for the benefit of the plantation and those interested in it.

The Irish

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

eneral purposes of the plantation; and that which remained to be done, could not be accomplished without expence. 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 expence, and it was reported by the commissioners on the 8th of November, 1613, and probably generally understood, that the profits of the undivided hereditaments 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 property was retained to defray the expence of the general operation of the plantation. The expression was borrowed 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 admitted, thata 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 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 expences which might from time to time be required. Tt 4




y The Irish Society

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 bas jurisdiction to determine 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 shew that operations materially affecting many important objects of the plantation and requiring expence 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 circumstances in evidence in this cause, which preceded


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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 expence of so much time, I have but shortly adverted,

voor 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 II. 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 expence which were commented upon in the argument. I express no opinion upon the subject,


1838. thinking that the Society have a discretion, which, though

controllable elsewhere, and in another manner, is not The SKINNERS' to be controlled in this Court upon such a bill as this. Company The Irish And upon the whole I think that the bill must be Society.

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.





1. Difficulty in making a decree

against parties, depending on the
result of accounts, which could
not be satisfactorily taken, in con-
sequence of the loss of the books
of account. Rowley v. Adams.

Page 395
2. A testator gave large legacies out

of his “surplus capital.” By the
decree special accounts and in-
quiries were directed; but the
Master was unable to take the ac-
counts, by reason of the non-
production of the books. He
found, however, on the imperfect.
evidence before him, large sums
due to the testator, and large
partnership assets, which however
varied in each of his three reports:
he also found that the executors
might, with due diligence, &c.,
have possessed themselves, out of
the partnership property, of suf-

ficient to pay the two legacies.

The Court, however, was of opi-
nion, that there was no reason for
thinking that the testator's surplus
capital could, if at all, have been
realized without putting an end to
the business, which the executors,
under the circumstances, were
not bound to do; that though the
executors had not fully or pro-
perly performed their duty, still it
was more a matter of conjecture
than of proof what the assets and
liabilities were; that the results
were not accurate or approaching
to accuracy, and that it had not
been satisfactorily made out, either
that there were partnership assets,
out of which the legacies could
have been recovered or secured,
nor that the assets were such as
to make it impracticable for 'the
executors to obtain payment of
the legacies. The Court, in this


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