The opinion of the Court was delivered
Willard, A. J.The main question is whether there was evidence sufficient in law’ to support the judgment below. It was contended that the action is to be regarded as one of law,’the proper mode of trial being that by jury, and this Court limited to reviewing errors at law. The plaintiffs cannot maintain this position, for the judgment which they seek to uphold was given in form in favor of a party made a defendant by them as representing their rights for that purpose. This fact stamps the right of the plaintiffs with the character of an equitable claim. It follows that in considering the sufficiency of the ground on which such judgment rests, this Court cannot be excluded from looking into the determinations of fact as well as law.
We think that the Circuit Judge erred, as it regards the nature of the presumptions arising out of the character of the proofs, considered with reference to the nature of the issues, and such error prejudicially affected his conclusions of law and fact.
It appeared that A. 0. Norris, now deceased, as Commissioner in Equity, sold real estate belonging to the Featherstone estate, under an order of the Court for partition, and received the proceeds of sale, and made disbursements thereupon from time to time. It further appears that at the end of his term of office he delivered to his successor in office a book, purporting to be a bank book of the Branch Bank of the State of South Carolina, Columbia, containing what purported to be an account with A. 0. Norris, Commissioner in Equity, Anderson District. That by such account there appeared to be on deposit in that bank a sum of money, more than sufficient to cover the balance, in the Commissioner’s hands from *485the Featherston estate. Both sides argue that it was the duty of the Commissioner to deposit the moneys claimed in this action in the bank in question. A bank book containing proper credits was the proper evidence of such a deposit, to be ^delivered by the outgoing Commissioner in Equity to his successor. From this state of facts it is very clear that a presumption arises in favor of the regularity, of the proceedings of the Commissioner that must be removed by plaintiffs before they can establish a breach of the official bond in suit.
When a public officer, who is ordinarily presumed to have done his duty, delivers to his successors in office vouchers in the customary form, expressing on their face a compliance with the requirements of his office, while it does not follow that such vouchers may not be impeached, yet it must be assumed that they show a due discharge of official duty until the contrary appears on the part of those alleging against him.
In applying this proposition it will be hardly necessary to say that if the book was other than what it purported to be, or the balance standing to the credit of the Commissioner at the time of the transfer to his successor was not sufficient to cover all the demands against it that would exist, on the assumption that the proceeds of the Featherston estate were included in it, such facts could hardly fail to become disclosed to his successor. It certainly could not be required of one retiring .from office to search the records and memory of his successor for evidence to avert suspicion that his official proceedings, correct in form, were false in fact.
After a failure to demur to the complaint or to take §uch objection by answer, an objection comes too late that a proper plaintiff is improperly omitted from the complaint, nor is that failure to object cured when a cause of action is subsequently established in which the plaintiff has an interest.
The conclusions arrived at render it unnecessary to consider the subordinate questions discussed.
The judgment and conclusions of fact and law must be set aside and the cause remanded for such proceedings as may be rendered proper in order to conform to the foregoing conclusions.
Moses, C. J., and Wright, A. J., concurred.