The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1869-08-25

the fact a.hat sfise Courts heifafofora i ,i es.
tablished" for the administration OF
equity no longer exists and their juriss
diotion has been transferred TO the Court
iof Common Pleas. Upon this transfer
followed the entire abolition Of all the
Offices and machinery incident aud at
tacted to them, except so far as retained
blythe existing law. We Yara not pres
pared to concur with the Judge Id &fffirna-
ing "that the ministerial duties OF the
Commissioner have been wholly assigned
to the Clerk of the Court of Common
Pleas. who is also Clerk of the Court Of
Equity" Where or how has such as
signment been made? It is not. to be
questioned that the duties which former
ly pertained to the Register are to be
performed by the Clerk of the Court,
for they are necessarily incident to his
Office, and follow, from the very consti-
tuition of it; but the ministerial duties of
the Commissioner have not by direct
enactment been transferred to him, nor
are they required for the full and proper
Common Pleas. The Office of Commits
Clerk and Sheriff retained, we are led to
an examination of the statutes, as they
stand in regard to these. so as to con-
clude which by right is entitled to make
sales ordered by the Circuit Court
The Sheriff is the executive officer of
the Court. From the earliest legislation,
all sales ordered by the Court of Law
were made by him. The Act of 1889,
(Statutes at Large, IL, %, to go no farther
back, requires 1.-THE Sheriff to serve, exc
cute and return every process, rule, Or
der or notice issued by any Court of
Record in the State, or by other compe-
tent authority" The same Act (p. 27)
requires him "to keep sale book, in
which he shall enter all sales which he
may make under any order, decree, exc
cution or final process of any Court of
this State" Is any such obligation i'm
posed on the Clerk? May it not admit
of doubt when he makes q sale, under
the order of the Court, that it is uirtute
oDicit, and in the event of liability for
neglect or malfeasance, resort for in
demnity would be had to his official
bond? In tho determination of the
question. some force may be derived from
the practice and procedure before the
new Constitution 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, 5,
1857 parties entitled to q distributive
share of any estate real or personal, may
apply to the Court Of Lazy for writ of
partition. If a sale becomes necessary,
the Sheriff land not the Clerk has been
the officer to make it. Here is the exer-
else by the Court of law of equity jnris-
diction.-tSmiM vs. Smith, Bailey, 70.
BY another Act, passed in the same
year, the Court of Law could in certain
cases order the foreclosure of mort
gage of real estate; and when, under
proceedings therefor, q sale has been di-
rected, 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 applica-
ton, under the said Act of 1791, sale
should be required to be made by the
Sheriff, and at the very next moment, on
bill for foreclosure, it should be re-
quired to be made by the Clerk. The
seems to look to the adoption of the
tration of law and equity by the Circuit
justice may be administered in a uniform
mode of plesdings, without distinction
between law and equity, they, the Gene
raj Assembly, shall provide for abolish
ing the distinct forms of action, and for
that purpose" &c.-*Forty-third Rule Of
Court. TrescoA e Ingles6y cs. McLaugh-
lin, McC, 4, 264.
In the United States Courts, where
equity and law are administered by the
same Judge, 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 o more
extensive view of the subject than the
particular case probably required. This
course has been pursued because the
counsel on both sides deemed iudg-
ment of this Court desirable, rs one Of
the grounds taken, that the practice of
tho 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 rs any other on cause salts
factory tn II