in and to such real estate at the time said tax was assessed, free from any interest or incumbrance of any person notified, and the recitals in such deed shall be prima facie evidence of the facts stated. The person who owned any real estate sold for taxes, at the time of the assessment, or any interest therein, his heirs, assigns, or devisees, may redeem the same upon repaying to the purchaser the amount paid therefor, with twenty per cent. in addition, within one year after the sale, or within six months after final judg ment has been rendered in any suit in which the validity of the sale is in question, provided said suit be commenced within one year after such sale. (Gen. Laws, ch. 48.)

Testimony.-No person shall be disqualified from testifying in any action at law, suit in equity, or other proceeding at law or in equity, by reason of his being interested therein or being a party thereto. In the trial of every civil cause the husband or wife of either party shall be deemed a competent witness: provided that neither shall be permitted to give any testimony tending to criminate the other, or to disclose any communication made to him or her by the other during their marriage, except on trials of petitions for divorce between them, and trials between them involving their respective property rights. In all divorce cases the testimony shall be given vira voce in court, unless (1) the witness shall be unable to attend by reason of physical disability, in which case certificate to that effect from a physician shall be filed with the deposition of such witness, or (2) unless the witness reside and be out of the State, or (3) unless the deposition be taken before a standing master in chancery, whose fees for taking the same shall be those prescribed by law for the taking of depositions by notaries public. No person shall be deemed an incompetent witness because of his conviction of any crime, or sentenced to imprisonment therefor, but shall be admitted to testify like any other witness, except that conviction or sentence for any crime or misdemeanor may be shown to affect his credibility. No respondent in a criminal prosecution, offering himself as a witness, shall be excluded from testifying because he is such respondent; and neglect or refusal so to testify shall create no presumption nor be used in argument against him. The husband or wife of any respondent in a criminal prosecution, offering himself or herself as a witness, shall not be excluded from testifying therein because he or she is the husband or wife of such respondent. Trust Deeds-Are to be executed as other deeds, and are in common use, but not usual as security for loans, the mortgage with power of sale being more effectual. See Mortgages.

Wills. All wills and bequests of any lands, tenements, and hereditaments, and of personal estate, within or without the State, shall be in writing (which includes "printing, engraving, lithographing, and photo-lithographing, and all other representations of words in letters of usual form "), and signed by the party devising the same, or by some person in his presence, and by his express direction; and shall be attested and subscribed in the presence of the testator, by two or more witnesses, or else shall be utterly void and of no effect. No form of proof is provided. both subscribing witnesses must usually be produced in probate court, if within the State. The evidence of an absent witness, if required, may be taken by deposition.

Non-residents may be executors of wills, and also administrators, though the latter is considered against the policy but not the letter of the statute, and is not a matter of right.

Every person being upwards of eighteen years of age may dispose of personal property, and every person upwards of twenty-one years of age may dispose of real estate, by will. The will of a married woman shall not impair the rights of her husband upon her death, as tenant by the curtesy.

There is no restriction as to the amount that a testator may give in charity, and he may, if he chooses, give all his estate away from his family, but, of course, subject to dower, or in the case of married women to curtesy.

But unless it appears that the omission was intentional and not occasioned by accident or mistake," a child, or issue of deceased child, not provided for takes the same share that he would have taken had the parent died intestate, and also a posthumous child where no provision is made for him in the will or otherwise."

Wills are recorded in the town clerk's office of the town where the testator lived, and also in the records of deeds of every town where any land devised by the will lies. In Providence, Newport, Pawtucket, Woonsocket, Bristol, Cranston, East Providence, Lincoln, North Providence, Johnston, Warwick, and Westerly probate courts are established, with clerks who record wills, etc.

LAWS OF SOUTH CAROLINA

RELATIVE TO THE

COLLECTION OF DEBTS,

TAKING OF DEPOSITIONS, ETC.

REVISED EXPRESSLY FOR HUBBELL'S LEGAL DIRECTORY, DECEMBER 1, 1906, BY BUIST AND BUIST, OF CHARLESTON, SOUTH CAROLINA.

Acknowledgments.

Actions

-

See Deeds.

Are generally to be tried in the county where the subject-matter is situated as for recovery of, or partition of real property, or foreclosure of a mortgage of real property, or for recovery of personal property distrained for any cause, etc. For the recovery of a penalty or forfeiture imposed by statute, and against a public officer for an act done in virtue of his office, must be tried in the county where the cause arose. In all other cases the action must be tried in the county in which the defendant, or if more than one in which one or more of them shall reside. If the defendant resides out of this State, the case may be tried in any county the plaintiff may select. In all cases, however, the court has power to change place of trial, as provided by statute. Provided, that any administrator or administratrix, heretofore or hereafter appointed by any probate court of this State, may be sued in the county where such administration has or shall be granted; any executor or executrix may likewise be sued in the county where the testator's will is proved or admitted to probate; and any guardian may likewise be sued in the county in which the letters of guardianship may be issued. (Code of Civil Procedure, §§ 144-147.) A. A. 1905 (Stats. xxiv. 848) adds proviso to § 146: "That nothing in this section contained shall be so construed as to prevent the hearing of any of the said actions by consent of the parties or their attorneys and of the guardian ad litem of any infant party to said action, in a county other than that in which said action may have been brought and may be pending, or other than that in which the property is situated." A. A. 1906 (Stats. xxv. 111) provides, "That from and after the passage of this act, all suits brought against any and all fire, life, or other insurance companies doing business in this State may be brought in the county where the loss occurs: provided, however, that nothing herein contained shall be so construed as to prevent the court from changing the place of trial for any of the causes provided for in section 147 of the (Civil) Code of Laws of this State, vol. 2." Actions must be prosecuted in the name of the real party in interest, save in the case of an administrator, executor, or trustee of an express trust. When a married woman is a party, her husband must be joined with her, except that when the action concerns her separate property she may sue or be sued alone; and when between herself and her husband she may sue or be sued alone. An action is deemed to be commenced, as to a defendant, when the summons is delivered to the sheriff with the intent that it shall be actually served. The first pleading on the part of the plaintiff is the complaint; it may be served with the summons, or filed with the clerk. The only pleading on the part of the defendant is either a demurrer or an answer. It must be served within twenty days after the service of the complaint. The plaintiff may reply or demur to an answer, as the case may be. If the defendant fail to answer the complaint in twenty days after service of the summons, he loses his right to demur or answer. Unless the court shall for cause on motion restore such right, the plaintiff can at the term next succeeding such default enter final judgment; if the demand be liquidated and the complaint be verified, the judgment goes, of course; if the demand be unliquidated, then judgment is rendered on proof, or the court grants the relief required.

Administration of Decedents' Estates. See Claims against Estates of Deceased Persons.

Affidavits - Must be made before a commissioner of deeds for South Carolina, or before a notary public, who shall use his official seal, if they are to be used in the state courts. If they are to be used in the United States courts, they may be made before a United States commissioner or before a notary public. The affidavit to prove the execu tion of deeds, if taken out of the State, and within the United States, must be made before a commissioner of deeds of this State, or before commissioners appointed under dedimus issued by the clerk of the court of the county in which deed is to be recorded, or before the clerk of a court of record, who must use his official seal, or before a notary public, who must use his official seal accompanied by the certificate of the clerk of a court of record of the county in which the attestation is made that he is a notary. If taken without the United States, before a consul, vice-consul, or consular agent of the United States of America. It would not be safe to prove deeds or take affidavits in any other way.

Aliens. No alien or corporation controlled by aliens, either in his or its own right, or as trustee, cestui que trust, or agent, shall own or control, within the limits of this State, more than five hundred acres of land; provided, that this act shall not apply to land purchased under proceedings, either by action or power of sale, to foreclose any mortgage hereafter acquired by an alien or corporation controlled by aliens purchasing the same, but in such case such alien or corporation controlled by aliens shall not be entitled to hold said excess of land more than five years, without sale of same, unless the comptrollergeneral shall certify that a sale during that time would be materially detrimental to the interest of such alien or corporation controlled by aliens, in which case the said alien or corporation controlled by aliens may hold the land for five years longer upon the same conditious. Nothing in this act shall apply to lauds already owned or controlled by the persons or corporations referred to in this act, nor to lands already mortgaged to such persons or corporations. (Code of Laws, 1902, vol. 1, § 1795, and Constitution 1895.)

Appeals. — An appeal lies from the magistrate court to the circuit court, on matters of law as well as of fact. The appeal shall be heard by the court on all the papers in the case, including the testimony on the trial, which shall be taken down in writing and signed by the witnesses, and the grounds of exception made, without the further examination of witnesses in the appellate court. (Code, 1902.) The appeal must be taken within five days from the rendition of the magistrate's decision. Notice of the appeal must be served personally on the magistrate, if he be living and within the county, or on his clerk, and upon the attorney for the respondent, or on the respondent personally, or by leaving it at his residence with some person of suitable age and discretion. If neither the attorney nor respondent can be found, then service on the clerk of the circuit court will suffice.

An appeal lies from the probate court to the circuit court from any final order, sentence, or decree of the probate court. Grounds of appeal shall be filed in the office of the judge of probate, and copy thereof served on adverse party within fifteen days after notice of the decision appealed from, and copy of record filed in circuit court.

The supreme court has exclusive jurisdiction to review upon appeal:

1. Final judgments in actions commenced in the circuit courts, brought there by original process or removed there from any inferior court or jurisdiction; and, upon the appeal from such judgment, to review any intermediate order involving the merits and necessarily affecting the judgment.

2. An order affecting a substantial right made in action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action, and when such order grants or refuses a new trial; but no appeal to the supreme court from an order granting a new trial, on a case made or bill of exceptions, shall be effectual for any purpose, unless the notice of appeal contain an assent on the part of the appellant that, if the order be affirmed, judgment absolute shall be rendered against the appellant. Upon every appeal from an order granting a new trial, on a case made or exceptions taken, if the supreme court shall determine that no error was committed in granting the new trial, they shall render judgment absolute upon the right of the appellant; and after the proceedings are admitted to the court from which the appeal was taken, an assessment of damages or other proceedings, to render judgment effectual, may be then and there had in cases where such subsequent proceedings are requisite.

3. A final order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, and upon such appeal to review any intermediate order involving the merits, and necessarily affecting the order appealed from. 4. An interlocutory order or decree in the court of common pleas, granting or continuing or modifying or refusing an injunction, or else granting or continuing or modifying or refusing the appointment of a receiver hereafter granted in any action, provided, that the notice of appeal must be given within ten days from written notice of the filing of such interlocutory order or decree; and such appeal shall take precedence in the supreme court, and the proceedings in other respects in the court below shall not be stayed during the pendency of such appeal unless otherwise ordered by the court below. (Code of Civil Procedure, § 11.) Arrests. The defendant may be arrested in the following cases: 1. In an action for money received, or property embezzled or fraudulently misapplied by a public officer, or by an attorney, solicitor, or counselor, or by an officer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment. 2. In an action to recover the possession of personal property fraudulently detained, or where the property, or any part thereof, has been fraudulently concealed, removed, or disposed of so that it cannot be found or taken by the sheriff or constable, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof. 3. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property for the taking, detention, or conversion of which the action is brought, or when the action is brought to recover damages for fraud or deceit. 4. When the defendant has removed or disposed of his property, or is about to do so with intent to defraud his creditors. But no female shall be arrested in any action, except for a wilful injury to person, character, or property. (Code of Laws, 1902, vol. 1,

$848.) 5. Whenever a person domiciled in this State, indebted by bond, note, or otherwise, is about to remove or abscond from the limits of this State, and the said debt is not yet due but payable at some future day, it shall and may be lawful for the obligee, payee, or holder of said demand, or his assignee or indorsee, as the case may be, upon swearing that such a person is indebted to him, and that the demand is just and owing but not yet due, and that the debtor is about to remove or abscond from the limits of this State, and that such a creditor was not aware that the debtor had any intention to remove from the State at the time when the original contract was made, or at the time of such assignment or indorsement, as the case may be, to commence an action by issuing a summons or com plaint, and he shall have power to arrest and hold to bail in such manner as is prescribed in cases of debts actually due. An order for the arrest of the defendant must be obtained from the court in which the action is brought, or from a judge thereof. Before warrant for arrest can issue, the plaintiff must be required to enter into a written undertaking, with or without sureties, that if defendant recover judgment plaintiff will pay all costs awarded to defendant and all damages, not exceeding sum stated, which shall not be less than one hundred dollars. If no sureties be required, plaintiff must file an affidavit that he is a resident and householder or freeholder within the State, and worth double the sum specified in the undertaking. Nothing is said about the character of the sureties, but it would seem that they should take the same affidavit as the plaintiff does in cases in which no surety is required. The order can be made if plaintiff, or any other person, shows by affidavit that a sufficient cause of action exists, and showing facts from which the officer issuing the warrant can decide if the requirement of the Code is met.

Assignments. The national bankruptcy act of 1898 has suspended the operation of this law. If the said act should be repealed, our state statutes on this subject would again become of force, in which event consult the thirtieth edition (1900) of this Directory. See "an act to prevent merchants or corporations engaged in buying and selling merchandise, while indebted, from selling their entire stock of merchandise in bulk, or selling the major portion thereof otherwise than in the ordinary course of trade" (A. A. 1906, p. 1), which provides that such sale shall prima facie be presumed to be fraudulent and void as against creditors of such seller unless certain requirements as to inventory, schedule of creditors, and notice to creditors are complied with.

Attachments. At the time of the issuing of the summons, or at any time afterwards, an attachment may issue in the following cases, to wit: In any action arising for the recovery of money, or for the recovery of property, whether real or personal, and damages for the wrongful conversion and detention of personal property, or in actions for the recovery of damages for injuries done either to person or property (Code of Civil Procedure, §248), against a corporation created by or under the laws of any other State, government, or country, or against a defendant who is not a resident of this State, or agamist the master, captain, or agent of any sailing vessel entering any of the ports of this State for pilotage services rendered such vessel, or against a defendant who has absconded or concealed himself, or whenever any person or corporation is about to remove any of his or its property from this State, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his or its property, with intent to defraud creditors. The proceedings in cases of attachment are prescribed by the Code. Before the attachment can issue, the plaintiff must be required to put in an undertaking of at least two hundred and fifty dollars in the court of common pleas, or twenty-five dollars in courts of magistrates, with sufficient surety, to pay all costs which may be awarded to defendant, and all damages he may sustain by reason of the attachment. Sureties need not be freeholders, but can be made to justify. The Code does not require an affidavit of the plaintiff; it only requires an affidavit. Plaintiff or his authorized agent must make it. (Bank v. Stelling, 9 S. E. R. 1028.) The affidavit must show a cause of action, the amount of claim, and the proceeds thereof, and that defendant is either a foreign corporation or a non-resident, or has departed from the State, or conceals himself with intent to defraud his creditors, or to avoid service of summons, or has removed, or is about to remove, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, his property with intent to defraud his creditors. The facts which sustain the belief expressed in the affidavit must be stated clearly, so that the officer granting the attachment can say whether or not they support the charge. Plaintiff procuring warrant of attachment must have affidavits filed in proper office within fortyeight hours after issuance of attachment. As to attachments by non-residents, there has been but one decision in this State, relating to a foreign corporation: Section 423 of the Code provides that an action against a foreign corporation may be brought in the circuit court: "2. By a plaintiff not a resident of this State, when the cause of action shall have arisen, or the subject of the action shall be situated, within this State." It is decided that this is a limitation to actions by non-residents, and that, as an attachment is only a provisional remedy, it does not lie unless the non-resident can maintain his action within the prescribed limitations. See Central R. & B. Co. v. The Georgia C. & I. Co., 11 S. E. R. 201. But Gibson v. Everett, 41 S. C. 22, decides that our State courts have jurisdiction upon a claim for money-demand between a non-resident plaintiff and non-resident defendant where property in this State is attached. Attachment will lie for a debt not due if fraud can be shown in evading the debt. (Code of Civil Procedure, § 255 b.) An attachment is a lien subject to all prior liens, and binds the real estate attached from the date of lodgment. Successive attachments take rank according to day of lodgment; provided that

all attachments lodged upon the same day shall take rank together. An attachment will not lose its lien if the debtor makes a general assignment, or an assignment under our insolvent laws after it be levied.

Under section 1542 a, Code of Laws, 1902, vol. 1 (A. A. 1904), the State may attach fertilizers, fertilizing material, and cotton-seed meal, to enforce its lien thereon for fines and penalties and costs and expenses of an action against vendors or owners thereof who have violated the law as to sale and shipment of such articles.

Section 264 a, Code of Civil Procedure (A. A. 1904), provides that in an action arising for the recovery of the purchase-money, which is past due, for any real or personal property, it shall be lawful for the plaintiff, at the time of the issuing of the summons or any time afterwards, to cause the property of the defendant for which the purchase-money is payable to be attached in the manner therein prescribed as a security for the satisfaction of such judgment as the plaintiff may recover.

Chattel Mortgages. -When the subject-matter of a chattel mortgage is a stock of goods, it has been doubted whether the possession of the goods by the mortgagor would not be a badge of fraud, especially if he continued to carry on business. This question has been settled in Hirskhmd v. Israel, 18 S. C. 157, and a mortgage of a stock of goods covering as well the stock on hand as all goods purchased to replace sales has been sustained. The possession by mortgagor in other cases is not a badge of fraud. "The mortgagor of any chattel shall have the right to redeem the property mortgaged by him at any time before sale by the mortgagee by paying the mortgage debt and any costs incurred in attempting to enforce its payment, and a tender made by the mortgagor of an amount sufficient to pay said debt and costs, if not accepted, shall render the mortgage null and void." (Code of Laws, 1902, vol. 1, § 3006.) No chattel mortgage, except mortgages, or deeds of trust covering the whole or any part of the real or personal property of a railroad company or manufacturing company, shall be valid or good to convey any interest or right whatever to the mortgagee, unless the property mortgaged shall be described in writing or typewriting, but not printing, on the face of the mortgage, nor shall any prosecution lie for selling any property under the lien of such mortgage unless the property mortgaged shall be described in writing or typewriting, but not printing, on the face of such mortgage. (Code of Laws, 1902, vol. 1, § 3002.) The giving of security for loans under twenty-five dollars and the charges to be made therefor are regulated by section 3007, Code of Laws, 1902, vol. 1 (A. A. 1904). Also, see Mortgages, Trust Deeds, and Records.

Claims against Estates. In this State it is the duty of the executor or administrator of a person deceased to advertise as soon as he shall have qualified, calling upon all persons having claims to prove them before him. Proof of claim is made by affidavit stating the character of the debt, the amount actually due, and that no part thereof has been paid by discount or otherwise. In case the executor or administrator have reason to dispute the claim, he can require suit to be brought upon it. Suits against such representatives of deceased persons are brought in the ordinary courts. Executors and administrators are allowed twelve months from the date of the grant of their letters to ascertain the debts of decedents. If the executor or administrator neglect to pay, he can of course be sued in these courts. If the administrator neglect to pay, or if he fail to account, suit also can be brought on his bond. Executors resident within this State give no bond. Administrators and non-resident executors do, in double the value of the personal estate. (Code of Laws, 1902, vol. 1, § 2501 a.) Surety company can be bondsman. (Code of Laws, 1902, vol. 1, § 599.) They must account annually before the probate court, and if they fail to account, a decree can be had against them in the probate court out of which their letters issued. Judgments against an executor or administrator can be levied on the real estate of the person deceased, if the lands be not partitioned or sold, or put in the exclusive possession of the heir or devisee. Executors and administrators can obtain a final discharge as such by a decree of the judge of probate, entered after notice by publication in a county newspaper for one month of the intention to apply for such discharge; after such discharge they are free of suit. All claims presented to an executor or administrator must be verified, and the verification must state that the claim has not been paid and that there is no discount against it. The executor or administrator may refuse or neglect to pay the claim, whereupon the holder can sue in the court of common pleas, or may call the executor or administrator to account in the court of probate. The verification must be before a magistrate or notary public, if within the State, and if without the State, before a commissioner for South Carolina, or before a notary public, who shall use his official seal. There is no difference in any other respect between a resident and non-resident creditor. In granting letters of administration, preference is given in the order following, to wit: 1. To the husband or wife of the deceased: provided, always, that if any widow, after having obtained letters of administration, shall marry again, the judge of probate shall have power to revoke the administration before granted, or join one or more of the next of kin in the administration with her. 2. If there be no husband or wife of the deceased, or they do not apply, then to the child or children, or their legal representatives. 3. In default of them, then to the father or mother. 4. In default of them, to the brothers and sisters. 5. In default of them, to such of the next of kin of the deceased, at the discretion of the judge of probate, as shall be entitled to a distributive share of the intestate's estate. 6. In default of such, to the greatest creditor or creditors,