The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1869-09-09
gulitits and News.

Important Decision by the Supreme Court.
James u. Adams Us. John Kleckley-In
Supreme Court; April Term, 1869.
Op1NIoN-MosEs, G. ].
The Judgment we are about to pro;
nounce in this case is not to be regarded
as affecting the decision made in Padgett
and Corley ads. Meet5e, at the present
Term. AS there ruled, it is in tho discre-
tion of the Circuit Judge, for reasons sat.
isfactory to him, to nominate any fit and
proper person as the agent of the Court,
to make sale ordered by it. Without,
however, some cause sufficient in his view
to induce different course, it is more
consistent and contormable with the reg
ular routine of the business of the Court,
to order the conduct of it's sales by its
own officer. The question now before us
is whether the Clerk or Sheriff is the
proper officer to make sales directed by
the Circuit Court. We meet the PROPOSE
tion as a general one, not confning our
inquiry only to a sale of land decreed un-
der foreclosure of mortgage. Bysthe
Constitution of 1868, (Section 16, Article
1, page 15,) the Court of Common Pleas
was invested with jurisdiction in all mat
ters of equity, bat the Courts heretofore
established for that purpose were to con-
tinue as then organized, until the lst day
of January, 1869, for the disposition OF
causes therein pending, unless otherwise
provided by law By Section lst, of the
same article, the judicial power of the
State was vested in the Supreme Court
and in two Circuit Courts, to wit: q
Court of Common Pleas, with civil juris-
diction, and Court of Gener: Sessions,
with criminal jurisdiction only. The 9th
Section of the same Article provides for
the election of Clerk of the Court of
Common Pleas, and the 3Otb, for that of
Sheriff of each County. The Act of
goth August, 1868, (Sec. 6, page lO) en-
titled "an 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 ori-
ginally brought there" with proviso,
athat all causes pending as aforesaid,
cognizabe under the Constitution in the
Courts of Probate shall be transferred to
the said Courts" We have thus CON-
prised all that the Constitution and the
Acts since adopted contain bearing on
the point before US. Commissioners OF
the Court of Equity were first appointed
for the several Districts by the Act of
1871, Statutes at Large Z, 25S,) "to es.
tablish Court OF Equity for the State" )"
with certain enumerated duties, followed
by general power, "to do and perform
all other matters and things which are
usually done either by the Master or Reg
lister Of said Court, previous to the hear
ing of any cause" The same Act, rs well
as that of 1889, Statutes at Large H.,
l1O,) directed that they were TO make
all sales under the deere or order of the
said Court. This last Act required of
them the performance of all services pro
vided 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 it's exercise of
equity Jurisdiction. The Clerk and the
Shoriff 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 exist
ing statutes in reference to these officers,
and the analogy which may exist be-
tween the powers respectively conferred
mon them. The sale under an. order Of
Circuit Judge made in a matter Of equi-
tv Jurisdiction, is not by the direction OF
a Court of Equity, but by that of Court
of Common Pleas. When tho Judge be-
low, therefore, says that Sheriff has
never been employed to make judicial
sales for Court of Equity" he overlooSs
the fact "that the Courts heretofore es-
tabished" for the administration OF equi-
ty no longer exist; and their Jurisdiction
has been transferred to the Court OF
Common Pleas. Upon this transfer fol-
lowed the entire abolition of all the off.
GERS and machinery incident and attached
to them, except SO far as retained by the
existing law. We are not prepared to
concur with the Judge in affirming
+" that the ministerial duties Of the Com
missioner have been wholly assigned to
the Clcrk of the Court of Common Pleas,
who is also Clerk of the Court of Equity"
Where or how has such assignment been
made? 1t is not to be questioned that
the duties which formerly pertained TO
the Register are to be performed by the
Clerk of the Court, for they are necessa-
rily incident to his Office, and follow, from
the very constitution of it; but the min
isterial duties of the Commissioner have
not by direct enactment been transferred d
to him, nor are they required for the full
and proper discharge of his Office as
CIerl, of the Common Pleas. The office