v. TOWN but was perfectly consistent with the purposes of the charitable CLEPHANE grant; and, secondly, that, inasmuch as such user has continued. MAGISuninterruptedly from the foundation of the charity to the present TRATES AND time, it must be considered that the maintenance of the church for COUNCIL OF the use of the hospital and of the inhabitants of the adjoining EDINBURGH. district is one of the lawful purposes of this charity. I now, my Lords, pass on to the transactions which have subsequently occurred, and which have given rise to this litigation. The North British Railway Company was empowered by its Act of Parliament to take for the purposes of its railway, and for the purpose of constructing a station for that railway, the piece of land on which this collegiate church stood, and of course it was a matter of great importance that the terms and conditions on which the Railway Company should be permitted to take this land should be accurately and clearly defined in their Act of Parliament. The object of an Act of Parliament of that kind is to define the manner in which the Railway Company shall be bound to make compensation to the owner of the property taken, but it is not a part of the object of such an Act of Parliament to interfere at all with the title to that property, or to lay down any rule affecting the ownership of the property or the manner in which the money to be given to the owner of the property shall be enjoyed. To do any such thing would be greatly beyond the proper scope and limits of that description of legislation. The section, reading *it shortly (1), may be divided into three parts. The first portion of it enables the Company to restore and rebuild the church which they propose to take down, and in the event of their doing so, the obligation is carefully imposed upon them of restoring and rebuilding it exactly as they found it at the time when they took possession of it. And in order to meet any questions that might arise in the course of that operation, an arbiter is provided, namely, the Sheriff (1) The provision is, "That it shall not be lawful for the North British Railway Company to make any alterations on, or to use for the purposes of the said railway, the additional land in the parishes of Trinity College, St. Andrews, and Canongate, which by this Act they are authorized to purchase for a terminus in Edinburgh, until they shall have agreed with the Lord Provost, magistrates, and town council of the said city on a plan for the removal and rebuilding, at the expense of the Company, on another site, either within the said parish of Trinity College, or as near thereto as conveniently may be, of a new church, with equal convenience of access and accommodation to that already [*610] v. CLEPHANE of Edinburgh, to whom any differences of opinion arising in the course of that operation might be referred. Then the section conTRATES AND cludes with an alternative, which it is put in the power of the COUNCIL OF Railway Company to adopt, namely, that in lieu of the obligation EDINBURGH. which has been thus carefully described, to rebuild the church MAGIS TOWN [ *611] [ *612 ] themselves, they may give to the magistrates and town council a sum of money as compensation for the church. And by a species of refinement, which I regret that any person has been found to sanction (because it has produced years of litigation, and has been an impediment to the use and application of the *money belonging to this charity), it appears to have been thought that it was possible to construe the clause in such a manner as to attach to the money to be paid by the Railway Company an obligation of application precisely to the same effect as that which the Railway Company would have been bound to observe in the event of their adopting the first alternative of undertaking to restore the church. My Lords, I think it impossible that any such ingenious subtlety should receive acceptance. One of your Lordships (1) suggested what is the true interpretation, as I humbly think, of the words "in lieu of the foregoing obligation," namely, that the obligation of restoration which is described in the first part of the clause, if it be not the alternative embraced by the Company, is still to be the measure of the amount of compensation. So that in point of fact the object of the clause is this, that if the Company did not undertake to restore the church actually, they were bound to pay to the magistrates, as trustees of the charity, such a sum of money as they would have been required to expend if the first alternative had been embraced by them. That is a reasonable interpretation to give to the clause, and it gives a standard of the compensation to be paid; and, practically, this was the construction which the parties put upon the clause; for proceedings were taken to ascertain what ought to be done in order to restore the church, and they were prosecuted so far as to enable the referee to determine exactly the sum of money which the Railway Company would have to expend if they had entered upon and completed the work of restoration. The Railway Company very wisely preferred to pay the money rather than to undertake the duty of seeing to its expenditure and presiding over the restoration of the church. And that sum of money, which is very considerable, amounting altogether to 17,6717. 9s. 6d., was actually paid over to the trustees of the hospital in the month of May, 1848. Now, my Lords, that money, when received by the trustees of the hospital, was part of the general funds of the charity, applicable to the reinstating of the church in a reasonable manner. But, my (1) Lord CHElmsford. H. L. V. MAGIS TOWN TRATES AND COUNCIL OF EDINBURGH. Lords, it would be ridiculous to suppose for a moment that it was CLEPHANE the object of the Act of Parliament, or that there can be any principle of law or any suggestion of reason or common sense that would lead the mind to the conclusion that this money, when received by the magistrates and town council, was received under an obligation to have it expended entirely, or the greater part of it, in the actual reproduction with all its architectural decorations of that exact building which was taken by the Railway Company. It is a lamentable thing that such a suggestion was ever made, and it is as unfounded in law as it has been lamentable in its consequences; and I hope your Lordships will not give the smallest countenance to any such contention, which must be repudiated by any one knowing well the principles upon which charities ought to be administered. This, my Lords, leads at once to this conclusion, that the suit, which was brought expressly for the purpose of maintaining the proposition that the whole of the money paid by the Railway Company should be dedicated to the purpose of an exact reproduction of the original building, is founded upon an entire misconception and erroneous construction of the clause of the Act of Parliament; and therefore I have not the smallest hesitation in advising your Lordships that the whole of the interlocutors in that suit which have been appealed from should be reversed, that the defenders shall be absolved from the conclusions of the summons, and the summons itself be dismissed. I am sorry to be obliged to add, in consequence of the countenance that has been given to that suit, that I cannot individually advise your Lordships to go further than to dismiss it without expenses. Then, my Lords, that suit being cleared away, we come to the consideration of the other suit, originally instituted by persons having a direct interest in the charity, as being some of the objects. of that charity. To that suit the magistrates and town council of Edinburgh are called as defenders in their capacity of trustees of this hospital; and although there has been a good deal of criticism upon the conclusions of that summons, and although it is true hat some of the conclusions are rather directed to an end that would be inconsistent with the re-erection of a church sufficient for the accommodation of the inhabitants who resorted to the old church, yet I think the conclusions of that summons, fairly construed, especially in a charity case (1), might well have warranted the Court of Session in taking upon themselves to pronounce in that suit the order which I think common sense and reason imperatively required should be pronounced in some suit or other, directed to tion of Rochester, 104 R. R. 287 (5 D. M. & G. 797). (1) See Att.-Gen. v. Jackson, 11 Ves. 365; and Att.-Gen. v. Corpora [ *613 ] CLEPHANE v. the end of effecting the proper administration of this charity property, and the proper application of this sum of money, which has TRATES AND been allowed to remain so long unappropriated. MAGIS TOWN COUNCIL OF Therefore I shall not hesitate to recommend your Lordships to EDINBURGH. reverse the interlocutors which are appealed from in that suit. And further, I shall recommend your Lordships to make that suit the basis or *foundation of an order which I trust, if your Lordships approve of it, will be found to comprehend all the material objects that now require to be provided for, in the hope of securing a just and reasonable administration of this charity. [614] [ 615 ] The magistrates have suggested that a sum of 7,000l. only is required for the acquisition of a site and for the erection of a new church of sufficient capacity to provide for the wants of the inmates of the hospital on the enlarged scale on which I hope it will be established, and also for the accommodation of the neighbouring inhabitants. I wish I could add to that what I have looked for with anxiety-a clear and definite expression on the part of the magistrates of their willingness to have this fund devoted to the purpose of a proper augmentation and re-establishment of this charity, after deducting so much as should be required for erecting the new church. But what I have not found so clearly expressed in the pleadings has been supplied by the counsel for the magistrates at the Bar; and I understand from their counsel that they are quite willing (as it is their duty to be) that the whole of this fund, minus the sum that shall be absolutely required for the rebuilding of the church, shall be at once applied in the augmentation of the charity. In the hope, therefore, my Lords, of providing for these ends, which, as I observed during the argument, at the first blush of the thing must have presented themselves as being the clear objects to be attained by a court of justice in this case, I have at some length penned the order, which I will submit to your Lordships as the proper order to be pronounced under the circumstances of the case (1). My Lords, I humbly submit to your Lordships that this order will, as far as we can now foresee, provide for the immediate necessities of the case. And I trust that there will be found in carrying this order into effect a conscientious spirit that shall recognize the religious and moral duty that rests upon these parties no longer to keep this fund in abeyance, but to apply it, as it ought 15 or 16 years ago to have been applied, to the purposes of this useful charity. LORD CRANWORTH: The long usage since the time of the charter seems perfectly to (1) See the judgment of the House at the close of the case. justify this House in saying that the maintenance of the church as connected with the hospital is one of its legitimate objects. That being so, supposing no Act of Parliament had passed such as that of the North British Railway Company, but that, by lapse of time or by some accident, the church had been burnt down or destroyed, what would have been the duty of the trustees? Clearly to build a church with at least as good accommodation as that which existed before. But there would have been no duty or obligation to rebuild it in the particular ornamental style in which the old building had been constructed. That being so, it is impossible to suppose that the Legislature, in passing a Railway Act, meant to alter the trusts which were imposed upon the trustees. It is impossible that it could have meant to impose upon them the duty of building a church in any particular style. The reason why that obligation was imposed upon the Railway Company, if they rebuilt the church, is obvious. Had such an obligation not been imposed upon them, they might have built the church in a very imperfect and improper style. It was to secure the public against that, that this provision was made. But if the alternative was adopted, which any one looking reasonably at the subject must have known would be adopted, namely, for the Company to pay the price or the value instead of rebuilding the church themselves, then, when the money comes into the hands of the trustees, they have no other obligation upon them with reference to that money than would have been imposed upon them if the church had been in some other way destroyed, and then rebuilt out of any funds which they might have in their hands for the purpose of rebuilding it. I think that the provisions which have been proposed by my noble and learned friend exhaust the subject, and I trust that they will put an end to this not very creditable litigation, which has now extended over a period of 15 or 16 years, and deprived both the hospital and the neighbourhood of the advantages which they have a right to derive from the use of the church. LORD CHELMSFORD: My Lords, I concur in the view that has been taken of this case by my two noble and learned friends, and I can state the grounds of my opinion in a very few words. In order to ascertain what was the trust that attached upon this church, and the consequent obligation upon the corporation of Edinburgh at the time of the passing of the North British Railway Company's Act, it will only be necessary for me to advert very shortly to the terms of the charter of 1567. Now what was the object of that charter? It is expressed very shortly in the recital to be "to found and endow an hospital," and for that purpose certain property, including the |