Cameron v Kyte
| Jurisdiction | UK Non-devolved |
| Judgment Date | 21 December 1835 |
| Date | 21 December 1835 |
| Court | Privy Council |
English Reports Citation: 12 E.R. 678
ON APPEAL FROM THE SUPREME COURT OF CIVIL JUSTICE OF THE COLONY OF BERBICE.
Mews' Dig. tit. Colony, 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. 465; Musgrave v. Pulido, 1879, 5 A.C. 102; and cf. Tandy v. Westmoreland (Earl of), 1792, 27 St. Tr. 1246; Luby v. Wodehouse, 1865, 17 Ir. C.L. 618; Sullivan v. Spencer (Earl), 1872, 6 Ir. R.C.L. 177; Phillips v. Eyre, 1869, L.R. 4 Q.B. 225; 1870 (Ex. Ch.) L.B. 6 Q.B. 1; Sierra Leone, In re Seizure of Slaves at, 1863, Br. and Lush. 148; Forsyth, Cases on Const. Law, 80; Finlason on Martial Law (lists of authorities and cases, pp. xlvi.-liii.); (ii.) as to non-objection by Crown to notification, see Buron v. Denman, 1848, 2 Ex. 167. See also note to Elphinstone v. Bedreechund, 1830, 1 Knapp, 361 and Willis v. Gipps, 1846, 5 Moo. P.C. 379, 387, 388, and note at p. 393.
[332] ON APPEAL FROM THE SUPREME COURT OF CIVIL JUSTICE OF THE COLONY OF BERBICE. DONALD CHARLES CAMERON,-Appellant; MARY KYTE and ARTHUR RUL-LOCK HOLLINGSWORTH, Executrix and Executor of CHARLES KYTE, deceased,-Respondents* [Dec. 9, 21, 1835]. The Governor of a Colony has not, by virtue of his appointment, the sovereign authority delegated to him, and an act done by him on his own authority, unauthorized either by his Commission, or expressedly or impliedly by any instructions, is not equivalent to such an act being done by the Crown itself ; and is consequently not valid [3 Knapp, 344, 346]. The Vendue Master of the Colony of Berbice being entitled under a resolution of the Dutch West India Company, made previously to the capitulation of the Colony to the British arms, to a commission of five per cent, on all sales effected in the colony; the Governor not having any special powers by his Commission or instructions, or by the Laws of the Colony, cannot by his own authority reduce such commission [3 Knapp, 346]. Sernble. The non-objection on the part of the Crown to a notification or proclamation issued by a Governor of one of its ceded colonies does not imply that the Governor had authority in the subject of the proclamation, nor òwill its non-interference render the proclamation valid on the ground of acquiescence [3 Knapp, 342]. 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. The appellant was the purchaser of the estate in question, and the respondents, the representatives of the Vendue Master, by whom the action was originally brought. [333] The facts were as follows: - By a warrant of His late Majesty King Geo. III. bearing date the 24th day of January, 1804, George Hallam, Esq., was appointed Vendue Master in the Colony of Berbice, " to hold, exercise, and enjoy the office, by himself or his sufficient deputy or deputies during pleasure, together with all and singular the rights, profits, privileges, fees, and emoluments to the said office belonging or appertaining." The Vendue Master is an officer whose duty it is to sell all property sold by public * Present:-Lord Brougham, Mr. Baron Parke, the Chief Judge of the Court of Bankruptcy [The Hon. Thomas Erskine], and Sir Herbert Jenner. 678 CAMERON V. KYTE [1835] III KNAPP, 834 auction, including such as had been seised 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 commisson of five per cent, on the amount of the purchase money. Mr. Hallam never 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, for the reduction of the Vendue Master's 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 Wm. Threlfall, Esq., the then Deputy Vendue Master, that from and after that date the commission on sales of estates under 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 those of his constituent, George [334] Hallam, the patentee; and on the 7th of December, 1810, caused his protest to be served on the Governor. 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 Civil Justice held their sittings on the 8th of June, 1811, but refused to enter into the matter of the Deputy Vendue Master's petition, alleging that their authority was superseded by the notification of the Governor. It appeared that from the period of Governor Gordon's 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 oth 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, till the year 1829, when the present appellant, having become the purchaser of an estate called Canefield at the sum of 450,000 guilders, opposed the Deputy Vendue Master's claim to a higher rate than one and a half per cent., alleging that the exaction of such rate was illegal, under Governor Gordon's...
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