The

that cæteris paribus means all the qualifications required for a clergyman; but I contend that the nominee shall be at least equal in fitness to the other candidates." Now, if "equal in fitness" means anything beyond fit or unfit, then it must refer to all the qualifications required for a clergyman, because the word "fitness" then clearly introduces the vagueness which I have referred to. Anybody may act upon his arbitrary idea of a person being fit or unfit in that sense. If it be a question of unfitness for a definite cause which can be assigned, that is a matter which may be examined into and tried. The other matter is one which can in no sense be examined or tried. I am comparing this with the University College case (2 Ph. 521). That was a case depending upon examination. I think it an important point here that there is no mode of examination suggested in this Act of Parliament. nomination is given to the Mayor and Burgesses of Shrewsbury, not at any time, I apprehend, a very fit body to enter into a general examination of qualifications in this open and wide field. The [223] trustees, amongst whom there are learned persons, may be more fit to enter into an investigation of the qualifications of a person, suitable to adorn the profession of a clergyman; but, really, when I consider that this is vested in the mayor and burgesses of a town, I do not refer of course to Shrewsbury in particular, but of any town, and that no suggestion is made of any mode of examination, no strict requirement that they shall take the most fit and proper person, but simply that they shall do that which any person with any propriety of feeling is competent to do, namely, decide whether a person is fit or unfit for a given cause that may be assigned, I say, again, there is a strong reason for inferring that the simple question of whether the person was fit or unfit, and not the question of the general qualifications of a clergyman, was intended to be included in the words "cæteris paribus."

I may observe that, in many cases, corporations have the power of determining the simple fitness of persons to be admitted into an office. The right of the Corporation of London to do so was tried in Scales's case (Rex v. The Mayor and Aldermen of London (3 B. & Ad. 255). The return made by the corporation there was that the candidate was not a fit and proper person; and the corporation were held to have that power, and that was considered to be a sufficient return.

But there is a remarkable passage in the 28th section of the Act in this case, which I think aids the construction of the informants. I refer to that additional proviso about the schoolmaster, which is an exception out of the former proviso: "That it shall and may be lawful for the said mayor, aldermen and assistants to give or bestow any or either of the said livings or benefices upon either of the masters of the said school, after he shall have resigned or [224] vacated the place of head or second master, notwithstanding any such claim or preference at last aforesaid; and such head or second master shall be capable of receiving, holding and possessing such livings or benefices equally the same as if he had been of the description herein before mentioned."

Now if, as the Defendants contend, this means simply that the schoolmaster was to be let in in preference to any scholar who might be a candidate, and might be equal, in every possible qualification for the duties of a clergyman, to any other of the candidates, then it would seem to be a sort of suggestion that the electors might do what would be very ill-conceived for the benefit of the school, namely, that they might put in altogether an inferior person as master of the school. I apprehend the true construction of the clause must be, as Lord Cottenham has put it, that in truth it was intended there should be a series of limitations; first, a general power of appointing; then a series of limitations taking out a certain set of preferable objects; then, thirdly, another series, taking again out of that set another person, who is to be still more favoured than that particular class; but all of the favoured persons of course answering to the definition of being fit to hold the living. In the case of The Shrewsbury School (1 My. & Cr. 632), the question was, under the Municipal Corporation Act, which directs that all advowsons held by corporations shall be sold, but with a proviso that when they are held in trust they shall not be sold, whether or not this benefice was held by this corporation for their absolute benefit, or whether or not there was any trust connected with it; and the argument of its being held for their absolute benefit was precisely the argument now suggested by the Defendants,

namely, that the words "cæteris paribus" in truth [225] gave full power to the corporation of deciding in every case who was the best candidate in every imaginable respect, and as the counsel for the corporation expressed it: "Who is to decide what is the meaning of 'cæteris paribus?' or when a particular case comes within the meaning of those words? . . . How is the Court to execute such a trust? If there are two candidates of the highest qualifications, but of whom one has been educated at the school, and who therefore claims a preference, is the Court to refer it to the Master to inquire whether they are precisely equal in all other qualifications, or whether the one or the other is most fit?" The Lord Chancellor says: "It was said, that as there was only to be a preference in case of equality of other qualifications, and as the corporation were to be judges of such equality, the Act would, in effect, give to the corporation the unrestricted patronage. No doubt the duties of such a trust are easily evaded, and it is difficult to prove a breach of such a trust; but it is, nevertheless, a trust, and one of which the abuse, if proved, would be corrected." That in some degree favours the views of the Defendants, because the Lord Chancellor adopts those words "equality of other qualifications," not exactly the words used by counsel, "all other qualifications," but he adopts the words "other qualifications," and says that the trust could be easily evaded; and, no doubt, as the Court would take the judgment of the trustees unless fraud was proved, there would be great room for evading such a trust, without the possibility of anybody proving fraudulent or corrupt motives. Those words of Lord Cottenham, however, do not seem to me to determine the case one way or other. The subsequent words are very much stronger. He then says: "Every trustee of an advowson may, during the absence or incapacity of the cestui que trusts, have to exercise the patronage of presenting to the living at his own discretion. Of this there may be more or less chance, according to circumstances; but the person so exercising the patronage is not less a trustee. [226] I cannot conceive that the Act intended the corporation to have any other benefit. Their trust strictly was to present deserving persons from amongst the favoured class;" he does not say the most deserving persons; "and it is only upon the failure of such persons that the right of presentation without restriction was to be exercised by them, a right which must exist in every trustee of an advowson, however small, in some cases, may be the chance of his having to exercise it." Then, in a subsequent passage, the language of the judgment is still more strong, for the Lord Chancellor adopts the very words of the section; he says: "But it is said that at all events the contingent right of presentation, in case there shall be no object of the charity fit for presentation, is within that section, and ought therefore to be sold, the section applying to every case in which the corporation had any right or title to nominate or present to any benefice. This it is not necessary to determine." Now observe, he there puts the argument thus, that it is said they may have a contingent right of presenting, in case there shall be no object fit for presentation, adopting the very words of the Act. is only a dictum, unquestionably; not a point to be determined in the case. There is trust enough either way for the Court, in some sense, to fasten upon; it would be very difficult, in the large and general sense; but, looking to what the Lord Chancellor says, of its being the duty of the trustees to present deserving persons, and that it is only upon the failure of such persons that the right was to be exercised generally ; and when he says, in a subsequent passage, in case there should be no object fit for presentation, then the living is to be sold, I think that no one, considering that judgment, can fail to see that Lord Cottenham thought there was a direct and manifest benefit intended to the school, and that that benefit would be secured by compelling the trustees to present the favoured objects, if fit.

It

I should notice that the first part of his judgment is [227] founded on its being intended for the benefit of the school. He begins by saying that "it is clear that the Vicarage of Chirbury and the three curacies of St. Mary's, Astley and Clive, were originally granted for the benefit of and formed part of the property of the school. The very exception shews that they were considered as part of the estates belonging to the school. So much of the Act as I have hitherto stated, which is intituled An Act for the better Government and Regulation of the School,' shews no intention to alter the property, but treats it as part of the possessions of the school; and although it does not vest the benefices in the new trustees, it provides, in certain cases, for

their improvement and increase out of the income of the charity property." Then comes the 28th section, and it "effects all that could have been effected for the benefit of the school from such property. It describes the benefices as belonging to the school.

Now, surely, when Lord Cottenham says everything was done here which could be effected for the benefit of the school, it would be very strong to say that nothing better could be done for the school than to let in all England to compete with the scholars for these presentations, and to allow them to be elected, in case only of their being equal in all respects in the opinion of the majority of the trustees. I think Lord Cottenham would scarcely have said that, in his view, everything had been done for the benefit of the school, if that had been his interpretation of the section.

I think the subsequent passage of the judgment, that the most deserving object is to be presented, and a stranger only if they cannot find an object fit, tends to shew that the view I take is the view which he thought proper to adopt with reference to this qualification, namely, that if there be a fit person to be presented of the favoured class, [228] he is to be presented; and, if not, then a person not of that class may be presented.

Several other sections of the Act have been referred to. I do not think them material. The strongest in favour of the Defendants is that which refers to the election of exhibitioners; because there is there a different form of expression for the election of exhibitioners, which gives a positive right to the exhibitioners without the words cæteris paribus-that they shall have the exhibition first to the one set, then to the other, and only in default of such the choice to be of such persons as shall be born in the county. But then observe, in that case there is this tacked on to it, which meets everything that can be required in the cætera paria: "No person shall be eligible to such exhibition, unless he shall have duly attended the said school for two years immediately preceding his going to any college in either of the said universities, and shall have obtained from the master of the said school a certificate of such attendance under his hand; and also that such scholar, so offering himself a candidate for such exhibition, is duly qualified in respect to learning, and of good morals and behaviour." That is a different mode of expression, but I apprehend everything is secured which could be secured by the other; and it is important to remark that, both in this 25th and in the 11th section for electing the master, provision is made for the examination both of the exhibitioners and of the master; and there is no such provision at all made in the 28th section-indeed, none could well have been made. It would be idle to suggest that this corporate body should set itself to work to examine into all the necessary qualifications of a clergyman. No examination is suggested by which any such result is to be attained.

I have, therefore, on the one hand, something clear, de-[229]-finite and positive to guide me; while I have, on the other hand, nothing clear, nothing definite, nothing positive, nothing that could secure the very object of the Defendants, that a majority should concur to find a person superior on the whole, it being quite sufficient, for the reasons I have first given, that they should each find him superior in one qualification which they respectively conceived to be paramount to every other; and I am to make my choice upon an Act intended for the benefit of the school, as to whether or not the Legislature intended a benefit to the candidate of the favoured class, provided he were fit and proper, or whether he was to be left to competition with all other candidates, upon the vague and general notions of the trustees.

Then, with regard to the evidence, I have it sworn by Mr. Slaney, one of the trustees who voted for Mr. Sandford, who has been rejected, that he was equal as a fit and proper person, and as being duly qualified. I do not find that anywhere disputed. There is the certificate of the bishop, who is one of the trustees, saying that he is a fit and proper person; and there is a letter of another trustee, Mr. Lloyd, written (by his direction) by his brother, stating that he is fit and proper. With the exception of Lord Powis, every trustee has given an opinion (and Lord Powis has not dissented from it) that Mr. Sandford is a fit and proper person; and, therefore, having found him to be fit and proper, it seems to me that he has attained that equality which will justify their electing him.

I am not now considering whether there is or is not to be a new election. The V.-C. XIV.-4

only question is whether Mr. Morse, having been appointed without being superior in the single question that I think is referred to by the paria-of his being fit and proper, is properly appointed [230] in preference to the statutory candidate. In my opinion he is not. I might have rested upon the doubt, even if I had not inclined to this view. The doubt would have been sufficient to authorise me to grant an injunction till the hearing; but I do not rest only upon that point with reference to the practice in this Court. I am bound to say I should have come to the same conclusion if this had been the actual hearing of the cause. The injunction must be granted; and it is most satisfactory to find that everyone has admitted-what everyone must have known from the character of the majority of the trustees-that they have been actuated only by the highest and purest motives in making the selection which they have made; but I think that the grounds upon which they have acted are not such as can be justified in law with reference to the statute; and upon that ground, and upon that ground only, I grant the injunction.

The injunction was granted in the terms of the prayer, omitting the last clause, which sought to restrain the Bishop of Lichfield from granting to Mr. Morse any new license.

Usury.

[231] JAMES v. RICE. Jan. 12, 16, 1854.

[S. C. on appeal, 5 De G. M. & G. 461; 43 E. R. 949.]

12 Anne, c. 16; 3 & 4 Will. 4, c. 98; 1 Vict. c. 80; and 3 & 4 Vict. c. 37. Deposit of Deeds. Further Advances.

If a promissory note be given payable on demand for £100, with interest at a higher rate than £5 per cent. per annum, and the debt and interest be further secured by a deposit of title-deeds of land, the promissory note is good, but the deposit is invalid. This would have been so before 2 & 3 Vict. c. 37; for the stat. 12 Anne, c. 16, invalidated all contracts for the loan of money at a higher rate of interest than £5 per cent. per annum, and the subsequent Acts of 3 & 4 Will. 4, c. 98, and 1 Vict. c. 80, excepting short bills and notes only, left all other securities, though for the same debt, to be affected by the 12 Anne, c. 16. When title-deeds were originally deposited to secure an usurious contract, and afterwards a further advance was made at a higher rate of interest, but upon a personal contract which was not void by the usury statutes, and it was subsequently agreed by parol that a mortgage should be made of the hereditaments to which the deeds related for both debts, with interest at £5 per cent. per annum. Held, that the original deposit being void, the subsequent parol agreement could not be sustained as a fresh deposit, for the deeds must be regarded as having been from the first in the possession, not of the lender, but of the borrower.

This was a motion to take the bill in this suit pro confesso.

The bill stated that, on the 12th of May 1851, the Defendant, Michael Rice, applied to the Plaintiff for the loan of £150, which the Plaintiff agreed to advance, as to £100 forthwith, and as to the remaining £50, when the Defendant should apply for the same; and it was agreed that the said Defendant should give his promissory notes for the said sum and interest as thereinafter mentioned, and should deposit the title-deeds thereinafter mentioned as a further security for such loan; and that the Plaintiff accordingly lent to the Defendant the sum of £100, and the Defendant signed and delivered to the Plaintiff his promissory note payable on demand for the said sum, with interest at £6 per cent. per annum; and at the said time the Defendant deposited with the Plaintiff the title-deeds relating to a certain real estate, which had been conveyed to the Defendant in fee-simple to the usual uses to bar dower; but no memorandum of such deposit was then or had since been given to the Plaintiff. On the 4th of June 1851 the Defendant applied to the Plaintiff to advance him the further sum of £50, in accordance with the aforesaid arrangement, which the Plaintiff accordingly did, and the said Defendant gave a similar promissory note for this sum. In June 1852 the Defendant applied to the Plaintiff to advance him the further sum

of £60 for a week, [232] under special circumstances, in order to save him the expense of a journey to London; and the Defendant agreed to repay the Plaintiff the said sum of £60 in a week's time, and also 10s. for the accommodation. The Plaintiff accordingly advanced the said sum of £60 to the Defendant, who at the same time gave him an unstamped memorandum in the words and figures following :

"June 5th, 1852.-I hereby acknowledge to have received this day from David James, of Capel, the sum of sixty pounds on loan, to be repaid in one week, with interest of ten shillings for the use of the same, and with interest of ten shillings for every week so long as the said loan shall remain unpaid. "(Witness) Ann Millard.

"£60 0 0."

(Signed)

MICHAEL RICE.

"The Defendant made default in payment of the said sum of £60 and interest; and in the month of July or August 1852 the Plaintiff had an interview with the Defendant, and then proposed that the Defendant should execute to him a legal mortgage of the said freehold premises, of which the title-deeds had been so deposited as aforesaid, together with certain leasehold property at Chiselhurst in Kent, which the Defendant then stated he had recently agreed to purchase, to secure the said several loans and interest thereon at the rate of £5 per cent. per annum; to which proposal the said Michael Rice agreed, but such mortgage was never completed."

The bill further stated that the whole of the three several sums of £100, £50 and £60, amounting to the sum of £210, together with interest thereon, were still due from the Defendant to the Plaintiff. The Defendant subsequently became involved in pecuniary difficulties; and on or about the 18th of October 1852 he left his home, and [233] had not since been seen or heard of, although repeated and diligent inquiries had been made for him.

The bill prayed that an account might be taken of what was due to the Plaintiff on security of the said deposit of deeds; and that the Defendant might be decreed to pay to the Plaintiff what should, on taking the said account, be found due to him, together with the costs of this suit, by a short day to be appointed for that purpose, and in default for a foreclosure or sale.

Mr. J. V. Prior moved to take the bill pro confesso.

The Vice-Chancellor suggested that there might be an objection under the usury laws to the relief prayed.

Mr. J. V. Prior. The statute 3 & 4 Will. 4, c. 98, s. 7, which was passed in August 1833, exempted from the operation of the 12 Anne, c. 16 (which enacted that all contracts for interest at more than £5 per cent. should be void), bills of exchange and promissory notes "made payable at or within three months after the date thereof. The 1 Vict. c. 80, extended such exemption to bills and notes "made payable at or within twelve months after the date thereof;" and neither statute contained any restriction with respect to charges on land. Then the 2 & 3 Vict. c. 37, reciting the last-mentioned statute, and that it was expedient that its provisions should be extended, enacted that, after its passing (29th July 1839), "no bill of exchange or promissory note, made payable at or within twelve months after the date thereof, or not having more than twelve months to run, nor any contract for the loan or forbearance of money above the sum of £10 sterling, shall, by reason of any interest taken thereon or secured thereby . . . be void : "Provided always, that [234] nothing herein contained shall extend to the loan or forbearance of any money upon security of any lands, tenements or hereditaments, or any estate or interest therein."

In Connop v. Meaks (2 A. & E. 326), bills having been given payable at three months and dishonoured, a warrant of attorney was given as security; and the bills being upon usurious terms, the question was whether the warrant of attorney was protected by the 3 & 4 Will. 4, c. 98, s. 7; and the Court held that it was. In Ex parte Knight (1 Deac. 459) a bill which was good by the statute was held not to be invalidated by the deposit of goods as a collateral security, whether that deposit could be sustained or not; and it was intimated that probably the deposit would be illegal. So far that case is against me, but it is not supported by the other cases on the subject. Vallance v. Šiddel (6 A. & E. 932) decided that a bill or note payable "on