
    
      Samuel Hyams vs. F. Michel.
    
    Under the Act of 1817, allowing sheriffs to recover, “by special action on the case,” from the plaintiff the jail fees of the defendant in execution, the action to recover the fees may be brought in a magistrate’s court.
    An attorney, without special instructions from his client, may issue a ca. sa. and cause the defendant to be arrested and confined in jail, 
    
    
      Tried in the city of Charleston, before H. Trescot, a. u.
    This was an appeal from a magistrate’s decision. The report of the magistrate is as follows.
    
      “ This was an action against defendant for the recovery of $7 10, being the amount of jail fees due by one Piede-mont, who had been put in jail under a ca. sa. issued in the case of F. Michel ads. Piedemont. Piedemont filed his schedule, made an assignment to Michel of all he had, and swore out. The case of Piedemont against Michel was an action of slander, in which a verdict had been rendered for the defendant; and Wm. H. Inglesby, attorney of Michel, had issued a ca. sa. against the plaintiff, Piede-mont, for the costs : it was under this ca. sa. he swore out.
    “The plaintiff’s case was fully .proved. Mr. Yeadon, for defendant, moved for a nonsuit, on the ground of want of jurisdiction in the court, because the right to recover in the present case did not exist at common law, but arises under the Act of 1817, which prescribes the particular form of action, to wit, “ a special action on the case,” and magistrates’ courts have no jurisdiction in such actions.
    “I overruled the motion, because I thought, although the Act of 1817 used the words “ special action on the case,” it could only mean a special action on the case in assumpsit: and the court had jurisdiction in assumpsit. I thought all the Act required was, that the plaintiff should state specially the manner in which the assumpsit-arose. The present claim was certainly founded on contract, and in the case of Leach vs. House, 1 Bail. 42, the court decided that a justice of the peace had jurisdiction as against an executor de son tort, because the suit was founded on contract. The object of the law in excluding the jurisdiction of a magistrate’s court in special actions on the case, could only be to prevent a magistrate from using his own discretion in assessing damages when they are undefined by law; an evil which could not arise in the present case, as the law prescribed the exact amount of the debt and raised a promise to pay it.
    “ Wm. H. Inglesby, sworn for defendant. 1 was counsel for F. Michel, in a case wherein Piedemont was plaintiff. I entered an appearance agreeably to instructions from Michel, but have not the copy process with me. Mr. Yeadon here required the production of Mr. Inglesby’s power of attorney. I thought it unnecessary, and Mr. Inglesby proceeded. I know Piedemont by sight. I put him in jail to satisfy the costs of the suit, but had no special instructions from Michel to do so. I heard no complaint about my doing so until after he had sworn out. I thought I was doing my client a service.
    “ Mr. Yeadon contended that, as Mr. Inglesby had put Piedemont in jail without special instructions from Michel, the latter could not be made liable for the jail fees, as the agent had exceeded his authority. Mr. Seymour contended, that the act of the attorney was the act of his client, and if the client was damnified by his conduct, he had his remedy over against him.
    <; I decreed for the plaintiff $7 10.”
    
      On appeal to the City Court, his Honor, the Recorder, delivered the following opinion.
    “ 1. The authority of an attorney extends to the management of the whole suit, from the writ to the execution. When he receives no special instructions, it is his duty to proceed to execution without delay. I am aware that it is said in 2 Inst. 378, and 1 Roll. 291, that his authority is determined by the judgment; yet it is said, in the same page of the Institutes, that after judgment, he may sue out execution within the year without a new warrant, and, if he do so, he may prosecute it after the year. In this country, the practice has, I think, been uniform, for the attorney to issue execution without special instructions, and I have little doubt that his neglecting to do so, whereby his client should lose his lien on the defendant’s property, or perhaps his control over his person, would furnish a good cause of action against himself. In this case, as the attorney of Michel received no special instructions, it was within his discretion to issue either a fi. fa. or ca. sa. to secure, as well as he could, the collection of those costs for which his client would be ultimately liable; and this he might do without making a demand for the costs against his client.
    2. The Act of 1817, which authorizes the jailor to recover his fees from the plaintiff in certain cases, by “special action on the case,” has been pursued here; but the objection taken is, that such an action is tortious, and, consequently, not within the magistrate’s jurisdiction. Admitting that a special action on the case may be used to recover damages for a tort, it is clear that it may also be used to recover them for a breach of contract, express or implied, and, if so, may not the jurisdiction of the magistrate be determinable according to the nature of the suit ? I think it may. When the object of the special action is the recovery of unascertained damages arising ex delicto, the magistrate clearly has no jurisdiction — it must be referred to another tribunal: but when it is to recover a sum due under a contract or quasi contract, there is no reason why his jurisdiction should be ousted, merely because the form of the suit is in case, for that remedy is not confined to injuries ex delicto, but is concurrent with the action of assumpsit for a breach of contract. Here is a contract created by the acts of the parties and the terms of the law. The actor is rendered liable to pay to the jailer the maintenance of the prisoner under the circumstances : and privity of contract, if necessary, is created by the law itself between plaintiff and defendant. The magistrate’s decree is, therefore, confirmed, and the appeal dismissed.”
    From this decision the defendant appealed, on the following grounds.
    1. That an attorney has no power to imprison a debtor under a ca. sa. without instructions from the creditor.
    
      2. That a magistrate has no jurisdiction of a special action on the case.
    
      Yeadon, for the motion.
    Seymour, contra.
    
      
      
         la Poole vs. Gist & Roddy, 4 McC. 259, it was decided that an attorney, though he was not bound to do so, might, after judgment, receive money collected, for his client, by the sheriff; and in the Treasurers vs. McDowell, 1 Hill, 184, that, though he might receive money, yet he could make no executory contract which would bind his client. See also Johnson vs. Munro, 3 Hill, 8.
    
   Per Curiam.

The report of the Magistrate and the opinion of the Recorder, present a very full and satisfactory view of all the questions that have been raised here, and we entirely concur in their reasoning and conclusion.

Johnson and O’Neall, JJ. concuring.  