GIBSON'S CASE. 147

money into court, and paying it away in the manner directed; or,
in other words, for the performance of all the duties specified in
the decree, and the subsequent orders in relation to the sale and its
proceeds. It is sufficiently evident, from the language of the rules,
graduating the rate of the commission into the form of poundage
fees, that the commission allowed to a trustee has never been con-
sidered, in any respect, as a commission in the mercantile sense
of that term. A trustee of this court is a person of legal consti-
tution, with legal duties; and though some of his duties may have
a mercantile mixture in them, he does not transact them as a mer-
chant. He acts altogether as a legal officer, and must be paid, as
such, in proportion to his diligence, skill, trouble and risk; not
exactly according to the value of the subject in litigation.(s) And
therefore the term commission, in the mercantile sense, cannot be
applied to the compensation of a trustee, or any other officer of this
court. But it has been found, in many cases, to be highly expe-
dient, if not absolutely necessary, to have the property sold by an
auctioneer; and it is obviously for the benefit of those concerned,
that all sales should be so conducted, (w) although no fee is allowed
to a sheriff for so making a sale.(v) Therefore it has been deemed
proper to permit the trustee to employ an auctioneer, to whom may
be allowed a fee, not exceeding five dollars, for each separate and
unconnected sale.

Considering the nature of the office of a trustee, it follows,
that as on the one hand, his compensation may, because of
the discharge of his duties being attended with a very unusual
degree of labour and risk, be increased; so, on the other hand,
his compensation, because of his duties having been improperly
or but partially performed, may be altogether withheld, or pro-
portionably diminished. As where it appeared, that the trustee
had been under the necessity of making several journeys or
voyages, or had already, and should thereafter jncur much extra-
ordinary trouble for the purpose of executing the decree,
he was allowed a compensation, in addition to the cominis-
sion specified by the rule.(w) On the other hand, where the

(s) The Rendsberg, 6 Rob. Adm. Rep. 164; Wood v. Freeman, 2 Atk. 542.—(u) The
Rendsberg, 6 Rob. Adm. Rep. 168.—(v) The King v. Crackenthorp, 2 Anstr. 412.

(w) The Rendsberg, 6 Rob. Adm. Rep. 163; Hindman v. Clayton, MS., 8th
March, 1805.

MILLAR v. BAKER.—This was a creditors' bill, filed on the 12th of February,
1790, to have the real estate of the late Christian Baker, lying in Frederick county,
sold to pay his debts, &c. On the 2d of June, 1796, it was decreed, in the usual