LAW CASES ARGUED AND DETERMINED IN THE COURT OF APPEALS, OF SOUTH CAROLINA, IN NOVEMBER TERM, CHARLESTON, 1826. JUDGES PRESENT. HON. ABRAHAM NOTT, Presiding Judge. HON. C. J. COLCOCK, HON. DAVID JOHNSON. H. SOMERALL VS. WILLIAM HASELL GIBBES, Master in Equity. A master in equity is liable at law, to an action on the case, for a neglect of duty, as an officer of that court, by any one who may be injured by such neglect. This was an action on the case tried before the Recorder of Charleston, against the defendant as Master in Equity, for negligence in taking insufficient surities to a guardianship bond, contrary to the order of the Court of Equity. The plea was the general issue. On the case being opened, the Recorder requested the point to be argued, whether a Court of Law had jurisdiction of the cause. After hearing the argument the Recorder non-suited the plaintiff, on the ground that the Court of Law had juris diction only of cases ex delicto where they arose from the omission of some legal duty or the commission of an act forbidden by the laws, producing injury to a plaintiff; that here the master was charged with an omission to perform what is termed a legal duty, but it was a duty not enjoined by the law, but prescribed by an order of the Court of Equity, and he thought that court alone could take jurisdiction of the matter. The plaintiff appealed. Findley, for the appellant, cited 5 Bac. 212. 213. tit. Officer. 6 Mod. 95.-All officers are liable by suit at law for injuries arising from their neglect, 1 Com. Dig. 414. Here the defendant took an insolvent person as surity, which was a gross violation of his duty, and an injury to the plaintiff, which was sufficient to support an action. He referred to the act of 1780 first establishing the Court of Equity. Taking the office is considered as contracting on the part of the officer to indemnify every one against any injury which may come to them by his neglect or malfeasance of office, Co. Litt. 233. 3 Black. Com. 165. Holt's opinion in 1 Bac. Action on the Case 92, which was afterwards sanctioned by the House of Lords, 1 Bac. 95. 3 Campb. 388. He cited the act in 1 Brev. Dig. 205, to show that the commissioner gave bond, that he might be thus liable. The plaintiff might have sued on that bond. The same difficulties would occur in such a case as in this. If the action on the bond is maintainable, why not this action? The defence could be made as well at law, as in equity. The cases relied on in Eden on Injunctions 3. 2 Dickens 619. 1 Vern. 269 were cases where a legal defence could not have been made. Gadsden contra.-Lord Coke says, that an act has never been done, is a reason why it never should be done. In a case of quo warranto the Court did refuse to go into the matter, because a complete remedy could be had elsewhere, in a tribunal more especially adapted to the purpose. And admitting the court of law had jurisdiction, yet the courtesy due to the court of equity, where in fact the matter more properly belonged and where justice might be more properly administered, should induce the court of law to refuse its aid. The court of equity certainly could investigate the matter with more ample facilities. By its orders every thing may be much more fully examined than can be done before a jury. A trustee cannot be made liable in any other court than in equity. The encroachments of the courts upon the jurisdictions of each other should be very strictly guarded against. A mere equity has never been held a sufficient cause to maintain a suit at law. Suits upon the bonds of officers are given by statute, and could not have been maintained. at common law. The court of equity may assess damages, in such cases as this, involving accounts, or a matter accountable for. The act does say the bond may be sued on. But it does not say a suit at law. It gives a remedy, but leaves the form of the remedy to be determined by the proceedings of the courts. But this remedy upon the bond is a special remedy, and excludes the idea of a remedy by action on the case. The cases in Bacon are no doubt founded on some statute which creates some legal obligation, remediable in a court of law. The inconveniences attending the proceeding at law should prevent the court from encouraging the maintenance of such actions. The courts of law will not now entertain a suit for a legacy; and they have refused to permit equitable matters from being put upon the record. Otherwise all distinction between the courts would be destroyed, 2 Bos. & Pul. 45. 7 East 143. 8 East 344. In 3 Caines Reports 22, debt was held to lie on a decree in the court of chancery. But he could not consider that case as law. Chancellor Kent dissented. Eden on Injunctions 27. 1 Vern. 269. 2 Dickens 619. 2 Atk. 162. M'Cready in reply-All public officers are liable for breach of duty, 2 Nott & M'Cord 134. 9 John. 385. 1 Salk. 18. If the duties be such as are to be performed by the master it is sufficient to show that he was master, the duties neglected and the injury. If the master is ordered to perform a certain duty the production of the order is sufficient evidence of the duty. 4 Wheaton 220. 1 N. & M'C. 328, 1 M'Cord 495. Ib. 507. The power of that court to make the order was well known in every court, 6 Wheaton 109. 2 Nott & M'Cord 329. Besides the bond, the master is liable in consideration of the fees he receives. Equity could not assess damages. How then could the plaintiff recover there? CURIA, per JOHNSON, J.-Whether the plaintiff has or has not declared for a sufficient cause of action does not enter into the consideration of this case. It is concluded by the judgment of the court below which proceeds entirely on the ground that the defendant, as an officer of the court of equity, was not bound to respond in a court of law for damages sustained by his neglect of duty, but was amenable only to the tribunal of which he was an officer; and all the grounds of this motion are resolved into that single question. It is a general rule that every breach of a public duty, or neglect of what a party is bound by law to perform, working wrong or loss to another, is injurious and actionable, 1 Term Rep. 509. 2nd do. 667; and it is equally incontrovertible that an action on the case which is peculiarly or exclusively of common law cognizance is the appropriate remedy for such an injury, (vide 1 Bacon's Abr. Action on the case for negligence A 2.) These as general positions have not been controverted, but it has been contended in opposition to the motion that every court claims the exclusive right to punish its own officers for a dereliction of duty; and a distinction has been attempted between that class of duties which are imposed by positive law and those which arise incidentally and are created by the act of the court; to the last of which, it is said the neglect complained of in this case, is referable. It may be admitted that so far as the judgment of the court is to act exclusively on its officers, as a punishment for their delinquinces, the first of the foregoing positions is well sustained, but the party who is injured has rights also which are not to be overlooked. He has a right to look for redress to that tribunal to whom the law has confided the jurisdiction of, and applies the remedy, to the particular wrong complained of, and whatever the rule of law may be in England, I have known no instance in this country where a personal privilege of this sort has been claimed or allowed. Besides an action on the case is one sounding altogether in damages; and, as wide as the range is which the courts of equity, both in this country and in England, have taken in pursuit of increased jurisdiction, they have, I believe, never gone quite so far as to claim exclusive jurisdiction over the subject of damages; and if, as it is said, there is no wrong without a remedy, it must be a matter of common law jurisdiction. The distinction between those duties which are enjoined by positive law, and those which arise incidentally appears to me to be without foundation, so far as respects the party injured; for whether the injury proceeded from the one source or the other, it would be incumbent on the plaintiff to show that the duty was imposed, that the defendant had neglected to perform it, and that he had sustained an injury. And if it be true that the laws or the rules of a particular jurisdiction are locked up with the arcana of the closet, so as to be inaccessible or so mysterious as |