Ex parte Perry

5 S.C. Eq. 50

• Court: Court of Appeals of South Carolina
• Decided: March 15, 1824
• Status: Published

Opinion

This was a rule against the master, to shew cause why he_ had not paid the proceeds of certain negroes, sold by hit» in Í816 under a decretal order of this court, to the late guardian of the complainants or to their attorney. The following are the circumstances of the case:—

In 1813, the master recommended in his report, that the late guardian, John M. Ehrick, should be permitted to sell these negroes under Ms direction and vest the proceeds in other .negroes or stock. This report was confirmed and the guardian authorized to make the sale accordingly. The- negroes were not actually sold, until 1816; at which time they were disposed of by the master, during the absence of Mr. Ehrick the guardian at the north, where'he was residing. A hill was filed in 1818, by. William B. Perry against Mr. Ehrick, to account for negroes, which was eventually dismissed by the court •of appeals, on the ground that the negroes were sold by the master during the absence of Mr. Ehrick, and that the proceeds were never received by him or his authorized agent. Under these circumstances the rule was taken out against the master. On the return of the rule, the master shewed for cause by his own affidavit, that there was no order of court requiring him to make the sale, and that he had not done so. The decision of the court of appeals, stating that the master had made the sale, was read to the court to contradict the return; and the complainants counsel offered to prove by further testimony that he had made the sale, and was therefore bound to account; but the chancellor on circuit refused to receive the evidence, and decreed that there was no order of court authorizing the sale, and if madevby him it was in his individual capacity, and that he was not liable upon a rule. From this decision the complainants appealed on the following grounds:

1st. Because the master was directed to superintend the sale of certain negroes by the guardian of the complainants:

2nd. Because the sale was made by the master in his official capacity, and purporting to be under the authority of the court:

3rd. Because his honor the presiding judge, decreed that a decision of the cqurt of appeals in which the guardian of the complainants was a party, stating that the sale of the negroes of the complainants was made by the master of the court, was no evidence against him, and that no further evidence could be adduced to render him liable in this summary way.

The decretal order of the chancellor on circui't.was affirms ed, by the wholg court.