
    Bona vs. Davant.
    Heard before Chancellor Desausstjke, Coosawhatchie, June Term, 1836.
    The question in this case is one of commissions charged by Mr. Da-vant, the commissioner. The facts are as follows: Under certain proceedings in partition, lands of the estate of Henry Bona, were sold by the former commissioner, Mr. Joyner. Mr. Kirk, the executor of Bona, bought the lands and gave his bond for the purchase money ; a proceeding not in conformity with the principles and rules of this court, but no question has been made upon it by the parties interested. At the sitting of the court in March, 1827, Kirk filed a petition, as executor of Bona, setting fqrth, that be was ready to pay his bond ; and praying that the money paid, and to be paid, by him should be invested, and that the interest be also so invested as might be most productive to the estate: whereupon an order was ipade by the .court, in March, 1827, directing that the money paid in by the petitioner, of the fund in question, to the commissioner, should be forthwith invested by him in stock, or loaned out on proper securities ; the interest to be paid annually, and when received, that the commissioner should invest the same as the principal is directed to be invested, and so on, from year to year. The commissioner made a report, setting forth his proceedings under this order of the court; by which it appeared, that he had received of principal, $11,808.35, and paid'of principal, $5,088 00, on which he charged 2 1-2 per cent., amounting to the sum of, $422 25
    And had charged on receiving interest? to the amount of
    $2,914.72, at 10 per .cent., / 291 47
    $713 75
    To this report the following exceptions were filed :
    1st. That the commissioner is not entitled to 2 1-2 per cent., as he has charged, but only to one per cent., on all money received.
    2d. That the commmissioner is not entitled to charge ten per sent, on interest money collected.
    
      This question was very fully argued on the report and exeep» tions, and is now to be decided. For the commissioner it was contended, that the fund did not come into his hands as commissioner. That the executor, Mr. It irk, was entitled to the fund and to the management of it, and liable to the responsibility ; but that being also the debtor, he had sought by petition in March, 1827, to get rid of the burthen, and to place it elsewhere : that the court, in pursuance of the petition of the executor, accordingly made an order in March, 1827, by which it imposed on the then acting commissioner, the duty and the responsibility thus 'rejected by the ex» eautor ; and that this duty is not among those required of him by the act of 1791, uor by any of the subsequent acts of 1808,1821, and 1830, That where oxecutors and others seek to be relieved from onerous burtbeus, and to throw them on public officers, the latter are not bound to accept them, without proper compensation ; and that there could be no better rule of compensation, than that which would have applied to the executor or trustee, who throws the burthen on him, which was that claimed hy the commissioner in this case. That in such cases the commissioner is the agent of such parties, and does not act as commissioner or receiver, but as the substitute of the executor, and is entitled to receive the same compensation to which the latter would have been entitled, if he had performed the same acts in the premises, And lastly, that the act of December, 1827, cannot apply to transactions which arose out pi an order of court made in-March, 1827.
    On the part of the executor of the estate of Bona, it was argued, that the commissioner could not be considered a trustee, under the act of 1745; which had no relation to him. Nor could he be con» sidered as a receiver ; for the act of 1821, provides, that where the commissioner is appointed receiver, he must be regularly appointed receiver, and accept the office, and give security : none of which had been done in this case. And even if he were to he considered receiver, he would not be entitled to more then two per cent, under that act. That he must, therefore, be considered as having acted merely as commissioner, and entitled to no more than the fee hill of December, 1827, allows. That if the duties imposed on the commissioner are not within the range of the dutiec imposed bylaw, he is not bound to perform them ; but if ho accepts, it is voluntary, and he is bound to perform them as commissioner, and can claim, and can receive, only the fees allowed by law to the commissioner, for such services as he has performed. And lastly, that part of the money was paid over to the present commas, sioner by his predecessor, from whom he would have had no right to receive it, but in his capacity of commissioner.
    Many cases were cited in the argument, some of which are a€ variance with others, and add to the embarrassment of the question. The inclination of the court is to allow to the officer of the court, the fullest compensation which the law authorizes for his services. It is the interest of the community that the officers of the State should l>e paid liberally for their services, and I would ng ladly act «en that policy, But I fear the court is too closely hedged in by the statutes to allow the commissioner the extent of his claims. I therefore • fee] bound to limit the demand, to the .amount allowed by iaw to him, in his character of commissioner, according to the exceptions; and it is so ordered and decreed! But as this question has not been discussed before the uew Court of Appeals, it would be proper to carry up the cause to that court.
    HENRY W. DESAUSSURE.
    
      Grounds of Appeal.
    
    1. That the commissioner having been substituted to the duties of the executor, is entitled to the commissions allowed by law to executors ; the more especially as the executor in this caso has been refused his commissions, on this vei’y ground.
    2. That none of the acts of assembly, on the subject of com. missioner’s commissions, apply to this case, or divest the commis-.sioiier’s title to the commissions charged bv him in his report.
    S. That the decretal order is against equity, and good conscience, and contrary to the practice oí the court.
    II. BAILEY, Appellant’s Solicitor>
    Bailey, and Smith, for motion,
    Golcock, and M‘Cakthy, contra.
    Filed 13th February, 1837.
   Chancellor Besaussuke

delivered the opinion of the court.

This is the case of a claim of commissions, or extra compensation, made by the commissioner in equity, for Beaufort district, for services, other larger and more onerous, than those provided for, by the fee bill. In support of this claim, it was alleged, that the services were imposed by the court, and performed by the commissioner, and did not come within the ordinary duties, for which the fee bill makes provision, and were more burthensome ; and that, therefore, the court might well allow a provision more adequate to the services rendered.

Upon an examination of the various statutes on this subject, the court is satisfied, that it is not in its power, to make the allowance of extra commissions or compensation, beyond, or extraneous to the fee bill, claimed for extra services. The sltute s are too precise and prohibitory, to admit of a departure from them.

It is, therefore, ordered, that the decree of the Circuit Court bo affirmed, and the appeal dismissed.

HENRY W. DESAUSSURE.

We concur,

WM. HARPER,

J. JOHNSTON,

DAVID JOHNSON.  