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1828.

HENCKEIL

DALY.

Margaret Warren, his widow, died shortly after, leaving the other executors, together with the appellants, them surviving.

Thomas Fullerton Warren, the son, died soon afterwards, having first made his will, and thereby devised all his real and personal estate in Jamaica to Richard Ryland, John White and Charles Palmer, their heirs, &c., whom he appointed executors, upon trust to sell and invest, and also the monies to arise therefrom, in the public funds, and to stand possessed thereof, upon certain trusts therein mentioned, for the benefit of the appellants.

The executors, Richard Ryland and Charles Nicholas Palmer, who then resided in England, proved the will here, and afterwards caused an exemplification thereof to be transmitted to Jamaica; upon the arrival and recording of which, John White qualified himself as an executor thereunder.

At the time of his death, Thomas Fullerton Warren was entitled to one-third of the Lacoria estate, and also to onethird of Brompton Peen estate, with the several shares and stock thereon, and the appellants being entitled to the two remaining thirds of both the said estates, with the shares, &c. and to Thomas Fullerton Warren's interest therein, after the payment of his debts and legacies, which were inconsiderable.

In the month of June 1814, White and Ryland, as the trustees of Thomas Warren, and also of Thomas Fullerton Warren, sold the estate of Brompton Peen to Lewis Williams for the sum of 3,672 1. currency, and the same was conveyed to him accordingly.

The purchase-money was received by White, and in the year 1816, an agreement was entered into by Ryland, on behalf of himself, White and Palmer, for the sale of the Lacovia estate to Robert Watt, for the sum of 40,0007. sterling; the terms of the sale were arranged, and the agreement executed in England, notice thereof being transmitted to White in Jamaica, who had, however, quitted the island before he received the information, and was first apprized thereof on his arrival in London, when he was furnished with a copy of the agreement and conveyance.

1828.

HENCKELL

Daly,

The conveyance bore date the 25th July 1816, and was executed in England by White, Ryland and Palmer.

Shortly after the completion of the above sale, White returned to Jamaica, and set up a claim for commissions on the amount of the purchase-money of 40,0001. sterling, which the appellants resisted as unsanctioned by law.

Ryland also claimed commission, but afterwards abandoned his claim.

The sum claimed by White, in respect of such commission, amounted to 1,680 l., and having various sums in his hands belonging to the appellants, he retained that sum, which, with other commissions which were not disputed, reduced the balance in his hands to the sum of 4751. 11s. 61/.: the appellants protested against the charge of this commission, and while the matter was pending White died, having made his will, and appointed the respondent, James Daly, with others, trustees and executors thereof. Daly alone proved the will, and returned an inventory of the personal estate, amounting to 37,702 l. 15s. 7}d., and the appellants applied to him for payment of the sum of 1,680 1., the amount of the commission, which he refused, and at the same time rejected a proposal made by them to try the question at law. Under these circumstances the bill was filed, the prayer of which was, “That it might be declared and decreed by the Court that the charge of commissions made by John White against the appellants, on the sale of the said estate in England, by the said Richard Ryland, and the execution of the conveyances in England, by the said John White and all other the parties, to the said Robert Watt, was illegal, and was unfounded and untenable; and that the said John White had no right to retain any sum of money in his hands for the purpose of paying himself such claim: and that if necessary, an account might be taken of the actions and transactions of the said John White, in and about the real and personal estate of the said Thomas Warren and Thomas Fullerton Warren, and that the respondent might admit assets and accounts.

The respondent, by his answer, did not dispute any of the facts stated by the appellants, but he alleged that the said John White had considerable correspondence with the said

1828.

HENCKELL

Daly.

Robert Watt respecting the sale of the said Lacovia estate but that previous to the arrival in the said island of the conveyance, the said John White was under the necessity of quitting the island for the benefit of his health. But being anxious that the agreement with the said Robert Watt should be carried into effect, and that the intended sale should not be defeated by his absence, he, previous to quitting the island, executed to the respondent and James Dunkril (since deceased) a power of attorney, as executor and trustee of the therein before named Thomas Fullerton Warren, to take possession of the Lacovia estate, and all other lands, houses, cattle, stock and plantation utensils whereof the said Thomas Fullerton Warren died possessed, and to do and act touching the same as he himself could have done if present; and he further said, that on the arrival of the deed of conveyance of the 25th July 1816 in the island, the said John White having quitted the island for Great Britain, the same was duly executed by Robert Watt, one of the parties thereto, and returned to Great Britain, accompanied with bills of exchange to the amount of the consideration money pursuant to the agreement; whereupon the respondent and the said James Dunkvil, the attornies of the said John White, in the presence of Darid Morrice and John Collins, esq., delivered up the possession of the said estate to the said Robert Watt; and thereupon the respondent submitted to the Court the said John White or the respondent and the said James Dunkvil, as his attornies, became entitled to their commissions on the sale; and the respondent believed that after the arrival of the said John White in England, and upon the return of the said indenture, the said John White executed the same: and after admitting the accounts as stated in the bill, the respondent said he admitted that the said appellants had applied to him to have the question, as to the right of the said John White to the said commission, tried at common law; and that he at first readily acceded thereto, and gave instructions to his solicitors for that purpose; but having been afterwards informed that, in the event of a verdict in favour of the respondent, the appellants would not be satisfied therewith, but would bave recourse to

1828.

HENCKELL

Daly.

an appeal to Great Britain, he, the respondent, withdrew his consent.

The defendant, Ryland, by his answer, admitted that he had at one time claimed his commission upon the said sale, but afterwards hearing that his right to it was doubtful, he abandoned his claim.

The cause being at issue, came on to be heard in the High Court of Chancery in Jamaica, on the 7th of February 1826, when his Grace the Chancellor, after hearing the same and the evidence adduced, was pleased to declare it as his opinion, that the question at issue in the said cause would be most properly determined by the verdict of a jury: and he did thereby order and declare that an issue at law be prepared, to be tried in the Supreme Court of Judicature in the said island, between the said appellants and the respondent, to try whether the said John White deceased, in the pleadings named, was or was not entitled to any, and if any, to what compensation on the sale of Lacoria estate in the pleadings mentioned.

And his Grace the Chancellor was further pleased to order and direct, that the appellants and respondent should be at liberty to read and give in evidence at the trial of the said issue, the examination of witnesses in the cause, if such witnesses should have departed this life, or be incapacitated of attending at the said trial, and also the several vouchers and documents produced in evidence in the cause, and the said issue was to be tried in the county of Middlesex without delay.

From this order the appellants prayed and obtained liberty to appeal to His Majesty in Council, and submitted that the same ought to be reversed, for the following, among other reasons:

1. Because in no case on the sale of an estate is a trustee under a will to be entitled to a commission upon the amount of the purchase-money. The general rule of equity, as applicable to trustees and executors, cannot be disputed; and the Colonial Acts which allow such charges to executors and trustees upon the receipts of the rents and profits, as a compensation for the trouble of superintendence, contain no such provision in case of sales of estates.

1828.

HENCKELL

Daly.

2. That if a trustee could in any case be entitled to make such a charge, it could only be where the sale had been operated by his own personal labour and diligence (Chambers v. Goldwin, 9 Ves. 254); but that here the evidence distinctly proved that the sale was negotiated and the terms settled in England, and that John White had nothing to do with it but to execute the conveyances.

3. That the case at the hearing was ripe for decision, all the material facts being established before the Court, by admission on evidence: that there was no dispute about them, and therefore to direct the trial of an action at law was useless and improper; and with respect to the rights of the parties depending upon those facts, a question between a trustee and his cestuique trust was more proper for the decision of a court of equity than a court of law.

The respondent, on the other hand, submitted that the said deoree or order ought to be affirmed, for the following among other reasons:

Because, supposing the claim in question not to have been sufficiently established in the said suit without a further inquiry, which nevertheless the respondent submitted was the case, yet that the respondent was clearly entitled to have his claim submitted to a jury before the same was rejected by the Court; and he submitted that the issue so directed by the said decree was a proper issue, calculated to do justice between the parties. And the respondent craved leave to state, that it appeared by the pleadings in the said cause, that the subject was conceived, on the part of the appellants themselves, to be so proper for the decision of a jury, that they had stated in their bill an application to the respondent to have the same tried at law; but an action to accomplish which purpose the respondent could not, and, as he was advised, he ought not to commence under the circumstances in which he was placed, as the executor and trustee under the will of the said John White, who had himself in his lifetime asserted the claim.

Mr. Pemberton and Mr. Rennalls, for the appellant;

Mr. Horne and Mr. Roupell, for the respondent.

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