
    Nathaniel Cooper vs. Stephen Merrihew and Wife et. al. Administrators of John Reed.
    Heard before Chancellor Desaussuhe, Charleston, May Term, 1835.
    In this case, the commissioner in his report on the accounts between the parties, disallowed commissions on the receipts and expenditures of the complainant, who was the surviving copartner of a commercial .concern, made after the dissolution of the copartnership. The complainant excepted to the report, on the ground, that the complainant is a trustee, and a trustee is entitled to commis. sions by the laws of this State. See Pub. L. 202, 203. It appears that in England, trustees are not allowed commissions, mi-Jess so stipulated m the trust deed. 1 Vesey and Beames 170. Nor were executors entitled to commissions. In this country a different policy has been pursued. Commissions are allowed to all persons, who are called upon to act for others in any confidential situation, whether executors, administrators, trustees, agents, attornies, or others. This is, doubtless, on the principle, that the laborer is worthy of his hire, and that the business of the employer, will be more diligently performed, when a reasonable compensation is allowed, than when it is done gratuitously,
    A surviving partner winding up and settling the affairs of a concern forms no exception to the rule. It requires time, care, and industry, to wind up old commercial affairs ; and that is so much taken off from the power and opportunity of the surviving and acting partner, of pursuing his own private affairs. The court, however, will watch over these transactions, and will not permit an acting partner, employed in winding up the affairs of a copartnership, to keep large sums of money in his hands unnecessarily, and applying them to his own purposes. If he does, he will be chargeable with interest.
    In the case of Bulow and Bulow, commissions were allowed to a surviving copartner, on v/indng up the affairs of the concern. The doctrine is settled.
    The exception in this case, must, therefore, be sustained; and it is ordered, that the report be corrected accordingly, and then con. firmed.
    HENRY W. DESAUSSURE.
    The defendants respectfully appeal from the decree of the chan, eellor, on the ground, that commissions should not be allowed to the complainant, as surviving partner, on the settlement of the partnership.
    EGLESTON & FROST, Defendants’ Solicitors.
    
   Chancellor J. Johnston

delivered the opinion of the court.

No doctrine seems to be better established, than that, no trustee, in entitled to'compensation, unless provided for in the instrument creating the trust, or allowed by statute.

Egleston & Fhost, for motion.

Bailey, contra.

Filed 21st March, 1837.

The articles of copartnership, under 'which the plaintiff acted, Contain no provision for the commissions claimed by him.

The act of 1745, which has been relied on to support his claim, evidently cannot bear him out. The trustees, to whom that act allows commissions, are described, as “ trustees who shall have "the care, management, or custody of the estates, real or persona], of any infants or minors.” 1 Brev. 382. P. L, 202, 3. This cannot apply to the case of partners.

The case of Rulow and Bulow, to which the chancellor refers, and the manuscript record which I have examined, does not touch the question before us. In that case, the circuit decree allowed such commissions as are claimed her®. -But there was no appeal from that part of the decree, nor was it considered by the Court of Appeals. In the copartnership accounts, the acting partner had charged f 1,000, per annum, for the support of his copartner’s family ; and also for certain goods withdrawn by said copartner from the stock On the evidence, the circuit decree disallowed these items. And it was for the disallowance of them, the appeal was taken. And on that point alone the Court of Appeals de-termmed.

The motion is granted,

J. JOHNSTON.

We concur,

DAVID JOHNSON,

WILLIAM HARPER,  