at least twelve days before the time when the appeal is to be entered in the Circuit Court.

Certifled copies of Record

SEC. 60. The person appealing shall procure and file in the Circuit to be filed in Court to which such appeal is granted a certified copy of the record of Circuit Court. the proceedings appealed from, of the application and grounds for the appeal filed in the Probate Court, and of the allowance of the same, toge ther with the proper evidence that notice has been given to the adverse party according to law

Proceedings

SEC. 61. When an appeal, according to law, is allowed by the Probate stayed by ap- Court, all proceedings in pursuance of the order, sentence or decree appealed from shall cease until the judgment of the Circuit or Supreme

peal.

Court is had; but if the appellant, in writing, waives his appeal before A. D. 1870. the entry thereof, proceedings may be had in the Probate Court as if no appeal had been taken.

How Circuit

trial.

SEC. 62. When such certified copy shall have been filed in the Circuit court to proCourt, such Court shall proceed to the trial and determination of the ques- ceed to the tion according to the rules of law; and if there shall be any question of fact or title to land to be decided, issue may be joined thereon under the direction of the Court, and a trial thereof had by jury.

party.

SEC. 63. The Circuit Court or Supreme Court, as the case may be, may Costs given tax costs for the party who shall prevail; or when, in the opinion of the to prevailing Court, Justice shall require it, the Court may deny such costs, and may tax costs for either party; and if costs be taxed against an executor or administrator the same shall be allowed to him in his administration ac

count.

Appellant nefer an appeal, rmed judgment af

glecting to en

costs.

with

tified to Pro

bate Court.

SEC. 64. If the person appealing from the proceedings of the Probate Court, as provided in this Act, shall neglect to enter his appeal, the Circuit Court to which such appeal shall be taken, on motion, and producing attested copies of such appeal by the adverse party, shall affirm the proceedings appealed from, and may allow costs against the appellant. SEC. 65. The final decision and judgment in cases appealed, as here- Final decis inbefore provided, shall be certified to the Probate Court by the Circuit on to be cerCourt or Supreme Court, as the case may be, and the same proceedings shall be had in the Probate Court, as though such decision had been made in such Probate Court. SEC. 66. No Judge of any Probate Court shall be admitted to have No Probate any voice in judging or determining any appeal from his decision, or be voice in deterpermitted to act as attorney or counsel thereon, or receive fees as counsel mining an apin any matter pending in the Probate Court of which he is Judge: Pro- may practice vided, It shall be lawful for Judges of Probate to practice law in other law. Courts in such cases as are not cognizable in Court of Probate.

Judge to have

peal. When

to be

com

SEC. 67. All proceedings in the Court of Probate shall be commenced Proceedings by petition to the Judge of Probate for the County to whom the juris- menced by diction of the subject matter belongs, briefly setting forth the facts or partition. grounds of the application.

SEC. 68. The Supreme Court may, from time to time, make rules regulating the practice and conducting the business in the Courts of Probate, in all cases not expressly provided for by law.

SEC. 69. The County Commissioners of each County shall provide all books necessary for keeping the records; also, a seal and necessary office furniture: Provided, Said furniture shall not exceed in cost the sum of one hundred dollars.

The Supreme

Court to make rules.

County Comprovide books

missioners to

&c.

Judge may keep order &

SEC. 70. The Judge may keep order in Court, and punish any contempt of his authority in like manner as such contempt might be pun- punish ished in the Circuit or Supreme Court.

SEC. 71. When costs are awarded, to be paid by one party to the other, in the Courts of Probate, said Courts may issue execution therefor, in like manner as is practiced in the Courts of common law; and when no form for a warrant or process is prescribed by statute or rules of Court, he shall frame one in conformity to the rules of law, and the usual course of proceedings in this State. Any Sheriff or Constable in the State shall execute the order or processes of said Court, in the same manner as the order or processes of the Circuit or Supreme Courts.

tempt.

con

Processes of Court how executed.

-

A. D. 1870.

commit luna

SEC. 72. The Judge of the Probate Court may commit to the Lunatic Asylum any idiot, lunatic or person non compos mentis, who, in his opinion, Judges may is so furiously mad as to render it manifestly dangerous to the peace and tics, &c., to safety of the community that he or she should be at large; and also, in Lunatic Asy- all such other cases provided by law. In all cases the Judge shall certify in what place the said person or persons resided at the time of the commitment, and such certificate shall be conclusive evidence of such residence.

lum.

ernment, how fur adopted.

SEC. 73. All laws and parts of laws of the late Provisional GovernLaws of Pro- ment of South Carolina, relative to the powers, duties and course of provisional Gov- cedure of the Courts of Ordinary and Equity, as far as the jurisdiction of said Courts is herein conferred on the Courts of Probate, not inconsistent with the Constitution and this Act, or supplied by it, are hereby adopted and declared to be of force, and applicable to the Courts of Probate.

Jurisdiction.

TITLE V.

OF THE COURTS OF TRIAL JUSTICES.

SEC. 74. Jurisdiction.

75. Qualification of bail.

76. Justification of bail.

77. Allowance of bail.

78. Property, how taken when concealed in building or inclosure. 79. Property, how kept.

80. Claim of property by third person.

81. No jurisdiction in certain cases.

82. Answer of title.

83. Undertaking.

84. Suit discontinued.

85. If undertaking not given.

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SEC. 74. Trial Justices shall have civil jurisdiction in the following actions, and no others:

1. In actions arising on contracts for the recovery of money only, if the sum claimed does not exceed one hundred dollars.

2. An action for damages for injury to rights pertaining to the person, or the personal or real property, if the damages claimed do not exceed one hundred dollars, and in cases of bastardy.

3. An action for a penalty, fine or forfeiture, where the amount claimed or forfeited does not exceed one hundred dollars.

4. An action commenced by attachment of property, as now provided by statute, if the debt or damages claimed do not exceed one hundred dollars.

5. An action upon bond conditioned for the payment of money, not exceeding one hundred dollars, though the penalty exceed that sum, the judgment to be given for the sum actually due. Where the payments are to be made by installments, an action may be brought for each installment as it becomes due.

6. An action upon a surety bond taken by them, where the penalty or amount claimed does not exceed one hundred dollars.

7. An action upon a judgment rendered in a Court of a Trial Justice or an inferior Court in a city where such action is not prohibited by Section ninety-four.

8. To take and enter judgment on the confession of a Defendant, where the amount confessed shall not exceed one hundred dollars, in the manner prescribed by law.

9. An action for damages, fraud in the sale, purchase or exchange of personal property, if the damages claimed do not exceed one hundred dollars.

10. An action to recover the possession of personal property claimed, the value of which, as stated in the affidavit of the plaintiff, his agent or attorney, shall not exceed the sum of one hundred dollars.

The plaintiff in such action, at the time of issuing the summons, but not afterwards, may claim the immediate delivery of such property as hereinafter provided.

Before any process shall be issued in an action to recover the possession of personal property, the Plaintiff, his agent or attorney, shall make proof by affidavit, showing:

1. That the Plaintiff is the owner, or entitled to immediate possession, of the property claimed, particularly describing the same.

2. That such property is wrongfully withheld or detained by the defendant.

3. The cause of such detention or withholding thereof, according to the best knowledge, information and belief of the person making the af fidavit.

4. That said personal property has not been taken for any tax, fine or assessment, pursuant to statute, or seized by virtue of an execution or attachment against the property of said plaintiff; or if so seized, that it is exempt from such seizure by statute.

5. The actual value of said personal property.

On receipt of such affidavit, and an undertaking, in writing, executed by one or more sufficient sureties, to be approved by the Trial Justice before whom such action is commenced, to the effect that they are bound in double the value of such property as stated in said affidavit, for the prosecution of said action, and for the return of said property to the De fendant, if return thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against said Plaintiff, the Trial Justice shall endorse upon said affidavit a direction to any Constable of the County in which said Trial Justice shall reside, requiring said Constable to take the property described therein from the Defendant, and keep the same, to be disposed of according to law; and the said Trial Justice shall at the same time issue a summons directed to the Defendant, and requiring him to appear before said Trial Justice at a time and place to be therein specified, and not more than twelve days from the date thereof, to answer the complaint of said Plaintiff'; and the said sum

A. D. 1870.

A. D. 1870.

Qualifications of bail.

Justification of bail.

mons shall contain a notice to the Defendant that, in case he shall fail to appear at the time and place therein mentioned, the Plaintiff will have judgment for the possession of the property described in said affidavit, with the costs and disbursements of said action.

The Constable to whom said affidavit, indorsement and summons shall be delivered, shall forthwith take the property described in said affidavit, if he can find the same, and shall keep the same in his custody. He shall thereupon, without delay, serve upon said defendant a copy of such affidavit, notice, and summons, by delivering the same to him personally, if he can be found in said County; if not found, to the agent of the defendant in whose possession said property shall be found; if neither can be found, by leaving such copies at the last or usual place of abode of the defendant, with some person of suitable age and discretion. And shall forthwith make a return of his proceedings thereon, and the manner of serving the same, to the Trial Justice who issued the said sum

mons.

The defendant may at any time after such service, and at least two days before the return-day of said summons, serve upon plaintiff, or upon the Constable who made such service, a notice in writing that he excepts to the sureties in said bond or undertaking; and if he fail to do so, all objection thereto shall be waived. If such notice be served, the sureties shall justify, or the plaintiff give new sureties on the return-day of said summons, who shall then appear and justify, or said Trial Justice shall order said property delivered to defendant, and shall also render judgment for defendant's costs and disbursements.

At any time before the return-day of said summons, the said defendant may, if he has not excepted to plaintiff's sureties, require the return of said property to him upon giving to the plaintiff, and filing same with the Trial Justice, a written undertaking, with one or more sureties, who shall justify before said Trial Justice on the return-day of said summons, to the effect that they are bound in double the value of said property, as stated in plaintiff's affidavit, for the delivery thereof to said plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against said defendant; and if such return be not required before the return-day of said summons, the property shall be delivered to said plaintiff.

SEC. 75. The qualification of bail must be as follows:

1. Each of them must be a resident, and householder or freeholder within the State.

2. They must each be worth the amount specified in the order of arrest, exclusive of property exempt from execution; but the Judge or a Trial Justice, on justification, may allow more than two bail to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.

SEC. 76. For the purpose of justification, each of the bail shall attend before the Judge or a Trial Justice at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the Judge or Trial Justice, in his discretion, may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff.

SEC. 77. If the Judge or Trial Justice find the bail sufficient, he shall annex the examination to the undertaking, indorse his allowance thereon,

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