do so. There, the debtor, in July, 1817, mortgaged a tract of land to the creditor, and in October following, the debtor being about to leave the State, executed to the creditor a power of attorney authorizing him to sell the mortgaged premises, in such manner as he might deem proper; and, after discharging the mortgage debt out of the proceeds of the sale, to pay over the surplus to the wife of the debtor. The debtor departed, and died abroad; and, in November, 1817, the creditor by virtue of the power of attorney, conveyed the mortgaged premises to a third person, as nominal purchaser, who, two days afterwards, conveyed to the creditor. On a bill to redeem, THE ASSISTANT VICE CHANCELLOR said: "The validity of purchases made by fiduciaries, of the property entrusted to them, has been much considered recently in the courts of equity, both in this State and in England. And it is now a settled rule, both there and here, that no party can be permitted to purchase an interest, where he has a duty to perform which is inconsistent with the character of purchaser." And he said the rule was applicable to the case before him, whether the creditor was to be regarded as a trustee or as an agent: that his interest as purchaser was in direct conflict with the interest of the debtor, his constituent, or cestui que trust; that his purchase caused one of those collisions between interest and duty, which equity wisely and resolutely prohibits; and that it made no difference, in the application of the rule, that no fraud was committed, and that the creditor paid a fair price for the property. See, also, Mr. Hill's work on Trustees (2 Amer. Ed.) marg. page 158, (in note), where it is laid down that a mortgagee, with power of sale, cannot purchase, citing Waters vs. Givens, 11 Cl. & F. 648.

We scarcely need add, that a mortgagee, without power of sale, may purchase the same as he could at sheriff's sale under execution at law: because, in such case, he has no duty to perform inconsistent with the character of a purchaser. Murdock's Case, 2 Bland. Ch. Rep. 468; Lyon vs. Jones, 6 Humph. 533. The court did not err in denying commissions to Hunter, as trustee. Though the English rule has been modified in this

country, and commissions are allowed in some cases, still the trustee is entitled to none, where, as in this case, he accepts the trust coupled with an interest, and the deed expressly provides for the payment of the expenses of the trust, but is silent as to whether he shall have compensation for his trouble and attention.

It is conceded in argument that Hunter was guilty of no actual fraud or unfairness in the sale of the slaves; he was therefore entitled to his coste, and the court should have so decreed.

The decree, except so much of it as denies commissions to Hunter, must be reversed, and the cause remanded to the court below, with the following directions: That, under the directions of the court, the slaves, Hannah and her children, be re-exposed to public sale by the master in chancery, or other person appointed by the court for that purpose; that the slaves be put up at the amount of the former sale, and interest thereon from the date of such sale to the time of the re-offering, and if they shall not sell for more than that sum, the sale heretofore made, shall, in all things, stand confirmed, but if they shall sell beyond that sum, then the former sale shall be held to be vacated; that the costs of the cause in the court below, together with the necessary expenses attending both sales be paid out of the proceeds of the sale; and that the residue of such proceeds be applied and disposed of, as in and by the deed of mortgage, and the order of Looney, assigned to the complainant, is directed.

One half the costs in this court will be decreed against Imboden, and the other against Hunter.

Mr. Justice FAIRCHILD did not sit in this case.

Alexander vs. Sanders.

[DECEMBER

ALEXANDER VS. SANDERS.

Where the bond of the sheriff and collector is in a sum less than double the amount of the state and county taxes, the county court has the legal power to require him to give a new bond: and if he fail to do so, he cannot compel the clerk, by mandamus, to deliver to him the tax book.

Appeal from Hempstead Circuit Court.

Hon. LEN B. GREEN, Circuit Judge.

HEMPSTEAD, for appellant.

A. B. WILLIAMS for appellee.

Mr. Chief Justice ENGLISH delivered the opinion of the Court. At the general election held on the first Monday of August, 1860, Wm. A. Alexander was elected sheriff of Hempstead county, and was duly commissioned and qualified as such.

On the 10th of January, 1861, he executed and filed in the clerk's office a bond as collector of revenue, in the penal sum of $30,000, which on the same day was approved by the county

court.

On the 13th of April, 1861, he returned his assessment list; and on the 4th of May following, the county court adjusted the list, and fixed the rate of assessment for the year, etc.

On the 5th of August, 1861, the county court made the following order:

'Whereas, William A. Alexander, sheriff and ex-officio collector of Hempstead county, having executed his bond in the sum of thirty thousand dollars, for the year 1861; and whereas,

since the execution of said bond, the tax of said county for said year having been assessed to the sum of forty thousand eight hundred and fifty-six dollars, it is ordered that the said William A. Alexander, as such sheriff and collector, be, and he is hereby required to execute a new bond, in the sum of eightyfive thousand dollars, and file the same with the clerk of this court, on or before the first day of the next term of this court."

Alexander, having failed to execute and file a new bond as required by the order of the court, he was, on the 15th of November, 1861, after citation to show cause, etc., removed from office, by the court, for such failure.

Afterwards, on the 17th of December, 1861, he applied to the Circuit Court, of Hempstead county, for a mandamus against Simon T. Sanders, clerk of the County Court, to compel Sanders to deliver to him, as collector, the tax book for the year 1861.

Sanders entered his appearance to the petition, waived the issuance of an alternative writ, and filed his response.

Alexander demurred to portions of the response, replied to other portions: and upon the hearing, a peremptory mandamus was refused, and he appealed to this court.

Whether Sanders was in default for not delivering the tax book to Alexander before he was required to execute a new bond, by the County Court, or whether his excuses for refusing to do so are sufficient, it is not necessary in this case, to determine. We need only decide whether he was legally obliged, and compellable by mandamus, to deliver the tax book to Alexander, after he had been required by the county court to execute and file a new bond, and had failed to do so, etc.

By the law, as contained in Gould's Digest, the sheriff was required, each year, to execute and file his bond as collector, on or before the 10th of January, in a sum at least double the amount of taxes levied for state and county purposes, and on failure or refusal to file the bond at the time, and in the manner prescribed by law, he forfeited his office, and was subject to

removal by the County Court, on citation, etc. Dig. ch, 148, sec. 52-3-6.

By an act approved 21st February, 1859, (Pamph. Acts, 1858, p. 235,) which was passed after the publication of the Digest, it is declared: "That so much of the existing law as requires that the collector of revenue shall file his bond, as such collec tor, on or before the tenth day of January, be and the same is hereby repealed, and instead of said tenth day of January, each collector shall be required to file his bond on or before the first day of June, in each year, the same to be conditioned, and the penalties for failure to file the same to exist as now provided for by law," etc.

The defect in the previous statute intended to be remedied by this act, was obviously this--By the previous law, as contained in the Digest, the collector was required to file his bond, on or before the 10th of January, in a sum at least double the amount of taxes levied for state and county purposes, when the state and county taxes to be levied for the year, could not be then known: and could not be accurately ascertained until the assessment list was returned, and the rate of county taxes fixed by the County Court. But by postponing the execution of the bond until the first of June, the proper sum for the penalty could be correctly ascertained, the law requiring the assessment list to be returned, adjusted, and the rate of county tax to be fixed by the county court before that time. See Dig. ch. 148, sec. 34, 38, 45; ch. 147, sec. 4.

It is probable that when the appellant's bond was executed and approved, 10th of January, 1861, the act of 21st of February, 1859, was overlooked, and the law as contained in the Digest followed.

After the assesment list had been returned, adjusted, and the rate of county taxes for the year fixed by the county court, it was ascertained, as alleged in the response of the appellee, that the State and county taxes to be collected, amounted to $21,360 19; besides which additional assessments were made, under ordinances of the convention.

The attention of the County Court having been called to the