Imatges de pàgina
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statute. The statutes which affect the company are 9 & 10 Will. III. c. 44; 6 Ann. c. 92; several intervening acts which are not necessary to be now considered; and then the 53 Geo. III. c. 155, which was in operation at the time this bequest was made. By a reference to the first of these statutes, it appears plainly that the company was originally unconnected with land, and was merely a trading company; and the statute in force when this will was made, directs various modes of keeping the accounts of the profits arising from sales in this country, from which profits the company are to pay to the holders of their stock, interest not exceeding 101. per cent.; the one party has a right to receive, and the other party has a liability to pay 1011. per cent. out of the profits of the trade. The only land they hold is that which they have for the convenience of the trade, from the profits of which they must pay the dividends. It would be going further than any other case, to hold, that those who are entitled to receive the dividends have an estate in the land held by the company; or that, because the party liable to pay, has land for the purpose of carrying on his trade, the persons who are to receive the dividends out of the profits of that trade, have an interest in the land. Where there is an actual charge on land, or personal estate to be invested in land, in such a manner as in the case of a mortgage, where if default is made in payment of the money, the mortgagee has at once a right to resort to the land, the statute applies; but to apply it to the present case, would be carrying it to an absurd length, and much farther than it was ever intended to be carried, and would involve property to a very considerable amount, which has never been considered as coming within the operation of the statute. Bank stock would come much nearer to the terms of the statute than East India stock, because the holders of bank stock are partners, and as such, are notoriously holders of land. On the whole, therefore, his honour was of opinion that East India stock is not within the act (g). It was declared that

(g) Attorney General v. Giles, 5 Law Journ. N. S. Chane. 44.

the legacy of 30007. East India stock was a good and valid legacy in trust for the benefit of Christ's Hospital (h).

P. 379, at end of third paragraph, add—If gifts are made to a college for their own benefit and that of certain scholars, with a power of visitation as to the latter, the court would not allow the college by their own neglect, or by the abuse of their power, to lessen the number of scholars, or to evade the obligations imposed by the deed of endowment, and voluntarily undertaken by the college, when they received certain estates. For it never can be suffered, that a trustee should protect himself against the charge of violating his trust, by using the powers which in some other capacity he possesses, so as to prevent objects from coming into existence, and claiming the benefit of the fund confided to his care; nor can it be permitted to a party who has taken a benefit coupled with a burden and with an office, to lessen the weight of the burden, by abusing the powers of the office, so as to extinguish or diminish the number of those claimants upon him, who were, in common with himself, the objects of the giver's regard (¿).

P. 408, at end of second paragraph, add-The court has not the power of taking into its consideration, whether an information be beneficial or not to the objects of the charity; but, by its absolute power over costs, the court has the means of checking parties filing useless informations, though such information has been sanctioned by the attorney general. Where a useless and improper information has been filed, the court cannot refuse a decree, but will communicate with the attorney general, that he may have the opportunity of deliberately considering, whether he thinks it desirable for the interests of the public that the proceedings should be carried on (j).

(h) S.C. Reg. lib. A. 1835, fol. 245. (i) Attorney General v. St. John's College, 1 Coop. Rep. of Lord Brougham's Judg. 416, 417.

(j) Attorney General v. Merchant Tailors' Company, 5 Law Journ. N. S. Chanc. 62.

P. 453, at end of second paragraph, add-A company in answer to an information seeking an account of monies bequeathed to them for charitable purposes, stated their belief, that they had been deprived of the fund, by forced loans and public exactions, during the political troubles in the 17th century, but that they had since voluntarily continued the payments. It was held, that they were entitled to an inquiry before the master as to these circumstances (k).

P. 499, add as to a note to the 7th section of 11 Geo. IV. and 1 Will. IV. c. 60-By a bill now before the House of Commons it is proposed to abolish the jurisdiction of the Court of Chancery at Durham, and to transfer all suits in that court to the high Court of Chancery.

P. 501, at bottom, add-Where the court in any proceeding in a cause, declares a party to be a trustee within the 11 Geo. IV. & 1 Will. IV. c. 60, it may by the same order direct a conveyance to be made (1).

P. 532, at end of second paragraph, add—A testator whilst at Lisbon in Portugal, gave by his will, dated May 1825, "to the British consul general and treasurer of the British Contribution Fund in Lisbon 10,500l. new four per cent. annuities, transferable at the Bank of England, and directed the dividends to be paid to certain persons therein named during their lives; and as the lives of the annuitants dropped off, the dividends were to devolve to the British consul, merchants, and factors, to bestow at their discretion at public meetings, by plurality of votes, to such widows and orphans as might by petition apply for relief, to be granted only durante bene placito, that in case of misconduct the allowance to such pensioners might be withdrawn, reserving on the demise of two individuals, two small sums to be bestowed annually on Portuguese or Spanish servants, who had served in the families of British subjects upwards

(k) Attorney General v. Merchant Tailors' Company, 5 Law Journ. N. S.

Chanc. 62.

(1) Walton v. Merry, 6 Sim. 328. See Fellows v. Till, 5 Id. 309; Prytharch v. Havard, 6 Id. 9.

of ten years, with unimpeached characters; the candidates to apply by petition to the consul, and the distribution to be determined by a plurality of votes at a general meeting.

By 8 Geo. I. c. 17, certain duties thereby imposed were to be paid to a treasurer appointed at a general meeting of the consul general, and British merchants and factors residing in Portugal, to be applied for certain charitable purposes. under the direction of the consul general and British merchants and factors. That fund was called "The British Contribution Fund." By the 6 Geo. IV. c. 87, which passed after the testator's will, but before his death, the above act was repealed, and consequently the office of treasurer ceased.

On an information filed at the relation of the consul general at Lisbon, for establishing the above bequest, for the transfer of the stock by the executor into the name of the accountant general, and, if necessary, for the settlement of a scheme, Sir J. Leach, M. R. said, it is to be inferred that it was the purpose of the testator that his charities should be administered by the same consul, merchants and factors, who at the time when he made his will, administered the British Contribution Fund; but it by no means follows, that because that fund has ceased to exist, his charitable purposes are to fail. The British consul, merchants and factors in Portugal, are legally competent to administer his legacy for the charitable purposes mentioned in his will; they do not derive their competency from the 8 Geo. I., and would have been fully competent if that statute had never been passed. The repeal of the statute has put an end to the British Contribution Fund, but the charitable bequest given by the testator can in no manner be affected by that circumstance. There is nothing in the will expressive of an intention on the part of the testator that the legacy should fail, if the British Contribution Fund should cease. He meant to place his legacy under the same management as that fund, and this he had a legal right to do, without reference to any act of parliament. It is true, that the testator has named, as trustee, an officer who in his official character no longer

exists, and his intended trust in that respect fails; but the failure of a trustee will be supplied by this court, and it must therefore be referred to the master to approve of a proper person to be a trustee of this charity jointly with the relator (m).

P. 536, at end of second paragraph, add-A testatrix bequeathed the residue of her property "to charitable purposes which should thereafter be specified, or in default of which, according to the best judgment of the sole executor of her will." She died without specifying any charity to which it was to be applied, and the executor renounced probate. It was held, 1st, that the gift to charity was valid; 2ndly, that the power given to the executor was coupled with his office, and that having renounced, he was not entitled to exercise the power of specifying the charity to which the property was to be applied; and, 3rdly, that the fund was applicable to such purposes as the king, by sign manual, should appoint (n).

P. 563, at end of last paragraph, add-In the year 1628, money given upon charitable trusts for the benefit of poor persons belonging to the parish of St. Andrew Undershaft, with a smaller sum contributed out of the parish chest, was invested in the purchase of lands which were conveyed to certain parishioners described as feoffees of the charity. In the year 1677, the property was sold by the surviving feoffees to a purchaser who had full notice upon the face of the conveyance that the land sold was held by the conveying parties in trust for the poor of the parish. The purchaser devised the lands to the governors of Christ's Hospital which had received the rents from the year 1680.

On an information filed on behalf of the above parish for the recovery of the property in question, Sir J. Leach, M. R. said, "If, consistently with the facts proved in this case, it were possible to presume a state of circumstances which

(m) Attorney General v. Stephens, 3 Mylne & Keen, 347-352.

(n) Attorney General v. Fletcher, 5 Law Journ. N. S. Chanc. 75.

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