¶1 (dissenting) : This is an appeal from an order of his Honor, Judge Dennis, fixing the compensation to be paid to J. D. Smith, W. S. McDure, and J. F. Levister, liquidating agents of the Farmers’ & Merchants’ Bank of Carlisle, at $1,000.
¶2 It appears that on December 13, 1925, an order was granted by the presiding Judge at Union (Hon. Eugene S. Blease, then a practicing attorney, as special Judge), placing the affairs of the bank in the hands, of the State bank examiner,' giving him authority to. appoint one or more liquidating agents to liquidate the bank under his supervision. It is not clear from the record whether this order was granted under Section 3981 or 3985 of the Code. The order provided:
“It is further ordered that said liquidating agent or agents be allowed a reasonable compensation for their services, the amount to be fixed by this Court, said amount not to exceed five per cent. (5%) of the amount received and disbursed by them as such liquidating agents, and shall also, receive and be allowed his, or their, necessary expenses in the administration of the estate of the said bank pursuant to this order.”
¶3 The State bank examiner appointed the claimants J. D. Smith, W. S. McLure, and J. F. Levister liquidating agents in February, 1926. They proceeded to assemble the assets of the bank and make distribution, continuing in office until the fall of 1926, and collecting some $12,000. How much of that was actually disbursed by them does not appear; it only appears that they paid certain expenses and a dividend of 20 per cent, to the creditors.
¶4 In October, 1926, W. P. Baldwin was appointed receiver, we assume in the proceeding above entitled instituted by Mrs. Crawford.
¶5*134 Certain remaining assets were turned ■ over by the liquidating agents to the receiver; whether this included any cash collected or received by the liquidating agents does not appear.
¶6 Later, upon motion of the receiver, his Honor, Judge Sease, passed an order referring it to the master to take and report the testimony as to a reasonable compensation for the liquidating agents. The testimony was taken and reported to the Court. On September 16, 1927, his Honor, Judge Dennis, signed an order fixing the compensaton of the liquidating agents, “in full settlement and satisfaction of all their claims for services and expenses as liquidating agents of the said insolvent bank.”
¶7 I agree that the compensation of the committee is limited by the order of Special Judge Blease to 5 per cent, of receipts and disbursements and actual expenses incurred. The amount fixed by his Honoiq Judge Dennis, is based upon a quantum meruit from testimony taken under the order of reference which is improper. The proper disposition of the appeal, in my opinion, is to reverse the order of Judge Dennis and remand the case to ascertain: (1) The amount received; (2) the amount disbursed; (3) the amount turned over by the committee to the receiver; (4) the amount of expenses incurred by the committee; (5) the amount received by them upon such expenses.
¶8 The amount to which the committee is entitled cannot possibly be ascertained from the testimony taken at the reference, which contemplated an entirely different basis for their compensation.