Limitation of Actions-Attachment.

6. Limitation of Actions.

All actions of detinue, trover, replevin, account, (except such as concern the trade of merchandise between merchant and merchant,) debt founded upon any contract without specialty, covenant, and case, must be brought within four years. (a) There is a saving of five years, after the removal of the disability, in favor of persons beyond seas, feme covert, or imprisoned, and a saving in favor of infants of two years after they come of age, and of three years if they are also beyond seas. (b)

All actions against an executor or administrator must be brought within two years after the death of the testator, or the accruing of the cause of action. (c)

The statute is not to be so construed as to defeat the rights of minors, when it has not barred the right in the lifetime of the ancestor, before the accrual of the rights of the minor. (d)

7. Attachment.

In the case of a debtor who is a non-resident, or a citizen who has been absent more than a year and a day, or a debtor who absconds, or is removing out of the county, or conceals himself so that the ordinary process of law cannot be served upon him, his creditor, wherever residing, may obtain a writ of attachment against his estate, both real and personal. The writ is demandable of common right, on the plaintiff's giving bond to the defendant in double the amount for which the attachment issues, conditioned to pay all damages which the defendant may sustain by reason of the illegal issuing of the attachment. The defendant cannot dissolve the attachment, or impair the lien of the writ upon the property originally attached, without putting in bail to the action, but he may appear by attorney duly authorized by a warrant filed in the clerk's office from which the writ emanated, and defend the action. If in such case judgment is rendered against him, it shall be final and conclusive, and the plaintiff may sue out the ordinary writs of execution.

(a) St. ii. 586.

(b) Ib. 586.

(c) Ib.

(d) Ib. vi. 238.

Insolvent Law.

It is the duty of any garnishee to surrender the property of the absent defendant in his hands, unless he claims the same under oath as a creditor in possession, or to give bond for the safe keeping and forthcoming of the same, when required. Unless he complies with these requisitions, a personal judgment may be rendered against such defaulting garnishee.

Upon the return of a writ of attachment, it is the duty of the Court of Common Pleas, or any law judge at chambers to appoint one or more assignees, with full power and authority to receive and take from the sheriff or garnishee all the estate, real and personal, of the absent debtor, and to collect the debts and receive the rents and profits of the realty, and whose duty it shall be to dispose of the same according to the order of the Court of Common Pleas. (a)

The proceeds of the attachment are for the sole benefit of the attaching creditor. The first writ which is lodged in the sheriff's office is entitled to a priority of lien on the absent debtor's goods, though a second writ of attachment may be first served upon a garnishee. (b)

There is some difference between foreign and domestic attachments, but it does not seem necessary to be noted.

8. Insolvent Law.

There are two distinct classes of provisions in South Carolina for the benefit of insolvent debtors: the one established and regulated by the act of 1759, and which operates somewhat as a bankrupt law, affording general and permanent relief; and the other depending on the act of 1788, and which only affords a partial and temporary relief from imprisonment. The former and earlier act will be first considered. It provides that persons in custody, or on the prison's bounds, and who desire to surrender their estates to satisfy their debts, may, within. one month from their arrest, petition the court from which the process issued, certifying the cause of their imprisonment, and annexing a schedule of their real and personal estate, upon which petition the court shall direct

(a) Acts of 1844, 290; Acts of 1843, 256; Statutes at Large, vii. 214, 294; vi. 431; iv. 544; ii. 589, 592. (b) Callahan v. Howell, 2 Bay 8.

Insolvent Law.

the petitioner to be brought before it at an appointed time, three months' notice thereof having been previously given to his creditors by publication in some newspaper or otherwise, for the purpose of examining into the matter of the petition in a summary way, and hearing what may be alleged for or against the discharge of the prisoner. The debtor is required at such time to make an oath, in effect, that the schedule he has presented is true and complete, that he has not since his arrest made any disposition of his property for his own benefit or to defraud his creditors, and that he will use his utmost efforts to make the property set forth available to his assignee, &c. If the court, upon examining the prisoner, is satisfied of the truth of his affidavit, it shall set aside certain articles trifling in amount, for the benefit of the prisoner, and order him to make an assignment on the back of his petition, of all his estate, real and personal, to the suing creditor, or such other persons as the court may direct, in trust for such suing creditor, and such other creditors of the petitioner as shall be willing to receive a dividend of his estate, and shall within twelve months from exhibiting the petition, make their demands. By such assignment, the estate of the debtor is completely vested in his assignees, who are authorized to take possession of and collect the

same.

The effect of the discharge is to acquit the debtor from all debts, contracts, or demands of the creditors on whose suit he is charged, and all other creditors who have accepted any dividend from his estate, and to debar any creditor whatsoever from bringing any action against the debtor for the period of twelve months from such discharge. The act also provides for the sale, collection, and distribution of the estate among the creditors referred to, by the assignees. The discharge will be invalidated by any fraud or concealment. (a)

The act of 1788, provides that any prisoner, in custody on mesne process or on execution, may, on petition to one of the judges of the court whence the process has issued, or one of the commissioners appointed for taking special bail in the circuit districts, and ten days' public notice to his creditors, be discharged from confinement and relieved from future arrest by the suing

(a) B. D. ii. 148 to 160.

Effect of Death upon the Rights of Creditors.

creditor, on assigning his estate, or so much thereof as will satisfy the demand of the suing creditor. This discharge will not affect any other creditor, or exempt after acquired property of the debtor from being taken in execution to satisfy the claim of the creditor from whose execution he has been released, where the estate surrendered by him is insufficient.

Where a prisoner applying for the benefit of this act is charged with fraud, a jury may be summoned to try the facts, according to whose verdict he shall be discharged or remanded. (a)

9. Effect of Death upon the Rights of Creditors.

There is an ordinary in each district, who has cognizance of the probate of wills, of letters testamentary and of administration, the examination and settlement of the accounts of executors and administrators, the distribution of assets, &c.

Executors or administrators are to pay the debts of the testator or intestate, in the following order:

1. Expenses of funeral and last sickness, and charges of probate of will or letters of administration.

2. Debts due to the public.

3. Judgments, mortgages, and executions, the oldest first.

4. Rents, then bonds or other obligations, and lastly debts due on open account.

No preference whatever is to be given to creditors in equal degree, where there is a deficiency of assets, except in the cases of judgments, mortgages that shall be recorded from the time of recording, and executions lodged in the sheriff's office, the oldest of which shall be first paid; or in those cases where a creditor may have a lien upon any particular part of the estate. Executors and administrators hold as trustees, and cannot pay themselves first, as in England. (b)

Executors or administrators are required to give three weeks' notice, by advertisement in the state papers, or at three different places of the most public resort in the county, for creditors to render an account of their demands. They are allowed twelve

(a) St. vi. 492.

(b) Brev. Dig. 335; Griffith's L. R. iv. 860.

Proceedings in Civil Suits.

months to ascertain the debts of the deceased, and will not be liable to any creditors failing to present their claims within that time. No action can be instituted against an executor or administrator, as such, until nine months from the death of the testator or intestate.

Executors and administrators are required to render an annual account of their receipts and expenditures to the ordinary of the district, and for neglecting the same, they will lose the right to their commissions, and also be responsible in damages for any injury arising to any person interested. (a)

Sales of personal property, unless authorized by the will, cannot be made by an executor, without the order of a court of ordinary, or court of equity, which can be obtained, wherever such sale is desirable, either for a division of the property, the payment of debts, or to prevent the loss of perishable articles. (b)

Lands are made assets for the satisfaction of debts, in the same manner as real estates are liable in England to the satisfaction of debts due by bond or specialty. (c)

Thus, they are liable from the time of a judgment rendered against the debtor himself, if a judgment has been rendered in his lifetime; or they are liable in the hands of the heir, although he is not named in the contract, and although it be simple and by parol; or the heir is answerable for their value if aliened by him before suit brought. (d)

10. Proceedings in Civil Suits.

Bail.-No person excepting transient persons can be held to bail for a less sum than fifty pounds current money; nor upon any writ of capias ad respondendum for debt, unless an affidavit before some judge or justice of the peace or clerk of the Court of Common Pleas be indorsed or annexed to the writ before service, of the "sum really due;" nor for any other cause, without a judge's order, on probable cause shown, to be indorsed on or annexed to the writ, expressing the sum for which bail shall be given. (e)

(a) B. D. 335. (b) Ib. ix. 5. (c) Ib. ii. 2.

(d) Ib. i. 2, note.

(e) Ib. i. 53.