App. III.

ATTORNEY-GENERAL v. LEAGE (a).

Chanc. Div.-Kay, J.

(12 Dec. 1881.)

An Act of Parliament provided that a stipend of 1201. should be paid to the rector of St. Luke's, Cripplegate, out of certain burial fees to be received thereunder by the churchwardens, and that any deficiency should be supplied out of public monies in the hands of the churchwarden belonging to the parish not arising by any poor rate or other pound

rate.

It was held that charities for the poor of the parish generally, or applicable for a particular class of such poor, as widows and children. or applicable for the benefit of the poor in a particular manner, as is distributing coals, clothing, &c., or for church repairs, were not public monies liable to payment of the rector's stipend.

It was held also that the funds of such charities were not constituted public monies for this purpose by a subsequent Poor Law Act, which directed that they should be applied in aid of the poor rate.

The only monies chargeable with the stipend were monies belonging to the parish beneficially for its general purposes.

THIS was an ex officio information by the Attorney-General on behalf of certain charities for the purpose of having it determined whether they were chargeable with 1201., being part of the stipend of the rector of St. Luke's, Cripplegate.

The charities in question were charities held by the vicar and churchwardens, or the churchwardens and overseers, to be applied for the benefit of the poor of the parish, either generally or in a particular way. They are classified in the judgment.

The rector's stipend of 1207. was payable under an Act of 6 Geo. II. c. 21, passed in 1732. At that date the parish of St. Luke's formed what was then known as the Lordship portion of the Parish of St. Giles, Cripplegate, the remaining part of the parish being called the Freedom portion. The Act, after stating certain earlier Acts, recited that a new church had been built in the Lordship part of St. Giles, and a burying-place provided, and that the Lordship part had been made a district of a new parish, and that it had churchwardens, overseers, &c., and distinct rates.

The Act then recited that the churchwardens, overseers, and other parish officers in the Lordship part and the other principal inhabitants were desirous of providing maintenance for the rector of the new church, and had agreed that the yearly sum of 1207. tax free should be raised and paid for that purpose. It was then enacted that "for and towards raising the said yearly sum of 1207. agreed to be raised within the said district and paid towards the maintenance of such rector" certain burial fees should be paid in future to the churchwardens.

The Act further provided "that for and towards the further maintenance of the rector for the time being of the said church, the churchwarden or churchwardens for the time being of the said church, and new intended parish shall .. yearly and every year for ever, well and truly pay, or cause to be paid, out of any parish monies in his or their hands unto such rector the yearly sum of 1207. . . .; and the monies so paid shall be allowed to such churchwarden or church

(a) Extracted from the files of the Charity Commissioners.

wardens in his or their accounts, out of the monies to be by him or them received in pursuance of this Act; and in case such monies shall happen to be deficient for that purpose, then out of any other public money in his or their hands, belonging to the said parish, not arising by any poors rate or other pound rate, as the major part of the vestrymen assembled shall direct and appoint, and which other money shall be replaced or made good out of the next surplus of the burial monies aforesaid."

It also enacted "that all and every the succeeding churchwarden and churchwardens of the said parish shall be chargeable with, and subject and liable to make good, and to pay and satisfy, out of any parish monies in his or their hands, all arrears of the said yearly sum of 1207. accrued or happening in the time of any of his or their predecessors," not more than one year's payment being recoverable at one time. And it provided further "that all charities, gifts, and donations that have before the making of this present Act been given and granted to the said parish of St. Giles, Cripplegate, shall from time to time, and at all times hereafter, after the consecration of the said church, be received, held, and enjoyed by the vicar, churchwarden, or churchwardens of the said new intended parish, by such shares and proportions, and by the same ways, means, and methods, as they were done before the passing of this present Act."

In 1808, 48 Geo. III. c. xcvii was passed. It was intituled "An Act for making more effectual provision for maintaining, regulating, and employing the poor of the parish of St. Luke, in the county of Middlesex." It recited 6 Geo. II. c. 21, and that its provisions had long since been carried into effect; that the inhabitants of the parish had greatly increased, and that debts had been incurred for monies borrowed and expended under that Act, and that the provisions thereby made for the relief of the poor were inadequate, and required amendment. The Act then made the rector, churchwardens, and overseers guardians of the poor, and provided for the levying of rates, and enacted that monies so raised should be applied in discharging the debts owing by the parish, and in maintaining and relieving the poor, &c., and for any purposes necessary for carrying the Act into execution. All lands, buildings, monies, &c., held under 6 Geo. II. c. 21, and other Acts therein recited, in trust for the parishioners or vestrymen of the parish or other persons for and towards the relief, maintenance, and use and benefit of the poor of the said parish, or for any other purpose whatsoever in which the said parish is interested," were then vested in the guardians of the poor acting in the execution of that Act, "subject nevertheless to be used, possessed, applied, and disposed of, only upon the trusts, and for the uses and purposes and in the manner by and in this Act directed, declared, and appointed."

Sect. 76 was as follows: "All gifts, donations, benefactions, and sums of money whatsoever, now payable, or which shall hereafter become payable, for and to the use of the poor of the said parish, not being directed, or liable to be applied for the support of any private or particular poor or charity, or by the respective donors, or otherwise, particularly appropriated, and not being sacramental money, shall from time to time, from and after the appointment of the said guardians to the poor, be paid into the hands of their treasurer or treasurers for the time being, for the use of the poor of the said parish to be applied in aid of the rate for the relief of the poor thereof, unless the said guardians shall think proper, from time to time, to appropriate and

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apply the same, or some part thereof, to and in relieving or assisting any indigent, aged or industrious parishioners who have not become chargeable to the said parish."

In 1857 an action of Saunders v. Howes was brought by the rector against the churchwardens for payment of the stipend, and a special case was stated. The Attorney-General was not a party to that action, and the charities were not represented.

Kay, J.-This is an ex officio information by the Attorney-General on behalf of certain charities.

The question to be determined is whether under the Act of Parlia ment the charity funds are charged with 1207. a-year being part of the stipend of the Rector of St. Luke's, Cripplegate.

În 1732, at the date of the Act 6 Geo. II. c. 21, the parish of St. Giles. Cripplegate, consisted of two portions called the Lordship portion and the Freedom portion.

There were numerous charities founded in ancient times by benefaetions of private persons of which the vicar and the churchwardens or the churchwardens and overseers were trustees, and which for the purpose of this case may be classified thus: (1) Charities for some particular class of poor, as poor widows or poor children; (2) Charities for the poor of the parish to be distributed in a par ticular mode, as in wood and coal, or in providing gowns or the like; (3) Charities for the poor of the parish generally; (4) One at least (Sworder's Charity) for repair of the church; (5) Charities, the origin of which was lost, but which had by usage been applied for the benefit of the poor of the parish generally.

It is doubtful whether there was any property belonging to the parish producing annual income which might be applied to any of its purposes except fines paid by persons who refused to serve parochial offices. These are mentioned in the first Act, and amounted, it is said at a later period, to about 1601. a year.

That being the condition of things in 1732, the first Act, 6 Geo. II. c. 21, was passed. [His Lordship stated the provisions of the Act and proceeded:-]

Upon that Act it has been argued, (1) that all the separate classes of charity monies I have referred to are charged with the 1201. by this Act, (2) that at any rate the charities for the poor generally are so charged.

To the first argument I am altogether unable to assent. Under the Act the stipend is to be paid in the first instance out of parish money, and is to be allowed in account out of the burial fees, and if they are not sufficient out of public money other than rates. Parish money may have a larger meaning than public money other than rates; probably it includes rates. But whatever be its meaning it is only a fund for temporary payment. The fund really chargeable, if the burial fees should prove deficient, is the public money belonging to the parish other than rates. To say that a charity for the benefit of poor widows is "public money belonging to the parish" or even parish monies," out of which the parish authorities are to fulfil the obligation of paying 1207. to the rector "agreed to be raised within the said district," in the absence of an express declaration to that effect, seems to me extravagant.

The second point is more plausible. The fund is described as "public money in his or their hands belonging to the said parish not arising by any poor rate or any pound rate," and it may be said that the

exception shows that "public money" as there used would, but for such exceptions, have included poor rate. But assuming that, does it follow that it would include money left on trust for the poor? Such a trust, it is well settled, is for such of the poor only as do not receive parish help, that is, for those who take no part of the poor rate (Att.Gen. v. Clarke, Amb. 421; Att.-Gen. v. Corporation of Exeter, 2 Russ. 45; 3 Russ. 395; Att.-Gen. v. Wilkinson, 1 Beav. 370). The poor rate may be considered public money, not so much because of its object, as because it is levied from the bulk of the community; moreover, it is not charity money at all, but public money raised by a public levy under the authority of law. But if this money is public money within the meaning of this Act, I cannot from that conclude that money held on trust, which cannot be applied to the object of a poor rate, must be considered public money also.

My conclusion upon this Act is that nothing is within the meaning of "public money," except such as the parish, by which I mean the whole community of the parish, is beneficially entitled to for its public purposes.

To the action of Saunders v. Howes, the Attorney-General was no party. It has therefore been argued properly enough that nothing then decided can be binding on the Court in this proceeding which is an ex officio information by the Attorney-General. I have, however, studied the shorthand notes of that case, and I think their Lordships came to the same conclusion as to the effect of the Act as that which I have intimated.

[His Lordship then stated the provisions of 48 Geo. III. c. xcvii, and continued:-]

It is argued that all monies which by the 76th section of 48 Geo. III. c. xcvii must be applied in aid of the rate for the relief of the poor thereby become ipso facto public money of the parish, and thus, even though not before liable, they become incidentally liable to the charge of this 1207. stipend.

It seems to me impossible to attribute any such intention to the legislature. This is a poor law statute; there is not a word in it to indicate an intention to make a provision for the rector's stipend. I understand that at the time of its passing the burial fees were more than sufficient to provide for payment of the 1207., and no question had arisen concerning it. The former Act excepted poor rates from the incubus of this charge, and it would be very strange that a fund appropriated by the later Act in aid of poor rates should be made liable to that from which poor rate was expressly exempted. That would be taking so much from the ratepayers' fund and increasing the rate to the same amount, and thus practically throwing the charge upon the rates. Moreover, sect. 76 is a diversion of the charity fund from the original purpose, and an appropriation of it to another purpose. In terms the appropriation is specific and complete; and I cannot infer an intention to apply any part of it to any other purpose. The effect of the Act may, no doubt, be to impose such a charge; but I must hold that if there be nothing from which that intention can be implied, it is not the duty of any Court to give effect to such a possible construction of the Act, unless the words compel it.__Do they do so in this case? The argument may be stated thus:-Poor rate was not charged with the stipend; charities for the poor generally were not so charged; but when such charities were diverted by a poor law to be applied in aid of poor rate, they became subject to the charge, because they became public money. I ask why are

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App. III.

monies provided by private charity, and which by this statute are diverted from their original purpose and applied to relieve the poor rates, to be considered public monies? They are not public monies like poor rates, either by reason of their origin, or by reason of their being levied under the authority of the law. The only ground for considering them public monies is their new and more extensive application. To my mind that is not sufficient. I am not satisfied even that a bequest of monies to be applied in aid of the poor rate after the passing of the Act of Geo. II. would be subject to the charge of the rector's stipend. But if it were so, it does not follow that the effect of the Acts is to make this money so liable. My opinion is that the burden of showing this is upon those who make the claim, and that it does not appear sufficiently clear that this charge is thrown on the moneys to justify me in so holding. It would have been so very easy to express that in the Act of Parliament. Even a statement that the moneys were to be considered public moneys would have been soniething in favour of the argument. There is not a word in the later statute showing that such was the intention of the legislature, and I cannot feel justified in holding that the language so clearly imposes this charge that this result must follow, even though not intended to be the effect of this statute.

I find from the shorthand notes in Saunders v. Howes that Erle, J., said, in the course of his judgment, "All the parish can, under the 48th of Geo. III., specifically appropriate to poor rates, are clearly, to my mind, parish moneys." Looking to the argument and the ultimate decision, I think he was referring only to parish money properly so called which had been applied in aid of the rates. I think the dictum referred only to charities which belonged to the parish beneficially. There is no decision that any others were liable.

I must, therefore, declare that none of the charity funds in which any of the inhabitants of the parish are interested are liable to the charge of 1207. for the rector's stipend, except such, if any, as belong to the parish beneficially for its general purposes. And to make the meaning of this declaration clear, I will add, if necessary, that none of the classes of charity I have described, namely, those which by original destination, or, in the absence of such, by immemorial usage, have been applicable for the poor generally, or for any particular class of poor, or for the repairs of the church, are so liable.

The declaration ultimately made was:-"That none of the charity funds in which any of the inhabitants of the parish are interested are liable to the charge of 1207. for the rector's stipend, except such, if any, as belong to the parish beneficially for its general purposes."

Provisions in powers construed as directory.

NOTE A.
DIRECTORY POWERS.

It is stated in the text of this work (ante, p. 178) that "in cases of charitable trusts where the Courts have adopted a greater latitude of construction than in ordinary cases, directions to appoint new trustees on the happening of a certain event have been considered to be merely directory, and not to confine the exercise of the power to the happening of that event only." This is a point which requires more detailed examination.