Sawyer v Birchmore
| Jurisdiction | England & Wales |
| Judgment Date | 15 August 1837 |
| Date | 15 August 1837 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 773
HIGH COURT OF CHANCERY
y y [613] the attorney-general -y. aspinall. Jan. 9, 10, Nov. 11, 1837. [S. C. 1 Jur. (0. S.), 812 ; 7 L. J. Ch. (N. S.), 51. See Attorney-General v. Maym; &c., of Newcastle-on-T//ne, 1889, 23 Q. B. D. 497. See now Municipal Corporations Act, 1882 (45 & 46 Viet. c. 50), s. 5.] The funds belonging to the municipal corporations of boroughs named in schedules A. and B. of the 6 W. 4, c. 76 (the Municipal Corporation Act) became, upon the passing of that Act, subject to certain public trusts, to be exercised by the new council, only in the manner and for the purposes prescribed by the Act. An appropriation of such funds made by the old corporation, after the passing of the Act, but before the election of the new council, and having for its object to endow the churches and chapels of the Established Church within the borough with fixed 774 THE ATTORNEY-GENERAL V. ASPINALL 2 MY. & CR. 614- stipencis, for their several ministers, is not an appropriation warranted by the Act,. and is, therefore, a breach of trust. The ordinary jurisdiction of the Court over such a transaction, by means of an information seeking to have the funds recalled, and the appropriation rescinded,, as being a breach of trust, is not ousted by the special remedies provided in certain cases by the 97th section of the Municipal Corporation Act. Semble, those remedies would not be applicable in any case to a transaction of this description. Where property is devoted to trusts which are to arise at a future time, and be exercised by trustees who are not yet in esse, any intermediate act done by the holders of such property, inconsistent with the security of the property, or the performance of the trusts when they shall arise, will be set aside ; and if the trusts are of a public nature, the Court will entertain this jurisdiction upon an information by the Attorney-General, notwithstanding that the trustees, after they have-come into esse, themselves decline to interfere. On an appeal from an order allowing a demurrer to the whole bill, the Plaintiff is. entitled to begin. The substance of the supplemental information in this suit is stated by Mr. Keen in his report of the case upon the argument of the demurrer at the Rolls. (1 Keen,, 513.) It is also shortly recapitulated in the Lord Chancellor's judgment. the master of the rolls [Lord Langdale], having made an order allowing the demurrer, the Attorney-General appealed from his Lordship's order. Upon the opening of the petition of appeal, a preliminary question was made as. to which party had the right to begin. The Lord Chancellor decided that the Appellant was entitled to begin. the attorney-general [Campbell], the solicitor-general [Rolfe], Mr_ Kindersley, and Mr. Booth, in support of the appeal. [614] Mr. Pemberton, Mr. Wigram, and Mr. Turner, in support of the demurrer. The arguments relied upon on both sides were substantially the same as those which had been employed in the Court below, first upon the motion in the original suit,, and afterwards upon the demurrer to the supplemental suit, and which have been, already fully reported. (See The Attorney-General v. The Mayor of Liverpool, 1 Mylne & Craig, 171 ; The Attorney-General v. Asqrinall, 1 Keen, 513.) The most important of the topics urged in behalf of the Respondents are stated and considered in the judgment. Upon the question of jurisdiction, the following authorities were referred to, in addition to those which had been cited at the Rolls; Amy Townsewl's case (Plowd. Ill), Millar v. Taylor (4 Burr. 2303), Btckfwd v. Hood (7 T. R. 620), Doe, dem. The Bishop of Rochester v. Bridges (1 B. & Ad. 847); and the cases, under the French Convention Act, of Hill v. Reardon (2 Russ. 608), and Lloyd v. Lord Trimkstown (4 Sim. 296. See also Parry v. Owen, 3 Atk. 740; Sheriff v. Coates, 1 Russ. & Mylne,, 159 ; 1 Sim. 499). Nov. 11. the lord chancellor [Cottenham]. The demurrer in this case is to a supplemental information, filed against parties who were not parties to the original information, but who derive title through the Defendants to the original information,, by deeds executed subsequently to the institution of the suit. The original information, filed after the passing of the Municipal Corporation Act,. sought to restrain the Corporation of Liverpool, as it existed before that Act came-into operation, from appropriating certain pro-[615]-perty of the corporation to purposes alleged to be foreign to the objects of the Act. The demurring Defendants claim under deeds executed by the corporation after the institution of the suit, and immediately before the provisions of that Act came into operation. These Defendants, therefore, though not parties to the original information, claim under those who were such parties, and derive from them a title-created pemlente lite. I observe this state of the record, because I find observations, made upon the omission, in the supplemental information, of certain allegations, contained in the original information. I do not, however, pursue the question further, but proceed to consider what is alleged in the supplemental information. The supplemental information states, in the usual way, the filing of the original information, and proceeds to recite some, if not all, of its allegations ; and, aa to the 2 KY. ft CE. 0.6. THE ATTOBNEY-GENERAL V. ASPINALL 775 greater part of them, it recites them, with this addition, " as the fact was and is "- words which are usually introduced for the purpose of putting in issue facts alleged in the recited proceeding, and the introduction of which makes the recital itself as much an allegation of the facts stated in it as if those facts had been substantively alleged. I proceed, therefore, to consider the allegations of the supplemental information, considering every fact so alleged as forming part of it, and, therefore, admitted by the demurrer to be true. The information commences by stating the possession, by the corporation, of a large real and personal estate, and that the corporation was indebted in clivers sums of money, to divers persons, to a very considerable amount in the whole. [616] It then states that the corporation were patrons of certain churches in Liverpool, the ministers of which had theretofore received stipends or allowances, amounting in the whole to 5695 per annum; that is to say,- 1080 under endowments by certain Acts of Parliament, 510 out of pew rents, 100 payable out of the funds of the corporation, 450 by rates leviable under Acts of Parliament. 1040 gratuitously paid out of parish rates, and 2515 which had been gratuitously paid out of the funds of the corporation. Of this last-mentioned sum of 2515, the sum of 1865 had been so paid for more than seven years before the 5th of June 1835, and was, therefore, protected by the 68th section of the Act; and the remaining 650 had been paid for less than seven years. The information then states that the corporation were about to raise a sum of 105,000 upon the security of their corporation property, and to vest the same in trustees, upon trust to pay 3665 of the interest to the incumbents of the churches in the town; and that, for this purpose, they proposed to charge certain property not before liable to such payments. The supplemental information then recites certain charges contained in the original information, but without the allegation " as the fact was and is;" and, among others, that the debt due by the corporation amounted to the sum of 792,000, and that there was reason to expect that the income of the corporation would not be sufficient to defray the charges imposed upon it by the Act, and that a rate would, therefore, be necessary. [617} It is unnecessary to decide whether these charges ought to be considered as part of the supplemental information, because there is a statement clearly forming part of it, which is, I think, equivalent, for the purpose of the demurrer, namely, the allegation that the corporation was indebted before the execution of the deeds in question, to a considerable amount. The supplemental information then states, as supplemental matter, that the corporation had...
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