Where an order had been made ex parte, upon the appearance of the respondents alone, for the dismissal of an appeal and affirmance of the judgment of the Court below, which purported to be upon the hearing of the cause, the Judicial Committee held that such order must be consi- dered simply as a dismissal; and it appearing that the appellants were infants, under the protection of the Court of Wards in India, and that the agent appointed by the Court to act as their guardian ad litem in the matter of the appeal had ab- sconded, and abandoned the cause, their Lordships rescinded the order of dismissal, and restored the appeal upon the terms of the appellants paying the costs and giving access to the transcript of the proceedings in the Court below, in their hands, and undertaking to lodge printed cases within five months. [Rajun- dernarain Rae v. Bijai Govind
TRUSTEES. (Jamaica.) 1. The commission of 61. per cent. given by the Jamaica Act, 24 Geo. 2, c. 19, to agents, trustees, guardians, executors, &c. for the management and disposal of the rents and profits of an estate, being in the nature of a remuneration for the trouble and responsibility of conducting the bu- siness of a merchant on the island, is payable only to persons actually resident on the island, and capable and willing to act in the trusts of the estate; and the commission of 5l. per cent. given by the same Act for receiving and remitting monies can only be claimed where the re- ceipts or payments are actually made on the island. [Denton v. Davy]
2. Held, that though a trustee indivi- dually abstain from acting in the trusts of a will, yet, if he is qualified and is ready and willing to act when called upon by his co-trustee, he is entitled to a share of the commis- sions under the Jamaica Act, 24 Geo. 2, c. 19, s. 8. [Grant v. Camp- bell] - 43 3. The immediate object of the Jamaica Act, 24 Geo. 2, c. 19, s. 8, was to provide against the charges pre- viously made by executors and trus- tees for the management of estates in that island. No commission is given out of the proceeds upon the sale of an estate, but only on remit- tances and receipts, and though the equity of the statute may include such commission, it must be upon a sale actually made and completed in the island, and not in this coun- try. [Henckell v. Daly] - - 51
(When presumed to be destroyed.) The rule of law is, that if a Will be traced to the possession of the de- ceased, and last seen there, is not forthcoming on his death, it is pre- sumed to have been destroyed by
himself, and that presumption must prevail, unless there is sufficient evidence to repel it, and to raise a higher degree of probability to the contrary. The onus of proof in such cases lies upon the party propound- ing the Will. [Welch v. Phil- lips]
Page 11, for established principle," read "vital principle."
39, foot note, for "Freeman v. Failie, 3 Meer." read "Freeman v. Fairlie, 3 Merrivale."
51, marginal note, for "28 Geo. 2, c. 19, s. 8," read "24 Geo. 2, c. 19, 8. 8."
122, for "bis judicata," read “lis judicata."
145, for "30th day of April 1836," read "30th day of April 1834."
233, for "Freeman v. Fairlie, 5 Russ. Rep. sec. 1," read "Freeman . Fairlie, 1 Moore's Indian Appeal Cases, page 305." 333, for "Art. 2035 of Code Civil," read "Art. 2038."
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