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Cameron v Kyte

State Trials Cited authorities 4 Cited in 1 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date21 December 1835
Date21 December 1835
CourtState Trial Proceedings
59 Geo. 3. c. 69. Foreign Enlistment Act, 1819
CAMERON against KYTE. DONALD CHARLES CAMERON Appellant AND MARY KYTE AND ARTHUR ROLLOCK HOLLINGSWORTH, EXECUTRIX AND EXECUTOR OF CHARLES KYTE, Respondents. DECEASED - -, - - - APPEAL FROM THE SUPREME COURT OF CIVIL JUSTICE OF THE COLONY OF BERBICE TO THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL DECEMBER 9 AND 21, 1835, BEFORE LORD BROUGHAM, PARKE, B.,(a) THE CHIEF JUDGE OF THE COURT OF BANKRUPTCY,(U) AND SIR HERBERT JENNER.(C) (Reported in 3 Knapp, 332.) The vendue master of the colony of Berbice was entitled, before its cession to Great Britain in 1803, to five per cent. on all sales of estates under executions in the colony. G. II. was appointed in 1804 vendue master " to hold, exercise, and enjoy the office by himself, or his sufficient deputy or deputies, during pleasure, with all and singular the profits, privileges, fees, and emoluments to the said office belonging or appertaining." The governor of the colony on December 8, 1810, published a notification that the commission was reduced from five to one and a half per cent. In 1824 G. H. duly appointed C. K. his deputy. L Proceedings by C. K. to recover commission at the rate of five per cent. Held by the Judicial Committee of the Privy Council, Law of Ceded Colony Authority of Governor Judicial Notice of Exercise of Prerogative. 1. The governor of a ceded colony is not in the position of a viceroy, but has only such portion of the sovereign authority as is expressly or by implication conferred upon him by the Crown, and the implication extends only to what is necessary or usual for the performance of his duties. 2. Acquiescence by the Crown in a quasi-legislative order of a governor of a colony is not to be presumed. 3. The governor could not reduce the fees of an office held during pleasure, without . the consent of the holder, except by a legislative act. 4. Judicial notice is to be taken by the Judicial Committee of the mode in which the prerogative has been exercised in a colony as part of the law of the colony. (a) Afterwards Lord Wensleydale. (h) Sir Thomas Erskine, afterwards a Justice of the Court of Common Pleas. (c) Judge of the Prerogative Court and Arches Court of Canterbury. [610 609] Cameron against Kyte, 1835. The question raised by this appeal was the right of the deputy vendue master of the colony of Berbice to recover commission at the rate of five per cent. on the proceeds of an execution sale of a plantation and slaves conducted by him.(a) The appellant was the purchaser of the estate in question, and the respondents the repreEcntatives of the vendue master, y whom the action was originally brought. The facts were as follows : By a warrant of his late Majesty King George III. bearing date the 24th day of January, :1804, George Hallam, Esq., was appointed vendue master in the colony of Berbice- " to have, hold, exercise, and enjoy the office by himself, or his sufficient deputy or deputies during His Majestys pleasure, together with all and onngular the rights, profits, privileges, fees, and emolu nents to the said office or place belonging or appertaining." The vendue master is an officer whose duty it is to sell all property sold by public auction, including such as may have been seized or levied upon in execution of the sentences of the Court of Civil Justice in the colony, for which duties he was entitled to a commission of five per cent. on the amount of the purchase money. Mr. Hal !amnever resided in the colony, but performed the duties attached to his office by deputy. Early in November, 1810, the principal inhabitants of the colony presented a petition to Major-General Samuel Dalrymple, the then acting Governor, and also to the Court of Policy,(b) for the reduction of the vendue masters commission on the sale of estates ; but before an answer had been made to the petition, _Robert Gordon, Esq., who had been appointed Lieutenant-Governor, arrived in the colony and assumed the civil administration. On the 30th of November, 1810, Governor Gordon intimated by letter to William Threlfall, Esq., the then deputy vendue master, tint from and after that date the commission on sales of estates by execution was to be reduced from five to one and a half per cent. on the gross amount of biddings. The deputy vendue master protested against this reduction, as interfering with his rights, and of those of his constituent George Hallam, the patentee, and on the 7th of December, 1810, caused his protest to be served on the Governor. (a) The Vendue Office in Berbice was abolished by Ordinance 14 of the year 1846. Laws of British Guiana, 1811-1864, p. 42. (b) The Government of Berbice was at this time administered by a Governor and Council, called the Court of Policy. See Clarks Colonial Law, p. 241 41856. On the 8th of December, 1810, Governor Gordon issued a notification under his hand and seal, whereby he reduced the commission from five to one and a half per cent. The Court of Policy and Criminal Justice held their sittings on the 8th of June, 1811, but refused to enter into the matter of the deputy vendue masters petition, alleging that the notification of the Governor superseded the necessity of any reply from the Court. It appeared that, from the period of Governor Gordons notification, the Supreme Court of Civil Justice, in cases of sales upon execution, acted upon the above notification, and the commission of the vendue master was restricted to one and a half per cent. On the 5th of August, 1824, Charles Kyte obtained from Mr. Hallam the appointment of deputy vendue master, and for some time received the commission upon execution sales according to the former rate of five per cent.,(a) till the year 1829, when the present appellant, having become thu purchaser of an estate called Canefield at the sum of 450,000 guilders, opposed the deputy vendue masters claim to a higher rate than one and a half per cent., alleging that the exaction of such rate was illegal under Governor Gordons notification. The difference between the amount claimed by Mr. Kyte and that alleged to be due by the appellant amounted to 15,864 guilders 5 strvers ; for which amount Mr. Kyte, in June, 1832, filed a declaration and demand in the Supreme Court of Civil Justice. In support of his right to charge five per cent. commission, Kyte produced in evidence certain resolutions of the Directors of the Chartered Colony of Berbice, dated the 28th of...

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1 cases
  • Cameron v Kyte
    • United Kingdom
    • Privy Council
    • 21 December 1835
    ...I. General Principles, 3. Governors and Public Officers; II. Particular Colonies, 3. British Guiana. S.C., with, full annotation, 3 St. Tr. (N.S.) 607; Printed Cases in Privy Council Appeals. On point (i.) as to authority of Colonial Governor, followed in Hill v. Bigge, 1841, 3 Moo. P.C. 46......

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