
    Mary Gist and others, Legatees of Benjamin Cattell, deceased, against John Bowman et al.
    
      Charleston District,
    
    
      1798.
    
    One chancellor in the court of equity is competent to do all matters and things appertaining to the equity jurisdiction, preparatory to a final hearing, altho’ there may he no otherjudge at the time ’ in office* A defendant in a cause depending in that court, who is in the custody of the sheriff under an attachment for a contempt in not putting in an answer to a bill of discovery filed there, is not entitled to his discharge on a writ of habeas corpus before the common law judges, notwithstanding there may have been but one chancellor in office at the time when such at-* laohment was issued*.
    AT a special meeting of the Judges at chambers, at Charleston, 17th of March, 1798. Present, Burke, Waties and Bay.
    This was a cause originally depending in the court of equity, out of which an attachment for a contempt had issued against the defendants, for not putting in their answers agreeable to the rule of that court. Upon this attachment, the defendant, Mr. Bowman, was taken and im* prisoned. Whereupon, he applied for and obtained a writ of habeas corpus, and was brought up before the common law judges, when a motion was made by the Attorney-General, that he might be discharged from his arrest and imprisonment. The ground on which he principally relied in favour of the motion, was, that the powers of the court of equity had ceased, or, in other words, that there was no such court in existence; consequently, that the attachment by virtue of which the defendant had been arrested was a nullity. The court of equity in this state consisted of three judges or chancellors, originally, one of whom, Chancellor Hutson, had lately departed this life, and Chancellor Mathews, another, had lately resigned, so that Chancellor Rutledge was the only remaining judge in office. It appeared that the complainants had duly filed a bill of discovery against the defendants in equity, and that rule after rule had been taken out against them to file their answers, but to no purpose ; at length this attachment was taken out for a contempt in not answering the bill of complaint, on which the defendant was arrested.
    The Attorney-General said, this arrest was not warranted by law,
    inasmuch as the act which established the court of chancery contemplated three judges. That the restrictive clause, however, authorized any two of them to exercise some definitive powers therein named, and any one of them to exercise certain other powers, preparatory to a final hearing. But, he insisted, that these latter powers were given to the individual members of the equity bench, under an idea that after such individual judge had made all the necessary preparatory orders in a suit, there was a competent number of judges remaining on the bench to proceed to a final hearing and determination of a cause. As, however, there was not a competent number of judges to hear and finally determine a cause, and make a decree, it was a nugatory act for any one judge to make any interlocutory or intermediate order, in a case which could not be decided and ended. Hence, he inferred, as it was essential to every court of competent jurisdiction to put an end to controversies ' *n suc^ courts> ^ it s0 happened, either by death or resignation, that that could not possibly be done, then, he said, the court had died a natural death, and all its powers were at an end. If then the court of chancery had by these contingencies become extinct in this state, it followed as a natural consequence, that every process pretending to come from it must be null and void. Any arrest, therefore, by virtue of such pretended process, must be illegal, and it then became the duty of the common law judges, under the habeas corpus act, to discharge the defendant.
    Mr. Desaussure, counsel for the complainants in equity, against the motion,
    contended, that although one judge could not proceed to a final hearing and determination of a cause in equity, yet he was fully competent, under the acts of 1784 and 1791, to do all other acts appertaining to the jurisdiction of a court of equity, and to make all rules and orders preparatory to a final hearing. That he was authorized to grant injunctions, issue ne exeats, and to award every odier process of the court necessary for the attainment of justice. That the present chancellor had, ever since the resignation of Chancellor Mathexos, been in the constant habit and practice of issuing all these, and every other process of the court, as occasion called for or required, and this was the first time his authority had ever been called in question. It was further insisted, that the court of chancery was one of the grand branches of the judicial system of this country, and had been so ever since the formation of civil government in it, and our late constitution had secured it to posterity. That the judges in equity, like the common law judges, hold their commissions during good behaviour, and they cannot be removed from office but by impeachment for improper beha-viour, so that the present judge in equity possesses all the powers and authorities, to do all matters and things within the equity jurisdiction, as fully to all intents and purposes as he did when the other judges were in the exercise of their functions; and that if the vacancies occasioned by death and resignation had not been filled up, and other chancellors appointed, it was not his fault; he was at his post, ready to do all things for the advancement of justice which the duties of his office enjoin upon him, and all his acts, as such, were binding and efficacious, as far as he went. He asked now the circumstances of the present case stood ? They were very simple, and lay within a very narrow compass, and all within the powers of any one of the chancellors. A bill of discovery had been filed against the defendant. What was wanted ? Plain answers to the allegations in this bill. But defendant would not answer, and the present proceeding was the method prescribed by the rules and practice of that court to compel an answer. The mode of discharge was very easy, without recourse to a habeas corpus, or to the common law judges. Let defendant put in his answer, and the equity judge, would discharge him as a matter of course, as soon as he had complied with the rules of court. He next contended, that the common law judges were not authorized to interfere in a case of this kind; they had no cog-nisance in the case. This was an attachment for a contempt out of the court of chancery ; a court of supreme uncontrolled jurisdiction, and which, in many instances, controlled even the supreme courts of law themselves. The habeas corpus act did not embrace the case ; for contempts are expressly excepted out of the purview of the statute, and the judges are forbidden to interfere in cases of prisoners committed for contempts.
   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.  