The Sun.
London, England, 1841-11-18 00:00:00

the trustees had acted on their own discretion in the ab-
sence of those for whom they were trustees. The
Learned Gentleman then cited, the Attorney-General
v. Green, 6 Vesey, 452 ; Same v. Warren ; and Same
v. Hungerford, 8 Blyth, N. C. 437. The principle laid
down in these cases was, that the acts of trustees which
were beneficial for the charities should be maintained.
He submitted, therefore, on principle and on authority,
this information could not be sustained.

Mr. PEIIBERTON (with whom was Mr. Russell), on
behalf of the devisees and executors of Mr. Mellish,
contended that in dealing with transactions that took
place so long as a hundred years ago, the Court must
deal with them in relation to the circumstances existing
at the time the transactions took place. It was not ne-
cessary to establish this transaction to prove that it was
beneficial; it was enough to prove sufficient to enable the
Court to presume that it was beneficial. It was true
that the purchaser of property was bound by the
notices in the instrument by which he purchased,
but he contended that there was no notice that this
was charity property in the assignment to Mr. Mel-
lish, nor yet in the conveyance which it recited ;
for in all these it was distinctly stated that this
property, which was designated as ruinous houses,
was not charity, but parish property. If there-
fore the lease to the Company was a breach of
trust, Mr. Mellish had no notice of it, and if it was not
beneficial Mr. Mellish had no notice that it was not be.
neficial. The Learned Gentleman then urged at consi-
derable length that the arrangement was a provident one
for the charity, and complained strongly that the suit
should have been persisted in after the satisfactory
answer put in by the defendants.
Mr. LLOYD, and other Learned Gentlemen, appeared
for the tenants in possession, and applied for costs against
" the co-defendants, and submitted that, under the circum-
stances, his Lordship would depart from the rule, and
grant them against the co-defendants through the Attor-
ney-General.
The MASTER of the RoLLs—I certainly can't do that,
though it is quite plain that your clients ought not to
have been made co-defendants, and also that they were
continued so after it was discovered that they ought not.
Mr. TURNER, in reply, said that if any excuse were ne-
cessary for his pressing a decree against Mr. Mellish, he
thought it was supplied by the conduct of the Solicitor-
General in a former hearing of the case, who then stated,
notwithstanding the answers, that it was a case that
ought to be prosecuted. It would therefore have been
very presumptuous in him to have acted differently.
The MASTER of the Rom.s—l must set you right on
that subject. My recollection is that the Solicitor-Ge-
neral did not say that it was a case that ought to be pro-
secuted, but that he was not satisfied that it was a case
that ought not to be prosecuted, and that he thought it
required further examination.
Mr. TURNER, after some further observations, ad-
dressed himself to the arguments on the cases cited by
the Counsel for the defendants and proceeded. It
could never be the doctrine of the Court that
Trustees could alienate charity property, and thus
deprive it of the advantages that might accrue from im-
proved value of the property, or that in its neighbour-
hood, or from other accidental circumstances. These
were two points to be considered, the amount of rents
and the conduct of the trustees. With respect to the
first the inference, from the evidence, was, that at the
period of the sale the premises were in a state of repair ;
and, with respect to taxes on the property, it appeared
that in 1721-2 the rent amounted to 102/. 10s., and the
taxes to 241 lls. Bd., bearing a net rental of 77/. 18s. 4d.
In 1722.3 the sum received for rent was SOL 10s. ; the
sum paid for taxes was 18L 7s. 7d., leaving a clear
rental of 611. 3s. sd. ; and in 1723-4 all that appeared
as paid for taxes was 10s. 11d. The value of the pro-
perty was proved by the evidence of a treaty in 1720 to
grant it to a party who was willing to pay a rent of 351.
u-year, and to expend 1,500/. upon the property, and that
upon a lease for a certain term of 60 years. It had been said
that it was of little value, because the charity was built
out of it ; but, as had been justly stated by his Lordship
a right of way to it must have existed. It was said
also that the land on which it stood was useless, vet he
knew not why dwelling houses, which were in great re-
quest in the city of London, might not be turned to very
useful purposes for the benefit of the charity. It was
said also that it was parish, and not charity property,
yet it appeared from the evidence that it was property
entrusted to the parish for the use of the charity. He
would, therefore, submit that sufficient had been proved
to set aside the lease against the Company, and for in-
quiring as to what had become of the other property.
As against Mr Mellish, he admitted that he felt great
difficulty, and in the case of the exchange of
property he did not know that it might ap-
pear advisable to impeach that transaction, but
j the other conveyance was of a different description,
and Mr. Mellish must be bound by the notices in the
j deed, which he contended were sufficient. With these
observations he should leave the ease in his Lordship's
hands.
The MASTER of the ROLLS said that he had before
observed that in these cases, though they should be
looked at with great suspicion, and the party in pos-
session was placed in a disadvantageous position ; yet
he did not conceive, after the cases cited, that it was
imperative on him to say that a transaction of this na-
ture must of necessity be void. In those cases the Judges
had gone somewhat further than he was disposed to
go. The trustees of charities required to be
very strictly looked after,but, taking what had passed,
he thought the Court ought to inquire whether the trans-
action was beneficial at the time ; and if it should ap-
pear that it was fairly meant and beneficial at the time,
he thought he must dismiss the information. If he
came to a different conclusion, the question remained
what was to be clone with the other defendants ? He
would look over the depositions, and give his decision
to-morrow.

BAIL COURT, Nov 16.
SMITH V. GOLDSWORTHY.

This was an action brought by the plaintiff, the Secre-
tary to the British Iron Company, against the defendant,
one of the shareholders of the said Company, to recover
certain arrears of rates. The defendant had demanded
oyer of three of the deeds of settlement, and had ben
furnished with copies of them, but it appeared that on
the back of the deeds there were endorsements oc certain
resolutions of the Company, copies of which had not
been furnished to the defendant. Mr. Petersdorff had
obtained a rule, calling on the plaintiff to show cause
why copies of these endorsements should not he fur-
nished ; and this morning
Mr. BUTT showed cause against the rule, and contended
that the endorsements having been made subsequently to
the execution of the deed, could nat be considered as
part of it.
Mr. PETE ITSDORET contended on the contrary, that the
rule must be made absolute, because, as the deed was
modified by the resolutions, those resolutions so endorsed
on it, must be considered to be part of the deed.
Mr. Justice PATTESON considered that the endorse-
ments having been made after the execution of the deed,
could not be considered part of it. The resolutions might
perhaps be considered in the light of a separate deed and
Oyer demanded them as such ; but he could only say
that perfect oyer had not been given, and therefore the
rule must be discharged with costs.