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Bland's Reports, Chancery Court 1809-1832
Volume 201, Volume 2, Page 207   View pdf image (33K)
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WINDER v. DIFFENDERFFER. 201

situation of trustees, charged with the care and management of an
estate, are allowed a compensation for their trouble, in the form of
a commission, of so much per cent, upon the amount collected and
disbursed by them. In many cases, the commission is limited by
positive law; (p) but in all cases its allowance, within the pre-
scribed limits, seems to be considered as an exercise of a discretion-
ary power which rests so exclusively with the court of original
jurisdiction, that it cannot be revised or controlled in any way
whatever, (g)

The Court of Chancery is peculiarly and absolutely civil in its
institution, and in all its modes of procedure. It is confined to
cases of distributive and commutative justice alone, and has no
jurisdiction whatever over torts or crimes. It dispenses no favours,
nor does it administer vindictive justice in any form, (r) The
principle upon which it awards simple or compound interest to a
party whose money has been unjustly withheld, or misapplied, is
that of commutative justice, considering the interest as a full compen-
sation for the injustice done, and as the proper, or only remuneration
which the court can award in such cases; (s) and, consequently,
to lessen or altogether to withhold from a trustee any allowance to
which he may be justly entitled, upon the same ground on which
he had been charged with simple or compound interest would be,
in effect, to impose upon him a fine or forfeiture upon the principles
of vindictive justice; and to punish him for an offence which the
court itself had declared would be sufficiently expiated by the pay-
ment of simple or compound interest. The duties performed by a
trustee, may have been so light, or may have been performed in so
negligent or unskilful a manner as, on that ground, to entitle him to
small, or perhaps to no commissions at all; but to whatever com-
missions he may be entitled, they certainly should not be lessened,
or altogether withheld, upon the ground of his having done, or
omitted to do anything for which the payment of simple or com-
pound interest had been awarded as a compensation; because
every single transaction must be considered by itself, (t) Recol-
lecting, however, that a trustee cannot be allowed to retain or

(p) 1798, ch. 101, sub ch. 10, s. 2.(q) Nicholls v. Hodges, 1 Peters, 562.
(r) 1 Fonb. 2 5 Pake v. Highfield, 1 Russ. 560; Nash v. Nash, 4 Ecclesi. Rep.
357; Singery v. Attorney-General, 2 H. & J. 497; Fornshill v. Murray, 1 Bland,
484.(s) 1 Fonb. 3; 2 Fonb. 423,(t) Sammes v. Rickman, 2 Ves. jun. 87; Adye
v. Feuilleteau, 3 Swan". S7, note.

 

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Bland's Reports, Chancery Court 1809-1832
Volume 201, Volume 2, Page 207   View pdf image (33K)
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