[Present, Chancellors Ruteegge, James and Thompson.]

MAY, 1808.

#### John R. Fenwicke, vs. William H. Gibbes, Master in Equity.

A master in Equity is not amenable to a suit for an error in judg--pient, in taking’security on a sale of properly : where the court specially instrud him, he is bound to pursue the instructions strictly. He sometimes acts in a ministerial, and sometimes in a judicial capacity.

THIS was a bill *filed*against the master in equity, to recover to indemnity for an alleged misfeasance in his official capacity. That he had sold property in which the complainant was interested, under the orders of this court, and had not taken security, in the manner the order prescribed, or his duty dictated ,• and that acting in this respect in a ministerial capacity, united too with an agency,he was .amenable to the party injured, whose remedy lay particularly in this court, forasmuch as the master was its ministerial officer, and the subject *matter*arose under its decrees.

It seems that the property in question (a town lot of. land) had been sold under a decree of the British board of police (which exercised judicial powers while the armies of Great Britain occupied Charleston) at which sale William Simpson was the purchaser, and had erected buildings thereon. After the evacuation of Charleston, and the full restoration of the state authority, the sale thus made was set aside in this court (all proceedings before that tribunal being held nugatory by the courts of this state) and a resale directed, which sale was made 13th May, 1785, by the master, and the said William Simpson was the pur.-*630chaser, for himself and his brother and partner, Jonathan Simpson, who was absent in New-York.- That the terms 0£ t[le decretal order expressed no directions as to the nature of the surety. The defendant took the bond of William Simpson and mortgage of the premisés with an assurance that J onathan Simpson, who was soon expected to arrive, would sign the bond. This never happened. Coercive measures against William Simpson were adopted by the master, and ultimately a bond of the .late Colonel Maurice Simons was assigned as a collateral security,, which the in aster had given up to the executor of Edward Fenwick, and afterwards sued under a power of attorney. The estate of M. Simons, though deemed good, proved to be insolvent; and the defendant having sued Simpson to execution, it was returned M *nulla bona.”*It was objected also that the master had accepted the assignment of Mr, Simons’s bond from one of the partners or obligees, ■which was an invalid assignment, as he ought to have known, and that he ought to be amenable for the amount.

Mr. Ciieves and Mr. Drayton for complainant.

Messrs. W. L. Smith, Parker and Simons for the defendant.

It was contended for the complainant, that the master of this court, in the discharge of those executive duties which its decrees dictate, acts in a ministerial capacity, and is liable for neglect of duty in like manner as sheriffs. That when this court orders him to sell an estate on credit, though it is sometimes expressed, it is always implied, that he should exact security from the purchaser before he makes titles or delivers the property sold. That personal surety, besides a mortgage of the property, is not only reasonable, but is consonant with the usages of this court, and ofall public sales of real estate on credit. Conforma? bly to this the master advertised, “ requiring bond with interest and good securities ;?’ and at the sale he declared the terms to be “ bonds with sureties to be approved by the master, and mortgages of the land if required.’4 Thai! *631he took the mortgage and dispensed with the securities, in-Yerting the option reserved to him by the terms of sale *;*in doing which he took on himself the sufficiency of the security. The Complainant who was interested in having the land sold for the highest possible price has thus sustained all the injury that can be supposed to arise from selling under the requisition of personal security from the purchaser *;*and yet by the master’s misconduct, is bereft of the benefit of that sort of security. But more than this, the sale is entered in the master’s sale book thus, “ bought-for Jonathan Simpson by Wm. Simpsonand yet he af-terwards lets Jonathan, who is the most substantial, off the purchase, and takes William, who is insolvent. — • That this was not a judicial act, and defendant was bound to conform to usage : his own advertisement, and declared terms of sale, prove what his own sense of duty was.— The definition of a judicial act, is .the exercise of the mind in determining the rights of others. He omitted to take any security at all except the. mortgage for upwards of three years, and then took that which turned out a nullity. It was also contended that he was a bailee for valuable consideration. Jones, *73, 137.*Lex Mercat. Amer. 392, 394, 396. 1 Hy. Blacks. Shields vs. Blackburn: and he has been guilty of laches, by which the complainant is injured. That the statute of limitations which he ’has pleaded will not avail him, because this was a case of trust, and that too conferred upon him by the *law,*and by this court, whose agent he is, to execute its decrees for the benefit of suitors. ,

For the defendant. This was not a case of bailment; if it was, then the complainant may sue the bailee at law,- and therefore has no remedy in this court. That defendant acted solely in a ministerial capacity, is not admitted; for the decree was silent as to the nature of the security he was to take; and the court not having determined that joint, committed it of course to the judgment and discretion of the master; and as he had the power to judge of, and dictate the security, so he necessarily possessed, as all judges must have, a discretion to vary or model his deter-*632initiation, according to circumstances. This he may havd done, and may have made a mistake on the point of dis-ctetion,for which no judicial officer is liable. As to his being a trustee for the complainant, that is'not correct, for the executors of the father’s will stood in that capacity as testamentary guardians ; and so far as their acts can go, they have avowed all that the master did, by receiving the Securities under the fullest acquiescence. They were parties in the suit under which the sale was made, and if they bad discovered that the master was acting illegally or injuriously, they might, and ought to have come before the court in a summary way ; the business would have been reviewed, and the master directed. But though they lived for many years after the transaction, no complaint was ever ma'de. ■ ■

That the master cannot be regarded as a trustee, is moreover manifest, from his having received no money, which if he had done, he might be charged as a trustee of the fund, and the statute could not avail him. 1st Eq. Cas. abn 304, Ca. 10; also, 509; 2Vern. 90. That from all the facts in the pleadings and the testimony, it is plain that the master acted under the eye and direction of the complainant’s friend and testamentary guardian; that he judged and acted for the best; and if full success did not result, it was owing to untoward circumstances not to be foreseen, and for which he ought not to be amenable.

The decree of the court was delivered by Chancellor James, as follows :

The decree states the substance of the bill and answer. Also, that the defendant had pleaded the statute of limitations. The court having considered the argument- of council on that point, declined giving their judgment upon it, until the)’- had considered the merits of the case on defendant’s answer; (See p. 48.) *

In the examination of this case, it is necessary to consider, first, the decretal order of this court for the sale of the lot in question, (sold by the master) and the general usage *633of it in such cases. 2d. Whether the master in this case has been guilty of such misfeasance as to make him liable, either in his ministerial or judicial capacity. From the nature of the case, these grounds arc difficult to separate. It appears that the decretal order of the 2d of April, 1785', did not express any particular terms on which the master was to sell the lot; nor did it point out any particular security which he was to take. The instructions are general, u that the lot on East-Bay be sold,” thereby leaving it in the breast of the master to consult the true interest of the estate, and to take such security as was consistent with the general usage of the court. Now it is well known that the chances of a good sale are diminished by requiring personal security. The court therefore generally leaves the terms to the parties interested, as the best judges of their own advantage. Therefore the court considers the master as left to his own discretion to demand personal security or not. It is objected however, that as the master had made the giving personal security, the terms of sale in his advertisement of his property, (then in this matter he acted judicially) it was not in his power to depart from those terms. If the premises were true, they might warrant the conclusion. But on reference to the advertisement, it appears that besides the lot in question, the master advertised for sale, the whole of E. Fenwicke’s property, (of which the lot was part) on a credit of twelve months, with interest and good securities; and these words may apply to all the deeds to be taken from purchasers (which is the most obvious meaning) or to the lot alone. This brings it to a mere dispute about words, which being general, may imply bond and mortgage, which in common acceptation, is deemed good securities, as the master did in this case.

It is also objected, that in this transaction, there whs gross neglect of the' complainant’s interests, and not the same circumspection as in his own affairs.

But the most wary are often deceived. It has been proved that: die, lot brought a high price, on account of a *634rage for purchasing at that time in that quarter of the town, of which it was the masters duty to avail himself for the be-nefrt of the estate, It has been proved that the house of J„ and W. Simpson was in good repute ; and the master states in his answer, tliat for some time he had William. Simpson’s promise of his own, and his brother Jonathan’s bond and mortgage. It is: said that the master let the matter rest till June, 1788 — (3 years.) This is true, but a bill of the Simpson’s tras pending in the court from May, 1786 to December 1787, to establish a discount for the buildings they had erected on the lot, of which respect-áble counsel thought favorably : and the master swears he apprehended an injunction, if he proceeded pending those proceedings. During all this time, Jonathan Simpson was in New-York, out of the reach of the court, and the master was still deceived by the promises of Win. Simpson. Had the master been here alone to attend to the business, or had he acted solely on it, there might have been a plausible ground to make him responsible, • But there were parents, (the mother and ,her second husband) trustees, legatees- and executors on the spot, who minutely examined the conduct of the master.' If he acted negligently, they co.uld have complained to the court. But at a meeting of the parties, with their counsel, many years after, to settle the affairs of the estate (in 1791,) and whilst Thos, Fenwicke was still" alive, (who was then interested in this particular lot) and years before the complainants claim arose,-there was no complaint against the master ; but a report is drawn up and made to the court, and confirmed, by which his conduct was virtually approved. Great complaints are made about taking Maurice Simons’s bond as security from the Simpsons, (who held that bond) because the estate of Mr. Si-mons is insolvent : but it was then supposed to be a good estate ; and the master in his answer, swears that if M. Simons had been alive, he would have taken .him as personal security.. But it is objected that the assignment of this bond by one of the partners, was illegal* _ This is admitted ; but then the master is charges-*635¿le only with an error in judgment. Now on the autho-yity of'the cases cited, from 2 Vernon, 90, Comer vs. Hollinshead, and 1st. East. 555, Harman vs. Tappenden, and others, no bill in equity, or action at law can be maintained against a public officer for an error in judgment. That the master has never been deemed liable in a pecuniary yiew, for error in judgment is evident, from the question having never before been agitated in this court. His liability, at present, arises solely from the act of 1791, which obliges him to give security for his conduct; but that act is prospective, and cannot affect this case.

It is hardly necessary, after what has been said, to go into the second question, which is, .whether.'the master is liable in his ministerial or judicial capacity, by any misfear .sanee in thistcase; but examine it a little. • . In his ministerial character, he is bound strictly to follow the instructions. of the court.; If he does inore than he is advised to do, with a view to benefit the parties, he ought not to be censured for it. He is frequently a judicial officer. The determinations of this courtj the acts of assembly of 1721, Public Laws, p. 110, and of 17-16, p. 212, plainly evince him to be so. In this capacity, he is a judge, and exercises his mind in forming decisions, concerning the rights and interests of others. In this case his judicial powers were exercised only on the interests of others, as they generally are, except in cases of waste, and some few others. In his ministerial character, he was to sell the lot, and he did sell it, and is not liable on this ground. Next, as tq his judicial character. Although the master in most instances acts as a judge, yet it is always with an appeal tq *the court.*Therefore if he did not. exercise his judgment for the best, in deciding upon the interests of the estate of Edward Fenwicke, there were relations, legatees, trustees and executors to call him to account before the court; but from 1785, to .1791, this was neglected. He was suffered to follow his own - course, and in 1791, his conduct approved by the parties interested, and his report-confirmed by the court. But it is not clear that the mas*636ter erred in judgment, for very circumspect persons might have considered the security *sufficient;*and no human foresight could have anticipated the failure of the securi-. ties. Under all the circumstances, the courtis of opinion on the merits of this case, and without adverting to the plea (of Statute of limitations) that the master is not liable to make good the difference of price, between the first sale (when Simpson purchased it) and the second sale, (when sold to .raise money for the payments of the first sale, and which was far short of the first price) of the lot in bill men*-tíóned, Bill dismissed with costs.