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Decisions of the Superior Courts of New South Wales, 1788-1899

Re Manning [1838] NSWSupC 111

Registrar, right to fees - fee system of administration - succession, fees of administration

Supreme Court of New South Wales

Dowling C.J., Burton and Willis JJ, 6 December 1838

Source: Australian, 8 December 1838[ 1]

THURSDAY - The three Judges took their seats to hear Counsel on the claim of the Registrar to give per cent. on the collection of insolvent estates.

On the opening of the Court the Clerk read over His Honor Mr Justice Burton's Report on the Registrar's Accounts, by which it appeared that the total amount of intestate estates standing over was £7,177; the amount disbursed £3,990 - leaving a balance in the hands of the Registrar of £3,187, exclusive of commission of five per cent. claimed by him, but which Mr Burton was of opinion ought not to be allowed.  In examining the accounts, His Honor had deducted various sums which had been charged to the debit of the various estates by the Registrar, and which made a considerable difference in the amount accounted for by Mr Manning, when he furnished his accounts.  Mr Manning was called on to take exceptions to these disallowances, and he now put in written exceptions to seventeen different items disallowed by Mr Justice Burton.

The Clerk read over the exceptions seriatim, and each sum was separately argued, and explained to the Court; which eventually allowed Mr Manning £470 which had been objected to in Mr Justice Burton's report.  During the argument on the exceptions taken by Mr Manning, the Court decided that he was responsible for the actions of his agents, and accountable for the moneys received by them, whether handed over or not, and thus Mr Manning became chargeable with a sum of money he had not received.  It also appeared that in the amount of £3,187 reported to be in the hands of Mr Manning, several sums were charged against him which had not been received until the accounts were made up and handed into the Court, on the 1st of September last.

After the exceptions were disposed of,

Mr a'Beckett said the Court would be aware that Mr Manning had gone thus minutely into his accounts, and taken the steps he had conceived necessary to remove the slightest immoral imputation that might be cast on his character by persons who might not be aware of the true state of the facts.

His Honor the Chief Justice said that none but a most depraved mind could conceive for a moment that any, the slightest, immoral imputation was attempted to be cast on Mr Manning by the course the Court had adopted, which was for the public satisfaction, and was, in fact, an incumbent duty on the Court.  If he conceived for a moment that Mr Manning's character, as an honorable and conscientious man was sought to be impeached, he would not have consented to enter on the investigation.

Mr Manning said he was satisfied that his Honor had expressed the feelings of the Court, and he was bound to say that, during the investigation of the accounts (which, from their nature and the length of time they embraced, were exceedingly complex) His Honor Mr Burton had conducted himself with justice and impartiality.

His Honor Mr Burton said that the candid and ready explanations of Mr Manning during the investigation were highly creditable to him.  The task he had taken on himself, at the request of his brother Judges, had certainly been a troublesome and rather a difficult one - more so, from the difficulty of procuring correct data on account of the time the matter had stood over the result however must prove satisfactory, not only to the public, and the Court, which was responsible for these matters, but to Mr. Manning himself.

Mr a'Beckett said that with the leave of the Court he would now address himself to the question of whether Mr Manning, being a salaried officer, was entitled to commission for collecting the estates.

Mr Justice Willis said that he wished Mr a'Beckett would include the question of whether, Mr Manning having the interest of the money for so long a time, he was entitled to commission.

Mr a'Beckett said he would - and in the first place he contended that Mr Manning was not bound to take the duty of collecting insolvent estates on him; unless he consented to do so.  The words of the charter conveyed that he might be appointed for that duty, but did not render it imperative on him to accept it; and in fact, before he did take on himself the collection, it required that an application should be made to the Court to do so, which clearly proved that it was not imperative, otherwise no application would be necessary.  By the charter of justice, the Registrar of the Supreme Court was nominated to his office by the Crown, the same as the Judges, and was not appointed, like some of its officers, by the Court; and the duties of the office were there determined by comparison - for the words were, that the duties should correspond with the duties of the Registrar of any of the Courts of Westminster.  No such duty as collecting insolvent estates were case on the Registrars of the Courts of Westminster, and consequently could not form any part of the duties of his office imperative on Mr Manning to perform.  In Mr Manning's commission of office, it was provided that he should take all fees, rights and privileges pertaining to the office.

The Chief Justice interrupted Mr a'Beckett, and said that the very same words were also inserted in the Judges' commissions, and yet they were not allowed to receive on farthing more than their salaries, on pain of being removed.  He believed it had been insinuated, in one of the newspapers, that one of the Judges had received a fee, but it carried falsehood on the face of it, and he was certain that no reasonable person would for a moment believe it.

Mr Justice Burton said, that for his part he paid little attention to such reports - he was certain that a reflecting person could not credit such a thing - and as far as he was individually concerned, he was assured that his friends, and and [sic] those whose esteem he regarded, would not pay attention to it.

Mr Justice Willis said, that he could only say that he had never received a fee, and he paid little attention to such reports.

Mr a'Beckett continued - He would take leave to read Mr Manning's, or rather his predecessor's, Mr Stephen's, instructions for the duties of his office.  It was a letter of instructions from Mr. McLeay, then Colonial Secretary, and although it was not an accurate specification, yet it was a general summary of the duties of the office, and would have contained such an important part as the collection of insolvent estates, if that had pertained to the office.  But, as he before stated the Charter of Justice did not confine the duty to the Registrar; for the words were, ``to the Registrar, or to such person or persons, whether creditor or otherwise, as the Court shall see it;" and he submitted, that in nominating the Registrar, it was merely a preference to him over any other person, and it was understood that he should be remunerated for his trouble in the same way that any other indifferent person nominated by the Court would have been.  He would suppose, then, that the Registrar was placed in the situation of an administrator, being a responsible person to receive the trust.  Every person to whom letters of administration were granted were forced to give sufficient security before the trust was conveyed, and was entitled to receive out of the assets of the estate such reasonable commission - as the Court should think fit to award; so that he (Mr a'B) contended that the Court was, by the Charter of Justice, in a situation to allow the Registrar a compensation or commission - and he was certain that, having the power to do so, the Court would think it but reasonable and just to grant it, when it had been shewn that Mr Manning had not only been liable to great risque, but had been an actual loser by the trust.  He granted that it was not imperative to the Court to make this allowance, but he contended that Mr Manning must be regarded in the light of an ordinary administrator, and it left it in the power and at the discretion of the Court to treat him as one, apart from his office of Registrar, with which these duties had nothing to do.  The reason of his appointment for this duty was, probably, because he was always before the Court, and was a person whose station gave security for the efficient and honest discharge of the duty; but because he happened to be a salaried officer of the Court, that could not be a reason why he was not to receive compensation for the extra trouble and responsibility imposed on him.  It had been shewn that Mr Manning had actually expended £193 out of his own pocket, to further the interests of the estates, and it was questionable whether he would every recover the sum so expended; he only made a claim of £297, and it certainly was very hard, that with these heavy responsibilities, he should be refused a fair and equitable remuneration which had been allowed him in all cases by the parties themselves, when the proceeds of estates had been paid over without dispute.  If it had been incumbent on Mr Manning to collect the estates as forming part of the duties of his office, then he would have been relieved from all personal responsibility; but as it was, and the Court had that morning decided all responsibility was cast on him, and he was even made answerable for the actions of his country agents, without which it would have been impossible for him to act: and for this heavy responsibility, by which he had been a loser, and might yet be to a large amount, he only asked the small commission of five per cent.  Mr a'Beckett went into the question of allowances to executors and administrators, and quoted various authorities to shew that it was the practice; in some cases even where the executors had been left legacies they had been allowed remuneration.  He also quoted from ``Willis on Trusts," where it was laid down that executors ought to be indemnified against losses by trusts, and allowed the costs, charges, and expenses accruing from the trust, such as the employing a bailiff, accountant, or an attorney.  Upon these ground he contended, that Mr Manning's claim was fair and reasonable; but if it did not appear so clearly to be the general practice in cases of trusts of this sort, he contended that if it was really for the benefit of the estate; if the non allowance of compensation was likely to damp Mr Manning's zeal in the performance of this duty, (and it was not likely, if no compensation was allowed - even if it was imperative on Mr Manning to collect the estates - that he would go one step beond [sic] they instructions which he was clothed,) he should not have the responsibility without recompense.  But he might also be regarded in the light of a manager, and this appeared to be the most reasonable construction to put on his duties, which did not merely consist in collecting the estates, but also in paying debts, and settling intricate matters connected with them, and in this light he was entitled to a greater compensation than he claimed.  If Mr Manning had not performed these duties, they must have been performed by other parties, who would have been paid for them; and as Mr Manning had gone on for nine years, furnishing his accounts regularly, and taking to himself the commission he supposed he was entitled to, it was rather late now for the Court to turn round and say, that having lain under the responsibility, and suffered loss, they would not allow him what he had all along been held to believe he was entitled to; and when, had he been sooner made acquainted that he was not entitled to it, he might have objected to the trust.  There could be no doubt but that Mr Manning  had all along conceived himself entitled to commission, and it was on that understanding that he had consented taking the responsibility on himself; shortly after his arrival in the colony he had been allowed it in the case of Mr Sampson.  It was true that that was not the decision of the Court, but the Court had been aware of the allowance.

The Chief Justice said that in the case of Mr Sampson, he had acted himself.  Mr Sampson's family was well known to him in England, and on that gentleman's death, he (the Chief Justice) had taken upon himself to communicate with his relatives, and manage his affairs in the colony.  Mr Manning because he had had a great deal of trouble in arranging the estate, but it was not given by the Court.

Mr a'Beckett said that he did not contend on precedent; all he wished to urge on the Court was, that it had the power to order Mr manning compensation for his responsibility and actual loss; and that he must either be considered as an administrator or executor under the charter of justice, or as a manager under the statute, in either of which capacities he was entitled to remuneration; and that the duties thus cast on him were totally distinct from the office of Registrar of the Supreme Court; that in equity and justice, the Court ought at least to make allowance for past transactions, whether that allowance was to guide the future collection of estates or not and that it would be open for parties at any future time, if they felt dissatisfied, to open the question, and object to the allowance of commission in any particular estate.

Mr Foster followed on the same side.  He had little more to advance to the arguments made use of by Mr a'Beckett, which he thought must be conclusive.  Admitting, for the sake of argument, that it was imperative on Mr Manning to accept the duty of collecting, he contended that there was a material distinction between his duty as Registrar, and a duty cast on him as being Registrar of the Court, and the most fitting person to perform that duty.  For instance, one of their Honors sat as a Member of the Legislative Council, not as forming part of the duty of a judge, but as being the most fitting person to fill the office.  Magistrates also sat as assessors, not as embracing the duty of a Magistrate, but because they were considered men of respectability who would be more likely to decide equitably and justly than others; and in Van Diemen's Land, where Magistrates were few in number, Military Officers sat as assessors, not as forming any part of their duty as military men, but because they were considered likely to be impartial and to do justice between parties.  So in like manner Mr Manning, being a responsible and fitting person, was appointed to collect insolvent estates, not as forming any part of his duty as Registrar, but because the Court considered him a fitting person.  The assessors received remuneration, not as Magistrates, but for the extra duties they were required to perform; so also did military officers serving as jurors; and it so happened that Mr Manning was sometimes called to sit as an assessor in the Supreme Court, of which he was an officer, and he received the same remuneration as other assessors, notwithstanding that he was a salaried officer of the Court.  He wished to impress on the mind of the Court that the duty thus cast upon Mr Manning was totally disconnected with the office of Registrar for which he received his salary, and that he was equally entitled (if not more, on account of the heavy responsibility) to compensation for this extra duty, as he was for any other that might be cast upon him.

Mr Justice Burton said that perhaps his brother judges would excuse him for stating his opinion at this stage of the proceedings, as on him had devolved the duty of investigating the accounts, on which he had stated his opinion to Mr Manning at the time.  It had certainly been his conviction at the time that Mr Manning had no claim to commission, and he had talked the matter over with Mr Manning at great length.  The argument addressed to the Court by Mr a'Beckett had very strongly impressed on his mind, that allowance ought to be made to Mr Manning, and as he had been the means of suspending the allowance until the matter had been considered, he now took the opportunity, rather irregularly, of stating that he thought Mr Manning was entitled to remuneration.  He thought the Registrar was not bound to accept this duty, which was anomalous, burthensome, and a losing concern.  If the Registrar, at any time, had requested to know what remuneration would be allowed, and stated his unwillingness to take the duty, the court would have either relieved him from the duty, or defined the remuneration he was entitled to.  His Honor had no doubt but that Mr Manning had been honorably impressed with the conviction that he was entitled to commission for this extra duty; and there could be no doubt that he was not compelled to perform this duty as Registrar of the Court, but that he took it apart from the duty of his office, and was not paid for it by his salary as Registrar.   It appeared in all the instances where he had sustained loss, that he had done the best he could for the estate, and was actuated by a praiseworthy desire for the interest of the parties concerned.  In the case of Wheatley he had expended money of his own for the cure of a flock of sheep which otherwise must have been lost to the estate, in the hope that something might accrue.  It appeared in all the cases that he had acted zealously for the estates, although incautiously in burthening [sic] himself.  Then came the question whether he was entitled to commission.  He (Mr Justice Burton) did not think that he could be considered as an executor or an administrator, but he certainly was to be considered as an agent, employed to do what some other person must have done if he had not, or loss must have accrued to the estate, and in this light he was entitled to compensation the same as any other party would have been; for he was certain that if an application had been made by a common agent appointed for the purpose, the Court would not have refused reasonable charges, and he (Mr Burton) did not think the mere circumstance of Mr Manning receiving a salary, would put aside his claim.  He had been disposed to think that the interest of the money would have been sufficient to repay him for all his losses and risques [sic], but then it must be remembered that it was not Mr Manning's fault that the money was not paid before, as he had always been ready, but had never before been called to account, and this would not deprive him of his claim to the commission.  He was of opinion that the Registrar should be allowed the commission of 5 per cent, saving any exceptions that might be taken by parties, which would be determined on application to the Court.

His Honor the Chief Justice said that he perfectly coincided with his learned brother, Mr Burton, that Mr Manning was entitled to remuneration for the extra duties, and heavy responsibility cast on him which he had taken under the impression that he would be remunerated for his trouble.  The Court was bound to grant administration to estates, but a party was not bound to accept it, and if he did accept it, he was entitled to remuneration.

His Honor Mr Willis was sorry he could not agree with his learned brothers, but as their decision was the voice of the Court, he would not take up time by explaining his reasons for dissenting from them.

The Court ordered that Mr Manning should be allowed 5 per cent. commission on the sums collected for insolvent estates.

 

Notes

[ 1]See also Sydney Gazette, 8 December 1838.

For the correspondence on this case, including Manning's objection to the new rules, see Historical Records of Australia, Series 1, Vol.19, 471-475.

Published by the Division of Law, Macquarie University