The Sun. — London, England, 1822-11-20 00:00:00

LAW 4NTELLIGENCE. CoURT.'OF CHANCERY, 'Nov. 'l9. BEIR - AND OTHERS V. WARD: _ The Court was occupied most part of this day in hearing ar guments against an application made. by the Sslicitor-General on a former day, in the case of Beir and others against Ward, for a new trial of an .issue to. determine whether the devisee, .11r. Wm. Cotton, were or were not a lunatic. His Lordship observed, that if the Court had been put-in possession of the material facts which had been this day dis closed,- it certainly would never have directed the issue at all, 'but would have directed the estates to he given to the co heiresses, and then Mr. Ward might have proceeded to bring his ejectment, and it would be now his-duty to make some or der as to the possession of those estates. VICE-CHANCELLOR'S COURT, Nov. 18. CHURCIIER'S COLLEGE, PETERSFIELD. THE ATTOUNEV-GENERAL v. ilyt.ToN JOLLIFFE, ESQ. 'AND OTHERS. • " (Continued Fiona yesterday's Srw.) Mr. WETHERELL.—Now, with respect to the first point, to which my attention is just directed, it will appear from the books, that these Gentlemen were not named by the majority of the Trusteei. 'lf they were not so named, every one of the - existing seven, who has presumed to act as a Trustee, not being actually named by the majority, is not a Trustee; and with respect to all those, I should presume that they would stand be fore you: Honour as no longer Trustees. If all of- them turn out to have been so named, there is no Trustee who can act. VICE CHANCELLOP..—.Is that made a substantive part' of the information ? Mr. WETHERELL.—Yes, VICE CHANCELLOR.—Do you pray to have it declared that they were not dulyelected ? Mr.GLYNN.—It charges as a distinct ground,that they were not properly elected. VICE CHANCELLOR.—What d 0 you pray—that it should be declared that they were not duly elected. Mr. SH‘ADWELL.—That the defendants may be removed from being Trustees. . , VICE CHANCELLOR.—It doeS not_point to any irregularity in the election. Mr. HEALD.—There is a charge of that, and I had intend ed to confine myself to , that fact—that it appears upon the evi dence in the cause, as well as forming a charge in the Bill, that all the Trustees have been improperly appointed; and al though there was an answer to be given as to , some from the former suit, there WfrC two who have been appointed since.— In 1806, Mr. Hylton Jolliffe filed an information as Relator and he made Thomas Samuel Jolliffe the sole defendant. It was then undoubtedly thought that the appointment was irre gular. It must have been so thought, because Mr. Hylton Jolliffe, the Trustee, prayed by his Bill, and it was decreed accordingly, that it should be referred to Mr. Ord, one of the Masters of this Court, to appoint six new Trustees to be added to the said defendant, Thomas Samuel Jolliffe,, the surviving Trustee, whose appointment was of a very ancient date—he was the .cotemporary of William Jolliffe. The Master did appoint the persons to be Trustees who had been named in the Bill. No other persons were car ried in, and then the Master appointed them ; and therefore it did appear to me, that -whatever . objection might be -made now to the appointment of Hylton Jolliffe, his original appoint ment and confirmation by this Court must have put an end to that question ! but that.will not do-with respect to the illegal appointments that have taken place since the order. VICE-CHANCELLOR.—There are some that have beercap.. „ . pointed since.? Mr. HEALD.—Two at least. One appointed by two, and ihe other by three, there being six Trustees at the time. The Act and the Will are pretty nearly in the same terms, and they say, that upon the death or resignation of a Trustee the new Trustee shall be appointed by the surviving Trustees, or the major part of them. VICE-CHANCELT.OR.—WIIO are those two ? HEArn.—John Twyford Jolliffe, whose appointment took place in-1 1 807, and the other appointment is the Reverend Charles. Edward Twyford, whose appointment took place 'in 1814. 'Mr. Gr.vmm—Thomas 'Robert Jaffe also, who was ap pointed in the year 1815. Mr. HEALD.—Oh yes, you are right; hut he was appoint td by the Major part, 1 think. Thomas Robert Jolliffe who , was appointed in 1815, was appointed by four Trustees ; but if any of those. Trustees had been illegally appointed them selves, that would effect his nomination. I have looked at the actual number of Trustees who have appointed the other Gen tlemen—there-were-only three Trustees who appointed John ,Twyford Jolliffe. . VICE-CHANCELLOR.— I have not. got the names you men tion. I ought to have the names of all the defendants. Mr. HEALm..—Their names 'are Hylton Jolliffe, the Rev. William John Jolliffe—they were the sons of William ;--then comes Thomas Samuel Jolliffe, their untie, and his two sons, "John Twyford Jolliffe, ,and the Rev. Robert Jolliffe ;—then' -come the cousins, -Samuel Twyford, and Charles Edward Twyford. Then there is the fact. of one living at a hun dred miles, and others at a great distance from the Ch a rity. 'One cannot be surprised that the thing should be open to dis_ sentions in the town as to its being properly managed. John Twyford Jolliffe is appointed upon the 23d of September'lBo7, by three Trustees—those WC - 2 Hylton Jolliffe, William John •Jolliffe, his brother, and one Richard Eyles, who did-not find . himself of the same family, and chose afterwards to retire.— There are only three there, when the number of 'Trustees was • full. That seems to be irregular. Then comes the Reverend . Charles Edward Twyford. He was appointed in October 1814, he is appointed by Hylton Jolliffe and Samuel Twyford, how 'that appointment can be supported Ido not know.;—to me it seems quite unnecessary; to argue the case. Then conies the ap pointment of the Rev. Thos. Robert Jolliffe, the son of Thomas 'Samuel ; and he is appointed on the 19th of June 1815, by, amongst others, Charles Edward Twyford. Now Charles Edward Twyford could not elect him, if he had been impro perly appointed himself. The appointment was by Hylton Jolliffe . Samuel Twyford, Charles Edward Twyford, and Wil liam John. Jolliffe, and therefore those three, it appears to me, . are illegal appointments altogether. • Mr. Hon NE.—As Counsel for the defendants, I cannot ob ject to an inquiry into this. Mr. WETITERELE.—As to the attendance of the Trustees, two of them admit they have never attended. One of them Thomas Samuel Jolliffe, has been a Trustee during the whole of this period of time. I have opened generally the outline of the case; it is very far from my wish VICE-CHANCELLOR—What do you say as to that part of -the case, where you say that these Gentlemen have neglected their duty, and left themanagement of the Charity to one mem ber of the family ?. What do you charge in your bill, and what do you pray • Mr. WETHERELL—They have admitted that they have never-attended. VICE-CHAN cELLoR—Read your charge, and then read the • admission- which you confider as evidence. Mr. WETHEREI.I..—" That the said defendant Thomas " Sam.Jolliffe, never attended at any meeting of the said Trus " tees during a period of twenty-three years, that is to say, from " the 12th of February, 1785, to the June, 1818." Mr. Gr. YN. 7 --The admission in the last answer is in the words of the information. Mr. H or. NE.—" The defendant Thomas Samuel Jolliffe saith "that at the time of his election, which was in the year 1769,'he " resided at Petersfield, but that for the last twenty years,he has " resided at Amerdown, in the county of Somerset, which is " distant eighty miles from the borough." Mr. WE Tit ERELE.—V;ese Trustees are filled up like what we call burgage tenures, to which we give the nick-name of Faggots. When a Trustee is to be appointed, a man's name is put in who lives so far off' that he can never attend. That is the thing complained of. Mr. HORNE.—That is not to by supposed from what I have read. He says that he resided when he was elected, within seven miles of Petersfield. Mr. WETHEMELL.—The first information filed here was in 1735, at the relation of -John Jolliffe -against the surviving Trustees. Two Trustees retired in consequence of their living in London, and being-unable to attend to their duty, a circum stance which shows, though - I -do not say-they miie be resident in Petersfield, that it has been understood that the persons to be Trustees were those who could conveniently attend ; and that circumstance among others I must say, ought to have impressed more strongly upon these Gentlemen, the duty •of . attending, and not nominating persons who could not, mar would not tend. I feel very unwilling upon any occasion—:— • VICE-Ciramcm.Lon.—You have not yet read to me any thing that proves that any one of these Trustees has neglected to attend the Meetings of. the Trustees. _ _ Mr. WE THE RE L L—The rules stated in the will are these,— " to meet once a year and settle and audit the accounts," and that they have not done. I do not find from the answer of these Gentlemen that they, in any part of it state, that they ever did meet. I do not find a single instance insisted upon by them af.i a settlement of the general accountof, the TriateeS. There is quite enough charged upon the Bill, to put Them upon proof of that. There is a charge that the accounts have never been :• settled and audited by the Trustees. There , is also a charge which applies to tho Trustees never meeting. I shall not oc -cupy your Honour's time further. I say these two branches of misconduct appear to me to be made out—not from a single fact but the general conduct and the whole purview of the case. We say there has been that scut of inattention and misconduct, aot mixing in . those imputations which I think are made out, any of malversation which consists of taking money to their own use. That is not insinuated. 'lt is not the sort of insinua tion upon which the case proceeds ; but that there has been a ,continued, stndied misconduct in all the instances I have men tioned, and when we recollect that these funds are now up •wards of 600/. a-year, and for many years past have been four or five hundred pounds ; it does appear to me that this Institu tion might have beeninade subservient to public utility. I think I may say there has been an abuie in the management of it which ought to be continued no longer. VICE-CHANCELLOR.—What have they done with the funds ? Mr. WETHERELL.—They have remained unproductive. VICE-CHANCELLOR.—That is the fund in Court. What have they done with the fund received? Mr. HoßNE.—There is a schedule to our answer. VICE-CHANCELLOR—In point of fact how has it been ex pended ? Ur. HORNE.—Upon the Charity. VICE-CHANCELLOR.—How? Mr. SKIRROW.-1 will tell your Honour how the fund arose. In 1745, your Honour will find that the fund consisted of 3,0001. Bank Stock, and 8001. South Sea Annuities, The in come from those two funds amounts to 482/. a-year. The ! in come from the South Sea Annuities would be 321. at four per cent. ; the Bank Stock comes to 150/. that 'would, be 18`21.-- The funds became, in 1772, 3,300/. Bank Stock, and 800/. South Sea Annuities, with an additional 200/., a saving made by the Trustees. You will then find that the next acquisition is made in the year 1806. VICE-CHANCELLOR.—What was the whole income then ? Mr. SKIRROW.—The whole income then became increased upwards of 2001. a-year. VICE-CHANCELLOR.—How much upwards? Mr. SfiIRROW.—X279 and a traction. The Bank had in. creased their dividend from seven to ten per cent. and the subse quent bonuses make it now 6001. a-year.. I shall slim your Honour that these Trustees have done their duty most meri toriously to this Charity. Mr. WETHERELL.—It will appear in ope!year, that there were wo hoks added, but that does not keep pace with the fuuds of this ill-managed charity, which now produce 6001. a year ; if any boys-have been added, it is a worthy instance of what Mr. Sitirrow calls capital good management ; but a little knowledge in arithmetic would shew, that with all this bank litmus up to 600/., a little more might have been done than the admission of two boys. My Learned Friend offers to demonstrate to me something not very apparent.—l will not anticipate with. what success he will shew the management of this Charity to have been paaise-worthy ; hut I say that the whole res gesta shews, not a personal misapplication of the money, but that supine inattention of the Trustees, from which it is evident that the administration of this Charity has been monopolized in this family—that nothing has been done which ought to have been done,— and that they have gone on, I do not say originating departures from the trust, but continuing departures om this trust, which they have 'had plenty of time to set right.— And although I recognise a distinction in point of degree between supine continuance under a breach of trust, and more strongly illegal criminality, yet admitting that dis tinction, it does seem to me this is a case which, con sidering the magnitude of the funds, and all the circumstances of it, calls fo,r some special interposii";;on of your Honour. Upon the question whether these Trustees ought not to con tinue to act—those who have been illegally appointed, cannot continue to act ; and if this family party have been united on purpose that strangers should not be admitted, mid that no eye should cast itself over these accounts, and that they should have no opportunity of seeing what these Trustees themselves have not seen, and that the management of the Charity should be kept secret in this family—it does seem to me a studiousness of mal-administration sufficient to call from your Honour some di rection, that even now the management should n o t b e w h ere it is. When the Report is made up on all these subjects, your Honour will judge whether, although continuing a breach of trust and beginning a breach of trust is a distinction which I am bound to recognise, and which I do recognise—there has not been a supine. inattention and mismanagement requiring the dismissal of these Trustees. But, in the mean time, 1 do ask that some direction may be given, that some persons, other than the members of this family, respectable I admit, may have a share in the administration of this Institution, Mr. HkArm.-:-I shall not trouble your Honour at any great length, as I have already taken the liberty of submitting my view of the point on which I had intended to address your Ho nour ; namely, the irregular appointment of the defendants as Trustees, which; as I conceive, renders their removal unavoid able. This seemed tome to ,be so clearly made out that I con ceived my . duty was very short; and after what has fallen from your Honour, and my Learned Friend, it has become much shorter. I shall now only submit to your Honour's consideration, a very few observations on the balance of 1,6501. due from the late Treasurer, Mr.. William Jol'hie, and unpaid by his suc cessor and Executor, and on the sum of 1,5001. which was al lowed to'remain in:productive in. the hands of the Accountant- General; for although it is true they have appointed a Trea surer, the question is, whether that can exonerate them from investigating' the accounts and acting as if there was no Treasurer. • In the Act your Honour has referred to, we do not find a word about the appointment of a Treasurer. It is entirely a new office. Formerly the Trustees (lid not confide the ma nagement of the Institution and its funds to any single individual, but all actively and diligently fulfilled the duties of their office ; and as the appointment of a Treasurer is not •by any autho rity, it cannot now, I conceive, exonerate them from looking into the accounts, or relieve theni from any consequences of negligence in that respect. In 1803, I find this entry in the book kept by the Trustees, which I .will read : " Saturday, sth Feb. 1803. " We, the undersigned, being the major part of the Trustees " of Churcher's College, in pursuance of an Act of Parliament "tor regulating and making •more effectual certain Charities " given by the 'Will of Richard Churcher, deceased, for the.use " and benefit of the Town and Borough of Petetsfield, in the " County of Southampton, Do nominate and make choice of " Hylton Joiliffe, , Esq. to be Treasurer for the said Charity, in " the room of William Jolliffe, Esq., deceased : And we do " further order and appoint the said Hylton Jolliffe, Esq. to, " receive the balance.due from the said William Jolliffe, Esq.• " to the said Charity, and to be accountable for the same. Now I read this entry to shew, that Hylton Jolliffe, when he was appointed Treasurer was 'directed to pay the balance due from his father, amounting to 1600/. exclusive of interest, from the year 1803 down to the present day; and that not being paid, seems to be something more than mere neglect on the part of the Trus tees ; it is the result of the system which has been pursued with regard to this Charity. If they_ had not been all relations, which they admit they arc, they would not have - placed that confidence m each other. I do not impute to this family any wilful misconduct, arising from improper motives. It arises from neglect—they seem to have taken for granted that HE would pay that sum-4e has taken for granted, that the COI - li and was sufficient—he has not paid it; and that is the mildest view I can take of it. That these Trus tees have not called upcin• him, is enough for the Court to direct the removal of them : the question is not the motive of this neglect of their duty, or whether they have wil fully misconducted themselves, or whether they have ap plied any part of this money to their own use—that is not. charged. The fund itself is not large enough for it, and I can ' not suppose that, any sum is large enough • for it ; but we look' to the Trustees without any reference to their names, and see. whether they have conducted themselves in such a manner as Trustees ought to conduct themselves. From the year 1803 down to the time of. the filing this information, not a word is said as'tO the Settlement of this account. It is said, indeed, that funds are forthcoming, and that it will be accounted for, with interest perhaps ; but that does not answer what the Court requires. These two• facts, therefore, with respect to these two sums are what I mean to' trouble your Honour upon ; but we conceive that the circumstance of not investing the one thousand five hundred ponnds iu the Accountant General's hands because they did not know of it, is but a bad excuse in a Court of Equity. It was within their power to know it.-We do not im pute any corrupt motive, and I have taken pains to say that— but we say that they have been negligent. "If they had made the inquiry which every Executor aneTrustee ought to make, and which lie would be answerable in costs for in this Court if lie did not make, the sum of 500/. which, by the accumulation . of the dividends, afterwards amounted to upwards of 1500/., .would not have remained unproductive from 1806 until after the institution of this suit in‘lBlB. All these things certainly do make out a case of negligent conduct. Ido not wish to state it higher. That they have been guilty of negligent conduct, and although they may attempt to justfy themselves upon the ground of not knowing, it cannot avail them, as the Court has been in the habit of removing Trustees upon that ground and that ground only—that of gross neglect from time to time. I therefore submit to your Honour that ALL the Trustees should be removed, but particularly those who have been illegally ap pointed,-and that upon all the other points there must be a re ference to the Master. • Mr. GLYNN—I shall not address your Honour upon those points as to which you have directed an iuquiry by the Master, but submit to your Honour some observations upon some other points, which ought also to form a ground of consideration on the part of the Master. Sir, unquestionably, we do not impute to these Trustees any corrupt motive, bat, in order to lay the foundation for saying, that it is not fit they gliould be continued as Trustees, I appre hend we are not bound to s:lew, that there has been corruption on the part of the Trustees, but that neglect of duty, that want of care in the management of the funds, and that want of care in the due administration of the trust, by which the Charity has been materially prejudiced. I apprehepd, that it will be sufg dent for the retroval of Trustees if that be shewn. For this purpose, the Court' will permit me to advert to the funds in the hands of the Acountant-General ; for though it may be said, it is a singular instance, in which imputation is cast upon Trus tees, that they have not received what is due to the estate, 1 ap prehend it is a ?art of the case which we are intitled to make either as a grousd of removal, or as a ground to chew, that there have been balances not received. Looking into the state of the balances, it is impossible not to advert to the strange nature of the informationwhich was filed in 1896. What was it ? It appears that, at that time, there were seven Trustees—five acting Trustees licsideS Mr. Hylton Jolliffe the then Relator, and the defendtnt, Mr. Thomas Samuel Jolliffe. That infor mation is filed a; the relation of Mr. Ilylton Jolliffe, upon an allegation that Mr. Thomas Samuel Jolliffe is the tole Trus- , tee ; for that is the ground upon which the relief is sought ; namely, for six Trustees to be added to Mr. Samuel Jolliffe.— Whatever might be the motive of such an information being filed, whether for the purpose of preventing other persons coming with an information to the Court, or for any other pur pose, I pretend not to say; but ,it was founded upon a wholly untrue allegation, there being at the time seven Trustees, the whole numhei was complete. Mr. Hylton Jolliffe stand ing before the Court as a disinterested person, lie being a Trustee and Treasurer, yet he filed that information for a reference s? the Master to appoint six fresh Trus tees, with 3.17. Samuel Jolliffb, who declined to elect new ones,. as he considered he could not do so by the Act of Parliament. I subinit that that was t very singular informa tion to file, when there were already seven Trustees, and at the time when this balance was said to be due from Mr. William Jolliffe,, and wnidi still remains due, and admitted to be so to a certain extert and 'when there was a considerable balance even remaining in the hands of Mr. Ilylton Jolliffe. Yet that information mver prays any account of that which was so due ' by Mr. Hylton Jolliffe, the relator, but treats it all, as if all the balances were quite correct, as if nothing were due, and nothing ,to be received by the Charity, and calls upon the Court to appoint six new Trustees. With such an informa tion, the funds are transferred to the Accountant-General, and a reference is made to the Master to approve of six other Trus tees. Now it does not appear what was further done under that information—probably, as Mr. Hylton Jolliffe was the re lator, he would get the other persons,with Mr. Thomas Samuel Jolliffe, together with himself, appointed Trustees ; but it was suppressed that there were these existing T rustees, who had acted as such, and the subject of these balances was not men tioned. .VicE-CHANCELLOR.--Pray, Mr. Glynn, what was the in tention of that information. I take it for granted, that you know that the election of these six Trustees had been wholly irregu lar, and that they were not in truth Trustees, and that it was impossible to make a regular choice of TrusteA under that Act of Parliament, without the authority of the Court. Therefore, Mr. Joint& most properly filed that information, to have the trust filled up by the authority of the coart. Mr. GLY.i.rx.'—lf that was the object of the relator in filing the information, he ought to have stated to the Court that there were at that time those Trustees acting, which fact was entirely suppressed., VicE-CHA.N9Eti.con.—There would have been no harm in acknowledging. they had been acting under 'a mistake, and there could not ..be any others appointed except by the autho rity of the Court. There was nothing criminal in not stating to the Court that fan; foi we must not, Mr. Glynn, shut our eyes to the real nature of the case: There could be no possible motive for the application to the Court, but that the trust might be , filled up properly under the Act of Parliament ; therefore we must not throw a cloud over the facts as if there were some mystery about them. There could be nothing but a proper motive for the filing of that information. Mr. GLYNN.—But still I think it would have made a differ ence, if th at circumstance had been mentioned to the Master. But notwithstanding the bonus was given bY•the Bank at that time, and the interest on Bank Stock was increased from 7 to 10 per cent., they did not receive the whole'amount of dividends, but left a large balance totally unproductive, which furnishes .us, as we submit, with a ground for contending, that on their part they have been guilty of gross negligence. Notice had been given them by their bankers, Messrs. llammersleys, as appears from an entry in their proceedings, ofa bonus which had been added to the Bank Stock, and, the amount of dividends, yet still they took no steps to,avail themselves of this-i-acrease of funds, or to invest the large balance in the handS of the Accountant- General, by which negligence a considerable loss, we submit, has been sustained by the Charity. Then,-.with regard to the balance in the hands of Mr. William4olliffe- VICE-CITANCELLOR.—Can I do more for you upon that than I have already stated ? • Mr. GLYNN.—Ypur Honour sees that at the time that Mr. Hylton Jolliffe is appointed Treasurer, an order is actually made upon him by the other Trustees, and of which he' is cog nizant, for we have proof of that fact,--an order was made-upon him in 1803 to pay that balance, he having received it from him self as executor. Now your Honour sees,in the twofold character which he sustained of debtor as executor, and•creditor as Trea surer, it was his duty to retain that out of the assets of Mr. W. Jolliffe. He swears, however, that there were not sufficient assets ; but I submit it was his duty to retain any assets which came into his ban& from his father's estate for that purpose. He ought, I submit to your Honour, to have retaiucd that sum out of the assets in his hands. VICE-CHANCELLOP,--Dd you mean to contend, Mr. Glynn, that he ought to - have retained that sum out of the assets which might come. into his hands, fbr the payment of this balance, in priority to any other creditor ? Mr. HonNE.-.--My Learned Friend knows very well. that the Gentleman tq whom he has alluded died insolvent. VICE-CHANCELLOR.—I ask Mr:Glynn, upon his own ar gument, whether he means-to contend here, that Mr. Hylton Jolliffe, who„:after his father's death, became Treasurer , of this Charity, could, as executor to his father, in priority to any other creditor, retain out of the; assets, satisfaction of this deed ? Mr. CtLYNN.--:No ' but having notice of this being due, he ou k it to have applied the assets to that•debt. ICE-CHANCELLOR.—He ought to have done his duty as Executor, and to have applied the assets equally. For what other creditor could he; or ought he, to have retained the assets? But because he became, by virtue of his capacity as Trustee, the person to receive the debt, you contend that he ought to have given priority to this debt which was due to the Charity. Mr. WETHERELL.—I am told that the Will of Mr. Wm. Jolliffe was proved under lq,oo/. VICE-CHANCELLOR.—That was a fact, which I confess, Mr. Wetherell, startled me 'in the outset, when I heard the pleadings opened, and I then stated, that you were•entitled to an inquiry, what was the balance due from Mr. William Jolliffe to Mr. Hylton Jolliffe on account of the Charity, and whether his Son possessed assets -sufficient to satisfy the debt, or any and what part of it. If so, it was his duty to have de tained it; but if the fact turnout, that the father, Mr. William Jaffe,. died insolvent, if there was nothing to pay, it follows of course that there was nothing to receive. Mr. GLYNN.—He offers to pay it. Mr. HORNE.-Yes, subject to the assets; take it as you find it: Mr. GLYNX.—There is another point which has been sug gested by .Mr. Wetherell, upon which I think, we are entitled to an inquiry—that is, that unqualified boys have been admit ted in this school. Ido not mean merely at a late time, but even now, there are some boys iu the school of that description, and, I have reason to believe, other boys also, who are not chil dren of poisons inhabitants of Petersfield. Unquestionably, it was sworn that that was done ignorantly ; but still, I think, that circumstance furnishes a strong argument to shew, that these Gentlemen were negligent in the discharge of their trust; and that they did not make those inquiries which would have en abled them to ascertain, whether the children so admitted did belong or did not belong to Petersfield. On the qualification of the Trustees, I apprehend it is not necessary to say any thing. I apprehend that th, majority of them, not being residents, were not properly appointed. With regard to some of the Trustees, it is admitted, that three of them have resided, as it is sworn,, eighty miles from the place-.the other two Mr. Jolliffes forty miles, leaving only two residing within any moderate distance, to perform the duties of the trust; and with regard to those two, we have the conseqUence following, ,which might be expected, that they scarcely attended at all. It is alleged that Mr. Thomas Samuel Jolliffe, the uncle, never attended any meeting of the Trustees from the 12th of Feb ruary, 1785, to the 19th of June, 181f1, that is for the space of thirty-three years, though filling_up the place of a more efficient Trustee, he bas never attended during that time, and the other never attended at all !- VIOL-CiraxcELLon.—Where does that appear ? Mr.GLyNN.—Your Honour will find it stated, that from the time of his being nominated in 1807,until the month of Decein ber 1818,1 e has never attended! Mr. WETHERELL—That is John Twyford Jolliffe. Mr.G LYNN.—From the time ofhis being nominated in 1807 until the month of December 1818. Vicr-CiralicELLon.—And from 1785 Samuel Jolliffe? Mr. GLwacx.—He was appointed afrrustee in 1769. Mr. WE THE nE was the oldest Trustee. Mr. GLywx.—That down to this period, 1818, he never at tended at all, and the other Trustee has never attended from the very time of his nomination down to the time mentioned in the information. _ _ _ VICE-CHANCELLOR.--DO you admit, Mr. Home, that Thomas• Samuel Jollia has not attended for thirty-five years. Mr. HonNE.—Never personally—there have been commu nications, but never personally. I beg to assure your Honour that I do not object to any inquiry you may think proper to direct. Mr. WE TII ERE L L.-It appears that the two whom•l•have taken the liberty to call the faggots of this trust have—the one did not attend to all, and the other not for thirty-five years. Mr.HORNE.—You have assumed, by the construction of the Act of Parliament, that the Trustees should be Residents. Mr. \VETItERELL.—I have said just otherwise, Mr. Home. I said that neither the Will nor the Act of Parliament directed that Residents only should be selected ; but it appears by the history of the Charity, which the Trustees do not wish to go into, that in consequence of the information filed in 1732 by Mr. Willes, when Attorney-General, that two Gentlemen re tired from the office in consequence of that suggestion. VICE-CHM/CELT, ou.—From what time does Mr. Thomas Samuel Jaffe say lie has not attended. Mr. SKIRROW.—From 1785 down to 1818. VICE-CllANcELLon.—What has he done since then ? Mr. Siclnnow.—l believe he has attended since that time. VICE-CuAxcELLoit.—M'hich is the other ? Mr. GLYNN.—Mr. John Twyford Jolliffe : he is related to the other. VICE-CHANCELLOR.—When was he elected ? Mr. GLYNN.—In 1807. • • VICE-CHANcgm.on.—What does he say in his answer, Mr. Glynn ? Mr. Gz.vmx.—He never attended or was present at any meet ing of the Trustees. Mr. SHADWEI.L.—We have no objection to an inquiry. Mr. GLYNN.—They have admitted, that for 33 years, down to 1818, he has not attended any of the meetings of the Trustees. Mr. HORNE.—I do not object to any inquiry your Honour may think proper to direct. Mr. GLYNN.—The Court, I hope will think, that the non attendance of these Defendants furnishes a strong argument in our favour, not meaning to impute corrupt motives to these Gentlemen. VICE-CHANCELLOR.—Mr. Horne, It is not necessary to trouble you. I shall direct certain inquires, and you will have the' goodness to suggest whether you have any objection to the inquiries I propose to h ave instituted. It is undimbtedly the duty of this Court, -whenever it is im puted to Trustees for charitable purposes that they have em ployed themselves in the execution of that office from corrupt motives, either with respect to the property of the Charity, or to the authority and influence which they enjoy as Trustees of that Charity, to listen to On thecomplaint with a most jealous at tention. the other hand, if it is imputed to such Trustees, that they have not used the property of the Charity, or the in fluence derived from their situation as Trustees, for corrupt purposes, but have failed in some regularities, in some of the rules and orders which belong to the Charity, through mere error—l say, through mere error—it is the duty of the Court to listen to the complaint with great attention, and with great moderation ; and, instead - of visiting such persons, either with reflections, or consequences to affect their characters in the world, as far as it can, to protect them. The greater part of the complaints made.upon this informa tion are entirely of the latter description. It is not imputed to any person' concerned with this Charity, that lie has used the property or power of the Charity with any corrupt motive. state this with one single exception, and that exception un doubtedly is a very important one.—,lt is answered, in point of fact, by the,oath of the party; but those who have filed the In formation have a right to have the fact tried—not by the oath of the party charged, but by such an examination asshall prove or disprove the truth of the charge. It will be easily antici pated, that the charge to which I refer is, the chargetnade upon Mr. Hylton Jolliffe--a person filling a respectable situation in life—a person of great property, and who, in 1803, succeeds to that property upon the death of his father. His father, living in or near Petersfield, had been an active member among the Trustees of this Charity. He had been what is is 'called, in' the course of these proceedings, Treasurer—cer tainly an office unknown to the intention of the original founder, as undoubtedly it 48 unknown to the Act of Parlia- 1 ment which passed at a later period for the purpose of regu lating the objects of the Charity ; but still an office, that very properly grew out of the administration of its trusts. This property. was property wholly vested in the public funds, and probably it was vested in the names of the whole of the Trus tees. Each, therefore, of the Trustees was competent to re ceive what was due from the property so vested, so that any single person, acting as one of the Trustees, under such circum stances might receive the dividends. Now to obviate any inconvenience arising from the number of persons, in whose names the property was vested, a particular Trustee was nomi nated to receive the income.of the Charity, and he is called Treasurer, and that is the whole amount of the office. From 1803, Mr. Hylton Jolliffe, succeeding his father, lie became a Trustee, and that Trustee who received the dividends—and, in that character, the name of Treasurer—As Treasurer, it was his undoubted duty to ,inquire whether any and what balance was due from his father, the preceding Treasurer. It was his bounden duty so to do. There would have been no difficulty for him to have ascertained that such a. balance was due, or .probably what the exact amount of the balance was ; for I take this for granted, that there would be found on the books of this Charity certain settlements, which would have dis closed what the actual balance was that was due from Sir. Jolliffe at the tine of his death to the Charity estate. Now Illr. Hylton Jolliffe, filling the character of this Trustee, was bound to have forced the payment of the sum thus due from his father's estate.—Buthe filled a double character, not only being Treasurer to this Charity, and thereby bound to receive the sums due from his - father's estate, but alsoihat of executor to his father's estate. In that character, having the distribution of that estate, he ought, if lie possessed assets, to have paid what was due to the Charity to himself. It is charged in this information, that there being a large ba lance of 1,6501. due to this Charity from the father, his son the executor and Treasurer, instead of performing his duty to the Charity by paying that sum, never took any notice of such ba lance being due,; and from that time, namely 1803, down to ' the filing of this information inlBlB, never did call for or pay a single shilling of that sum so due to the Charity, lie being the person to call for and to pay it. Now, if the tact was so, that Sir. Hylton Jolliffe did possess property of his father, out of which lie could have paid the debt so due by his father to the Charity estate, and which he did not, it would be my duty to say here, notwithstanding the respectable situation which he fills, and that very honourable character which he has hitherto maintained, that lie has failed in his duty to the Charity, and that I can no longer permit him to remain one of those persons who is to protect its interests anti administer its property. Mr. Jolliffe is called upon to answer -this charge, . and he alleges upon his oath and admits, that this balance, as there stated, or some very considerable balance, was due to this Charity,—stating, at the same time, that he has never retained on the part of the Charity one single shilling. Admitting that fact, he says he has had nothing to retain—my father, lie says, died insolvent—As his executor, I never possessed one single shilling, which could be applied to the purposes of this Charity, and therefore ho imputation falls upon me for not retaining that . which I had not. Now, whatever may be the private impression which the oath of this Gentleman may make upon my mind, that impres sion cannot conclude this question. They who filed this in formation have a right to have this fact established or nega tived, not merely by the oath of the party charged, but they have a right to call upon me to send it to the Master, which I must do, to inquire whether Mr. William Jolliffe died in debted to this Charity, in any and what sum, and I must send to the Master a further inquiry whether Mr. Hylton Jolliffe, his son and executor, did possess assets of the father appli cable to the payment of the debt, or to any and what part of that debt. When I have an answer to that inquiry, then will be the time to consider whether,this part of the information makes it the duty of the Court to remove' him from this trust. It is said, if this fact be true, that it is not only this Gentleman who ought to be removed from his office, in respect of this charge, but that the other Trustees ought to be removed also; for it is contended, that the other Trustees were cognizant of the fact, and partook of the guilty negligence of Mr. Jolliffe in not see ing that the money was paid ; anti so, participating in that guilty negligence, they.are not persons proper to be concerned in the administration of the trust. It is not necessary, however, for me at this time to dispose of that question. if the Report -of the Master should fix Mr. Hylton Jolliffe with any part of the imputation this information makes upon him,-undoubtedly it will then be the time to .consider how far that imputation is to be shared by the other persons mentioned on the record with Mr. Hylton Jolliffe, namely, on account of their being cog nizable of the criminal neglect Of that Gentleman. The whole of this part of the Case, however, must remain undisposed of, .until the Master's Report raises the fact on which the Court must proceed. With the exception of that single fact, there is nothing that imputes corruption to these Gentlemen; but there is a great deal in the information which imputes irregularity. It is said, that by the will of the Founder the boys to be educated in this - school should be furnished with clothing and board and lodg ing, whereas in the present administration of the Charity, and for many years, it is said, the boys have not been boarded and lodged, and, as I believe, for I hardly collected from the state.. ment whether they have been clothed or nut Mr. HORNE.—They have been clothed. VICE-CHANCELLOR.—The charge is, that though directed to be boarded and lodged, it has not been so done, and though it is not imputed that that has not been done from any corrupt motive, still it is said, this is a degree of negligence,in the per formance of their duties, which renders them unfit to remain Trustees. To this charge they make this answer, that the funds of the Charity were totapy inadequate to the clothing and lodging of these boys. They say, we have duly administered every shilling received for the purposes of this Charity—we have not been able to board them, our funds not being able to meet the expence. It is very true there have been boarders in the house, but they have not been boarded at the expence of the Charity, but at the personal expellee of the parents,of the children; ancl.we have..considered, as our predecessors did (for. siaele a it is not pretended this is a new practice), we have con a. of w e that it ,was extrem e ly b ene fi c i a l f or t h e purposes the Charity, as int e nd e d by t h e w ill o f t h e F oun der, that of Master should receive boarders, because the sala a r r of forty pounds a year, whi c h i s provided by the tvLA the Founder, as m us t b o qu i te o b v i ous , i s totally the iham.„, quate for the support of a p erson qua lifi e d to give v r ed struction required. Theref ore as th e sum w hich was inadequate to provide a suitable Master, it was thought tlio all ug ° hta . fit thing by us and by our predecessors, to let the Master increak: his income of that sum of 40!. per annum, by granting hia l P d e e t a mission to receiv e b oar d ers i nto t hi s h ouse , which was intended for the boarding and lodging of the charity-boys, but who could not be boarded for want of funds. Permission was given tort -_ ceivc other boys, that by the profit arising from the receipt of these boarders,,we might be able to support an adequate illastr o for the education of th e c hild ren . This is the statement made upon oath.—ln this respect the have appears have followed the ex ample of their predecessrs, and to me that thus following the exampl e o f th e i r p re d ec essors, taking tis re facts to be as stated, th e y h ave exerc i se d a soun d discretion. I t . obvious, that 40!. a-yea r i s a sum no t su fficient to ulsia talli e ,„ a Master, and they h ave resor t e d to t h ose mean s, which are r sorted to by all the grea t Ch ar i t i es o f t hi s description in this kingdom, and which by so d o i ng , h ave distinguished n country with respect to th ese I nst i tut i ons f r om every o ther . country on the Contin e nt o f E urope . Thi s , therefore, fain, no matter of imputation._ ~e With respect to the scheme, which the Master will apPov_ e ' s for I insist send it to th e M aster un d er t h e present c ircumstan " property has increas e d f rom 182/ a-year to 600 1 . Therefore, I must call th e attention . of the Master to the rt., of this Charity, for si nce th e d ate o f t h e Act in Parliam ent, the sent state of the Funds, t o a pp rove o f a sc heme by I v l l'i . ; the present income of six hundred pounds a-year ma Yd er , so applied, as best to answer th e intention of the n e d.er It will be a part of the inquiry to have it considered, w' l rda s' it is possible to bo ar d an y num b er of boys, or whether bo ard shall be permitted on ly f or t h e pro fi t of the Master. That wf c be a part of the scheme to which the attention of the Mast will be directed, a nd hi s di scret i on w ill be guided by wbatn are be stated by vll the p ar ti es i n t hi s su i t ; f or, I believe there a none of the parties now before the Court who do not des' A re if beneficial administration of the Funds of this Charity ; an u . c b all do so, they will equally concur in giving the information as is within their power, having regard t° r d i e of population which belongs to this town of Peterstield , ur purpose of enabling him to carry into effect the charitable P poses which the original Founder had in contemplation. t .a al° There are other irregularities complained of. It is said. i s forty years ago, Ido not profess to be very correct in ber oftdae, but about forty years ah, , o, Mr. John Jolliffe a 31 „'' t be this family, died, and he died indebted to the Charity l e er; sum of 1691. It has been stated that that sum has oeve r ity paid to the Charity, and that it ought to be paid to the Ch ar lo g with the accumulation of interest from that time. 31 i• 'll° o•'` Samuel Jolliffe, the aged Gentleman referred to, has h e 11.. Trustee from 1769 ; it seems he was the executor of thisri i o f Jolliffe, his father, and he swears that so far from this stg: pr ' 169/.,. the balance admitted to be due at the time aids fa v he death, being still due to the Charity estate, lie states tt re r paid it himself to Mr. William JoLliffe,the sucCeeding T re3.• no to the Charity. I must assume that the debt, there Pre thing said to the contrary, has been duly paid ;_but it is rgu s t r ive sumption merely on the part of the Court, for there is a P ° ditt ° statement of it on oath, and I cannot hesitate to give full e,.i e r Masteressvort it. The Charity will have the benefit of this statemen t iv Thomas Samuel Jolliffe.— e cas e ' Mr. NVETIIERELL.—I did not open th a t part of tho We do not charge th a t th e b a l ance d ue on t h e death John Jolliffe was not paid by his executor to his suc cessor• et VICE-CHANCELLOR .— No, you did not; but I tili v t to arc rather intitled t o some re li e f upon t h is po i nt, t hough t hat the whole extent of that w hi c h you see k , w h at you Pray is, that a large suns may be paid in respect of this debt and that I cannot do f or y ou , b ut t h e oat h of Mr. Thomas r i c to Jolliffe may induce th e Master, must induce the 11185 St believe that William Jolliffe did receive this moneYq : ° ,r; taking the account of the estate of Mr. William Jou. fled at* t w h i i ll s s h u a mveonfpaid to 1 0 .01 r l i o g i, l i s . t , to th i e nc s r u e m ase sta th te e d b t al o a h n a c v e e a b itst lsins l ' ivr ia that way, the Charity will have the full benefit of that at balance due from Mr. John Jolliffe. 1 reheat There is another i rregu l ar it y, on w hi c h I can only sofe e the observation I hav e already made ..—; l Mr. Trill-min:at he few years since was a pp o i nte d M aster. I t i s s tate" s; was a person whose con d uct was not cons i stent w ith his tasty schoolmaster, a nd f or th at reason t h at t h e T rus tees re d totli e him. It is stated, that upon his removal, he was redtw e a t ion utmost poverty; and th e y a d m i t t h at , f rom a m ere an en t the misery of this m a n, th ey did recommen d to t h e pres.c. - 0 131 , ter of the school, his successor, that he should out Of IP b c ,l frt )° ,. it being only 40/. a-year, the other profits being deris,sioa for scholars who were boarders, make some little iii ° ;;J this miserable man, to whose situation he was appeu i ',"ol3v;: the present Master, Mr. Dusautoy, under that reeoo lll ,: n g he e ';.; not considering himself bound to do it, positively s wo r po tered into no engagement that could bind him, that it v.- ca, froo . of the stipulation, positi ve l y swear i ng t h at h e was inag,, c i, a Ye ar. motives of feeling only, to pay to this mi sera ble man I concur that that recommendation was irreLT l3r ; e us Trustees, although it was matter of feeling though there is no imputation upon them, 9r itthcChi" right to indulge those feelings at the expencc °f year seas i rity ; and, if they thought the ,giving of this 01 * Zthey calculated to save this man from the bitterest distr-destined by no right to do it out of those funds, which were ;,.,daritY;s the founder to other purposes. But it is not an lrir ilt pers o- , that character to induce a Court of Justice to say, t" o ctee`'. who should be carried away by their feelin , s should not continue in the administration ofPthe trust' Charity. eta nOt Another irregularity is of a very old date—f d o lect it precisely—but it appears that a layman was aP., o der the ° many years ago Master of this School, the will 0. 30 , and the Act both requiring. that there should be a 143 ' and not an Ecclesiastical Master. to this. of ocatiesn'tli'llTril-''s' h v l i r c ., E NV .: ct E e ie T I sA n Nf E r co n mE E L L: o — R between_ll T r . lia Robert It7pB,ters aonn d, Steele. R reside at Winchester, and instead of appo ~,,,i,„ Iven t !t c : master to succeed him who must have been a A ts t 1 1 ' the Tru name as the nominal schoolmaster but did in tra folirro point a clergyman, of the name' of Cookson, w i '‘P l aste t ' considerable time, actually performed the duty of sew° neaol• Whatever irregularity there was in that respect, nottcicil he theyi. w l y t fa i o s rre s d a a i jl d i 0 , lo i l Li f ,ti: w n, we ya look imtoan t o y j_ t 01 family—the i lely. actual .e ,a or I agree that it was an irregularity, but it does to fi org conduct of the present Trustees, and therefore for the 1 3 ' 4 ' of this information I have nothing to do with that. 0: 04' lion7bti9cr6rltgSaL;;;r: scyribaar., u fallitl eg connected whh that family; for they are all named There fore, this trust; it is said . , has not the' advantage of suchoat, tees as the Founder meant, or the Act of Parliament ',,,ere when seven Trustees were provided. Seven T r aste ta Ole provided, in order that their viilance might be direcy", /v eto' interest of this Charity ; but here all the Trustees beit%,,,ogy hers of one family, in truth have committed the wll9l"lititt ment of the Charity estate to the head of the flundY ;,: a s inP e o in fact it is but a nomination under different names faintly;, Nion,f Trustee. Now, when that was stated to me, I wa 3 f ac t ; f° l ' l e know whether there was evidence to support that_a goil the Trustees were all named out of the SaMC famiy , " • of the family, who becomes thereby the only actir,4,'apoa thought no imputation was to be cast upon him, he tuti ca teti2; no attention to the duties of their office, but left it trci)at„,ll..e ll oi le, p h l i a m ted a . n t office req w u lti ir c ed h t s l e il y s en Ac T t roufstePeas,rliaaneintht enecve,oirielfrteitte,otttlititi:e intention of the law, and embody the never permit that any one Gentleman should rs ot ~ trust in his own person. I called for evidence of the ta w ' ho ha! stated that Mr. Thomas Samuel Jolliffe, 3 g entleMan' a ctea f: been a Trustee since 1769, for thirty years has nove, r „ o f di,* a Trustee—now 1 think he cannot within the inoV7'i ls t no", make an order to that effect, unless, as Act of Parliament, be continued as a Trustee. 1 -, w in, t', er se'orimiruheearsteuJeschololifffetsl),e earl) save the Court any declaration to that effect, pr [pu ll _ st oc3 7 b cxtrera gentleman of such advanced age, under all the w e e In he will tender his resignation ; and it would be consent ~ agreeable to me, that I should have to state that order to tb , to retire, rather than be compelled to make an effect. Mr. HORNE.—Certainly, Sir, he will retire. „ o i ri t ' s hould °PK t i l er VICE-CHANCELLOR.—Then the Master trnent till N s . r, „ new Trustee in his place, suspending the 1 a litnthers are to I); , t 0 directions are given in this cause ; for if tle , rese nt. k i p m sai o d ve a d n , o n d o l e n r e a w e a n p a p e o m hi t r o e f n ttshecannatanik: o p f la j c n o Il a n ' i, wy ford 0 Mr. HEALD.—A cousin of one of the Jolliffe's, and ffe l y:14 We was elected a Trustee, a brother, I believe. a so n 0 ` Mr. Thomas Samuel Jolliffe. • whiewiloeroo:;i7yebtrini: ford Join as 0 VICE.CHANCELLOR.—This Mr. John elected in the year 1807, and it is said Trustee since his Election in n tt e nd it air - Tha t I req ,_ Tw :' e r bas act e6 re t i til ue never t °ll3 :r e s - ti l la t me the evidence on which that isfounded, lion J° l itc„e• , a ffec t is only to be found in the answer of hlr, ry but it col- 4 j o iliffe , is extremely good evidence against hian j ohn „, w ,,ford n yea ti any . other defendant. Therefore, if Mr. nbe-i fifCee el th s C against whom this is charged, the electio . iii. 4 c o ans_ o, it his father has done, that he is willing to r ~,, i s to he does not make the same tender, all I ca. t." • ago, does not make the same declarationetrreY foal geed it to ~t The hi int ents tendered }l4Vin g ez l ' e tY shn that the beel;, in , e sent t IPor the