Mr. Chief Justice ENGLISH, delivered the opinion of the court. The bill in this case was filed by the state, against the trustees and officers of the Real Estate Bank, to divest them of the trust, and to compel them to account for the assets which came into their hands under the deed of assignment, made by the bank 2d of April, 1842.

Henry L. Biscoe, the appellant, was one of the original, and also one of the residuary trustees, and acted as such from the time of the execution of the deed, until 20th of April, 1855, when the trustees were removed by an order of the Pulaski chancery court, made in this suit, and the assets placed in the hands of a receiver, to be administered under the direction of the court; which order was confirmed by final decree, from so much of which, and from so much only, as relates to the compensation allowed Biscoe for his services as trustee, he appealed.

The assignment was made to fifteen trustees, who were to be succeeded, in the execution of the trust, by five residuary trustees.

The portions of the deed relating to the compensation of the trustees, are as follows:

"And it is further hereby declared and agreed, by and between the parties to this agreement, that each of said trustees, and their successors, shall give bond, with security, approved, etc., etc., in the sum of etc., conditioned for the faithful performance of all duties imposed upon them under and by virtue of these presents, and for the faithful execution of the trusts hereby created; and that for and during the full space and term of two years from the date of these presents, there shall be five committees of said trustees, each to consist of three members, and each to act as agencies of said trustees, one committee at each place where the principal bank and branches of said bank are now situate; and that the following named trustees shall constitute said committees, to-wit: The committee at Little Rock shall con

sist of James S. Conway, Carey A. Harris and Sam C. Roane; at Columbia, of Sandford C. Faulkner, Anthony H. Davies and Silas Craig; at Helena, of Henry L. Biscoe, William F. Moore and John Preston, jr.; at Washington, of Daniel T. Witter, George Hill and Enoch J. Smith; and at Van Buren, of John Drennen, Robert S. Gibson and Lorenzo N. Clarke.

"And it is hereby further declared and agreed, by and between the parties to these presents, that the duties and powers of each of said committees shall be to take charge of the books and papers of the respective offices of said bank, to attend to the arrangement and collection of debts due said bank; and the taking and renewal of notes; to determine upon the sufficiency of security offered; to make settlement with the officers and agents of said offices respectively; to pay out all deposits now on hand, and all balances due to officers; and generally to do, perform, and exercise all such acts, duties and powers, as said trustees may lawfully, and in their discretion delegate to them as committees and agencies; that the members of said committees shall act without any compensation, except when actually engaged in the performance of the trusts aforesaid, when each shall receive as his compensation, the sum of three dollars for every day during which he shall be so engaged: Provided, however, That no member of said committee at Little Rock shall be entitled to charge for more than one hundred and eighty days in any one year, and that no member of any other committee, shall be entitled to charge for more than seventy-five days in any one year.

"And it is hereby further declared and agreed, by and be tween the parties to these presents, that there shall be an executive board of said trustees, to consist of one member from each committee, who shall meet at the city of Little Rock, at least twice in each year, on the first Mondays in June and December, and at any and every other time when two members thereof shall call a meeting and notify the residue thereof; that the members of said executive board shall receive, in full pay

for their services, the same compensation as is now allowed to the members of the central board of said bank, and such other traveling expenses as may be necessarily incurred in the discharge of their duties; that the duties of said executive board, shall be, to make settlements, pay off liabilities, and do all other acts and things, and exercise all powers, which, by this deed, said trustees are authorized to do and execute, in the name of said trustees, or otherwise howsoever, and which are not, by these presents required to be done by, or conferred upon said committees, or which may not be by said trustees delegated to said committees; that each committee shall, whenever any funds are received, forward the same to said executive board, and that each committee shall report to said executive board, at each regular meeting of said board, or as often as they may be required by said board to do so, a full statement of their proceedings, and of the condition and situation of the affairs entrusted to them.

"And it is further agreed, by and between the parties to these presents, that until the first day of July next, or until their successors are elected, as hereinafter provided, said executive board shall consist of the following members, to-wit: Carey A. Harris, Henry L. Biscoe, Sandford C. Faulkner, Daniel T. Witter and Lorenzo N. Clarke, who shall immediately enter on the discharge of their duties; and that previous to said first day of July next, each committee shall elect one of its number a member of said executive board; and from said first day of July next, said executive board shall remain unchanged, except a vacancy is caused by removal, resignation, death, or otherwise, until the expiration of two years from the date of these presents, that each committee shall be authorized to fill any vacancy in its own number, and in its representative in the executive board, during said term of two years from this date, the concurrence of two members, being in every case necessary to a choice.

"And it is further declared and agreed, by and between the parties hereto, that, at the expiration of two years from the

date of these presents, the said trustees or a majority of them, shall meet at Little Rock, on a day to be fixed by said executive board, and there elect five of their own number, who shall thereafter be sole trustees, and receive thereafter the same compensation hereby provided for said executive board: three of whom shall thereafter remain at Little Rock: and that said residuary trustees shall thereafter fill any vacancies occurring in their own number, by election; the concurrence of three members being in every case necessary to a choice; and that each of said committees shall, immediately on the expiration of said term of two years from the date of these presents, forward to said residuary trustees at Little Rock, all the books, papers, records, funds and assets, effects and property, of said bank in their hands; and the duties of said committees shall then cease and determine."

The compensation allowed the members of the central board of directors, etc., of the bank, as fixed by an ordinance of the board, was as follows:

"Chap. 9, sec. 1. The members of the central board, and of the finance committee, shall be entitled to receive four dollars per day, for each day engaged in business, including the number of days usually required to travel to and from their offices to the principal bank; also three dollars for every twenty miles of the distance necessarily traveled, estimated by the nearest land route, to be paid them upon accounts and receipts."

The action of the trustees in relation to their own compensation, as it appears in the record before us, is as follows:

At a meeting of the trustees held November 16th, 1842, it was resolved: "that the pay of members of the board of trustees, when called together by vote of the executive board, be three dollars per day, including a reasonable time for traveling to and from Little Rock, and mileage as provided for by the deed of assignment, and the allowance for the time of travel to and from each office, shall not exceed four days coming to Little Rock, and four days for returning at any one meeting."

On the 7th June, 1843, at a meeting of the executive board,

present, Henry L. Biscoe, chairman, Sam. C. Roane, S. C. Faulkner and John Drennen, the following order was passed:

"Ordered, That the board understand that each trustee has the right to charge for his services in full, the amount allowed by the deed; such compensation being at best but inadequate to pay for the trouble and labor incurred by each, and that the same can be drawn for quarterly by each."

On the 6th of April, 1844, at a meeting of the residuary trustees, present, Henry L. Biscoe, chairman, George Hill, S. C. Faulkner, John Drennen and Ebenezer Walters: "Ordered, that there shall be four regular meetings of the board in each and every year, on the 1st Monday of January, April, July and October. That Messrs. Ebenezer Walters, Henry L. Biscoe and Sandford C. Faulkner, shall, until the further order of this board, remain at Little Rock to constitute a board for the transaction of business; and if either of them be absent at any time, he may be called to attend any meeting by the others, or by the cashier and secretary."

At a meeting held 15th November, 1844, present, Ebenezer Walters, chairman, John Drennen and S. C. Faulkner, the following order was passed:

"Ordered, That the pay of each of the residuary trustees for daily compensation and ordinary travel, shall not exceed seven hundred and fifty dollars ($750) per year."

Upon the face of this order it would seem to have been intended as a measure of economy; and to limit the aggregate amount of per diem, etc., to be taken by each trustee as compensation for his services, under the provisions of the deed of assignment, to $750 per annum. But it appears that it was not so regarded by the trustees. On the contrary, they treated it as an allowance to themselves of a salary of $750 per annum for their services, without regard to the number of days occupied by them in attending the meetings of the board, and performing the duties of the trust, as contemplated by the deed. And accordingly Biscoe was allowed a credit upon the books of the bank, in