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by action ; such was the case in Ross v. Lewis, and Shand v. Green, which were both tried and determined in the Court of King's Bench. The commissions claimed on the crops, and those on the sale of the plantations, are distinct matters. It appears on the face of the original bill, that Gatfield had no right to any part of the commission on the annual crops produced from the plantations before the sale to Coley, the interest on those commissions being represented to be in Denton alone. The bill was therefore properly dismissed, because it endeavours to seek relief for Denton alone, in respect of the commissions on the crops, and for Denton and Gatfield in respect to the commission on the sale of the plantations; in the last of which both plaintiffs are alleged to have an interest; such matters are improperly joined in the same bill.

Harrison v. Hogg (a), Cholmondeley v.

Clinton (6).

Burge, K. C. in reply.

The VICE-CHANCELLOR: In this case the appellant, Stephen Denton, and the late Charles Gatfield filed a bill of complaint in the Court of Chancery, in Jamaica, against the respondent as executors of the late James Davy, claiming on behalf of Denton a share of the commission upon the rents and profits received by Davy, as one of the trustees of Henry Palmer, Denton and Gatfield being cotrustees, during the time that Denton was in the island; and the bill also claimed for Denton and Gatfield a share in the commission upon the money which arose from the sale of the estate after Denton quitted the island. (a) 2 Ves. jun. 322.

(b) 2 Jac. & Wal. 135.

1836.

DENTON

Davy.

With respect to the money which arose from the sale of the estate, the commission appears to be claimed on the footing of a practice in the West Indies, regulated by an Act of 24 Geo. 2, c. 19, which does not of itself give the right, but only modifies the right that antecedently existed; and the first question will be, whether, if there be any doubt as to what the right really was before, the Act of Parliament does not, by its own language, furnish a guide to ascertain what the right was supposed to be by the Legislature. The section relied on by the appellants is the 8th. By the first part of that clause it is quite clear that the persons who are spoken of as entitled to receive commissions, are persons of necessity resident in the island, for the language is, “commissions of attornies or agents of persons absent from this island;" putting, therefore, the attornies or agents, who are supposed to be in the island, in contra-distinction to persons not resident in the island, and then the clause goes on, “trustees, guardians, executors and administrators,” and the same qualification must be applied to those who are subsequently named, as to those who are first named, and where the commission is spoken of, it is for supplies made in the island; so that if anything in the nature of a debt is due on account of a transaction out of the island, that does not come within the description of a supply made in the island; the latter part of the section relates to receiving and remitting monies lent or remaining at interest in the island.

It appears from the very case cited, of Grant v. Campbell, that the right to receive a commission on the rents and profits, was only to exist in a case where the party was resident in the island, and had quali

1836.

DENTON

Davy.

fied himself to sustain the character of trustee; and I apprehend that ever since the case of Chambers v. Goldwin, and Forrest v. Elewes, and one or two other cases which have taken place in the Court of Chancery with regard to commission that has been claimed upon remittances from the East Indies (a), which stand upon the same principle, it has been held that no commission is payable where the remittant himself is actually, at the time of the remittance, in this country. I apprehend that it was the opinion of Lord Eldon, in the case of Chambers v. Goldwin, that the party in that case, in order to entitle himself to commission, must himself be actually upon the island where the remittance was made.

Now, in this case before us, it appears that two of the trustees being in England, Mr. Davy, certainly with the concurrence of those who were in England, entered into an agreement, which was carried into effect by three sets of deeds, which are set forth in the plaintiff's bill, and the effect of which was, first, to transfer the legal estates to Mr. Coley the purchaser ; secondly, that he should transfer the legal estate in the shape of a mortgage; and by the third deed, which was called a deed of defeazance, a special stipulation was made, which had the effect of giving a certain period (I think twelve years) for the payment of the purchase-money, which was to be by instalments, in the manner following; that is, certain quantities of coffee were to be shipped annually to a person named by Coley, his heirs, executors, administrators or assigns, who was to sell the coffee and hand over the

(a) Chatham v. Lord Audley, 4 Ves. 72. Hovey v. Bakeman, ib. 596-608. Freeman v. Failie, 3 Moor, 24.

1836.

DENTON

Davy.

proceeds to the executors in England, by way of

paying the purchase-money.

This seems to be anything but a payment in the island. The person who was to be the consignee of the produce, so long as the remittances were made in the manner pointed out by the deed of defeazance, was to be named by Coley, or those who represented him, and therefore it was nothing more than a stipulation that there should be remittances of a certain kind made by him to his agent in England, who should pay one certain annual sum to the executors who were in England; and it appears to their Lordships that this transaction, as it is represented, bears no analogy to what is mentioned in the statute, the case of receiving and transmitting monies from the island.

The principle upon which the Court of Chancery has gone

has been this, that the commission is in the nature of a remuneration to a trustee, who, besides the usual trouble belonging to the execution of his trust, has also to undergo all the inconveniences arising from being in a foreign country, and conducting the business of a merchant there; for it is well known, that if the duty of a trustee in this country is ever so laborious, no commission is allowed to him for what he does, but inasmuch as it was of great importance to get persons to assume the character of trustees in the East and West Indies, then so long as they were actually in the country discharging the duty of trustees, the Court allows the commission, but if by any means, money which has not been received by them upon the spot, and remitted by them from the spot to this country, is remitted to this country, I appre

1836.

DENTON

DAVY.

hend it to be the clear settled law of the Court of Chancery that the commission should not be allowed.

The consequence of that would be, that in respect to the joint claim that was made by Denton and Gatfield, the bill could not be sustained, and if the bill could not be sustained in respect of the joint claim, why it is manifest that there could be no claim in respect of that portion of the separate claim which was made by Denton alone, for his share of the commission on the rents and profits, during the time he was in the island. Without, therefore, looking to the question, whether he might not be entitled to a share of the commission on the rents and profits received between the death of the testator, and the time when he actually quitted the island in the year 1819, though it is pretty manifest that up to that year he would be entitled to something, yet that would be in his separate right, and wholly distinct from the right in which Gatfield could claim his share of the commission on the payment of the purchase-money for the estate. It cannot be said, then, that the two claims are homogeneous; the claim in respect of the rents and profits being totally distinct from any claim for a share of commission upon the proceeds of the sale, the consequence, therefore, would be, that the bill could not be sustained, but must be dismissed in respect of these two separate claims, and no equity could be had under this bill in respect of one claim alone. If the case had been the other way, and the claim made by the two plaintiffs could only be sustained as to one, the bill might have been dismissed as to the demand of one plaintiff, and retained as to the other, for then there would be a party on the record interested in some part of the subject in question ; but it is a settled

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