Gist v. Bowman

2 S.C.L. 182

• Court: Court of Appeals of South Carolina
• Decided: July 1, 1798
• Status: Published

Opinion

The judges,

after hearing the arguments, and fully considering this case, were all of opinion, that they had no jurisdiction of the matter. It belonged, exclusively, to the court of equity. That it did not by any means follow, that because there was not a full bench of chancellors to make a final decree in a cause, that a single chancellor could not perform the duties assigned to any one member of the bench, preparatory to a final hearing. Nor was it to be pre-sunied, that suitors would be long under che inconvenience 0f a defective equity jurisdiction, arising from the vacancies on the bench. But, in the mean time, until the vacancies were supplied, and other judges appointed, the remaining chancellor still in office was fully authorized to go on, and fulfil all the duties assigned to any one chancellor, till others were appointed. That the present was a case preparatory to a hearing. It was a proceeding to compel a defendant to put in his answer to a bill, and came expressly within the powers given to each of the equity judges, who best knew their own powers and authorities, in cases within their own jurisdiction. That the present remaining chancellor Rutledge, was eminent both for his legal and equitable knowledge, and ranked high in the estimation of his country, who had elevated him to so important a trust, and they had jao doubt, therefore, that he would do what was right and proper on the occasion. To him, therefore, they thought it their duty to refer the present case. That under the habeas corpus act they had no authority to liberate men committed for contempts. Prisoners, under such circumstances, were expressly excluded from the benefit of that act.

The motion for bail was discharged and defendant remanded to the custody of the sheriff.

2?. B. At the next meeting of the legislature, after the above determination, two chancellors were elected to fill up the vacancies on the equity bench ; so that, probably a case like the above, may never happen again.' Note further. Since the determination of the above cause, and the filling up the vacancies in the equity bench, an act of the legislature has authorized the appointment of two additional chancellors, any one of whom is competent to hear and determine a cause, and to make a decree, with liberty to either party to appeal to a court established for that purpose.