D APRIL 14, 1855.107] V. C. WOOD'S COURT. ding the case of Berkhampstead Grammar School, standing which had been cited. There it appeared that there body, the master and usher of the school being constituted a corporation, and having the sole management and direction of the school. But even in so remarkable a case as that, if he understood it correctly, the management of the property was not in any way diverted from these two persons; they were left in the management of the school and the property, the court placing, as it was competent to place, over them, persons to assist in the due administration of that part of the trust which related to the school. As to the property of the charity in this case, there was no question that ample opportunities row existed for putting any check which might be required upon the management of that important part of the trust relating to the property which was vested in the governors. They were obliged to present annual accounts to the charity commissioners, and these had such degree of publicity as the Legislature had thought fit to provide for them, so that any person having the slightest reason to complain might be able to bring that In a proper way before the court. Up to this moment there never had been any complaint, as he was informed, as to the management of this charity property; so that it was not at all necessary, for the purposes of administering this property, to have an additional body of trustees placed over the governors. The property consisted of 500 or 600l. per annum. There was no reason for believing that the four gentlemen who would be appointed from time to time, with the qualifications required by the charter, would not be fully competent to administer that trust. There night, in some cases, be an advantage in placing checks over persons acting in the fiduciary position of chool trustees. He thought those checks, generally peaking, in the case of charity schools, and not of harities of this description, might be usefully placed over the administration of the property, if properly from directed. But he had great doubts whether a useful r satisfactory result could be obtained by placing wer the management of a school two authorities, or Dowers, which might frequently be brought into condict with each other. It was not at all desirable that those who were receiving education should know that hose who were placed over them, and who by authoity were to have the regulation and government of be school, were themselves dependent on a body who night occasionally conflict with their authority, so as O present two bodies of persons, instead of one, to whom they were to look up for the good conduct and egulation of the school; still less was it desirable hat the possibility of such a conflict arising should e increased by the appointment of such an additional Jody of persons. It would seem far better that if any inhappy difference should arise of that character, which frequently did occur, and even perplexed the ninds of legislators, and had for a long time done so, As to the whole subject of education, it should be peedily settled by some competent tribunal, rather han that they should be left to be discussed and conested internally in the governing body itself. It vas far better that one body should have under its control a subject so difficult and delicate, and that hat body, having it so under its control, should be eft to those checks which now existed under the contitution. Those checks were, in the first place, as to iny regulation or government by the bishop of the liccese; next, by the L. C., as visitor of the school, It o whom an appeal would lie in the event of any inliscreet or improper exercise of authority, vas quite true that the authority of the visitor would 1ot enable him to make statutes; all he could do would be to control any act which he might deem im proper. If that were so, he (the V.C.) should still supposing he had any jurisdiction to act in the matter -act as a check upon these four trustees. He would ather that the existing trustees should be fully conided in until a question arose as to the propriety of any longer confiding that trust to them, than that there should be any attempt to put anybody over them, and thus run the risk of an internal conflict upon any question connected with education. If, unfortunately, any difference of opinion should arise between the inhabitants of a locality, whose children might have the benefit of a school, and those who were the managers of it, it was far better, he thought, that the conflict should be external than internal. The inhabitants had their remedy through the aid of the Attorney-General, or in any other mode which they might think fit, to correct any impropriety which they might conceive to exist in The second point, of the trustees. the conduct which had been most argued at length before him, was one which, no doubt, was of serious importance-namely, as to the management of the school in reference to scholars whose parents had conscientious scruples about religious instruction, in connection with the doctrines and discipline of the Church of England. The question had come before the court in various shapes, and it was not unlikely might come before it again, in the present state of public opinion as to that part of education which consisted of religious instruction to be given to children. On this difficult and delicate point, he had had the assistance of the Attorney-General, through Mr. Wickens, who had VOL. XXV.-No. 628. LAW TIMES REPORTS. UCH V. C. WOOD'S COURT. V. c. WOOD'S COURT. correctly brought before him the Happily, the courts of equity were restrained by fixed or political feeling on this subject, and enabled the most ably and correct exact state of the authorities on this question. They rules, which rendered them inaccessible to any party foundation-schools of this description. The one class court to administer the trusts, whether of Wesleyan, foundation schools of the ves inte, two classes as to was that represented by the Warwick School case, Independent, Roman Catholic, or Jewish institutions, before Lord Lyndhurst, the question being one of with the same strict regard to rules as would regulate considerable difficulty-namely, whether any scheme the court in administering the trusts of any other Lord to what may, according to its definition, be the best could be suggested by which dissenters might be species of property. It was only accidentally that exempted from the operation of the rules as to the this court was ever called upon to form an opinion as peculiar religious teaching of these schools. Lyndhurst was of opinion that it would be better to mode of conducting religious education. In the to the discretion of the master to act as he should exercise, it was enough to observe that the courts had, leave that sub silentio, or, in other words, to leave it present case, where the courts had that discretion to think fit. That was one class of cases, and was fol- in every case hitherto, said they conceived that inlowed by Turner, L. J. when V. C. in the case of the struction given at schools founded at this period of that of which an example was to be found in The General v. Cullum, it was held that boys must be eduKidderminster School. The other class of cases was history involved religious instruction. In the Attorneyof youth; that they must have it imparted to them character which the court held to be absolutely esAttorney-General v. Cullum. The scheme was of that cated in that most important branch of the education sential in all schools of this character, providing that according to the doctrines of the Church of England, there should be religious teaching; the court held, and it must be imparted by a master who was and as it seemed to him properly, that religious himself a member of the Church of England. No teaching, so far as it went, should be religious teach- further relaxation was allowed, except as to partiing according to the doctrine and discipline of the cular subjects, such as the Catechism and the Articles; Church of England; but, nevertheless, after directing exemption from these was permitted in the Basingthat all the children should be taught the Scriptures, stoke case. As to the case of the Sherborne scheme, of the Church of England, which implied that that Lord Chancellor acted as visitor. He had read carethe court directed that the master must be a member that was entirely in a different position, for there the must mean teaching in connection with the doctrines fully through all his Lordship's observations, and he and discipline of the Church of England. As to the perceived the strong leaning of his views as to the more distinguished part of such teaching-namely, expediency of taking every possible care to allow the Catechism and instruction in the Articles liberty dissenters to have the benefit of religious instruction, was given to the parents who might conscientiously so far as they could do so consistently with the charter. dissent from the Church of England to signify their He did not lay down any rule by which scriptural dissent, and to withdraw their children from it, vest- instruction by a member of the Church of England ing in the master the power of allowing them to with- was in any way interfered with, but certain facilities draw. But, in each case, the scheme provided that there were given with respect to the exemption of children should be instruction in the Holy Scriptures, and that as to particular branches of teaching. If it were that should be according to the doctrines of the Es- necessary to lay down any rule, the utmost his Honour so far must submit to religious instruction generally, tablished Church of England. No case had yet gone could do in point of jurisdiction would be to say beyond that. It seemed to him that these cases carried that every child should be taught the Scriptures, and After the argu- and that that must be taught by a master being himself a member of the Church of England. He was aware the jurisdiction, as to charities of the kind before ments he had heard, it appeared to him impossible to him, quite to their extreme limit. hold that in any school founded as this had been by of the difficulties suggested by Mr. Wickens, and one of the sovereigns of the country, for the purpose which were the same as in the Bury School case, and of teaching grammar-looking to the whole scope must exist more or less in other schools, that disand frame of the general foundation of the charities senters might have conscientious objections to their sound religious education; and looking also to the person who, from the nature of his position, must of this period for teaching grammar and imparting children being taught even the Holy Scriptures by a period at which such schools were founded-it was hold the doctrines of the Church of England. Still, impossible to hold that religious education could mean that was what the court had done in every case. He any other than education according to the doctrine should not, therefore, be the first to say that any and discipline of the Church of England. In many system of education could at all be embraced in any of the charters it was provided that children should true notion of education which left a break or be brought up in the "fear of God;" clearly im- blank in this respect, leaving it open to a portion was remarkable that this charter had no reference to struction whatever. That might possibly be a diffiplying that religious instruction was intended. It of the children to remain without any religious inreligious instruction in that way. That circumstance culty to be settled by the Legislature. It had been might be accounted for, perhaps, if it was borne in dealt with by them in one case, and he was informed had been dissolved by Act of Parliament were taken; course, to the Legislature to deal in the same special mind that the lands of the different chantries which that it had worked beneficially. It was open, of was desirable that such property should be applied of equity, he felt that he should be greatly exceeding and the Act recited as its principal object that it manner with any other school. But, sitting in a court to religious purposes. It was probably not thought anything that had been done by the court in the was properly executing a trust founded by King necessary to recapitulate in the charters themselves exercise of its jurisdiction, if he were to hold that he the particular class of objects for which this foundation was made. Looking to the Act of Parliament, Edward VI. out of the dissolved chantries, by which which provided so carefully for education in religion, it was clearly intended, in giving education in its and looking also to the charter granting the lands of widest and most real sense, not only to inculcate that the Crown could have exercised its power of of the Church of England at that period, if he were the dissolved chantries, it was impossible to conceive grammar, but sound religious education, being that granting such lands in derogation of the particular to hold that a large portion of the revenues were proobjects and purposes to which it was stated expressly perly applicable under that trust, by giving instrucit was desirable that they should be applied; and if tion to one portion only of the scholars, or giving one they were to be applied to the purposes of instruction part only of the instruction which the founder inwas recognised by the law as it stood at the date of founder than to be told that, as to a portion of the in religion, it must be according to the religion as it tended to provide. Nothing would more surprise the the foundation. Mr. Rolt and Mr. Kenyon stated that scholars, the religious teaching which he had provided from time to time, in truth, from all time, where in- had been lopped off altogether. The Legislature, by course, religious instruction. No one who had read his- in certain cases to dispense with the teaching of Greek struction was at all mentioned, it always meant, as of Sir Eardley Wilmot's Act, had thought have dreamed of any school being founded of which cessary to strike off, as unimportant, instruction in tory could doubt that such was the case; no one would and Latin. If the power of the Legislature was neoff that most important part-namely, the religious religious teaching was not the important element. Greek and Latin (which he was very far from underHe was not aware of the exact period of the founda- valuing), how could it be supposed that this court, tion of the Bury School, but it seemed to have been without the assistance of the Legislature, could lop the view of Knight Bruce, L.J., when V. C., that re ligious instruction was absolutely an essential element instruction which was intended to be provided for by He was not of education, and that religious instruction must the founder in the creation of these trusts? necessarily mean, looking to the period of the founda- utmost he could do would be to leave it as in The tion of these royal seminaries, instruction according Attorney-General v. Cullum. The only question reto the doctrines of the Church of England. It would maining was, whether he ought to go to that extent. not only be injurious to the Church of England, but He did not feel it necessary to do so. to the interests of numerous bodies of dissenters them-driven, as the L. C. was in the Warwick Charity, to selves, to adopt any notion by which it might be lay down in the scheme a course of education, or a legislative capacity, could vary trusts so imposed. If great advantage of knowing that this school possupposed that a judge, sitting in a judicial and not in abandon it to the master's discretion. He had the a judge could do this, there was no reason why he sessed a body of governors belonging to that class of should not alter the trusts of any Methodist establish- society which insured the best endeavours, fairly and ment, or any Independent establishment, or any other honestly, to exercise their trust; that body being reason to complain of an interference so improper, and scheme for the religious instruction of the scholars. charity. The dissenters themselves would have great under the guidance of the bishop in laying down any so ill-suited to the exercise of judicicial functions. If any scheme so laid down by the governors should The question of religious education was one of great be displeasing to those who wished to participate in difficulty and great delicacy, and was one which the the benefits of education, they could apply to the L. C. Legislature itself found very difficult to grapple with. Further than that they could not go. They could not necessary The HOUSE OF LORDS. compel the governors to lay down any scheme, but they might complain if they thought proper. They could not compel the governors or the bishop to lay down a scheme agreeable to themselves. That was the true answer to any complaint. If they dissented in that respect, and wished to enlarge their powers, they could apply for an Act of Parliament, which would be the proper course, and would be the best way of providing a remedy for a case of that description. It would be most improper, where there was such a body of governors created by a charter, for this court to assume to itself this delicate trust. The charter had confided to the governors, with the assistance of the bishop, the task of laying down beforehand schemes which probably they might think would meet with the assent of some parties, and might be repugnant to the views of others. Therefore what he proposed was, to strike out both suggestions in the scheme-that of the governors, and that suggested by the Attorney-General as to religious education. As the scheme was general, it would be better to make no mention of that important subject, but to say in it that it should be left to be regulated by such laws as the governors should direct and think the best. The order finally settled was, "that the scholars shall be diligently and carefully instructed in religion according to such statutes and ordinances as shall be made from time to time by the governors, pursuant to the powers contained in the charter." HOUSE OF LORDS. tion to Parliament, or in any manner incident to the undertaking, or to any of the matters aforesaid, shall be borne and paid by the several subscribers to the said undertaking, rateably and in proportion to the number of shares taken by each subscriber," &c. The provisional committee thus appointed applied for an Act of Parliament in the session of 1846; but found a formidable opposition on the part of the Glasgow, Kilmarnock and Ayr Railway Company. The directors of the latter company, after some mutual communications on the subject, offered to guarantee payment of one-half the expenses of the Kilmarnock and Ayr Company, to the extent of 1500l., provided they received within two days an undertaking sanctioned by a general meeting of the shareholders of the Kilmarnock and Ayr Company, immediately to withdraw their Bill, &c. A meeting was accordingly called to consider this proposal, and those shareholders present approved of it; but as only two days' notice could be given, and a small number only attended, the committee did not accept the offer. Soon after the committee, seeing various difficulties before them, deemed it expedient to withdraw their Bill. Thereafter, a general meeting of shareholders having been called, they unanimously approved of the conduct of the committee, and resolved "that the committee be authorised to proceed or not as they shall think fit." The committee determined to proceed in the following session of Parliament (1847) to apply again for their Bill. And as the standing orders of that time required a subscription-contract to be executed, subsequent in date to the original contract, the new contract, which, however, left the original contract in full force, was signed by a considerable number of the shareholders and scripholders. The committee intimated that the shares of those who did not sign the new contract would be forfeited. Certain other shareholders, however, having required the Provisional committeemen-Right to recover back de committee to summon a meeting to consider the proposits-Expenses of application to Parliament-Dis-priety of dissolving the company under the provisions ́sentient shareholders—General law as to repayment of of the statute 9 & 10 Vict. c. 26, and a meeting deposits. having been held accordingly, those who attended, amounting to about one-eighteenth of the whole shares, were desirous of dissolving the company, and resolved to resist any attempt to forfeit their shares. As the statute required one-third of the shareholders to concur in this resolution, the committee paid no attention to the result of this meeting, and proceeded to Parliament a second time; but their Bill was thrown out in committee and lost. It appeared that the great body of the shareholders disapproved of the committee applying a second time to Parliament for their Bill. House of Lords. Reported by JAMES PATERSON, Esq. of the Middle Temple, Thursday, March 22. A provisional committee of a railway company were Where a number of persons, joining in a common un- In 1845, the Kilmarnock and Ayr Direct Railway was projected, its capital to consist of 130,000, divisible into shares of 251. each, with power to raise the capital to 180,000l. The promoters resolved that a deposit of 27. 108. per share should be paid; and shares representing a capital of 150,000l. were allocated among various applicants, who received scrip in exchange for the bankers' receipts. The subscription-contract appointed the appellants "a committee of management for promoting and carrying into effect the objects of the said undertaking, until an Act of Parliament be obtained for carrying the same into execution, when their powers shall devolve on the directors to be thereby named." They had also full "power to enter into contracts and agreements for, or in anywise relating to the undertaking, and for all matters incident to the obtaining of the proposed Act or Acts of Parliament or any of the matters aforesaid, and to apply all or any part of the moneys which shall come into their hands, or into the hands of the treasurers, &c., in payment of such salaries, recompenses and engagements as aforesaid, and of the expenses of applying for, soliciting and obtaining an Act or Acts of Parliament as aforesaid," &c. Further, "in the event of an application or applications being made to Parliament in the next or any subsequent session and not being successful, or in the event of no such application being made, all the costs, charges and expenses of every description already incurred or hereafter to be incurred in respect of such applica HOUSE OF LORDS. On the whereby it was agreed that a fund should be raised fr the purpose of carrying this railway forward. Then were several other contracts according to the Sch form, one in one name and another in another name; but it may be treated as one contract, whereby a cer tain number of persons agreed to take shares of S each, a deposit of 21. 10s. to be paid upon each share, for the purpose of making this which was a small railway, the whole capital being 130,000Z. Subscrip tions were entered into to the amount of 15, less fifteen shares that for some reason or other wat not taken; but we may treat it as if the whe 15,000l. had been subscribed, the deposits being 21. 10s. upon each share. The plaintiffs farther state that they, together with a gentleman of the nume of Buntine, who afterwards died, and four other persons, who never would concur with the plaintiffs, were constituted a committee of management; so that the present plaintiffs may be represented as being the person constituting the committee of management. And they state that, under the powers that were so giva to them, they caused plans to be made, and they introduced a Bill into Parliament in the session of 1846; that for reasons stated the Bill was withdraw and in the following year in the spring of 1847 the application was renewed, but that Bill again failed; and then the plaintiffs state that, after paying the expenses of both those abortive attempts, there still remained a fund in their hands, and they instituted this suit, called an action of multiplepoinding for the purpose of having the rights of the different persons claiming that fund decided by the court, so that the plaintiffs might be exonerated. Now the course which the matter took was this:-The plaintiffs said that they held in hand a sum of 15,0002, called the fund in medio, that had been subscribed, less the epenses incurred with reference to the Bill introduced in 1846 and the Bill introduced in 1847. other hand, the defendants said that the fund is medio ought not to be treated as that balance echt, but that the real fund in medio was the whe 15,000l., or, if not the whole 15,000Z., the defendants said that it ought to be 15,0002. less the expers the first application only. That being the state of the cause, Lord Wood, the Lord Ordinary, 17th March 1848, made an order, whereby he directed the plaintiffs to state specifically what did constitute the fund in medio, in order to have the question decided, whether the expenses of the first application and the expenses of the second application, a either of those expenses, were expenses in respect of which the committee of management were entitled to take credit, before they called upon the court to adjudicate upon the balance which remained. The plaintiffs, having complied with this order, stated, that they are only bound to account for the deposits received by them under deduction of the proper and necessary disbursements and expenses of the undertaking. The plaintiffs have on this footing rightly accounted, and the deductions from the fund is medio claimed by them are right deductions, that is, the deductions of the expenses of both applications. That was disputed by the present respondents, the hen defendants, and the matter so coming before the Court of Session, the court decided that the plaintifs were entitled to take credit for the expenses of the first application, but that they were not entitled to take credit for the expenses of the second application, and consequently that the fund medio was made up of the 15,000. less the first class of expenses, but not making any deduction in respect to the second class of expenses. Against that order the present plaintiffs first of all appealed to your Lordships, claiming that they ought to have had credit for the expenses of the second app!cation to Parliament; and on the other hand, the defendants instituted a cross-appeal, saying that the whole sum subscribed ought to have been accounted for, and that the plaintiffs ought not to have had credit for the expenses of the first application, or if they were to have credit for the expenses of the first application, then they said the plaintiffs ought to have been charged with a sum of 1500L, which they might have obtained in reduction of those expenses under these circumstances, viz., that just previously to the withdrawal of the first Bill, a rival railway company had offered them 1500Z if they would withdraw. The appellants in the cross-appeal alleged that they did withdraw, and ought therefore to have withdrawn upon the terms of receiving the 15007., and that consequently the 15004 ought to be treated as a fund in their hands. My Lords, I have thought it necessary thus shortly to state what the facts are; indeed, it can hardly be said that there are any facts in dispute. If there were any question as to the amount of costs claimed, that would be a matter to be settled in some other form. The principle is The LORD CHANCELLOR.-This is a suit instituted in such as I have indicated in the few observations I the Court of Session by William Baird and several have made as to the facts. The first question to which other gentlemen, who constituted a committee of I think the attention of your Lordships should be dimanagement for carrying through Parliament a Bill rected is this, what authority was given by the origifor enabling a company to form a railway from Kil-nal contract to that committee of management? Wher marnock to Ayr, to be called the Kilmarnock and I say that this is the first matter to which your LordAyr Direct Railway. The facts are scarcely, if at all, ships' attention ought to be directed, in my opinion in in dispute. It appears that in the spring of the year truth it is the whole question. Now, what was the au1845, in the month of April, a contract was entered thority conferred by that document? I call it that into, to which these gentlemen and others were parties, document-I believe I should be more accurate in 4 2 The provisional committee having thus failed to The Court of Session held that the plaintiffs (the Sir F. Kelly and Anderson, Q.C. for the respondents. saying those documents, for there were in the Scotch which admits of a moment's doubt, that any expenses ing a certain line." That was on the 14th March. It HOUSE OF LORDS. cretion seems to have been intrusted to them. But I suppose they felt themselves in difficulty and embarrassment, and thought that a meeting of shareholders called at two days' notice, if they were not taking the best course for the company, could hardly be considered very satisfactory authority to them, and therefore, though they got this sanction, they did not choose to act upon it. Now the question is, whether merely because a meeting called in that way had sanctioned the committee in doing this, if they thought fit to do it, they, not thinking fit to do it, are to be held responsible for the money which it is suggested they might have received. I cannot think that that would have been a legitimate conclusion, and it appears certainly not to have been the view taken of it by because they, the great majority of the shareholders; not thinking that it was expedient to abandon the line altogether, anticipating that a more favourable opportunity might occur in the ensuing session when they might gain their object, did not choose to act upon that. First of all, the committee of management might think it was not a sufficient sanction, the meeting being called in such a hurry; and if it was a sufficient sanction, they might have thought it was not the best and most expedient course to pursue. Accordingly they let the matter stand over, and in my opinion they were remitted to their former rights. On the 30th Sept. another meeting of the shareholders takes place, and at that meeting the committee report all that had been done about this 1500l, and the withdrawal of the Bill, and in short the whole that had taken place. They reported that on the 7th April, not thinking that there was any reasonable hope of succeeding in that session, they withdrew the Bill; and upon that occasion one of the gentlemen present moved, "That the meeting, having heard the report now read, approve thereof, and especially approve of the conduct of the directors in not pressing forward the Bill last session, and thereby endangering its rejection by the Committee of the House of Commons, and insuring a large increase to the expenses incurred And then it was moved, that if they had gone on." it be remitted to the committee of management to resume the negotiation as to the 1500. It seems that they did resume the negotiation, but the rival company, though they had been willing in March to give the 15004., seem afterwards to have said that they would not give it, and in consequence another meeting was called upon due notice on the 4th Nov., at which. the committee stated that they could not get the 1500Z.; and then it was resolved on the motion of Mr. Henderson, "That in the circumstances of the case the committee of management be authorised to proceed. or not, as they shall think fit, and if they resolve to proceed that they have power to make calls, deposit plans, and apply for a Bill for a railway;" and they express their great disapprobation of the conduct of the rival railway company in withdrawing from their offer of 1500l. Now, my Lords, that was, as far as that meeting could go, an express sanction to the committee to proceed in the ensuing session of Parliament. I do not rely upon that as the ground upon which I think they were justified in proceeding; because if the original contract only authorised them to proceed in one session of Parliament, it would be no answer to any shareholder, who was not a party to the proceedings of this meeting, that a meeting of some other parties had authorised them to do something which the subscribers to the original contract had not authorised them to do; but the proceedings are cogent evidence to show that no person was misled, and that these managers, if they had, as I have already stated I think they had, authority to proceed under the original contract, were acting bona fide in endeavouring in the best mode they could to discharge their duty, and having called a meeting, and the meeting having authorised them, as far as they could give authority, to proceed, I think it is impossible to say that they were not perfectly justified in proceeding in the way in which they thought it best to proceed. My Lords, I am clearly also of opinion, that if the committee had thought the contrary, or if in the teeth of the meeting they had said, "You have given us a discretion, and we see that it is idle going on, for you will only waste your money by going on," if they had chosen not to proceed, they would have been perfectly warranted in taking that course. were authorised to do either one or the other. I think that they had an authority to do one or the other under the terms of the original deed, and therefore, with all deference to the Court of Session, I cannot concur in the view which the learned judges seem to take of the case, viz. that, because the state of things had altered, and there was then a repugnance on the part of the great body of the subscribers to proceed, therefore this money so expended is not money for which the committee of management are entitled to take credit. I go this length-and it is very often that an extreme case is the only satisfactory way of testing a principle-if every subscriber but one had said, "I disapprove of your going on-I forbid you going on," but the one had said, "I do not forbid you to go on, and I say act upon the original deed;" if the committee had acted upon the original deed and proceeded, in my opinion they would have been perfectly safe. It might have been a very indiscreet act. If there had been an almost unanimous resolution of The committee COURT OF APPEAL. the shareholders against their proceeding it would have afforded cogent evidence of something like mala fides if they had acted in the teeth of that resolution; but strictly I do not think that the authority of any subsequent meeting was binding upon them, or that any subsequent meeting, unless absolutely universal, could have taken away the right given to the committee of management originally. That is an extreme case, and particularly extreme in the present instance, where this meeting of the shareholders gave to them, so far as they could give, authority to act exactly in the mode in which they have acted, viz. according to the best of their judgment in executing the trusts of the original deed. Under these circumstances I think the Court of Session were right in saying that the committee of managers were entitled to have credit for the whole of the expenses of the first application to Parliament, and that they were wrong in saying that they were not entitled to take credit for the expenses of the second application. The result of that will be, that the first appeal succeeds, and the cross-appeal fails; therefore I move your Lordships that the order may be varied by declaring that the fund in medio consists of the whole of the 15,000%, minus the expenses of the first and second application. Lord BROUGHAM concurred. Order partly reversed. Equity Courts. COURT OF APPEAL IN CHANCERY. Reported by C. H. KEENE, Esq. of Lincoln's-inn, Barrister-at-Law. Nov. 20, Dec. 5, 8 and 9, Jan. 11 and 28. (Before the LORD CHANCELLOR.) THORNHILL T. THORNHILL. Contempt of court-Practice-Costs. On the application of the guardians of a ward of court, A. B., who had endeavoured to induce the ward to elope with him, or to contract a marriage without the sanction of the guardians, or the consent of the court, was committed to the Queen's prison for contempt: He has been ordered to pay the costs of the contempt:" Held, that costs incurred in obtaining an injunction restraining him from holding any communication with the ward were included in such order. This was a motion for the commitment to the Queen's prison for contempt of the High Court of Ch. of Mr. George Augustus Hamilton Chichester and Lady Ferrers. This case was heard by the L. C. in his private room; but his Lordship delivered his judgment in open court. The facts appear below. The Solicitor-General and Cairns appeared for Mr. Chichester. Baily and Renshaw for the guardians of the infant. The LORD CHANCELLOR.-This, question comes before me on motion and a petition. The motion is that George Augustus Hamilton Chichester and Augusta Arabella Countess of Ferrers do stand committed to the Queen's prison for contempt of the High Court of Ch., in endeavouring to induce the plaintiff to contract a marriage with Mr. Chichester without the sanction of the court; and, as far as relates to Mr. Chichester, in his having clandestinely attempted to remove her from the custody of her guardians. The petition is presented by Mr. Chichester in the nature of a cross-application, in which he prays that the injunction may be dissolved, and a reference to inquire whether any proposed marriage between the petitioner and the infant is a proper marriage, and that he may be at liberty to make proposals for a settlement on that marriage. The circumstances of the case are of a most distressing nature, and which I should have been well pleased if I could have been spared the pain and anxiety of considering. I have endeavoured to sift them to the bottom, not only by hearing what was to be said by the parties in court, but on several occasions, I have had personal interviews with the guardians, and with the young lady herself, separately from the guardians, whom I induced to talk to me in a perfectly confidential manner. Now, the result which I have arrived at is, that beyond all possible doubt the charge on which the motion was made to commit Mr. Chichester is established-that he did endeavour in the first instance to persuade the young lady to form an attachment for him; and secondly, that he did endeavour, in a most unjustifiable manner, to induce her to elope with him, in order to avoid the objections which he was well aware must be raised to such a connexion, both on the part of the guardians and on the part of the court. These are matters which it is extremely painful and distressing, and not for the interest of any of the parties, to go into much in detail; but for a reason that will be apparent, I do not think I am justified in simply making an order without giving some reasons for it. In the first place, I may say I do not think I am called upon to make any order to commit Lady Ferrers. That is a conclusion, however, at which I have arrived with very great COURT OF APPEAL. doubt and anxiety. I am not at all confident that I am quite discharging my duty. The circumstances, as far as Lady Ferrers is concerned, are these-Mr. and Mrs. Hungerford (Mrs. Hungerford being the guardian of the ward of the court, a young lady of 18 years of age, with a very large fortune) paid a visit to Lord and Lady Ferrers in the last week of May last year, and Mr. Chichester was on a visit there at the same time. There is a controversy on the affidavits as to whether Mr. Chichester did pay anything like marked attention to the young lady during that visit, which was the first time he had ever seen her. Mrs. Hungerford positively declares that she saw nothing whatever to lead her to suppose that any sort of intercourse whatever had passed between them more than the exchange of common civilities. That is her statement. Mr. Chichester and Lady Ferrers, on the contrary, say that which either expresses or implies that there were marked attentions on the part of Mr. Chichester towards the young lady. They stayed there a week or eight days, and Mr. Chichester, alluding to his own great pecuniary embarrassments, and the difficulty he might have in obtaining the sanction of the court, said to her that he hought he should be a suitor for the young lady's hand, though nothing was said to lead her to suppose that he had anything of the sort in his mind. He, on the contrary, says that he understood from what passed that he would have the deliberate sanction of Mrs. Hungerford, or that there would be no opposition on her part. I now come to what concerns Lady Ferrers. Shortly after they got home the young lady desired to make a little present of a purse to Lady Ferrers. That was very natural. Letters passed, which letters were seen by the guardian; there was nothing whatever improper in them-nothing that a married lady, a peeress of the high rank of Lady Ferrers, might not write to a young lady who was the ward of a neighbour in the county. About a fortnight afterwards Mr. and Mrs. Hungerford, with the young lady, were going on a visit to somewhere near Ascot, and on the morning after their arrival there Mrs. Hungerford discovered some fragments of a letter which turned out to be from Lady Ferrers, that had crossbars in a different ink, of a different writing, and being a different matter that was written. It turned out to be written with lemon-juice, which, it seems, when held to the fire, comes out in the form of a pale red writing; and Mrs. Hungerford discovered what led her to believe that, whoever was writing these letters was writing an apparently open correspondence in black ink, and a concealed correspondence in this different ink, or lemon-juice. It turned out afterwards that there was a letter from Lady Ferrers, which in the black ink writing had been shown, but which contained the clandestine writing in the lemon-juice, the clandestine writing being more or less an encouragement on the part of Lady Ferrers to the young lady to give countenance to the suit of Mr. Chichester, Lady Ferrers' brother. Exactly what it was we do not know, but that that was the substance of it, is manifest. Lady Ferrers had desired that she might be at liberty to send to the young lady a little basket in return for the purse. That was very natural, and Mrs. Hungerford did not object to it; but she said it would be better it should come through her, and that she would present it in Lady Ferrers' name. She did so, but, to the disgrace of Lady Ferrers-and I cannot attempt to qualify the expression, for it was most disgraceful, and it must for ever lower her in the society of her equals-in that basket was concealed in the lining a letter written, not on paper, which would have made a crackling noise and have excited attention, but written on linena secret encouragement to the ward, against the consent or without the consent of her guardian, to give countenance to the suit of her brother, whom she admits, and whom all admit, to be a man in deep embarrassment. Having said thus much, it may be asked, am I not flinching in the discharge of my duty if I absta.n from committing Lady Ferrers? Well, I think I am not, and for this reason. which I am to act, is an attempt to induce the young The contempt of court, on lady to elope with Mr. Chichester without the consent of the guardians or of this court. Now, although Lady Ferrers, in this clandestine and discreditable manner encouraged the intercourse between the young lady and her embarrassed brother, with a view no doubt to warp her feelings, I cannot see anything that leads me necessarily to the conclusion that she meant that this should be done without first endeavouring, at all events, to obtain the sanction of the court; and there does seem to be a little countenance to what is suggested, that at that time it was meant to obtain, if possible, the consent of the court and the guardians to the celebration of the marriage; because, very soon afterwards, Mrs. Hungerford, having discovered what she thought was the whole, but which turned out not to be the whole, of these letters, immediately wrote to Lady Ferrers and to Mr. Chichester, saying what she had discovered and forbade all intercourse. Lady Ferrers on that made a promise that she would not write any more, and I think it is not conclusive that she has done anything since except what I shall presently advert to, but which does not bring me to the conclusion that she meant to encourage the young lady to elope. Mr. Chichester, COURT OF APPEAL. being thus rejected on the part of the guardian as a unfit suitor for the young lady, was forbidden to vist her at all; but the course he took was this-Mr. and Mrs. Hungerford and the young lady lived at Dingleypark, in Northamptonshire, which I collect is only mile or two from the town of Market-Harborough It seems that some time in August Mr. Chichester and four other persons went and took up their quarters at an inn at Market-Harborough, and Mr. Chichester thought it consistent with his duty towards this ear and his obligations as a gentleman to go in the mich of the night, from time to time, attended sometine by two, sometimes by three of these persons, in erin to hold in the middle of the night a clandestine communication orally, and by letter, with this wed of the court, with whom he had been forbidden by the guardian to have any intercourse, and with whi is perfectly obvious he endeavoured to ally himself in order to make himself master of the large fortune die possessed. That that was his object is quite apparent. He endeavours to put it on more sentimental groaza, but which, to men of the world, it is absurd even to talk about. He himself puts it beyond all question because, after a certain transaction to which I ha presently allude, when he was taken, his friend sara, "I have been looking at your estate, and I think we shall have some fine sporting over it." He goes tigh after night, attended by two or three persons, and has these communications with the young lay. either at the window of her bedroom, or some other window, where by arrangement they were to Dest He could have no other motive than to induce ber to elope. Still it was put forward so strongly here by his counsel (of course by his instructions) that he had no other object than to have intercourse with be which was forbidden by the guardians, and that therefore he was obliged to have recourse to commu cations in this clandestine manner; that that wass only object; that he never meant to proceed furi until he had paid his debts and till be obtained the sanction of the court and the guardian. That was put forward so prominently that I think it necessary to allude to something that cannot deceive. 1 alimle to letters which the young lady has most properly. and with a great deal of good feeling, handed over is the guardians and to me, and which can be veritel It appears that Lady Ferrers, although she has set written since June to the young lady, or promote. any intercourse with the young lady and bed nevertheless thought it consistent with her day to write to her brother, Mr. Chichester, encouragi him in what she must have known to be his intentkis and object. Among the letters which the young lady gave up from Mr. Chichester are two from Lady Ferrers to him (Mr. Chichester), and one in what there is this expression: "I only wish she was my little sister (speaking of the ward of the court); sed no matter how you marry her, so long as it is p perly performed. I will only be too glad to receive her with open arms, as I feel I could love her w much." "If dear Clara wolle leave them, and go with you to be married. I need not repeat that she will always find me ready to receive her." Now, one cannot but have a very strong suspicion, when one sees these letters from Lady Ferrers to her brother, and finds that these letters came from the brother to the hands of the young lady-I say one cannot, after all that has passat but have a strong suspicion that Lady Ferras wrote them in order that they might be shown to the young lady as an assurance that she would be well received by the relations of suitor. There is another letter much to the ssad effect, dated later in September. I cannot theretar but think that Lady Ferrers must have been cogi sant of what was going on and of what was intended, and that she meant to encourage it. At the same time I do not think that it is a necessary conclusion, and I do not feel myself bound to act upon that sufficiently punished by the publicity which this Lady Ferrers, I think, if she has any feeling, will b not, therefore, feel myself called upon to visit her proceeding necessarily gives to her conduct; and Ile with the penalty of the disgrace of being committed to prison. Now, when Mr. Chichester put these letters into the young lady's hand, he wrote or set her other letters, and in those letters (one is a while letter, the other two are fragments of letters), I end these passages: "Clara, is it just towards me, this treatment? . Am I to go about, afraid of seeing any one here, skulking about? There is a great deal at difference between "-I will not mention the name: he mentions a gentleman who is well known in society to have eloped two years ago with a lady of rank-"that gentleman and G. A. H. C."-that is George Hamilton Chichester. "He married my cousin, and we were all very much annoyed." What do I infer from that? Why, that he had proposed guardian, but that she had remonstrated, and had to the young lady to run away from the house of ber pointed out how ill that lady stood in society, and that he endeavours to get over scruples by pointing out, there is a great difference between that person -who was not quite an equal in rank-and “G. A. H. C.;" that is to say, the ills that have attended that lady in her after life, from having rua away, will not attend you, because I am of high COURT OF APPEAL. and noble family, and he was not. That is the inference which I cannot but deduce from it. Then there is another fragment of a letter in which this occurs, "To-morrow night what you ought to do, dearest Clara, is to say or write "ready" when you are that will be now or to-morrow night, which ever you like-80, dearest Clara, be mine.' Who can doubt, when he was coming in the middle of the night with two or three men attending him, that the object was (I should say by violence, if resisted, but certainly in some way or other), to run off with the young lady? Then there is a letter in which this passage occurs-"Do you think, Clara, that I for one moment would wish you to leave you guardians if I was not certain-if I had not had the first legal opinions on the matter, that everything could be done legally and for ever binding? Do yon suppose my family would "--then there is something torn. "The law is, that if a ward of court marries against the Chancellor's consent, and if she is over eighteen years of age, her husband can be imprisoned till she comes of age, for contempt of court, provided they catch him within the jurisdiction of the court, which extends to Great Britain." Now, this gentleman's property, or his connexions at least, are in Ireland. Whether he thought he should escape by going to Ireland I do not know; but one cannot fail seeing that he meant to say the jurisdiction of the court only extended to Great Britain, if it catch the person. "Now, this is the law; and never mind what others have told you to frighten you-this is the law. Besides, there are plenty of instances; and they have never imprisoned the husband beyond six or seven months, and that only in the case of an improper marriage, such as a ward running away with a tutor or servant, &c. In our case it would be quite different; in fact, the world and the Lord Chancellor would wonder what we ran away for. I am merely telling you now what two of the first Chancery men have told me; they laughed at me and said-Why, a man in your position, if you did do such a thing I should do it,'" then it is torn. Now, I have adverted to that in order to show-it is almost holding, one may say, a taper up to the light of day, for it is so clear that it hardly wants such illustrations-but the result is almost conclusive that Mr. Chichester endeavoured to induce this young lady so far to forget her duty as to run off with him. I am very happy to say that that has not been the case. It is extremely painful to drag the name of a ward of the court before the public; but it is a happiness for me to be able to say to-day that, having had several private interviews with her, quite away from her guardians-for I have been with her for half an hour at a time, and on one occasion nearly an hour, so as to put her quite at her ease,-I am quite convinced that, when Mr. Chichester says she consented to his application for leave to make proposals, he says that which nothing which she ever said warranted. She did not consent, and I believe she never had the least wish to consent. She has sworn contrary to what Mr. Chichester states, and, from my conversations with her, I implicitly believe what she says. She has now put every scrap of paper into the hands of her guardian. That she acted imprudently no one can deny; but she was led on to it by others who ought to have known better. I allude particularly to Lady Ferrers and Mr. Chichester. Now, although I do not see my way quite clear to the conclusion that Lady Ferrers intended, or was instrumental in encouraging the young lady to elope, yet that Mr. Chichester was is beyond all possible controversy or doubt; and I feel it, therefore, to be my duty, in pursuance of the notice of motion, now to make an order (prefacing that order with reading the affidavits, and a statement that I am satisfied on those affidavits that Mr. Chichester did endeavour to induce the plaintiff, Clara Thornhill, to contract a marriage with him, without the sanction of the Court, and that he did endeavour clandestinely to remove her from the custody of her guardian), that for that contempt of the court he be committed to the Queen's Prison. The tipstaff will now immediately take Mr. Chichester into custody. I shall also make an order that he pay the costs of this motion, and that his own petition, that he be allowed to make proposals, be dismissed with costs. Dec. 9.-This case was brought before the court on the 5th and 8th of Dec., by the Solicitor-General on the part of Mr. Chichester, for the purpose of procuring his discharge from prison. The Solicitor-General said that he had an affidavit of Mr. Chichester, sworn the evening before, in which he expressly stated that he had no other letters, or copies or extracts of letters, from Miss Thornhill in his possession other than the four letters that had been handed up to his Lordship. The LORD CHANCELLOR, having perused the affidavit, and also a letter from Mr. Chichester to his Lordship, containing the terms of the undertaking to which he was willing to bind himself, said that he was satisfied with the affidavit, but added that before he could order the discharge of Mr. Chichester an undertaking must be entered into by him, and also by his father, Lord Edward Chichester, "that he would not solicit, molest, or hold any communication whatever with Miss Thornhill during her minority, without the sanction of the court." His Lordship said COURT OF APPEAL. that he would immediately destroy the letters handed up to him, ecxept the one written to him personally by Mr. Chichester, which, it must be understood, would be communicated to the guardians of the young lady. Mr. Chichester would also have to pay all the costs incurred. Being therefore, as he had before stated, satisfied with the affidavit of Mr. Chichester, and being also influenced by the affidavits of Sir Benjamin Brodie and Mr. Cutler, the medical attendants of Mr. Chichester, one of which stated that a further imprisonment might endanger his life, and the other that it would be certainly injurious to his health, he (the L. C.) thought, under the circumstances, notwithstanding that the time Mr. Chichester had been in prison was so short, he should be justified in ordering his discharge, upon the before-mentioned undertaking being entered into. cate. Baily, who appeared for the guardians, observed, there might be some difficulty in recovering the costs afterwards. The usual practice of the court in cases of contempt was to make the payment of the costs a condition precedent to the discharge. [It was ultimately arranged that on the undertaking of Lord Edward Chichester to pay the costs within forty-eight hours after taxation, Mr. Chichester should be at once discharged.] Jan. 11.-This was an application, by way of appeal, for the taxing-master to review his certifiThe bill of costs amounting to 2607. had been reduced by the taxing-master to 154., the remainder having been disallowed by him on the ground that the items did not properly come within the terms of his Lordship's order as "costs of the contempt." The first class of costs so disallowed related to the getting up of evidence for an ex parte application in September last for an injunction against Mr. Chichester and other persons to restrain any future intercourse by him with Miss Thornhill. The injunction was granted, and the consequent application made for the committal of Mr. Chichester, which resulted in the order before referred to. Baily and Renshaw appeared in support of the motion for the taxing-master to review his certificate; and Cairns and Rowcliffe contrà. The LORD CHANCELLOR said that the taxingmaster appeared to him to have misconceived his duty. Mr. Chichester had endeavoured clandestinely to remove a ward of this court, and, as a preliminary protection for her, an injunction had been obtained to correct his contempt of court. The matter had afterwards been brought before the court as to the mode in which the contempt was to be treated, and it was a fallacy to say that the affidavits used upon the motion for the injunction had nothing to do with the contempt. It was one continuous contempt from the beginning to the end, and the expense of the first motion clearly came within the words of his (the L. C.'s) order, that Mr. Chichester was to pay "the costs occasioned by the contempt." The matter must be referred back to the taxing-master to review his certificate. Jan. 16 and 17 and Feb. 26. (Before the LORDS JUSTICES.) EVANS v. SAUNDERS. EVANS v. EVANS. Powers-Revocation and re-appointment--Exhaustion of power-Revival of revoked appointment. A donee of a power of appointment by deed or will, appointed by deed to uses exhausting the fee, reserving to herself a power of revocation and re-appointment by deed. By two subsequent deeds, she successively revoked the previous appointments, and appointed new uses, reserving to herself a power of revocation and re-appointment by deed. She afterwards executed a deed-poll revoking the last appointment, but making no new appointment. Lastly, by her will, purporting to be in exercise of the original power, she appointed the estates to the plaintiff': Held, that the original power was not exhausted, and that the appointment by will was valid. Held, also (dubitante Knight Bruce, L. J.), that the effect of the deed-poll revoking the third appointment was not to revive the appointment contained in the second deed. Questions of the destruction of powers by the donee and of the revival of revoked appointments are governed by the intention. COURT OF APPEAL. delivered by her in the presence of and attested by two or more credible witnesses or by her last will and testament in writing or any writing or writings in the nature of a will, or any codicil or codicils to be by her signed, sealed and published in the presence of three or more credible witnesses, shall from time to time, and as often as she shall think fit, devise, direct, limit or appoint;" and, in default of appointment, to certain other uses, under which Thomas Jones Saunders, one of the parties to these suits, claims to be entitled; so that the power by the settlement, of 1794 was a general power to appoint by deed or will with or without power of revocation. By a deed, dated the 6th June 1830, Anne Evans, in exercise of the power of appointment reserved to her by the settlement of 1794, and of all other powers enabling her in that behalf, appointed, that after the determination of the interests limited prior to her power of appointment, the estates should go to certain uses mentioned in that deed of appointment, and which uses exhausted the fee; but it appears that by that deed Anne Evans reserved to herself a power of revocation and new appointment in the following terms:-" Provided always, and the said Anne Evans doth hereby reserve to herself full power and authority at any time or times hereafter, by any deed or deeds to be sealed and delivered by her and in the presence of, and to be attested by two or more credible witnesses, to alter, vary revoke, determine and make void, either in part or the whole, the direction and appointment hereinbefore made by her, and all and every or any of the uses, trusts, intents, purposes, powers, provisoes, limitations, declarations and agreements herein before limited, expressed and declared of and concerning the said messuages, lands and hereditaments hereby appointed or intended so to be, and by the same or any other deed or deeds to be so sealed and delivered and attested as last mentioned to make any other direction or appointment reserved to her as aforesaid of and concerning so much and such part of the said messuages, lands and hereditaments, and the estate and interest therein to which such revocation shall extend.' That, therefore, gives to Mrs. Evans a power of revocation and of new appointment by deed, and by deed only. By another deed, dated the 5th July 1833, Anne Evans, in exercise of the power reserved to her by the deed of appointment of 1830, and of all other powers enabling her in that behalf, revoked the uses limited by that deed, and appointed that the estates should go to other uses mentioned in the deed of 1833, which also exhausted the fee, again, however, reserving to herself powers of revocation and new appointment expressed in substance at least in the same terms as the powers reserved by the deed of 1830. By a further deed, dated the 16th July 1835, Anne Evans revoked the uses limited by the deed of 1833, and appointed that the estates should go to other uses, which also exhausted the fee, precisely in the same form and manner as had been adopted in the deed of 1833, reserving to herself by this deed also a power of revocation and new appointment, expressed in the same terms as the like power reserved by the deed of 1833. Subsequently by a deed-poll, dated the 26th Aug. 1836, Anne Evans revoked the uses limited by the deed of 1835, and she did not, by that deed-poll or by any subsequent deed, declare any new uses. By the will of Anne Evans, dated the 3rd March 1848, and purporting to be made in exercise of the power reserved by the settlement of 1794, she devised the estates to trustees in trust to sell and stand possessed of the proceeds upon trusts, under which several others of the parties to these suits claim to be interested." The bill in Evans v. Evans was filed in Dec. 1849, by Bridget Evans, as one of the creditors on the estate of the testatrix Anne Evans. By a report in that suit, dated 23rd June 1852, Master Tinney found that the will of the 3rd March 1848 operated as a due execution of the power contained in the settlement of 1794. He also found that the trustees of the will had contracted with Samuel Jones Evans for the sale to him of a part of the estate, but that the purchaser objected to the title on the ground of the power of appointment not being validly exercised. The special case of Evans v. Saunders was presented, in order to obtain a decision of this question. This was an appeal from the decision of Kindersley, Kindersley, V.C., before whom the question was V.C., before whom the case was twice argued: (see twice argued-first, on the special case, and again on 1 Drew, 415, 654, and 22 L. T. Rep. 43.) The facts the hearing of the cause of Evans v. Evans-held, and deeds are fully stated in the former report. The that the original power of appointment by deed or following recapitulation of them is taken from the will was exhausted by the first appointment, and that commencement of the judgment of Turner, L.J. no new power to appoint by will being reserved, the "By a settlement dated in 1794 estates were settled, will had no operation upon the lands comprised in the subject to some prior uses which have now deter-original power. From this decision the plaintiff mined, to the use of Anne Evans for life, with Bridget Evans and the trustees of Anne Evans's will remainder (subject to limitations in favour of her appealed. children, which did not take effect, she having had no child) to the use and behoof of such person and persons for such estate or estates, interest or interests, to take effect at such time or times, in such parts or proportions and in such manner and form as the said Anne Lewis, spinster, notwithstanding her coverture, by any deed or deeds, writing or writings with or without power of revocation, sealed and The Solicitor-General, Tripp, and Pearson, for the plaintiff Bridget Evans, supported the appeal. They contended that the original power to appoint by deed or will was not exhausted or extinguished by the appointments, which had been all revoked, nor by the reservation of a new power to appoint by deed. The effect of the instruments must be governed by the intention; and it was an extremely improbable in |