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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 225   View pdf image (33K)
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BANK VS. MARTIN AND TRAVERS. 226
of a commission of 5 per cent. on the amount due upon the
first sale, as a compensation for his services as solicitor, the
trustee being the solicitor conducting the cause.
The first purchaser being in default, proceedings were insti-
tuted against him for a re-sale, under the Act of 1841, ch,
216; and a re-sale at his risk being ordered, the Court in
ratifying the second sale by an order passed on the 30th of
January, 1850, in addition to the commission allowed the
trustee according to the course of the Court, directed that he
should be allowed a commission of 5 per cent. on the amount
due upon the first sale, when collected " as compensation for
his services as solicitor."
It has been the constant habit of the Court, when its trustees
employed to sell property are compelled to bring suit to en-
force the payment of the purchase-money, to allow a commis-
sion of 5 per cent. to the attorney engaged by them; and
when the trustee is himself an attorney, and collects the money
in that capacity by proceedings at law, a similar allowance has
always been made to him. Post vs. Mackall, 3 Bland, 528,
529. And this commission is always deducted from the pro-
ceeds of sale, as is the trustee's commission as each, and the
costs of suit before the distribution is made among the credi-
tors; the effect of which is, of course, to throw it upon the un-
preferred creditors when the fund is insufficient to pay all. This
being the case, the Auditor was quite right in his account B,
in adding it to the amount due from the first purchaser to the
trustee and deducting the aggregate from the proceeds of the
second sale, as otherwise the burden would have been thrown
upon the creditor having a preferred claim to be paid out of
the fund.
The order of the 30th of January, 1850, was passed upon
the assumption, that the proceeding instituted by the trustee
in this case, to collect the money by a re-sale, is sufficiently
analogous to proceedings at law, instituted for the same pur-
pose, to justify the same allowance. It follows, therefore, that
the exceptions taken by the first purchaser to the allowance of
this commission must be overruled.

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 225   View pdf image (33K)
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