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1838.— The Skinners Company v. The Irish Society.

Society may have subsequently taken of its own situation and duties, (and I think that such mistaken views have several times been taken,) do not vary the conclusion to be deduced from the charter, and the circumstances contemporary with the grant of the first charter.

The duty to be performed regarded the Crown, and regarded the city, and through the city, the companies. At and long after the date of the first charter, the city had or at least was practically considered to have, and really exercised, great and extensive powers, not only over the Society but over the companies ; but the city in its corporate character had no beneficial interest; the money which it had advanced was early repaid, and the power that remained, or which was considered to remain, was like that of the Society, an intrusted power for the [*639] benefit of the plantation and those interested in it.

Even after a large part of the territory comprised in the grant had been distributed and conveyed to the companies, much remained to be done for the general purposes of the plantation; and that which remained to be done, could not be accomplished without expense. At the time when the power of the city to raise money by taxation was not disputed, it may not have been thought necessary to retain any part of the property as a fund to support the expense, and it was reported by the commissioners on the 8th of November, 1613, and probably generally understood, that the profits of the undivided hereditan:enls might be shared among the companies, but in 1662, when the charter of Charles was granted, and the power of the city to levy money on the companies was either no longer claimed, or was subject to very different considerations, it was recited in the charter, that the undivided properly was retained to defray the expense of the general operation of the plantation. The expression was bor rowed from a petition presented to the House of Commons by the city of London in January, 1641, but it has its place in the charter of 1662, and must have weight accordingly..

It is said, and indeed admiued, that a dividend was made in the year 1623, and if I were at liberty to conjecture, I might perhaps suppose that the demands soon afterwards made on the city, and the difficulty of raising money, led to a conclusion that it

1838.-The Skinners Company v. The Irish Society.

was better to reserve the common property for the general purposes of the plantation, than to make division of its whole income, and resort to taxation and levies to defray the expenses

which might from time to tinje be required. . [*640] *It is clear that the general operation of the plantation

was not completed at the time when the distribution of lands was made to the companies. It was indeed strongly urged in argument, that the general operation, although not then complete, was not long afterwards, or at all events was very long since, completed, and that thereupon, if not before, and in consequence thereof, the Society became mere trustees for the companies: but I do not think that this court has jurisdiction to deter. mine the question whether the general operation of the plantation has been completed or not, and if it had, it does not appear to me that there is any satisfactory evidence on the subject, or any thing to show that operations materially affecting many important objects of the plantation and requiriug expense may not still have to be performed; and if such should be the case, it does not appear to me that this court has, on the application of the plaintiffs, jurisdiction to inquire or give directions about such operations.

And on the whole, the question is reduced to that which was made on the motion for the payment of money into court, and for a receiver, whether, upon the settlement made in the north of Ireland, by virtue of the charter of King James the First, under which the towns of Londonderry and Coleraine were founded, and a large tract of country granted by the Crown to the Irish Society, the terms of the grant simply constituted the Irish Society ordinary trustees for the benefit of the companies of London, or whether the grant was coupled with certain public purposes and public trusts, independently of the private benefit of the companies. After having considered the charter of King Charles II., and

the charter of King James I., and the several circum[*641] stances in evidence in this cause, which preceded "and

accompanied the grant of the charter of King James, and having read all the documents produced in this cause, to some only of which, though at the expense of so much time, I have

the al

1838.— The Skinners Company v. The Irish Society.

but shortly adverted, and having also considered the conduct of the parties under the charter for so long a series of years, I am of opinion that the powers granted to the Society, and the trusts reposed in them, were, in part, of a general and public nature, independent of the private benefit of the companies of London, and were intended by the Crown to benefit Ireland and the city of London, by connecting the city of Londonderry and the town of Coleraine, and a considerable Irish district with the city of London, and to promote the general purposes of the plantation, not only by securing the performance of the conditions imposed on ordinary undertakers, but also by the exercise of powers, and the performance of trusts, not within the scope of those conditions.

The charter of Charles Il. expressly recites, that the property not actually divided was retained for the general operation of the plantation ; and considering that the powers given to the Irish Society for the general operation of the plantation were of a general and public or political nature,—that the property remaining vested in the Society is applicable towards such general operation, and that the companies of London, though interested in any surplus which may remain after the general purposes are answered, are not entitled to control the exercise of the powers which are given for general and public purposes, I do not think that this court has jurisdiction, upon the application of the companies, to determine upon the propriety of the expenditure which has been made. It must not be inferred that I approve of some of the items of expense which were commented upon in the argument. I express no,opinion upon the subject, *think- [*642] ing that the Society have a discretion, which, though controllable elsewhere, and in another manner, is not to be controlled in this court upon such a bill as this.

And upon the whole I think that the bill must be dismissed with costs as against the Irish Society, the city of London, and the Attorney General: without costs as against the other companies, unless it shall appear that any of the companies have opposed the claim of the plaintiffs.

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AN.

INDEX

TO

THE PRINCIPAL MA T TERS.

ACCOUNT

court, in this state of things, deolined to

charge the executors. Rowley v. Adams,
1. Difficulty in making a decree against par-

395
ties, depending on the result of accounts,
which could not be satisfactorily taken, in

See Decree, 2.
consequence of the loss of the books of ac-
count. Rowley v. Adams,

395

ACQUIESCENCE.
2. A testator gave large legacies out of his

" surplus capital." By the decree special | 1. A feme covert was entitled to a reversion-
accounts and inquiries were directed; but ary interest in a sum of money vested in
the master was unable to take the accounts, her husband and another as trustees. By
by reason of the non-production of the deed, expressed to be made between the
books. He found, however, on the imper tenant for life of the one part, and the trus,
sect evidence before him, large sums due tees (including the husband) of the other
to the testator, and large partnership as part; the tenant for life, who alone execu.
sets, which however varied in each of his ted the deed, declared that the trustees
three reports: he also found that the ex. should hold the fund on certain modified
ecutors might, with due diligence, &c, trusts, whereby the wife's reversionary in.
have possessed themselves, out of the part terest was made subject to her power of
nership property, of sufficient to pay the appointment by deed or will. The wife
two legacies. The court, however, was of died, leaving her husband surviving, having
opinion, that there was no reason for think appointed the reversionary interest away
ing that the testator's surplus capital could, 1 from her husband. The husband after.
if at all, have been realized without putting wards died, and the reversionary interest
an end to the business, which the execu: 1 subsequently came into possession. The
tors, under the circumstances, were not court considered, that, under the circum-
bound to do; that though the executors had stances, the husband ought to be deemed to
not fully or properly performed their duty, have acquiesced in the arrangement, and
still it was more a matter of conjecture accepted the trusts for the benefit of the
than of proof what the assets and liabilities wife's appointees; and held, that the ap-
were ; that the results were not accurate pointees of the wise were entitled as against
or approaching to accuracy, and that it had the representatives of the husband. In
not been satisfactorily made out, either that man v. Whitley,

337
there were partnership assets, out of which
the legacies could have been recovered or 2. Trustees, after acquiescence, restrained
secured, nor that the assets were such as from legal proceedings against the tenant
to make it impracticable for the executors for life to recover the title deeds, and re.
to obtain payment of the legacies. The ceive the rents. Denton y. Denton, 389.

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