
    The Legatees of M’Call vs. Thos. O. Elliott.
    On tlie delivery of personal property to the Master in Equity for the purpose of a salo under a decree, it is to be regarded as in his possession both for the purpose of sale and delivery ; and it is his duty to see the terms of sale are complied with before he parts with the property.
    BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1837.
    This was an action against the defendant for the price of a negro sold by him, as Master in Equity, under a decree for partition among the plaintiffs. It appeared that several slaves, the property of the plaintiffs, were, by a decree of the Court of Equity, ordered to be sold by the defendant for partition. Mr. Moses, the auctioneer, by bis request, directed the negroes to come to the place of auction on the day of sale, which they did; the master sold them. One William was sold to Laurens for sis hundred dollars, and that amount credited to the estate in the defendant’s account of sales. When the slave was knocked off to Laurens, he was suffered with several of the other slaves, to return to his former residence. The defendant took no bond of the' purchaser, Mr. Laurens. Some six months after the sale, the slave William, on being inquired for, could not be found; and was never heard of afterwards. In a settlement between the legatees of M'Call and the defendant, he charged his commissions on the sale of William, and admitted his liability for his price, saying he had not forced Mr. Laurens to settle it. The usage of auctions, not made by operation of law, was proved to be that the property sold was regarded as in the possession of the owner, at whose request, the sale was made, until the terms of sale were complied with, and not in the possession of the auctioneer.
    Joseph M’Call, one of the legatees, attended the sale, and purchased one or two of the negroes; he was regarded in some degree as the party attending the sale for all the others — the direction of the negroes, when sold, to go home, was in his presence and hearing; he said nothing on the subject. His Honor instructed the jury, that the master’s duty was not to be regulated by the usage at private auctions; that on the delivery of a slave to him for sale, that he was to be regarded as in his possession, both for the purpose of sale and delivery; that when sold it was his duty to see that the terms of sale were complied with before he parted with the possession.
    That in this respect, his duty and that of the sheriff, under a levy, were pretty much the same. He told the jury that if Joseph M’Call could be regarded as the agent of all the parties, and the proof authorized the conclusion that he assented to the slave, after the sale, being permitted to return home, that they might, in that view, find for the defendant. They found for the plaintiffs the price of the negro, six hundred dollars, with interest from the time the purchase money was due.
    The defendant moved the Court of Appeals for a nonsuit, or new trial, on the following grounds:
    
      1st. That the Master in Equity is not responsible for the possession of negroes merely ordered to be sold, on a case like the present, by consent.
    2d. Because the Master never assumed the custody or safe keeping of the negroes in this case.
    3d. Because the negro was in possession of the parties to the time up to the sale, were merely exhibited for sale, and after being knocked down to the purchaser, went back to the possession of the plaintiffs, to be delivered up to the purchaser when he should comply with the terms of sale.
    4th. Because the agent of the plaintiffs attended the sale, and heard the direction given, that the negroes should return to the plaintiffs’ house, whence they came; and having made no objection, nor given notice of the 'danger from absconding, he is presumed to have resumed possession.
    5th. Because the Master never delivered the negro to the purchaser, or exercised any authority or control over him.
    6th. Because the Judge erred in charging the jury, that the duty of the Master in Equity and the sheriff are identical in this respect; and the Master is equally liable for the safe custody of a negro, as the sheriff after a levy.
    7th. Because the verdict is contrary to law and evidence.
    
      Memminger and Jervey, defendant’s attorneys.
    Mazych, contra.
   Curia, per O’Neall, J.

The duties of the Master in Equity, for Charleston, according to law, and the practice of the Court of which he is an officer, are partly judicial and partly ministerial. In making a sale under a decree, his duty is purely ministerial. He is to do a specific act in. a certain and defined way; and to do it, he is clothed with every proper power and authority. In order to sell personal property, he must be regarded not only as the agent of the parties, but as being invested by the decree with their legal estate. The cases of Robert Herriott, Commissioner, ads. Richard Singleton, decided at this place in 1832 and 1833, by the Court of Appeals, are conclusive authority on the point.

Having the legal estate, it is to be inquired, how is he to divest himself of it? Unquestionably by a sale, according to the decree. A sale is not effected by merely “putting up” and “ knocking down” at public auction, a chattel. To complete the sale, there must be a delivery of possession to the purchaser. In order to make this delivery, the Master in Equity must not only have the possession when he sells, but must retain it until he delivers the property to the purchaser. In this respect the sheriff and the Master stand upon the same ground. Both undertaking to make a sale, the former under a levy, and the latter under a decree — must do it legally to discharge themselves from liability. In addition to effecting the sale, the Master’s duty under the decree in this case required that he should take bond and security from the purchaser; this last duty he could not perform, inasmuch as he did not deliver possession of the slave sold. If it was true that the defendant never had possession of the slave, it is possible he might escape the liability n’ow cast upon him; but when the slaves, under the direction of Moses the auctioneer, came to the sale, which he made for the defendant, they were in law and, in fact, in his possession: he sold the slaves to Laurens, and it was clearly his duty to deliver the possession and take the security required by the decree ; if he thought proper to delay these acts to another time, and a loss thereby happened, he, not the plaintiff, must bear it, for it arises from his neglect of duty. The defendant, however, is liable, from his own admissions, for the value of the slave. He has charged and was allowed his commission on the sale of the slave.' This was in itself an admission that he had legally sold the slave, and that the payment of the purchase money was secured according to the decree; so, too, the defendant’s admission, (as the witness, Hen. Hayne, understood him,) that he was liable for the price of the slave, is enough to charge him. — The only possible ground on which the defendant could escape this liability, was, that one of the legatees attended the sale, and heard the directions of the slave, after the sale, to go home, and did not object to it. If the jury had thought this evidence enough to justify them in concluding that he assented to the direction, and that he was the agent of all the parties, it is barely possible that they might have found for the defendant; this ground was presented to them, but they thought proper to reject it, and find on other grounds against the defendant, as they had the right to do.

The motion is dismissed.  