The opinion of the Court was delivered by
WRIGHT, A. J.The power of the Judge of Probate to grant relief to sureties of administrators who may conceive themselves in danger of injury for such suretyship, is neither derived specifically from the Act of 21st September, 1868, “ to define the jurisdiction and regulate the practice of Probate Courts,” (14 Stat. at Large, 76,) or from the Code adopted -on the 1st of March, 1870. The 39th Section of the said Act declares of force “all laws and parts of laws of the late Provisional Government of South Carolina relative to the powers, duties and course of procedure of the Courts of Ordinary and Equity, so far as the jurisdiction of the said Courts is herein conferred on the Courts of Probate, not inconsistent with the Constitution and this Act, or supplied by it.” This leaves of force the Act of 1789, (5 Stat. at Largo, 111,) which provides for relief to sureties for administrators who conceive themselves in danger of being injured by such suretyship, by authorizing them “to petition the Court to whom they stand bound for relief, which Court shall summon the administrator to appear, and thereupon make such order or decree as shall be sufficient to give relief to the petitioner.”
The Act of 1839 (11 Stat. at Large, 43,) is to the same effect, and *449adds, in positive terms, a direction that the order for the relief of the petitioner shall “not impair or affect the rights of the parties interested in the estate.” This restriction was implied by the Act of 1789, as the order or decree, by which it intended to afford the means to relieve the surety from the obligation which the bond imposed, could not operate to affect or impair liabilities already incurred by the default of the administrator. The Ordinary, on such application, had no discretionary power.
The right of the surety to be relieved from future liability on his own motion, and without proof of any danger, was secúred by the Act. — McKay vs. Donald, 8 Rich., 331. The administrator is necessarily a party to the proceeding, for the order or decree of the Court is to operate upon him. As a mere matter of prudence, it might not be improper for the Ordinary to take the accounts of the administrator, if he is willing to submit them, but entirely unnecessary, so far as the distributees are concerned, for they, not being parties, will not be bound by the result. If, on a proceeding against the administrator by tire distributees for an account, it should appear that he was indebted, at the time of the discharge of the surety, in an amount exceeding that found by the Probate Judge, the surety could not set up the account first found in bar of the excess which the administrator on such proceedings might be decreed to owe to the parties interested in the estate. The relief can be granted by a revocation of the letters of administration, and a grant of administration “ de bonis, non,” or the administrator could be required to give a new bond, with new sureties.— Ordinary vs. Bigham and Hudson, 2 Hill, 515; Owens vs. Walker, 2 Strob. Eq., 292. Under the Acts of 1789 and 1839, and the practice which has been adopted to carry out the relief they proposed, it was not necessary that any account should be taken, or a money decree established against the surety.
The Probate Judge here went, however, still further, and required the administrator to pay the amount so found due into the hands of the Court. What disposition, on receiving it, could he make of it? Had the debts all been paid, so that partition of it could be ordered between the distributees ? and, if so, from what source would the Probate Judge derive his power to make it? Were the distributees bound by the account? or was the surety, in whose favor relief was prayed, discharged from all liability to them by an ex parte decree finding the amount due?
It is not necessary to inquire, if the fund paid to the Probate *450Judge had been wasted by him, or lost by his default, whether the surety would have been discharged either as to the creditors or the distributees of the intestate?
The 20th Section of the declaration of rights in the State Constitution provides “ that no person shall be imprisoned for debt, except in case of fraud.” If the mere non-payment of a sum of money is to be construed'as fraud, within the language of the Constitution, the humane and liberal provisions which it made against imprisonment for debt would have been not only senseless and unmeaning, but delusive.
If the Section of the Code referred to in the argument for the motion, had directly authorized the Probate Courts to imprison a party for failure to comply with its orders directing the payment of money, it would have been void and nugatory, because in violation of the Constitution.
No inference, however, can be properly drawn from that Section to justify the conclusion that the Legislature intended to do that which the Constitution in such express terms had prohibited.
The true construction of the said Section is, that imprisonment is allowed in those cases to be directed by Probate Courts to carry out their “ orders, sentences and decrees,” where it is conformable to the law regulating their procedure in matters (other than the payment of money) where arrest is allowed by positive enactment as the means of compelling obedience to thejr orders, as, for example, to compel the attendance of witnesses, or deliver a last will and testament wrongfully withheld. We do not think the appellant derives much aid from the case of Hosack & Blunt, Executors, vs. Rogers et al., 11 Paige, (603, to which his counsel referred in his argument. The'point there, and as to which even the Court doubted, arose under a reservation of the 2d Section of the non-imprisonment Act of the State of New York.
The language of our Constitution, where debt is the foundation of the imprisonment, is without exception, save as to fraud.
It is objected against the order of the Circuit Judge, “that this being a purely civil proceeding, the remedy against any error in the judgment was-by appeal and not by habeas corpus
We do not know of any statute by ■which the Judges of the Supreme Court are prohibited from exercising the common law jurisdiction in regard to the writ of habeas corpus. The high prerogative writ of habeas corpus applies “to all manner of illegal confinement.” A party committed for a contempt, adjudged by a Court *451of competent jurisdiction, will not be discharged under it. If, however, the alleged contempt is for disobedience of an order in which the Court, in the matter before it, was without jurisdiction, the Court having the right to grant the writ may inquire into the legality of the caption and detention. The Probate Court had authority to extend the relief prayed for in the petition of the surety; but all the relief it could grant was to revoke the letters of administration and grant them anew.
Its power there terminated. The order to pay into Court what was supposed to be due by the administrator was without authority, null and void; and the process to arrest was founded on the order.
The power of one Court to enquire into the sufficiency of an arrest on the process of another, has been fully considered in James vs. Smith, (ante, p. 183.) In a matter clearly within its jurisdiction, the action of one Court is beyond the control of that of'any other, save by way of appeal, where that mode of revision is provided by law.
'Where, however, a Court, in so important a matter as that which affects personal liberty, oversteps the limits of its authority, and endeavors to enforce obedience to its unauthorized acts, it would be a reflection on the administration of public justice if there was no jurisdiction to which the imprisoned citizen could resort for enlargement. If the order of the Probate Judge was without jurisdiction it is at least doubtful whether the Circuit Court could, entertain an appeal from it, for the 21st Section of the Act of 1868, (already referred to,) gives “appellate jurisdiction to the Circuit Court where the matters were originally within the jurisdiction of the Probate Court.”
It is ordered and adjudged that the order of the Circuit Judge be affirmed and the motion dismissed.
Willard, A. J., concurred. Moses, C. J., absent at argument.