#### *M. I.*Keith, *late*Master, vs. *J. W. Gray, Commissioner.*

The duties and privileges of a Master, or Commissioner in Equity, expire with his term of office : sales ordered, but not made, his successor must make; and the officer who makes the sales is entitled to the commissions,

*Before*DeSaussure, Ch., *at*Charleston, *April,*1831.

On January 21, 1830, M. I. Keith, being Master, the Court made the following order on the return to a writ of partition: “ It is ordered, that that part of the return of the Commissioners, which recommends a sale of the whole tract of land called Cedar Hill, be confirmed, and that the Master in Equity do make sale, at public auction, of the said plantation, on or before the second Monday in February next, on the following terms,” &c. Under this order, Mr. Keith was unable to effect a sale for want of bidders; and after he had retired from office, a further order was made, January 21,1231, *“*that the order for the sale of Cedar Hill, directed to be sold 21st January, 1830, be renewed, and the Commissioner do make sale of the said property, on the same terms as therein specified, at any time in which it shall seem advantageous to the interests of the minors to sell,” &c.

Cedar Hill was sold at public auction, by the Commissioner, Mr. Gray, on March 12, 1831, for $17,000; and this was a rule *228on Mr. Gray, to shew cause, why he had refused-to pay over to Mr. Keith, late Master, the commissions on the sale.

His Honour decided, that the Master and Commissioner should divide the commissions.

Mr. Gray appealed on the grounds, *inter alia,*

1. Because the duties and privileges of a public officer expire with his term of office.

The opinion of the Court was delivered by

O’Neall, J.,

[who, after holding, that the order authorizing the late Master to sell, expired by its own limitation after the second Monday in February, 1830; and that the second order vacated the first, so far as it directed the Master to sell, and substituted the Commissioner in his place; proceeded as follows.] Notwithstanding these-views would dispose of the case, yet it is deemed to be best to decide the question, whether the duties and privileges of a Master or Commissioner in Equity do not expire with his term of office? That they do, would not admit of a question, were it not for the decision of the late Court of Appeals, in the case of *Hunt*vs. Elliott, (Bail. Eq. 90.) For the Judges who decided that case, both on account of their learning and experience, I have always entertained a high respect; but it is due both to the State and ourselves, that error should not be perpetuated merely because it has the sanction of the authority of wise and learned men. Error is the lot of every human tribunal; and its correction when palpable, both in ourselves and in our predecessors, seems to me a duty as paramount as that of deciding according to law.

The Master in Equity holds his office for four years ; within that period, he is entitled to all its privileges, and is bound to discharge all its duties. The privilege and duty of an officer necessarily depend upon each, other: one cannot exist without the other. The moment the office ceases, its future duties are terminated, and of course also its privileges must cease.

The office of a Master or Commissioner, does not, like a Sheriff’s levy at common law, vest the property in him for sale. *229He is merely the agent of the Court, to execute a decree of sale: he must act within the power conferred on him, or his acts will be set aside: in strict practice, he ought to report his sales, and have them confirmed before he executes a title. The fees of officers of the Courts of either law or Equity, are compensations for services rendered. So far as they act, these must be paid to them; but when they have not performed a service, I am at a loss to discover a reason why they should' be paid for it. Their right to fees depends upon the office. So long as it continues, and services are rendered, the officer is entitled to payment; when his office ceases, the fees afterwards accruing in a cause, belong to his successor.

The commissions on a sale belong to the officer who makes it: although his successor may be compelled to collect and pay over the money, he is entitled to no part of the compensation allowed for selling. He is surely, therefore, entitled to the commissions, who both sells and collects.

The circuit decree is reversed, and the rule dismissed.

JoriNsoN and Harper, JJ., concurred.

*Decree reversed.*