the consent and approbation of the major part of the inhabitants of Sandford. Upon a vacancy, two of the three chose a chaplain, with the consent of the major part of the inhabitants of Sandford, the third dissented. The common construction of charters being, that wherever a certain number are incorporated, a major part of them may do any corporate act, and that where all are summoned and part appear, a major part of those appearing may do a corporate act, though nothing be mentioned in the charter of the major part; Lord Hardwicke was of opinion, that the three were a corporation for the purpose for which they were appointed, and that the major part of them might do any corporate act; that the election of the chaplain was a corporate act, and being confirmed, it was not necessary that all should join, nor that it should be under the corporation seal; but if the act to be done by a select number of the twelve, had been by a different charter, it would have been otherwise (r).

Where twenty-five trustees had been appointed, by a former decree, for electing a minister of a parish, and during the vacancy of two trustees, an information was filed, respecting the election of two candidates, which was declared void, Lord Hardwicke directed two meetings of the trustees to be held, the first to fill up the number of trustees to twenty-five, and to appoint a subsequent meeting, and give notice thereof in writing, to all the trustees; and, in order to secure regular elections in future, the trustee named first in such deed of trust, was directed, within fourteen days after an avoidance, to send notice of the meeting to every one of the other trustees (s).

Where, by neglect, the number of trustees in a trust to present to a living, was not filled up at the time of an avoidance, the court would not by injunction prevent the effect of a presentation, under the legal title of the heir of the surviving trustee, without a special ground, as considerable time might be required in filling up the number of trustees, by which

(r) Attorney General v. Davy, 2 Atk. 212.

(s) Attorney General v. Scott, 1 Ves. sen. 419; ante, pp. 350, 351.

a lapse might be incurred; although the court will take care, as to the future, that the trust shall be properly filled up (t).

A direction that trustees, in whom the perpetual right of patronage of a vicarage was vested, should present, upon every vacancy, such fit clerk as the inhabitants and parishioners should nominate, vests the right of election in such inhabitants and parishioners, of the age of twenty-one years, as pay to church and poor rates (u).

The rectory impropriate of Clerkenwell was purchased for the use of the parishioners and inhabitants, and the nomination of the curate had been, by a decree of the Court of Chancery, declared to be in the parishioners and inhabitants paying the rates and assessments to the church and poor (v), But an election was considered valid, founded on a subsequent regulation, made by the common consent of the inhabitants at a public meeting, which provided that in future elections every person assessed, whether he paid or not, should vote, unless legally discharged (w). For it was held, that inhabitants and parishioners who have the right of nominating a curate, may, by common consent, bind themselves as to a particular mode of election (x).

The election of a vicar by parishioners, where an advowson is vested in trustees for the former, must be by votes openly taken; for an election by ballot is illegal and void (y). And Lord Eldon was of opinion that Jews, but not Roman Catholics, were entitled to vote at such an election (z).

The nomination to a perpetual curacy may be made by

(t) Attorney General v. Bishop of Litchfield, 5 Ves. 825. In this case the devise was of a rectory to eight trustees in fee, in trust to present a preacher, and the three last surviving trustees were directed to make choice of new trustees, to be added to them successively, to present.

(u) Fearon v. Webb, 14 Ves. 13. (v) Attorney General v. Rutter, 2 Russ. 101 n.

(w) Attorney General v. Forster, 10 Ves. 335; Attorney General v. Newcombe, 14 Ves. 1. (x) Attorney General v. 14 Ves. 10.

Newcombe,

(y) Edenborough v. Archbishop of Canterbury, 2 Russ. 93. See Faulkner v. Elzer, 6 Dowl. & R. 517; 4 B. & C. 449.

(z) 2 Russ. 111, n.; ante, p. 107.

parol, and give an interest for life, unless the party be deprived by the ordinary (a).

A bill, and not an information in the attorney general's name, is the proper mode of proceeding for establishing the right of nomination to a perpetual curacy; but the augmentations of vicarages or curacies have been declared to be charities by stat. 29 Car. II. c. 8, s. 7, and may therefore be the subject of an information (b).

In the Attorney General v. Marquis of Stafford, already stated (c), the lord of the manor had power, upon complaint, to give the minister half a year's warning, and if he had not reformed by that time, to remove him. On an information praying that the lord might be decreed to allow and approve the candidate who had the majority of votes, which was refused on the ground of misconduct, proved by evidence; a new election was directed, upon which the same candidate was returned, and upon his producing strong affidavits of good conduct for the last six years, a decree was made, declaring that the relator deserved the approbation of the trustees (d).

SECTION III.

Of the Appointment and Removal of Schoolmasters. THE majority of a number of persons who are intrusted with powers, not of mere private confidence, but in some respects of a general nature, and who are all regularly assembled, may bind the minority, for the act of such majority will be considered the act of the whole. The cases of corporations go further there it is not necessary that the whole number should meet; it is enough if notice is given; and a majority,

(a) Attorney General v. Brereton, 2 Ves. sen. 429; 1 Sid. 426; Co. Litt 120.

(b) Attorney General v. Brereton, 2 Ves. sen. 424; ante, p. 73; Attorney General v. Newcombe, 14 Ves.

1; Attorney General v. Parker, 1 Ves. sen. 44.

(c) Ante, p. 382.

(d) Attorney General v. Marquis of Stafford, 3 Ves. 77; S. C. 3T. R. 646.

or a less number, according to the charter, may meet, and when they have met, they become just as competent to decide as if the whole had assembled (e).

It is a general rule of law, that where a public trust is to be performed by a definite number of persons, it must be executed at a meeting where a majority of that number is present, unless there be a usage or custom to the contrary. It is different from a trust or power of a private nature, for that must be executed by all the persons to whom it is given (ƒ).

Under stat. 9 Geo. I. c. 7, s. 4 (g), which enables the churchwardens and overseers, with the consent of the major part of the parishioners, to contract for the providing for the poor, it was held not to be necessary that all the churchwardens and overseers should concur, but that a contract by the majority would bind the rest. Lord Kenyon observing that the case was very different from that of trustees of settlements, who are generally chosen by the different branches of the family, in which case it is necessary that they should all concur in every act, in order that each may protect the interest which he was appointed to guard (h).

A power to appoint a schoolmaster to an ancient foundation given by deed to the vicar and churchwardens (of whom there were eleven), and in case of their neglect in appointing, then

(e) Grindley v. Barker, 1 Bos. & Pull. 236; 6 B. & C. 332; 9 B. & C. 651; 2 Cr. & Jerv. 655. See Oldknow v. Wainwright, 2 Burr. 1017; S. C. 1 W. Bl. 229. By stat. 5 & 6 Will. IV. c. 76, s. 90, the council of boroughs, at which two-thirds at least of the members shall be present, may make bye-laws for the government of the borough, and for the prevention and suppression of nuisances, and may appoint fines not exceeding 57. for the infraction of such bye-laws; by the 69th section, in all other cases, if the meeting consist of one-third of the

members of the whole council, it will be sufficient. All questions are to be decided by a majority of the members present; and if the votes be equal, the mayor, or other person presiding, shall have a casting vote.

(f) Co. Litt. 49 a; Blacket v. Blizard, 9 B. & Cr. 857. See Curtis v. the Kent Waterworks, 7 B. & C. 314; Rex v. Whitaker, 9 B. & C. 648.

(g) Ante, p. 29.

(h) Rex v. Beeston, 3 T. R. 592. See Cook v. Loveland, 2 Bos. & Pull. 31.

to devolve to two corporate bodies in succession, and to result in the dernier resort, to the same vicar and churchwardens, to whom also the general power of managing the trust was committed, was held to be well executed by the vicar and a majority of the churchwardens, especially where such mode of election was supported by usage (i).

The principle of these cases is not confined to trustees who are appointed under some public authority, as under an act of parliament or some public body. A charity was established in the reign of Henry VI., and certain property conveyed to trustees in fee for the relief of the poor, the repair of the church and highways, and of a particular bridge, and the payment of fifteenths. The trustees erected a school-house, and applied part of the funds of the charity in the instruction of the poor children of the parish, in which it has been already shown they were justified (j). All the surviving trustees, in number seven, to whom the property had been conveyed upon the charitable uses mentioned in the original gift, met, and five of them concurred in appointing a schoolmaster, but two of them dissented, although no act was done in consequence of such dissent.

Lord Lyndhurst, C. B., said, it was unnecessary to say whether or not that was to be considered as a concurrent election by the seven, because in a case of this description, when all the trustees were assembled for the purpose of making the election, and the majority of them so assembled concurred in the appointment of a schoolmaster, the act of the majority in that respect is to be considered as the act of the whole body, upon the ground that the trust was of a public nature, and that when trustees are appointed for the purpose of performing a trust of a public and general nature, like that in question, the act of the majority is to be considered as the act of the whole body (k).

This rule is founded on the principle, partly of preventing

(i) Withnell v. Gartham, 6 T. R. 388; ante, p. 565. (j) Ante, p. 629.

(k) Wilkinson v. Malin, 2 Crompt. & Jerv. 636, 655; S.C. 2 Tyrw. 544.