were proper persons in the parish in question to be trustees (q). Where a deed provided that the heirs of the founder should nominate the trustees of the charity, it was said by Lord Redesdale, that the court had no power to supersede that direction, and to make an order on a petition under 52 Geo. III. c. 101, in the absence of such heir, for the appointment of new trustees; and even in the case of an information, an inquiry must be made who is the heir of the founder, unless it be established by evidence that none was in existence (r). By an act for the relief of the poor of a parish, the vicar, churchwardens, and overseers for the time being, and certain persons named, were to be trustees for carrying the act into execution; and a meeting was held every third year to elect new trustees in the room of those who should have died, removed, become disqualified, or relinquished the office; so that the number should every third year be " filled up to the number of fifty-one over and besides the vicar, churchwardens and overseers of the poor for the time being." One of the fifty-one trustees having become churchwarden, it was held that a person, by becoming an official trustee, did not forfeit the character of trustee which he held by a previous appointment (s). Municipal corporations have, in many cases, been constituted trustees (t) of charities, and they may, by the decree of (q) Attorney General v. Cowper, 1 Br. C. C. 439. The case of Attorney General v. France, upon a similar decree, was cited, where it I was said that trustees had been removed merely on the ground of not being inhabitants; but Lord Thurlow thought the case must have been decided upon some other special ground not there appearing. See ex parte Bolton School, 2 Br. C. 62; ante, p. 341. (r) Corporation of Ludlow v. Greenhouse, 1 Bligh, N. S. 80, 81. See Attorney General v. Gaunt, 3 Swanst. 148, n.; ante, pp. 432, 506. (s) Rex v. the Trustees St. Mary Abbotts, Kensington, 2 B. & Adol. 740. See Rex v. the Justices of Kent, 4 Nev. & M. 299. (1) See Report on Municipal Corporations and Appendix thereto; ante, p. 314, n. (k). the court, be divested of their trust in the same manner as any other trustees (u). A misapplication of the increased revenues, gross misbehaviour in the execution of the trusts, and an inability to pay the sums due to the charity, were held sufficient grounds for transferring an estate, vested in a corporation as trustees for a charity, to other persons more able and willing to discharge the trust faithfully (v). Trustees, in whom the right of nominating a preacher of a parish is vested, commit a breach of trust by assigning it. Thus, A. being impropriator of a parish, demised part of the tithes to certain parishioners as trustees for 1000 years, who redemised the same to him for 999 years, under a yearly rent of 507., payable to the trustees, as a provision for a preacher to be nominated by the trustees. The heir of A. afterwards sold the rectory to B., and the representative of the surviving trustee was prevailed upon to assign to B. the right of nominating the preacher. From the date of the original demise, and for forty years and upwards after the latter transaction, the preacher was constantly nominated by the parishioners; but, upon a contest between them and B., it was held that the right of nomination was absolutely in the trustees, and that the assignment of that right was a breach of trust; and directions were given by the House of Lords, for the establishment of the trust in the trustees, to be impartially chosen, and for keeping up the number of trustees in future (w). A trustee dissenting to a breach of trust committed by his co-trustees, may, by applying to a court of equity, take the matter out of the hands of those trustees who are misapplying the funds of the charity (x). It is a clear breach of trust for the maintenance of a chapel, of whatever description it may be, to pull it down, and (u) Ex parte Kirkby Ravensworth Hospital, 13 Ves. 314; Attorney General v. the Earl of Clarendon, 17 Ves. 499; Mayor of Colchester v. Lowten, 1 Ves. & B. 246. (v) Mayor of Coventry v. Attorney General, 7 Br. P. C. 235, 2nd ed. (w) Foley v. Attorney General, 7 Br. P. C. 249, 2nd ed. (x) In re Chertsey Market, 6 Pr. 279. sell the materials, and to let the land upon which it stands for building houses (y). The trustees, however, may deviate from the original terms of the trust, if its substantial object be preserved. Thus, trustees in whom lands were vested in trust to lay out the rents for the use of a parish church and a chapel of ease, and in repairing the same, were held to be justified in having, by the direction of the inhabitants assembled in vestry, pulled down the old chapel and bought a piece of ground for building a new one out of the charity funds in their hands, although the court declared that the future rents were not liable to make good any debt contracted for rebuilding, and enjoined the trustees from raising the money by mortgage (z). So, the trustees of a charity founded by charter for building a market-house were held to be justified in pulling it down, when it had become a nuisance to the town, and in building another instead on a different site. For although the trustees might perhaps have been originally bound to build the market-house on the particular spot pointed out and granted by the charter, yet they were not restrained from removing it to any other place which they might think more fit for it, in the sound exercise of their judgment and discretion in after times, the charter containing no definition of the spot on which the new building was to be erected, nor of its size or dimensions. It was considered by the court sufficient evidence of a due discretion having been exercised, that the principal inhabitants of the place concurred in the subscriptions raised amongst people in the neighbourhood for erecting the new building on private property (a). There seems to be no case in which the Court of Chancery has awarded damages for a breach of trust. Lord Keeper Coventry was of opinion that he could not; and declared, in the case of a chapel vested in a trustee, that where there was a gross breach of trust, all he could do (y) Ex parte Greenhouse, 1 Madd. 92; Corporation of Ludlow v. Greenhouse, 1 Bligh, N. S. 17; ante, pp. 488-490. (2) Attorney General v. Foyster, 1 Anstr. 116. (a) In re Chertsey Market, 6 Price, 261. was, to make the persons who had committed it account for all the profits they had made, though the thing had received considerable damage (b). The principles on which the court proceeds in directing accounts against corporations, have been already considered (c). The mode of calculating the amount of the fines to be paid by trustees on their admission to copyholds subject to arbitrary fines, is settled by the following case :—by a decree made on an information in 1729, to which the parties interested in the charity and the lord of the manor were parties, it was ordered that the charity, contained in a certain copy of court roll and deed of trust, should be established, and the lands held according to the grant, at a certain annual rent of 5s. and a reasonable fine upon every surrender and admittance, according to the custom of the manor; and the trustees being all dead, it was referred to the master to nominate thirteen other copyhold tenants of the manor of Hampstead, and inhabitants of the parish, to make up the original number of fourteen trustees; that the defendants, the surviving trustees, should surrender to such new trustees; and that the lord of the manor for the time being should admit them paying a reasonable fine: and when at any time thereafter the number of the said trustees should be reduced to five then the lord of the manor for the time being, should, with the approbation of the master, nominate nine others qualified as aforesaid, to be added to the five, and a new surrender should be made to their use on the same trusts, and that the lord of the manor should admit them paying a reasonable fine. The number of trustees having, in 1826, been reduced to five, nine were selected by the lord in the manner mentioned in the decree, and such fourteen trustees were duly admitted trustees of the charity estates. By the custom of the manor, two years' improved value was the fine payable for a single life. (b) Per Lord Redesdale in Corporation of Ludlow v. Greenhouse and others, 1 Bligh, N. S. 57, 58, 355. (c) Ante, pp. 455, 456–465, It was held by Lord Tenterden, C. J., that the proper mode of estimating the fine, is to take for the second life, half the sum taken for the first; for the third, half the sum taken for the second; and for the fourth, half that which is taken for the third; and so on. The effect of that mode of calculation is, that the fine does not amount to quite double the sum taken upon the first life, and it was held, that a fine exceeding that amount, and assessed upon the principle of two years' value for the first life; half of that for the second life; a third for the third life; a fourth for the fourth; and so on to the ninth life, was unreasonable (d). SECTION V. Of the Appointment and Removal of Ministers and 1. Deviation from the intention of the Founder will not be allowed. 2. Of the Election and Removal of Dissenting Ministers, p. 761. 3. Of the Appointment of Trustees, p. 765. 1. Deviation from the intention of the founder will not be allowed.] Trustees of a charity established by dissenters, will not be permitted to divert it from its original and proper object, by devoting it to another which could not have been within the intent of the founder. Disputes and difficulties have frequently arisen in the administration of trusts relating to the places of worship belonging to dissenters, where the doctrines originally agreed to be inculcated, have not been adhered to by all the congregation; but it is now settled that chapels must continue (d) Wilson v. Hoare, 2 B. & Adol. 350; Taylor v. Pembroke, cited Id. 354; Earl of Bath v Abney, 1 Burr. 217; see 1 Scriven on Cop. 389-395, 3rd ed |