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wards took out two orders for time, which had now expired.
Mr. Cooper submitted that this case fell within the letter as well as the spirit of the recent statute 2 W. 4. C. 33. That statute was expressed in general language, applying in terms to the “ United Kingdom of Great Britain," and making no exception with respect to Scotland. It appeared, moreover, to have been passed for the very purpose of reaching parties, in whatever part of the realm they might have their residence, who were in the enjoyment of real estates lying within one jurisdiction while their place of domicile rendered them amenable only to another and a different one;--a circumstance which, by enabling dishonest persons to defeat just claims upon property so situated, had heretofore occasioned a defect of justice, often regretted by courts of equity, and now, for the first time, attempted to be remedied. The Vice-Chancellor, before whom this application was originally made, had desired the matter to be brought before the head of the Court, as it involved the framing of a new form of order; but then, as well as previously when he granted the subpæna, his Honor was clearly of opinion that the act must be construed as extending to Scotland.
The LORD CHANCELLOR said that, although the words of the enactment were certainly large and comprehensive, he entertained no doubt whatever that the statute in question had never been intended or supposed to apply to North Britain. The measure had been submitted to parliament on the suggestion of Lord Plunkett, whose object was (as might be collected from a comparison of the first and second sections) to make the process of the respective courts of equity in England and Ireland run interchangeably in all cases where the VOL. II.
lands, the subject of the suit, were situated in the one country, and the defendants sought to be affected by it resided in the other. If the statute were to be construed in the manner contended for, it would amount to a virtual repeal of one of the provisions in the articles of union, although Scotland was never once mentioned by name in any part of the act. Under the circumstances, he should be most reluctant to accede to that construction. At any rate, as the language of the act was not imperative, but merely vested a discretionary power in the Court, “ if they shall so think fit,” he should decline to make any order on the present application.
The ATTORNEY-GENERAL y. The Bailiffs and
Burgesses of EAST RETFORD.
ROLLS. June 10.
THIS was an information filed, under the direction of where a corthe commissioners of charities, for the purpose of lo
of poration fol. inquiring into certain breaches of trust alleged to have tice of their
predecessors been committed by the corporation of East Retford, in in the applicatheir capacity of trustees of the free grammar school of tion of the.
profits of chathat town.
rity estates, and no wilful
breach of trust At the hearing of the cause the Master was directed or improper
motive is imto inquire and state what lands the corporation became
puted to them, seised of in trust for the charity in question; what lands the account
will not be had been alienated by them, and for what consideration, carried back and under what circumstances, and how the produce
time when had been applied.
they had notice that the
propriety of From the Master's report it appeared that the charity such applica
tion was property consisted principally of lands which had for- ; merly belonged to the dissolved chantries of Sutton, Tur- But where the
charity estates ford, and Annesley, and which in the year 1550 had been have been aligranted by letters patent of King Edward VI. to the enated, though
at a very disa bailiffs and burgesses of East Retford for the endowment tant period,
of the corpora
tion will be
made to compensate the present value of the lands so alienated, out of such general property of the corporation as was not granted or devised to them upon special trust.
It is the duty of a corporation, when apprised by the information of the nature and extent of the claims made upon them, to cause a diligent examination to be made, before they put in their answer, of all deeds, papers, and muniments in their possession or power, and to give in their answer all the information derived from such examination; and if they pursue an opposite course, and in their answer allege their ignorance upon the subject, and the information required is afterwards obtained froin the documents scheduled to their answer, the Court will infer a disposition on the part of the corporation to obstruct and defeat the course of justice, and on that ground alone will charge them with the costs of the suit.
1833. of a grammar school in that town; and partly also of
other lands which became vested in the same trustees ATTORNEY
upon the like trusts by the benefactions of Sir John
Hercie in 1553, of two persons of the names of Rozell The Burgesses of and Homes in 1562, and of the Rev. William Houghton
It further appeared that the corporation at different times had alienated parts of the charity estates; and in particular that in the years 1583, 1805, 1806, and 1816 sales had been effected of portions of the property, and the produce applied towards the redemption of the land tax on the corporation estates, or for the general purposes of the corporation. It was also established by an entry in the corporation minute book, that in the year 1656 the bailiffs and burgesses had authorized a sale of all the lands situate at Kirton, and theretofore belonging to the chantry of Tuxford, whereof they were seised as trustees for the use of the free grammar school, for the purpose of raising a sum of money to be applied in rebuilding the church and steeple of East Retford, and that the sale had taken place, and the money, amounting to 3001., had been applied accordingly.
The cause having now come on for further directions, the main question discussed related to the manner in which the corporation should be charged in taking the accounts, and to the costs of the suit. A petition presented by the master of the school was set down to be heard at the same time.
Mr. Pemberton and Mr. William Russell, for the informant.
Mr. Skirrow, for the schoolmaster and usher.
Mr. Temple, for the second master.
ATTORNEYMr. Bickerstcth and Mr. Barber, for the corporation. GENERAL
The As the leading topics adverted to in the course of Burgesses of
East the argument are noticed in his Honor's judgment, it Retford. becomes unnecessary to state them separately.
The Master of the Rolls. Where the corporators, for the time being, have no knowledge of the fact, that the land; in question were devised for charitable purposes, nor any knowledge of circumstances which ought to have put them upon inquiry into the nature of their title to the lands in question, but have bonâ fide followed the practice of their predecessors in the application of the rents and profits, either to other charitable purposes not warranted by the will of the devisor, or to the general purposes of the corporation; it appears to me that in such case, there being no wilful breach of trust or improper motive imputable to the ancient corporators, it would be unfit to compel the corporation to account for, and satisfy out of their general corporate property, the rents and profits so applied by them before they had notice that the propriety of such application was questioned. In the present case, the corporation had not this notice, until it was given to them by the report of the charity commissioners. To carry back the account from the commencement of the misapplication in such cases would prove the ruin of half the corporations in the kingdom, and is not necessary for the purpose of giving effect, in future, to the intention of the donor.
It is argued that inasmuch as an item regularly appeared in their annual accounts, of payments made to a schoolmaster and usher, and they were therefore fully