#### Joseph R. Arthur, *vs.*Master in Equity.

*7Vic ¡Master, while acting as the receiver of a trust estate, which the. court had ordered to be invested in*stock, *suffered ‡*11,500 *to lie unproductive three months and tiventy days; he stated that he waited to invest it in stock bearing an interest of six per cent, but not suceedtng, loaned it on that interest. It appearing that complainant, who was appointed trustee, had recommended such an investment, and had settled with the Master and given him a receipt, it ivas held that the Master was not liable for the loss oj interest.*

*The Master, acting as receiver, was held entitled to a commission of one per cent on the amount of bonds delivered, over by him, to the trustee; though he had received the usual commission of five per cant, on the sales of the property for which the bonds were taken.*

*The Master having sold slaves for*$ 100 *less than might have been obtained, was held, under the circumstances, not to be liable for the difference.*

Im November 1817, a plantation on John’s Island, together with a certain number of negroes, was ordered to be sold, and the proceeds of the sale when collected, to be invested in stock of this state or of the United States or some incorporated bank.

Mr. William Simmons was appointed trustee to receive the monies arising from that sale, and the bonds given for the credit part of it, and having made the necessary investments, to pay over the interest and dividends to Thomas Simmons for life, but on no account to break in upon the capital: But it was ordered that if Mr. Simmons should decline to receive the said bonds and cash, they shall remain in the master’s hands until the court disposed of them otherwise.

In November 1821, Mr. Joseph R. Arthur was appointed trustee, and the master was ordered to deliver up the bonds, et cetera to him. The master had in the meantime received and paid away large sums of money belonging to the trust estate, and had taken the usual commissions of five per cent. In delivering up the bonds, he claimed a right to one per cent upon, them. The trustee refusing to allow this, and also finding fault with other parts of his administration, moved a reference of his-accounts to *the*commissioner, who reported thereon and the case came to be argued upon exceptions to the report,

*481st. The first exception taken by the appellant was, that the master, while acting as receiver or trustee for the estate of Thomas Simmons and wife, had suffered *$*11,500 to be idle and unproductive for the space of three months and 20 days, and that the commissioner did not report him as liable to make up the damage or any part thereof sustained by the cesthi (jue use; although it was proved that investments might have been made at any time within that period in United States’ stock, in which, or in some similar species of stock, the trustee was directed by the decretal order authorizing the sale of the property to invest the monies of the estate on advantageous terms. -

2nd. The second exception was, that the master paid over $ 360 arising from the sale of a slave named Cudjo, (a part of the capital of the estate,) to the tenant for life, and that he was not reported as liable to make it up to the trust fund.

3rd. The third exeception was, that a commission of *one per cent*was allowed to the master for delivering up certain bonds taken in part payment by him for the property he sold by order of the court, in addition to commissions allowed by law upon the sale itself. All these exceptions were overruled by the court, and an appeal was now made from its decree upoa all of them.

4th. A fourth ground of appeal was, that the master having sold a negro woman and her two children for *‡*100 less than it is admitted would have been got for her, the commissioner reported him as liable for the difference; but the court refused to confirm the report in that particular; whereas the appellant contended that it ought to have been confirmed, and appealed from the decree at the circuit court on this ground also.

*Chancellor James*

*delivered the decfee of the Court.*

This cause comes on upon exceptions to the commissioner’s report:

1st. Exception — That *the master*while acting as receiver for the estate of Thomas Simmons and wife, had suffered $ 11,500 to lie idle and unproductive of interest for three months and twenty days, which might have been vested at any time during that period in stock. Mr. Cochran certified that United, *49States stock might have been procured at 102,108, or 110. But the master states that he waited that time in the expectation of getting stock which would yield six per cent; but not succeeding, he thought it most beneficial for the trust estate to loan it to Mr. Ilort, on *the*same terms of 6 per cent, payable quarterly, and the bond secured by a deposit of stock. That after-wards, Mr. Hayne, under a power of an attorney from complainant, received all the monies in his hands and the bonds, including that of Mr. Hort, and gave a receipt for them, which the master produces. He also produces a letter from complainant, in which he recommends to him to loan the unappropriated funds in iiis hands to William E. Haync, upon his giving a mortgage of his house and lot in Columbia, and says, “he thinks it would he as well secured thereby as it could possibly be in any stock in the United States.” But now, after the settlement with the attorney" of the complainant, and this letter recommending a similar investment of the trust funds and not complaining all the time of what had been done, it is too late for complainant to come forward with his exception. A reasonable time ought to be allowed for such investments, and no unreasonable time appears to have been taken.

2nd. Exception — That the master paid ‡860 arising from the sale of a slave, part of the capital trust estate, to the tenant for life, and he is not reported as liable to make it up to the trust fund. The master was wrong to break in on the capital of the trust fund, as the case cited from 11 *Ves.*604, as well as many others shew. But still the complainant may have an easy remedy without making the master liable in the first instance. He is the trustee, bound to pay the dividends to Mrs. Simmons, and let him retain the amount, with interest from the time of the payment, out of that fund. But if that fund should fail, the master must be liable.

3rd. Exception — That a commission of one per cent waá allowed to the master for delivering up certain bonds taken in part payment for the property sold by him. The master in this case acted as a receiver, in a new and distinct character from that of his general official duties, and in one not contera-*50plated by tbe fee bill. Nov/ it has been frequently decided ffi this court, “that the master or commissioner, when appointed and acting as receiver, acts in a new and distinct character, and is entitled to compensation in that character;” *Shubrick*vs. *Fisher, Minutes Court Equity, 25th June,*1802, *Butler,*vs. *Ryan,*3. *Eq. Reports,*182; *Wightman,*vs. *Lining,*decided in this court. So that it is proper to follow the established course of this court.

4th. Exception — That the master sold a negro woman and her two children for *‡*100 less than it is admitted could have been got for her. The,commissioner reported the master as liable for the difference, but the circuit court overruled that part of the report, and the decree of the circuit court is now appealed from. Complainant wished her sold in Columbia, where he states in a letter to the master *that he could get $800*for her. But the auctioneer, Mr. Toomer, says she refused to go to Columbia and ran away, and afterwards came in under an express promise that she should be sold in Charleston, where herhusb and and children lived. She was besides sickly and was not worth more than the money she brought. Under these circumstances, and upon every principle of humanity to slaves, the decree of the circuit court, both on this exception and all the others depending on the points above stated, must be affirmed Therefore, the decree of the circuit court is affirmed.

Chancellors *Desaussure, Guillará*and *Waties,*concurred,

*Thompson.*

I concur in all the points in this case, except the allowance of one per cent on the transferred bonds.