The Sun.
London, England, 1849-08-09 00:00:00

LAW INTELLIGENCE.
VICE.CFIANCELLOR'S COURT, Aug. 8.

WHISTON V. THE DEAN AND CHAPTER OF ROCHESTER.

The following judgment has been delivered by Vice-
Chancellor Wigram in the case which was argued before
him for three days last week :
The VICE•CHANCELLOR—At the close of the argu-
ments in this case, I recognised the undoubted j urisdic •
tion of this Court in all cases of trust, in the
sense in which that word is used in this Court in
the ordinary case of trustee and cestuique trust.
The first question to be determined in this case is,
whether the relative positions of the defendants and of
the plaintiffs are those of trustee and cestuique trust.
That this is the first question to be determined is mani-
fest from the reasoning of the Court in all the cases, be-
ginning with " Phillips v. Bury," 2d Term Reports, and
" Green v. Rutherforth," Ist Vesey, sen., down to and
including the " Attorney-General v. Magdalen College,
Oxford," 10th Beavan, 402. The answer which I
feel compelled to give, after examining (I believe)
every case that was cited in the argument
bearing, liven it, is that this is not a case of trust, in the
sense above explained, bat that the Master, upon the
true construction of the statutes, ought to be considered
only as an officer of the cathedral church, appointed for
the purpose of performing one of the duties imposed
upon the cathedral church by the will of the founder.
I cannot in this case, for the purp)se of the question I
have to determine, distinguish the position of the Master
in this case from the position of the Master in the
" Attorney-General v. Magdalen College, Oxford;" or
from the other cases in the books in which similar ques-
tions have arisen between collegiate bodies and persons
holding offices appointed by the founder, but which per-
sons brave not been members of the collegiate body. I
catine t, upon the construction of the statutes in this case,
sap%hat the Master is not one of the " Ministri" spoken
of -in the statutes. But if the contrary of this could
be -maintained, I cannot discover a ground for holding that
tb.eMesteris acestuique trust of the cathedral church Daly,
leeeause he receives a stipend payable out of the common
funds of the defendants, which would not equally oblige me
to hold that every officer, mentioned in the statutes, to
whom a living and a stipend are given, is also a cestuique
trust, The case of the "Attorney-General v. Magdalen
College, Oxford," is a direct authority in point, and I am
satisfied with following that authority. Excluding, then,
the case of trust, and assuming also, what certainly I am
not disposed to question (though I give no opinion upon
the point), that the removal of Mr. Whiston from the
Mastership, without hearing him in his defence, was a
wrong—the question is, in whom is' the jurisdiction to
redress that wrong? If there be a visitor whose powers
are not so circumscribed as to exclude the jurisdiction, I
apprehend it is clear that the jurisdiction must be in that
visitor; and that his decision upon the point is final.
This is so broadly stated in all the cases since "Phillip
v. Bury," that it cannot be necessary I should refer to
authorities in support of it. The case of " The King v.
the Bishop of Chester," Ist Blackstone, 22, shows that the
rule applies as well to cathedral as to other bodies.
The jurisdiction of the Court of Queen's Bench may be
called in by mandamus to compel the visitor to act ; and
the jurisdiction of that Court, and, in some cases, of the
Court of Chancery alio, may be called in by prohibition
to restrain the visitor from exceeding his jurisdiction ;
and where there is no visitor, or the power of the visitor
is extinct or suspended (Manchester College case),
or is not pleaded in proceedings for a mandamus
(Bentley's case, Fortescue), the Court of Queen's Bench
may be the proper Court to redress the wrong. Atten-
tion to these distinctions will reconcile with the law, as
I have stated it, much that was pressed upon me in ar-
gument by the plaintiff's coansel. In this case lam
called upon to decide that the Court of Chancery has
jurisdiction by bill, as matter of course, to try the mat-
ter in dispute between the plaintiff and the defendants.
In making the inquiry whether this proposition is well
founded, I need not determine whether the Bishop of
Rochester is in this case the visitor, or whether, if he
be the visitor, he has such an interest in the
matter in dispute as to occasion, pro hac
vice, a suspension of his visitorial powers, or
whether the right of visitation is in the Crown,
to be exercised by the Lord Chancellor upon
petition, or whether the plaintiff could, by an applica-
tion for a prohibition, have protected himself against
the continuance of the wrong of which he complains (as
in the case of the Dean of York), or, lastly, whether the
Court of Queen's Bench could by mandamus order the
plaintiff to be restored to his office. The only question
I have to determine is whether the Court of Chancery, in
the exercise of its ordinary jurisdictions by bill, in a case
in which no trust exists, can try the plaintiff's right to
the office of schoolmaster, from which the defendants
have exercised the power of excluding him. lam ca
opinion that this question must be answered in the nega-
tive. Excluding trust, I cannot find a single authority
which supports the proposition. I could, on many ac-
counts, have wished for the opportunity of explaining
more in detail the grounds on which the above opinion
has been formed ; but having come to the con-
clusion I have stated, I have thoueht it best to
give the parties the earliest possible opportunity
of having my judgment reviewed, if it should
be thought erroneous. One °trier point remains to be
mentioned. It was said for the plaintiff, that the Court,
at all events, would preserve things in statu quo until
the right should be determined by the proper tribunal.
That this was not the object of the bill as originally
-Ilona is manifest. The object of the bill, at the time
he argument commenced, was to obtain the judg-
moat and decree of this Court upon the main question,
namely, the plaintiff's right to the office of schoolmaster,
notwithstanding the acts complained of. The bill, as
amended by consent during the argument, has made it
a bill for the execution of the trust, and not a bill for
the protection of property, pendente lite, which is a bill
of a special character. But waiving all objection upon
the ground of form, I cannot recognise the general pro-
pesition that in every case of a dispute arising about a
right of office, or other legal rights, the Court of Chan-
cery can be called upon, as a matter of course, to prevent
the claimant from being displaced until the right shall
have been tried ; and no special case for the interfer-
ence of the Court has been made before me. There are
numerous cases even of irreparable mischief where the
Court has refused to interfere between adverse claimants,
where no ultimate relief could be had in this Court. I
regret, therefore, being under the necessity of refusing
this motion with costs

Mr. Gough, solicitor for the plaintiff; Messrs. Knight
and Knight, Essex-street, for Messrs. Essen, Hayward,
and Essell, of Rochester, solicitors for the Dean and
Chapter.

COURT OF BALVKRUPCY, Aug. 8.
(Before Mr. Commissioner Homtovp.)
IN ItE CRUICKSHANK, MELVILLE, AND STREET.
The bankrupts were merchants carrying on business
in Austin-friars. They applied for their c?rtificates
in May last, Mr. Lawrance appearing for the bank-
rupts, and Mr. Denton for Messrs. Freshfield, the soli-
citors to the Bank of England, who were the petitioning
creditors.
His HoNoun. now gave judgment. The firm
of Messrs. Cruickshank, Melville, and Street was one
on the list of houses whose failure was announced
during the eventful time of which I have been speaking;
they carried on business as East and West India mer-
chants. Messrs. Trneman and Cook, colonial brokers,
were, in 1843 and 1844, largely under advances to the
bankrupts ; and on the 31st of December, 1844, the
debts due to Trueman and Cook amounted in round
figures to 89,000/. As security for this there were from
time to time deposited title-deeds and other documents
relating to several plantations, ships, and properties,
and undertakings by letter, in the shape of equitable
charges. The total amount due to the creditors of
Cruickshank and Co., on the Ist of January, 1845, was
about 396.0001. But taking their debts at that time,
consisting of good debts and consignments abroad, pro-
duce abroad, ships and shipments, and taking them al
the value at which they are estimated in the capital ac-
count, there appears a balance in favour of the firm of
about 36,0001. The bankrupts were justified in esti-
mating their debts and properties as good to the full
extent for which they take credit in their capital account
on the Ist of January, 1845. But the realisation since
then, and the amount which is expected to be realised,
shows a sad and ruinous loss of about 190,0001, or nearly
50 per cent. The amount of the liabilitiesin January,
1845, is I think thus accounted for. His Honour then
went into a lengthened statement of the accounts of the
firm. About the 7th of July, 1845, the bankrupts, by deed,
assigned to Messrs. Trueman and Cook, or rather to
James Farleigh and others, two of whom were clerks in
Messrs. Trnernan and Cook's employ, property and
debts, valued at that time at 131,510/., which may be
considered the greater portion of their estate, in trust I
to secure the payment of the debt due by the bank
rupts to Messrs. Trueman and Cook, which was 89,0371.
on the Ist of January, 1845. Under this deed the
trustees were authorised to make advances for the
purposes of the estate, and to realize it at their discre-
tion; and after the payment of the debt due to Messrs.
Trueman and Cook, the residue was not to be held in
trust for the bankrupt's other creditors. Notwithstanding
this assignment, the bankrupts in their books continue
to treat the property as their own. The trustees have
realized the property, and the security and proceeds
have been paid to Messrs. Trueman and Cook, who,
since the fiat, have tendered an account, which has
been adopted by the bankrupts, showing an excess of
payments beyong receipts, thereby increasing their debt
to 117,608/. In the memorial which the bankrupts have
laid before me they say they are desirous of drawing my
attention to the chief motives and reasons for making
thisc_ assignment. These reasons are, the importance of
rg_en effectually and continuously the cultivation
,heir West India property; and by the execution of
secured, in. trust, they consider that their object was
that benefit of all concerned, as well as of
that time that 171' and Cook, as it was fully expected at
supply the mettuesproperties would not only eventually
leave a surplus for the the claims, but would
say, it was considered With this view, they
ttrtnera.desirable to obtain hearty co-operation of Mme °lt
that this was really effecteds.h
r nt
he:o v dae: liddaundoe saoleir.cithe
quently made upon them affortdeedbaea siult)tsnd
not announced
further say that this assignment, Theye.
by circular, was known to their bat
prietors of those West India estates on:wrsi:toieth°ntte7hrad°-
been obliged to make such advances
whole of their unsecured creditors ; and tht:tarilty the
was,
is all but universally known. They also state thats
the assignment was not wholly a new tran-
saction, but was, to a great extent, merely the putting
into a formal and legal shape several equitable assign.
merits which had been made to them at_ various dates
previously, for advances made to the bankrupts. They
taso say that neither was it an assignment of the whole
'or their estate and effects, but that they had other assets
'in hand. Notwithstanding those further explanations, I
think there can be no doubt that the bulk of the bank-
rupt's property passed from them to Messrs. Trueman
and Cook. It is also clear that that assignment passed
to Messrs Truman and Cook property on which they
bad no previous equitable charge. Here the bankrupts
were not' only following mistaken judgment, but they