The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1869-09-09
ANDERSON, S. G, THURSDAY, SEPTEMBER g. 1889

ne Snall enter all EalcS WHICH ITO may
make under any order, decree, execution
or final process OF any Court Of this
State" Is any such obligation imposed
on the Clerk? May it not admit of
doubt when he makes sale, under the
order of the Cetrt, that it is virtute oficii,
and in the event of liability for neglect
or malfaasance, resort tor indemnity
would be had to his official bond? In
the determination of the question, some
force may be derived from the practice
and procedure before the new Constitu-
ton was adopted, in cases where the
Court of Law exercised the functions of
the Court OF Equity.
Partition and foreclosure of mortgage
are properly of equity jurisdiction. By
the Act of 1871, Statutes at Large, S,
1857 parties entitled to distributive
share of any estate, real or personal, may
apply to the Court of Law for writ of
partition. If sale becomes necessary,
the Sheriff (and not the Clerk) has been
the officer to make it. Here is the exer-
else by the Court of law of equity juris-
diction.-Smith Us. Smith, l Bailey, 10.
By another Act, passed in the same
year, the Court of Law could in certain
cases order the foreclosure of a mortgage
of real estate and when, under procee-
dlngs therefor, a sale has been directed,
the Sheriff has always been the officer
charged with the duty. *It would not
comport with the symmetry which should
prevail in the forms and practice of the
same Court, that on an application, under
the same Act of l79l, sale should be re-
quired to be made by the Sheriff, and at
the very next moment, on bill for fore
closure, it should be required to be made
by the Clerk The whole purview of the
Constitution seems to look to the adop-
ton of the same forms of practice in the
administration of law and equity by the
Circuit Courts, for the fifth Article d.
rects, "that justice may be administered
in uniform mode of pleadings, without
distinction between law and equity, they,
the General Assembly, shall provide for
abolishing the distinct forms of action,
and for that purpose" &c.-*Forty-third
Rule of Court 1rescott & Inglesby Us. Nc
Laughlin, McD., 4, 264.
In the United States Courts: where
equity and law are administered by the
same Jud ge, the practice in relation to
sales is in conformity with the conclusion
to which we have arrived. There the
Marshal, the executive officer of the
Court, is always the agent through which
they are made. We have taken more
extensive view of the subject than the
particular case probably required. This
course has been pursued because the
counsel on both sides deemed judg-
ment of this Court desirable, as one of
the grounds taken, that the practice of
the Circuit Courts in regard to sales
might be uniform. We are obliged, how
ever, to affirm the judgment Of the Court
below, for it had the right to designate
any fit and proper person to make the
sale, and, therefore, might appoint the
Clerk as we'll as any other on cause salts
factory to it.
Our judgment is, that where the Court
intends the sale to be made by the proper
officer, the Sheriff, and not the Clerk, is
such officer. The judgment. however, OF
the Circuit Court in this case is affirmed
for the reasons stated.