The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1869-08-25
Important Decision by the Supreme
Court.
James U. Adams ps. John Kleckley-M
Supreme Court, AprH Term, 1869.
OpINIoN-MosEs, G., J.

Supreme Court, April Term, 1869.
Op1N1oN-MosEs. G, J.
The Judgment we are about to pro.
nounce in this case is not to be regarded
as affecting the decision made in Pad
gett and Corley ads. Meetze, at the pre-
sent Term. AS there ruled, it is in the
discretion of the Circuit Judge, for rea-
sons satisfactory to him, to nominate any
fit and proper person as the agent of the
Court, to make q sale ordered by it.
Without, however, some cause sufficient
in his view to induce different coul Sc,
it is more consistent and conformable
with the regular routine Of the business
of the Court, to order the conduct of its
sales by its own officer. The question
now before as is whether the Clerk or
the Sheriff is the proper officer to make
sales directed by the Circuit Court We
meet the proposition as a general one,
not conining our inquiry only to q sale
of land decreed under foreclosure of
mortgage. By the Constitution of 1868,
Section 16, Article 1, page 49, the
Court of Common Pleas was invested
with jurisdiction in all matters of equity,
but the Courts heretofore established for
that purpose were to continue as then
organized, until the 1st day of January,
1869, for the disposition of causes there
in pending, unless otherwise provided
by law. BY Section 1st. of the same
article, the Judicial power Of the State
was vested in q Supreme Court and in
two Circuit Courts, to wit: Court of
Common Pleas. with civil jurisdiction,
and Court of General Sessions, with
Section of the same Article provides for
the election of Clerk of the Court of
Common Pleas, and the 3Oth, for that of
Sheriff of each County. The Act of
Goth August, 1868, (Sec. 6, page 1O,) en-
titled San Act to organize the Circuit
Courts, " transfers all pending "suits in
Equity to the Courts of Common Pleas,
in and for their respective counties, to
be entered on the dockets of the said
Courts, and to be heard and determined
as If originally brought there" with a
prov1so, r'that all causes pending as
aforesaid, oognizable under the Constftu-
ton in the Courts of Probate shall he
transferred to the said Courts" We
have thus comprised XII that the Consti-
tuition and the Acts since adopted oon-
tain bearing on the point before us.
Commissioners of the Court of Equity
were first appointed for the several Dis
tricts by the Act of 1791, (Statutes at
Large 7, 258, ("to establish Court of
Equity for. the State" with certain emu
merated duties, followed by q general
power, "to do and perform all other mat
ters and things which are usually "done
either by the Master or Register of said
Court, previous to the bearing of any
cause" The same Act, as we'll as that
of 1889, (Statutes at Large IL, 11O,) di-
rected that they were to make all sales
under the decree or order of the said
Court. This last Act required of them
the performance of all services provided
by law in relation to Registers in Equity.
Their powers were enlarged from time to
time, and judicial authority was added
to their ministerial functions.
No provision has been made by the
Constitution, or the laws since enacted,
in regard to sales ordered by the Circuit
Court of Common Pleas in its exercise of
equity jurisdiction. The Clerk and the
Sheriff are both officers of the said
Court, and to determine upon which of
these devolves the right and duty to make
its sales, we must be governed by the ex-
listing statutes in reference to these Of
ficers, and the analogy which may exist be-
tween the powers respectively conferred
upon them. The sale under an order of
a Circuit Judge made in O matter of
equity jurisdiction, is not by the direc-
tion OF Court of Equity, but by that of q
Court of Common Pleas When the Judge
below, therefore, says "that Sheriff has
never been employed to make judicial