The Sun.
London, England, 1841-04-28 00:00:00

his Honour that if there was a fair and reasonable doubt exist-
ing in the mind of Mr. Phipps as to the disposal of these funds
—if he thought that the manner in which it was intended to
appropriate these funds was not a legitimate one, or within the
intent and meaning of the charity, then he had a right to with-
hold his hand and to say that he would first have the opinion of
the Court, where the rights of the claimants to these charitable
funds could be fairly urged and decided upon before he executed
such a deed. He would nosy call the attention of the Court to
the meeting of the 10th December, 1839, when Mr. Phipps
having been requested to sign the power of attorney, in order
that the trustees might be enabled to pay certain sums which
were due to the several charities, and he having refused
to do so, the trustees, being thus impeded in the dis-
charge of their duty, as they alleged, were compelled
to apply to their solicitor, Mr. Anstie ; but he contended
that where a reasonable doubt existed in Mr. Phipps's mind as
to the manner in which the money was to be applied, he was
perfectly justified in not executing the power of attorney. He
was anxious to avoid a public discussion of a matter which,
being connected with a public charity, was not the most ad-
visable to be brought before the public. That, however, was
repudiated, and the present petition was presented. The prin-
ciple on which the Court was called upon to Pronounce its
judgment was whether orno Mr.Phippshad acted in a dishonest
manner, and whether his impropriety was of such anature as to
amount to a breach of trust. The statement of the party on
the other side was, that they had been obliged, from want of
funds, to refuse the accustomed allowance to the poor women
at these almshouses, but he doubted whether Mr. Phipps
would not have been open to more censure if he had, by ac-
ceding at once to the request of his co-trustees, placed in
jeopardy the interests of the charity. He would now
draw his Honour's attention to some statements in the
affidavit of Mr. Phipps, to show the motives by which
he had been actuated. He stated that although the control
of the Town Council ceased in August, 1836, yet no account
was rendered for a considerable time afterwards, and the money
was vested in the funds. That the money had been antici-
pated for nearly two years in consequence of the expenses of
re-appointment of trustees. They were therefore obliged to
refuse to grant the usual sums from these funds. That he was
instrumental in preparing a statement of the funds, down to
1838, when there were claims of the Charity remaining unli-
quidated. The Learned Counsel here referred to various
items in the account so rendered, which in April, 1839 was laid
before a meeting of the trustees and by them admitted to be cor-
rect. That the parish officers of each of the two parishes claimed
a sum of 41. each annually instead of the interest of 1001.
which they had been previously paid. They then stated that they
were recommended by a vestry to take legal proceedings, and a
resolution was come to by the trustees to postpone the consi-
deration of the question till the next meeting, and that in the
mean time the Rev. Mr. Elliott, one of the trustees, should
confer with the Chamberlain, but no report of the conference
had ever been made.
The VICE CHANCELLOR inquired what was the value of the
stock at present ?
Mr. KNIGHT BRUCE said the value of the 2001. was some-
where between 3 and 4 per cent., and it was the difference
between that and 41. per annum that had induced Mr. Phipps
to resort to the present proceedings and divide the town of
Devizes.
Mr. Ric HARDS said Mr. Phipps had merely been actuated
by a desire to discharge his duty conscientiously.
The VICE-CHANCELLOR—But while the matter remained
in dispute respecting these two chanties all the others remained
without any benefit whatever. If he remains in the office of
trustee I suppose he will have noobjection to execute the power
of attorney ?
Mr. RlCHARDS—Certainly not, if your Honour thinks he
ought to do so. The Court would however recollect that that
order would be made onthe application of two of the trustees
—the opinions of the others being divided in the way he had
mentioned. Now, with regard to costs he was satisfied that
there was nothing in the conduct of Mr. Phipps that would
justify the Court in making an order fur the payment of the
costs. If his Honour was of opinion that the power of attorney
ought to be executed Counsel would submit that Mr. Phipps
should not in that case be compelled to pay the costs. What
he thought the Court could do was to order, if it so thought
fit, the power of attorney to be executed, but his Honour could
not, he conceived, order Mr. Phipps to pay the costs.
Mr. J. PARKER said he appeared for the trustees, and his
instructions were nut to oppose the prayer of the petition.
Mr. WRAY appeared for Mr. Phipps, and went at consider-
able length into statements to show that that gentleman was
justified in the course which was complained of on the other
side in consequence of the unsettled state of matters m dispute
between the Corporation of the borough of Devizes and the trus-
tees. The object of the petitioners was to remove Mr. Phipps
from the trust. If the case were to be minutely examined
into, it wostld be seen that the affidavit of Mr. Phipps was not
contradicted entirely by the statements set forth in all the pe-
titioners' affidavits. The affidavit of one petitioner contra-
dicted one statement of that gentleman, and another affidavit con-
tradicted another statement, but all did not unite in showing that
there were satisfactory grounds for removing that gentleman
from the trust on account of misconduct. He would submit
that the Court ought not, under the circumstances, order Mr.
Phipps's removal from the trust. There was no foundation for
asking such an order, and he was sure the Court would not
make any order of the kind.
Mr. WIG RAM appeared for two of the trustees, and did not
consider the affidavits of very great weight, as the Court
should try the case against Mr. Phipps by its merits,
and its merits alone. With respect to any justifica-
tion of the conduct of Mr. Phipps, he would give no
opinion, directly or indirectly. However, he should say that
if the Court was to decide on the removal of that gentleman
from the trust under the present circumstances—if the Court
was to decide that this case furnished materials for such a de-
cision, the result would be, that no respectable persons would
have anything to do with charities. The Learned Counsel's
clients were most anxious that the Court would not take such
a course, the effect of which, in a small community, and in a
community, too, in which Mr. Phipps held the respectable po-
sition that he did, would be greatly to be regretted as convey-
ing a great censure on his conduct. In other parts of the
question he would not interfere ; his clients wished simply to
s t an oppressive attempt to remove Mr. Phipps from the
trust. They were desirous of an amicable arrangement being
come to by all parties, and that his Honour would not make
any order, the effect of which would tend to injure the charity
for which alone they were concerned.
Mr. K. BRUCE replied. He was astonished to hear it ad-
vanced by counsel that the Court ought to be influenced in its
decision by what might or might not be said or thought on the
question out of Court.
Mr. WIG RAM—Did not put the argument in that way.
Mr. K. BRUCE understood it so, and nothing but the Learned
Counsel's denial of his intending to advance what he (Mr. B. )
understood him to say, would make him believe that such was
not his intention. It was for the Court to decide with justice
between man and man, and not to be influenced in its decisions
by what might or might not be said in the lanes and alleys of
Devizes. Ine Learned Counsel went on at some length to
argue that the conduct of Mr. Phipps was such, that his views
on matters of business were so extraordinary and erroneous,
that he was not fit to be continued one of the trustees.
He (Mr. K. Bruce) did not object to Mr. Phipps that a cler-
gyman of the Church of England preferred his own religion
to that of all Dissenters. God forbid that he should do so ;
but why should Mr. Phipps saddle the Dissenters with with-
holding the money with which they had nothing to do ? Such
conduct reminded him of the line in the " Rejected Addresses,"
in which, after an obnoxious individual had been accused of
all sorts of crimes it was inquired—
" Who fills the butcher's shops with large blue flies ?"
But when Mr. Phipps was informed that the objects of cha-
rity were in distress, that they were obliged to apply to
the Guardians for relief—when he heard and knew
this of those whom it was his duty to protect, it did not in-
duce him to depart one jot from the line of duty which it was
to be supposed he had laid down for himself, but contented him-
self by saying, " Well, let it:be so—it is the Dissenters have
done it." He (Mr. K. Bruce) said that a gentleman who
took such a peculiar view of his duty was not fit to be con-
tinued a trustee. This went on for more than a year, during
which Mr. Phipps was able to resort to legal advice, but
though none of these considerations are able to affect him, no
sooner was some degree of spirit exhibited by those he was op-
posing than he knocked under directly, and offered to pay
the costs. It really seemed to him (Mr. K. Bruce)
the worst part of the whole case, though his Learned Friend
had insisted upon it as a merit in his client; but it appeared to
him to make the case a thousand times worse. He trusted it
would appear to his Honour that this gentleman ought not to
be continued as one of the trustees, and that he was incapaci-
tated to act. He did not charge him with any corruption or
malversation. He would say that he had acted under a sense
of what he believed to be right, but he thought that, becoming
irritated perhaps by opposition, he had gradually lost sight f
the original feeling with which he had embarked in this
matter, and assumed those oblique views and positions in con-
sequence, which otherwise he would not have done. With
regard to the costs, he quite agreed that they ought not to be
visited upon the charity ; and he therefore prayed his Honour's
judgment as to who had given occasion to the present petition.
It was absurd in Mr. Phipps to suppose that the direction of the
Court was wanted with respect to the disposition of the fund.
The only question was, should this income be prevented coming to
the trustees at all for the purpose of being dealt with as they
or the majority of them should think proper, and the ulte-
rior question was whether Mr. Phipps ought to be continued
as a trustee of this stock, and whether the charities would
not be better administered if the body of the trustees did
not comprise that gentlemafi. He therefore prayed his
Honour not to burden the charity with the costs of the peti-
tion, but to impose it upon the party whose conduct bad occa-
sioned it.

The VICE-CHANCELLOR. said he had to decide upon a point
of form, and not on matters that were incidentally made the
subject of discussion. In the first place, nothing that he
could say with respect to the obligation of the Corporation to
pay the money, could in point of law have the least effect
on the Corporation, and nothing that he could say
with respect to the propriety- of adopting an pro-
eedings, could have any effect, because that question
was not before him. The sole questions before him --ere,
whether in respect of what Mr. Phipps had done, Mr. Phi
ought to be removed from the office of trustee, and the que-s:
Lord Chancellor in December,
tion of costs. Now, when the order was confirmed by the
1836, which appointed Mr.
Phipps and the other gentlemen trustees, he was bound to
andsttihoantwAalsr,
having
consider that as a perfectl,znrdightteorder,
• Phipps
was thereby appointed. h n and that •
been duly appointed, whether since that time there had been
that degree of improper conduct, which would makofe it r
the ight
that he should be removed ; and had it appeared, to him that
Phipps
could
made
Mr. Phipps certainly did take an erroneous view
ject, and he could not himself conceive how Mr. Phi
possibly think it right, that no application should
of the funds of the trustees, although in hand, merely
because it might turn out that the trustees ought
to have received more than they had received. It seemed to
him, as he collected it, that Mr. Phipps had his mind biased
by the supposition, that if an actual application of the dividends
was made, it might have the effect of prejudicing such a case
as the trustees might be able thereafter to make. He could
l
conceive that, to some extent, in the long course of years, such
acceptances might be considered as something of weight, but
just
and the same time he could not think that any thing like a
and reasonal.ile view was taken of the SA bject. It appeared ex-
traordinary that Mr. Philips, as a trustee, did not feel that he
was committing direct and immediate injury on those intended
to be benefited by the charity, on the mere speculation that
something might be recovered thereafter, and might be paid to
future objects of charity, which was a very whimsical
view. But still he thought Mr. Phipps had all
along, stated his views in which, unfortunately, he and his
co-trustees could not agree. Now, he did not think
there had been such a degree of misconduct as would make it
right to remove this gentleman fr,,m his office as trustee. His
was an error on a single point, and he thought it would be too
harsh a measure, that because this view was taken, absurd as
he confessed it seemed to him (the Vice-Chancellor), lie
should be removed. He understood Mr. Phipps was willing
to execute a power of attorney, and he did not understan
'd
that there would be any difficulty in acting on that power
when executed. It seemed to him, therefore, that an order
should be made that Mr. Phipps should execute the power of
attorney, but that he should not make an order to discharge
him from his trusteeship. With respect to costs, it seemed to
him that the view which Mr. Phipps lal taken individually,
had been the cause of the whole dispute, and if by reason
of an objection which he made it was necessary that an applica-
tion should be made to the Court, and it turned out that the ob-
jection was one which could be sustained as reasonable, he could
not help thinkinc, that the costs almost necessarily fell upon
him who made the unreasonable objection. There were but
three modes in which he could act. He could not direct that
the costs should come out of the charities, because thc-y had