ANDERSON v. GLASGOW. be benefited. Those who had no male children could not be benefited. As to the old usage of applying the funds to charitable pur- WRIGHTS OF poses, that was not to be regarded, being only a series of breaches of trust. All applications of funds not strictly within the purposes are breaches of trust. [They cited Attorney-General v. Newbury Corporation (1), Wivelsome case (2), Attorney-General v. Brandreth (3), and other cases, and also contended that the bye-laws were unauthorised by the charter.] The Attorney-General (Palmer) and Sir H. Cairns, Q.C., for the respondents, were not called upon. THE LORD CHANCELLOR (WESTBURY): My Lords, although I regret the consequences of this appeal to the appellant, yet I desire to speak with respect of the motive that has prompted him in his litigation. It is quite clear that he has proceeded upon a conscientious conviction that this proceeding on the part of the guild is at variance with the charitable purpose for which it was originally constituted. In that conclusion I think that the appellant is entirely wrong. It unquestionably is a matter of great regret that there should have been founded upon the appropriation of this small sum of money a litigation so expensive as these proceedings must have been. The question before the House is simply this: Does this appropriation of the sum of 100%. fall within the compass of the charity trust contained in the deed of constitution of this guild? The bye-laws, I think, it is unnecessary to take into consideration. If the bye-law be not in conformity with the trust it may be disregarded; and if it be in conformity with the trust it is nothing more than an expression of the purpose of the trust, which I would rather take from the language of the trust itself. Now this original guild or society of wrights was established a great many years ago, I think in the year 1600. And in conformity with the general purpose which is found in the constitution of most of those societies, provision is made for the accumulation of the funds to be derived from fees paid on the entrance of members and from other sources, and there is a dedication of those funds first to the common charges of maintaining the society, and then to the support of the poor decayed brethren thereof. Now these words, "the support of the poor decayed brethren thereof," are expressive of the general purpose of the charity which may be carried out in a variety of forms of expression and administration. Those words define no particular mode of applying that fund. They admit of variation according to the circumstances of the case. The particular question that we have before us now is, whether the application of (1) Duke, 116. (3) 57 R. R. 311 (1 Y. & C. C. C. 200). [ 807 J (2) ¡Duke, 94. ANDERSON v. WRIGHTS OF a part of those funds for the education of the sons of poor, decayed members of the society would or would not be an application falling within the general scope and ambit of those expressions that indicate the general purpose. Upon that point I think there cannot be any possibility of doubt. If one were to select a form of application of a charitable fund for the benefit of a poor man, one could probably select none that would be more advantageous than the application of the fund to the education of his children. It is not only a relief to the parent, but it is a direct and positive benefit to the child, and in such a mode of application therefore you have the advantage of combining two objects. While the parent is relieved by the money spent, it is not in a mode which ends with the occasion, but in a mode which is beneficial and productive of profit during the whole life of the child. I quite agree that we are not to be so liberal in our construction of words of this description as to permit under the guise of them the application of funds given to one form of charity to another. Neither should we admit of charitable bodies denuding themselves of the duty of administering the whole of their funds and transferring that duty and that obligation to the shoulders of some other persons or some other body of men. Again, in determining any particular form of administration as being one of the forms. coming within the general scope and object of the charity, we must take care that the money applied to it is not so large as that that particular form of application shall trench unduly upon other forms of necessary application. Neither, if there has been an established mode of administration giving rise to expectations and defining channels in which the funds of the charity have flowed for a considerable time, is that to be lightly departed from and the money taken out of the channel of existing charitable distributions, in order to be applied to another and a different form of charitable distribution, although the latter equally with the former may come within the scope of the charity. But now, applying all those precautions and all those restrictions to the case before your Lordships, I apprehend that your Lordships will agree with me that the thing here proposed to be done is quite consistent with attention to every one of those cautionary rules. It appears that this guild of wrights are in possession of a fund which, having regard to what the society is, I may denominate a considerable income; there appears to be no indication of the income having been otherwise than duly managed at the time when the gift was made. It appears to me that they had a sum at their disposal without the necessity of detracting from any one of the existing forms of charitable distribution and bounty which had been observed by them up to that particular time. I am not at all satisfied that the application of this sum of 100l. would in the smallest degree take away anything from any existing charitable object, or at all interfere with the power of the corporation to continue the charitable benefits which up to that time they had dispensed out of their property. In that state of things, therefore, having the power to apply a sum of 100l. without injury, they were called upon by the city of Glasgow to contribute according to their proportion of benefit to a very noble charity which had been founded in the city of Glasgow in this manner: A gentleman of the name of Buchanan had given a very large fund to be applied to the education of destitute children in Glasgow, but he accompanied that gift with the condition that the city of Glasgow should find the requisite and appropriate buildings for the establishment of that charity. The city of Glasgow responded to that appeal by providing a considerable sum, but they have appealed to the different guilds or trades within the city to contribute also to this object. Now, in contributing to the establishment of this charity, in the management and administration of which, as I find it stated, every one of the guilds will have a voice after the institution has been founded, the guilds will be supporting an institution in which the sons of their decayed and poorer members will immediately have a direct benefit, all of them being admissible to the advantages of that educational institution. And the question, then, is simply this: whether a contribution to an educational charity of that description, embracing as it were not only destitute boys in Glasgow generally, but embracing also the sons of the poorer members of this society, be not an object coming directly within the general purpose which is here expressed of the funds. being applied to the support of the poor decayed brethren of this guild? That is a question to which common sense and good feeling will not hesitate to give an answer in the affirmative. When that question can be answered in the affirmative without violating any of the rules to which I have adverted as being necessary to be observed in order to keep each charity within its own channel, and not to permit of its being entirely diverted into another channel, it is an answer which not only every court of justice is bound to give, but which it would be a very lamentable thing, having regard to the principles which regulate the administration of charity, if we were compelled upon any technical ground to refuse to give to the question raised by this appeal. When, therefore, your Lordships are asked whether this appropriation is consistent with the purpose of this guild, I have no doubt that you will answer the question that, although you respect the motive which has led the appellant to exercise the greatest caution and care over the administration of the charity, yet the result must be that neither the charity nor the respondents must answer for his error in judgment, and his appeal must, therefore, I submit to your Lordships, be dismissed with costs. R.R.-VOL. CXLIX. 39 ANDERSON V. WRIGHTS OF [ *808 ] ANDERSON ፖ. WRIGHTS OF LORD CRANWORTH: My Lords, it has not been suggested at the Bar that the directors of this charity who voted this 100l. were actuated by anything but the purest motives, by anything but the desire of doing that which they thought best for the corporation whose funds and interests were intrusted to them. Therefore the case is reduced to the naked dry question as stated by Mr. Anderson-Has the act which they did been an act ultra vires of the parties who did it? Now that depends solely upon the question whether what they have done has been a reasonable application of the 100l. towards the support of the poor decayed brethren of the craft. Now, can there be any doubt that it is so? If instead of being so applied, it had been invested, it would, I will assume, have produced at 5 per cent. 100 shillings per annum, which, as there are ninety-eight recipients as poor brethren, would have added 1s. in the year to the receipts of each. Now, which is best for the corporation? that the recipients of the charity should each receive a shilling a year more than they now receive, or that there should be an establishment in the city of Glasgow to which the sons of decayed members of the body may resort and where they may obtain a very excellent sort of education; can anybody doubt which is the most advantageous ? It was said that there may be many decayed members who have no sons, many that have no children at all and will not be benefited by it; but there is nothing which says that the trustees in their discretion must benefit every decayed brother to the same extent. How they shall be benefited is left entirely to their discretion. A very fair test as to whether this would be ultra vires may be arrived at in this way. I do not suppose that any member of this guild would really think that it was not a very great benefit to them, as inhabitants of the city, that the Buchanan Charity should be established. Now suppose Mr. Buchanan had said by his will, "Provided always that no poor decayed brethren of the guild of wrights shall receive any benefit from the charity unless that corporation subscribe 100l. towards the endowment;" can anybody doubt that there would be no hesitation is saying that it would be greatly to the advantage of the charity that that should be done? But Mr. Buchanan could give no authority to the guild so to apply their funds. It must therefore be presumed, if you say it ought in that case to have been done, that there was inherent in the guild a power to do it. I shall not add anything more to what has been said by my noble and learned friend the LORD CHANCELLOR. I regret with him that this will fall very hardly on those who have raised this litigation. I quite concur with my noble and learned friend that this appeal must be dismissed with costs. Decree affirmed with costs. COURT OF APPEAL IN CHANCERY (IR.). IN RE PARKINSON'S ESTATE. (13 L. T. N. S. 26-27.) W. R. P. being seised under a lease of lives renewable for ever of certain premises in the city of Dublin, and being indebted to petitioner, E. F., in the sum of 4481., in order to secure the repayment thereof executed a power of attorney, whereby he authorised the said E. F. to mortgage, &c., the said premises, and which power of attorney he declared to be "irrevocable until the said E. F. should have received the whole of his account against the said W. R. P., or payment of any bill, promissory notes, or bills of exchange for which W. R. P. is now or shall become liable to or on behalf of E. F.: Held (reversing the order of DOBBS, J.), that the power of attorney constituted an equitable mortgage of the premises. [Abbott v. Stratten, 72 R. R. 136 (3 Jo. & Lat. 613) followed.] CHANCERY. IN RE PILKINGTON'S TRUST. (13 L. T. N. S. 35–37; S. C. 6 N. R. 246.) 1865. Jan. 27. 1865. June 10. [See post, p. 644.] STOKES v. THE CITY OFFICES COMPANY (LIMITED). (13 L. T. N. S. 81-82.) Decree of WOOD, V.-C., granting an injunction to restrain the defendants from raising buildings beyond their former height in such a manner as to interfere with the plaintiffs' ancient lights, affirmed, and appeal dismissed with costs. [This was an appeal from a decision of WOOD, V.-C., which has been already reported in 144 R. R. 293, from 2 H. & M. 650. The LORD CHANCELLOR thought that the VICE-CHANCELLOR had taken a proper view of the case and that his conclusion was perfectly right, and he dismissed the appeal with costs. A note of this appeal should be inserted in the report of the case before the Vice-Chancellor in 144 R. R. at p. 293.-O. A. S.] NEWLAND v. STEER (1). (13 L. T. N. S. 111-112; S. C. 11 Jur. N. S. 596; 13 W. R. 1014.) In an administration suit, one of the persons claiming as next of kin of the intestate, but not a party to the suit, served upon the defendant, the administrator who also claimed as next of kin, a subpœna duces tecum to produce all letters written to the intestate by certain persons, all family Bibles, &c. The defendant declined to produce them, and the claimant moved for production : Motion refused, on the ground that the proper course would have been to have obtained in chambers an affidavit from the defendant of documents, &c., in his possession. MOTION for production of documents. The suit, instituted by a legatee, was for the administration of the estate of Elizabeth Bayley, who had died intestate as to a portion of her property. A decree had been made in the suit, by (1) See In re M'Veagh's Estate, 137 R. R. 244 (1 D. J. & S. 399). 1865. July 27, 28. 1865. July 6. KINDERSLEY V.-C. [111] |