I also concur in the r e a ~ n s o clearly and d ~ ~ t ~ n c t l y stated by my noble trnd learned

Friend on the ~ ~ l a a e ~ , aad a p p ~ ~ ~ of by both my otber noble and earned Friends

who have preceded me, &s to the d i ~ c ~ t ~ e s which arise in case of death For all these

reasons, therefore, I think that the 6 Geo. 4 and the 33 Geo. 2 are irreconcilable, and

that the latter ~ r m a t i v e statute must be ccmsidered as repealing the former according

to the general rule ia such cam, and E aoncur e n t ~ r e ~ y with them. in th~nking that the

judgment in this case must be affirmed j and farther, &at considering &e doubts that

have been entertained upon this subject, and that them have been two conflitting d e

cisions in the Irish courb, i t ought to8 be affirmed without costa.

Mr, Shapter suggwhd, on behalf of the Respondent, Tharnm Horn, with regard

to his right to cosh, that he had been brought befors the Court in Ireland, and before

this House, not to litigate this question as to which of these two Acts was applicable to

the case, for he bad no inter& in th&, but to litigate a differ~nt question which had

argued, n ~ e ~ y , whether he, as a areh holder under the Act 6 Gw. 4, had or

alidly t r a ~ f ~ r r e d and @t rid of his shares long befare the ~ i p p e r ~ y Bank

Be ~ n ~ ~ d ~ that he had validly t r ~ ~ e r r e d them. ; he was, there

al, on behalf of the &cial mana~er , asked &sir ~ r d s h ~ p s to

[l88] Lord St. Lesnards.-This Rouw cannot give any direetians upcan the subject,

you must take the order of the murt below.

The Lord Chancellor.-The official manager and other persons in his position,

when they intervene as such, have ordinarily a right to their cosh, but that i s not a

question properly before the House. It must be disposed of in the Court of Chancery

in Ireland.

stopped p ~ ~ e n t .

fore, entitled to his costs d being b ~ 5 u g ~ ~ here.

liberty to retain his crests out of the estate.

Decretal Order affirmed, azld Appeal d~8missed.

Lords’ Jou rna~~ , July 9.

D@”J The P R ~ ~ ~ ~ ~ ~ ~ and ~ C ~ L A R S of the College of ST. MAEY ~AGDALEN,

~ X ~ O R ~ , - ~ ~ E ~ ~ ~ t ~ ; 6% A ~ ~ ~ ~ E Y - G E h T E n A L , - I Z e s ~ o ~ ~ e ~ t [Nay 14,

15, 18,f9 ; June 13,18571,

[Mews’ Dig. iii. 276, S.C. 26 L.J.Ch. 620; 3 Jur, N.8. 675; 5 W.R. 716; 18 Bee~v.

223, On point as to gift to charities, oonsidered and explained in Governors

of Magdalem Collage v. Kmotts, 1878, 8 Ch.D. 728 ; and Bobbett v. S. E. Ry. CO.,

1882,9 Q.B.D. 427. A s to position of Attorney-General, cited in A-6. v. W ~ ~ S O W ,

1901, $9 W.R. 19S.f

Cfmrity ~ ~ ~ ~ s ~ ~ ~ ~ e of L ~ m ~ t a t ~ 7 a s - 1 4 t ~ ~ m e ~ - ~ e W E ~ ~ ~ - ~ ~ ~ ~ ~ f f s e S fo r Value.

The presumpti~n in a gift of lands for charitable purposes, is that they are devoted

‘‘ for ever ” to the purposes of the charity, and that no authority to sell them

is intended ; but a sale of such lands a t a d~s tan t d a h with long acqu~escence

in such sale, and no account of the origin of the charity, may give rise to a pre-

sumption & a t there had been a power enabling the holders of the charity

lands to sell them, and that the sale was made under that power.

Charities are trusts, and are a8 such within the operation of the 3 and 4 Will. 4,

c. 27.

The first section of the statute extends the word person ” to a class of persons

as well as to individuals. The poor of a parish are a class of persons within

the meaning of that section.

Where the A t ~ ~ e y - g e n e r a ~ h ving no ind~pendent rights of his own, stands

only in the same situation as thow who are entitled to the ben%~t of a charity,

if they wodd be barred by lapss of time, he i s equally b a d ,

Lands were given for the benefit of the poor of two parish^^ and were placed

under the meL~agement of the rectors and chu~hwardens, who; with the con-

sent of the vmtries: might lease them. The r ~ t o ~ etc., executed a lease of

them Par ever to the prFiden% and scholars of a college subject to a fixed rent-

1267

VX xX.L.C., 190 ST. MARU XAGDALEM, OXFORD 9. A-G. [I8571

charge. Above 60 years after the execution of this lease (the fairness of which

at the time of its exwution was not impeached), the A t t a ~ e ~ g e ~ e r a ~ filed an

~nformat~on against the lessem, praying that i t might be ca~~ce~led :

Held, that the real F~aintiffs in this suit were the poor of the two par~shes ; that

they were in the sit~iation of a eestzci t p e trust, that the suit by information

of the Att~rney-general (who had na ~ndepende~t~ rights), was a suit by them ;

that they could not m a ~ n t a ~ n such suit unless agains~ their trustees excepb

within 20 years ; that this was not such a suit, but was a suit against pur-

chesers for value, and therefore that it, was barred.

For a long period previous~y to the reign d Gwrge II. the parish of St. OIave,

South~vark, posmed a n a r r o ~ strip of wa land, on the south side of Tooley-

street, lying between that street m d some land belonging to the president and

scholars of Na~dalen College, Oxford, caUe.d the [190] “ Isle of Ducks,” from which

it was s e p a r a ~ d by a. ~ o ~ m o n sewer. By the Act 6 Gerr. 2, c. 11, the anoient parish

of St, Olave was divided into tho two parishes of St. Olave, south war^, and St. John,

~ o r s ~ e y d o ~ ~ ~ ~ ; and it waa thereby enacted that all charities and donations that had

there~fure been granted to and for the benefit of St. Ula~e, south war^, should be

divided between the two‘ parishes in the fo~lo~ving manner: that t i~re~fif ths should

be for the sole use and b e n e ~ t of the old parish, and that out of the revenue of the

other t w ~ - ~ f t ~ ~ s there hould be paid to the ~ ~ u r c h ~ ~ a r ~ e n s of the old parish tlre

annual sum of L29, free of tases, etc., for the benefit of the, poor of the old parish,

and that the residue of the two-fifths should be for the benefit of the1 new parish :

that the rector or senior church~yarden of each of the parishes should jointly ‘‘ collect

the cha-rities, d ~ n ~ t i o n s , etc., and should and might, with the consent of the vestry

of each parish, make leases of the lands, etc. so given for charit~ble purposes, and

should do, perform, and executa all and every sack acts and things relating to the

~ ~ a n a ~ e ~ c n t of the said charities, in such manner as the church~rardens of St. Olave,

~ o ~ i t h ~ ~ r k , could or might have done, before the division of the parishes and the

passing of the Act.” Leases, soinet~mes of n, long- date, had, on different occasions,

been made of this parish property. In the year 1786 there were several d~scussio~is

in the vestry on the subject of these parish lands. On the 5th of December 1786

there was a notice of meeti~g, ‘‘ t o take into consjd~r~tjon proposals for the renewal

on lease of ” the lmds in ~ u ~ t ~ o n , which were then leased to a private i~~div idua~.

These proposals were to surrender the existing lease, and to take the premises on a

b u ~ l d i n ~ lease, for ninety-n~ne years, at a pep~ercorn fo r the first: year, and $12 t~

year for the remainder. By a resolution of the Vestry of St.

[I911 John’s, of that date, the ch~rchw~rdens were ordered to meet the church-

w ~ ~ d e ~ s of St. Olave’s, “ to treat with any persons for the letting of the ground and

premises ; ” and they %?ere e~~powered to ‘ I execute one or more lease or leases for

n~nety“n~ne y ars, on such terms and re~tr ic t ion~ as they shall think fit.” There

were o ~ ~ ~ e r notices and r e s ~ ~ ~ t i o n s f a similar sort; and at a vestry of St, ~ 1 ~ v e 5 ~

on the 19th February 1798, notice of another vestry was given, a t which these matters

were debated, and i t was unai~~mously resolved, “ that the oRcers and aud~tors of

this parish be e ~ i p o ~ e r ~ , Tpith the ufEcem and auditms of St. John, to meet a3id

treat with the persons empowered by ~ a ~ d a l e n College, Oxford, or any &her person,

for the letting or disposal of the g ~ u n d belong~ng to these parishes bounded by the

Isle of Ducks.” A similar r ~ s o ~ u t ~ o n passed at X% John’& but could not be pro-ved,

as the vestry books them, of that period, had been lost. An agreemeat to lease this

ground in p~rpe tu~ ty o the ‘‘ president and scholars of ~ a g d a l ~ College, a t a r e n ~

of &I5 per annum, secured by 8 rentcharge on the land,” Fa& ultinmhly mad&

To carry thig agreement into effect, a fine SUP c o ~ ~ ~ n c e de d r o i t was levied on

the 3d of March 1790, and an ~ndenture or deed of feo~ment was, 0x1 the same day,

executed. The Rev. James Eraas, motor 5f the parish of St. UI&ve’ss, the church-

wardens, and twCp of the princ~pal ~ n h a b i ~ a n ~ of that parish, Tpere parties of the first

part; the Rev. Richard Penneck, rector of St. John, the chu~hwardens, and two of

the principal inhabitants of that parish, of the second pail;, and the president, and

scholars of the college of St. Nary ~ a ~ a I e n , of the third part; and by this deed, in

consideration d a perpetual annuity or rentcharge of 3215 per annum secured to

the said rectors, c ~ ~ u r c ~ w ~ r d e n s , ~ r i n c ~ p a ~ i u ~ a b ~ t , a n ~ ~ etc. ; by an indenture beariug

1388

This was not acoepted.

YT. MARY MAGDALEN, OXFORD 'U, A . 4 . [1857] VI H.L.C., 192

even date therewith, they did grant unta the said president and scholars, cl921 and

their successors, the land in question, (the metes and bounds of which were particu-

larly described) to hold the same to the said president and scholars, their successors

and assigns, for ever. An indenture, in the usual form, charging this annuity of

S15 on the lands thus described, and also on the Isle of Ducks, was executed OIL the

same day as the deed, This indenture also c o n ~ ~ ~ n e d a declaration that the parties

thereto of the second and third parts, (the rectors, etc., of the two parishes) " should

stand seised of the said annual sum or yearly rentcharge of &15, upon trust to apply

the same for the service and benefit of the said parish," in the manner prescribed by

the hereinafter mentioned Act of Parliament, " the rentcharge to be received and

taken by the rector or senior churchwarden of each of the said parishes."

These indentures were duly enrolled in the: Court of Co~mmon. Pleas, a t West-

minster, The president and scholars entered into possession of the land, covered up

the old sewer, made a new one, added part of their land to Tooley-street, which wa8

thereby considerably widened, and then let the rest on building leases; and houses

had been built thereon, partly on the old lands of the college, and partly on that

which had been thus wquil-ed. The rentcharge was regularly paid up to Bfichael-

mas 1847, when the parish oEcers of the two parishes refused to receive it.

On the 31st January 1852 the present information was filed by the Attorney-

general, a t the relation of some, and on behalf of all the i n h a b i ~ n t s of the two'

parishes, agairist the p r ~ ~ d e n ~ and scholars of St. M a q Magd~~en, and against the

churchwardens and overseers of the parishes, stating that the land vas held by the

rectors and churchwardens for charitable purposes for the benefit of their two

parishes ; that the reiits and profits had always been applied for the benefit of the

two parishes; that the rectors and [I931 churchwardens had no power to alienate

the land; and that the consideration given for the alienation was inadequate; and

the i n f o ~ a t i o n prayed that the deed might be delivered up to be cancelled ; that

possession of the land might be given up ; that accounts might be taken, and for the

usual relief.

On the 14th February 1852 the AppelIants filed their answer, and, in addition

to defences on the merits, insisted on the Statute of L i ~ ~ ~ i t a ~ i o n s , 3 and 4 Will. 4,

c. 27.

The cause was heard before the Master of the Rolls, in January 1854, and his

Nonour then expressed his opinion that the transaction, though perfectly free from

any i ~ n ~ u t a t ~ o n of sinister motive, amount~d to a bseach of trust, and could not

therefore be supported, but took time t o consider the question as to the Statute of

Limitations; and on March 23d, 1854, delivered his opinion that that formed no

bar to the information, and made a decree accordingly (18 Beav. 223, 233).

This was an appeal against his Honour's decision.

Mr. Roundell PaImer and Mr. Chandless (Mr. Shapter was with them) for the

Appel~ants.-The first question is, whether the conveyanc0 of this parish land i s

impeachable irr equity; next, whether it is capable of being set aside, having regard

to the Statu- of Limitations, 3 and 4 Will. 4, c. 27.

As to the first of these questions, it is clear that from the earliest time when

this slip of land i s known to have been in the possession of the parish, the church-

wardens and the incumbent had assumed and exercised the power of dealing with it

as with property over which they had an absolute control ; they had granted leases

for 20, and even for 50 years, without building covenants, and a t a small rent ; what

they had now done could not therefore be iinpeached. On [I941 the one hand the

Appellants were neither bound nor entitled to examine into the validity of powers

which had thus, again and again, been exercised; nor on the other hand were the

rectors and churchwardens bound to state the origin and extent of these powers, or

to show all the authorities they had, but the presumption must be that they had acted

within their jurisdiction : Goodtitle d. Buker v. ille16um (2 Mee. and Wels. 853). In

fact the words of the resolution show that they had a. power of " disposal of )' the

property, which phrase must mean more than the grant of an ordinary lease. The

Appellants were entitled to consider themselves gafe in dealing with persons by whom

such puwers had frequently before been exercised, and the exercise of which Itad never

before bwn disputed.

If, however, the Appellants are not absolutely protected from having the $ran&

1269

VI R.L.C., 196 ST, MARP ~ A G D A L ~ ~ , OXFORD ‘U. A-G. [I8571

action questioned} the burden of shewing a right to question it, lies on the Respond-

ents, and that right must be clearly and s a t i s f ~ t o r i ~ ~ established. ft has not been

established here, On the contrary, the information itself sets out certain Acts of

~ a r ~ i a m e n t which strongly imply, though they may not actually expressI the exist-

ence of an authority on the part of the rector and churc~~wardens to deal absolutely

with this property.

There are no c~rcumstances here which raise any equity adverse to the Appel-

lants ; all the evidence shows that whatever may now be the value of the pmpeW,

occasioned by the improvements which the Appellants have effected, the bargain

entered into with them was a t the time fair and equitable. The parish property was

of very little value if i t could not be used with the college property ; i t was onis by

being joined together that they could be converted ta any beneficial p u r p e . Such

cases as the E1951 A t ~ o ~ ~ e y - ~ e ~ e ~ ~ v. ~ ~ ~ g r i ~ ~ (12 3eav. 57) and the A t ~ o ~ e y - g e n ~ r a ~

v. K e r r (2 Beav. 420) are, therefore, inapplicable. Assuming that at rector and

church~rardens are trustees for the parish, the 59 Geo. 3, c. 12, s. 17 expressly gives

to them the powers of a body corporate with respect to lands held in trust for the

parish, and under that statute parish oficem have been held tc, have the legal estab

vested in them, so as ta be able to dispose of it, Doe d. Jmksort v. HGey (10 B. and Cr.

885), ~~~~~t~~ v. At&&% (8 Me%, and Wels, 362) ; and in D e ~ ~ f o r ~ T. ~ ~ e ~ c ~ ~ e y (8 Q.B.

399) the same principle was recopiwd, but the statute was there held inapplicable

because there were already trustees in whom the legal estate was specifical~y vested

by the original conveyance. Nothing exists here to show that the property has been

treated inconsistently with the terms of the trust. In the Attorney-general v. Stephens

(6 De Gex, Mac. and Gord. 111, 149) i t was said by the Lord Chancellor in a case of

this very kind, that, where c i r c u m ~ t a n c ~ justify it, he should have no d ~ ~ c u l t y in

inferring that the parish oEcers had ‘‘ by the terms of their title to the land, a power

to make such an arrangenient,” and that will be done, as stated by zcbrd ~ a n s ~ e ~ d in

~ ~ ~ ~ ~ ~ g e v. Knott (Cowp. 215) ‘‘ from a principle of quieting the possession.”

It may now be taken as settled in equity, that in a proper case, trustees have the

power to alienate charity property. The ~ t ~ o ~ e ~ g e n e r ~ v. T h e 8ozcth S e a corn-

pqq (4 Bezav, 453) ; that decision was founded on the ~ ~ ~ o ~ ~ y - g e ~ ~ r ~ v. Warren

(2 Swanst. 2911, and t.he A ~ t o r ~ e ~ - g e ~ e ~ ~ v. ~ ~ n g e r ~ o r ~ (2 Clark and E’. 357 ; 8 Bligh,

N.S. 437) (where the observatioi~s of Lord 3rougham on this point C196] are very

strong), and is justified by the ~ t t ~ ~ e y - g e n ~ ~ u ~ v. Pernbroke Half (2 Si. and St, 441,

afirmed Z Russ. mid M. 751), and the A t ~ o ~ ~ e ~ - ~ e n e r u ~ v. Hart (Pre. Ch. 226). Here

too, the rector and churchwardens had under their private act a general pwelr of

leasing, and the Court therefore will not inquire into the degree of discretion. with

which that. power was used ; the Attorney-gemera1 v. Hoses (2 Mad. 294), the Atfiorney-

gem& v. Fray (Jac. 301).

Rut ut all events, the suit here is barred by the operation of the 3 and 4 Will. 4,

c. 27. Up to the 29th sectiw of that statute, all the e n ~ t m e n t ~ apply to cases at

law, but that section makes them applica;bfe to suits in equity. That application is

universal, and is not restricted to the case of mere personal trusts, but affects cases

of charity property. T h e ~ ~ z c o r ~ o r ~ ~ e ~ Society of P r o ~ s ~ ~ ~ S c h o o ~ v. ~ i ~ h u r ~ ~

(1 Dru. and War. 2581, the A ~ ~ o ~ e y - g e n e ~ u l v. Persse (2 Dru. and War. 67), and

T h e C o ~ ~ ~ s s ~ o n e ~ . s of ~ h ~ r ~ ~ a ~ l e Bo~mtions v. ~ y ~ r a n t ~ (2 Ju. and Lat. 182). The

25th section includes everything, wh~ther of bus t or not, except one case which is

specifically excepted j that was in accordance with the general policy of the Act. The

word ‘( person ” in t.he first section is declared to apply to “ a body politic, c o r ~ r a ~ ,

or collegiate,” and from this there is no exception of the recipients of a charity or

the poor of a parish.

In this case, too, there’ has been a conveyance for value. The statute was expressly

intended to protect purchasers for a valuable consideration. There is nothing to

define and limit any class of persons by whom the conveyance must be made. On

the contrary, the word ‘‘ s~ccesso r s~ which certainly must include rector and church-

wardens, i s (S. 1) expressly introduced, and as to a pur-[197]-chaser, the tiins (S. 25)

begins to run against, them from the date of the conveyance.

[The Lord Cl~anc~l~or.-Th~ Master of the Rolls thought that the statute did not

apply here, because of the character of the Attorney-genera1, who institutes t h i s suit.]

That does not redly affect the case. The statute runs against the Attorney-

1270

ST. MARP MAQDALEN, OXFORD ‘U. A.+. [lS57] VI H.L.C., 198

general in cases of this kind, for he comes in, not in his own right or in that of the

Crown, as such, but as the representative of persons, in respect of whose rights the

Crown poswses a Gduciary character, and has a fiduciary duty to discharge. Eym

v. WLe Colantess of S h a f t e ~ ~ u ~ ~ ( 2 P. Wins. 102-118 ; Wilru. Notes, 24), which was ap-

proved of by Lord St. Leonards, in the ~ ~ ~ ~ r ~ ~ r ~ e ~ SocZety v. ~ ~ c h ~ ~ ~ ~ (1 Dru. and

War. 258). The rule as to the intervention of the Attorney-general is thus expressed

in itf ford on Pleading (3 Ed. p. 17) : “ Suitg on behalf of the; Crown, and of those

wlio partake of its p ~ r o ~ a t i v e , or claim its peculiar protection, are instituted by

officers to whom that duty is attributed. These are, in the case of the Crown, and of

those whose rights are objects of i b particular attention, the King’s Attorney or

Solicitor-general. As these officers act merely officially, the bill they exhibit is by

way, not of petition or co~iplaint, but of information topthe Court, of the right which

the Crown claims on behalf of itself for others, and of the invasion OF detention of

those rights for which the suit is instituted.” The name of the Attorney-genera1 in

such a suit is therefare a. mere fom, and it is no more his suit than an action at law ii3

the action of the attorney whose name appears on the record.

There was here no impediment to the suit which rendered the interference of the

A~t~rn~y-general a matter of necessity, and so gave i t a purely official character.

The [I981 rector, churchwardens, and overseers for the time being might have sued.

Doe d. Nzggs Y. Terry (4 Ad. and El. 274), Boe d. Elobbs v. Cockell {d. 478), Fairtitle

v. Gd6ert ( 2 T.R. 169), or the parishioners themselves might have sustained a suit

for this purpose. ~ r a m l ~ ~ v. Smith (1 Sim. 8 ) sh0.a-s that the Attorney-general need

not be a party to a suit where some only of a larger body corporate institute it. The

only objection raised t~ their right to sue was in an observation of the Master of

the IZolls, that as there were two parishes jointly interested, the Statute of Liniita-

tions might not apply; but, that is answered by the 36th section of the 59 Geo. 3,

which declares that nothing in that Act shall be taken to alter, abridge, or affect the

powers given by any local Acts with respect to the maintenance of the pour ; and

here the local Act. gave the same powers to the officers of the two parishes as had

originally belonged to the parish out of which the two were formed.

Mr. Lloyd and Mr. Ifinde Palmer for the Attorney-general.--There hns been an

improvident ulienation of this charity property, and the right of the At~rney~gene~aI

to relief against such an a~ienation is not barred by the Statute of ~ i n ~ ~ t a t i o n s .

No presumption is to be made in favour of the Appellants as to their supposed

want of knowledge of the title of the parish oscers, for they were perfectly well

aware what was its nature. That point may therefore be con~idered out of the case,

but if otherwise, then the Attorney-gemern2 v. Pargeter (6 Beav. 150) shows that

where tho title on the face of i t discloses an equitable objection, the purchaser is

hound to show that the title is valid.

E1993 The object of the 6 Geo. 2, c. 11, was the division of the original parish into

two parishes, and the allotment to each of a fixed portion of the parish estates. The

power given to the rector and churchwardens was merely a power to collect the rents ;

they had no power to lease except with the consent of the vestry, and no power is

given to the vestry to part with the fee of parish property. Bere no consent of the

vestry (even if the P O W 8 r to give such consent existed) is shown to this alienation

of charity property, and the Vestry only appears to have been s u ~ o n e d to consider

the grant of a, renewal of an existing lease for a term of years, whereas the act

done was to alienate the land for ever. The words “ disposal of ” in the vestry

resolution of 1788 do not justify this proceeding, for they must be &ken in con-

nexion with the other words of that resolution, and must receive with them a

Xirnited construction, namely, the disposal of the property only for a term of

years, and by way of lease. Everything done beyond that was ultra vires of tile

Parliamentary power by which alone an alienation of charity property can be

justified, for the principle of the law i s that i t is not in its nature alienable, Kirk-

ham v. C ~ ~ ~ ~ i c ~ (13 Ves. 550, by Sir W. Grant). The burden of supporting such

a transaction lies on the person who performed it, A sale of charity property

ought only to take place after an apPIicat~on to Chancery, and when the Court had

been satisfied that it would be for the benefik of the charity. I n r e Parke’s Charity

(12 Sim. 329). T h e ~ t t o ~ e ~ - g e ~ e ~ ~ xr.

Green (6 Ves. 452); The A t ~ o ~ e ~ - g e n e r ~ v. 3 ooke (18 Ves. 319); T h e Attorney-

1271

It irs dear that it may be impeached.

v1 w.L.c., 200 ST. MARY MAQDALEN, OXFORD br A.-G. f18573

general v. P ~ g r ~ r n (12 Beav. 57); and T h e Attorney-ge~~eraZ v. [2[zoo] f i d (16 Bmv-

388). T h e At~oraey- genera^ v. ~ u ~ e r f o r ~ (2 Clark and F. 357; 8 Bligh, 437),

shows that a court of equity i s bound to consider all the c ~ ~ u ~ t a n c ~ under which

the alienation has been made, and the observations of Lord B ~ u g h a m there as to

alienating the land must be considered as obGter, and have been so treated by a. very

high authority. Lord St. Leonards, in speaking of them in the ‘‘ Law of Property ’’

(Ed. 3849, p. 535), saps, ‘‘ These observations were not necessary for the decision of

the case before the House, and it would be unsafe to act upon them: no prudent

trustees of a charity would venture t o sell, and of course no prudent purchaser

would accept a. conveyance from them. The power of the Court depends upon a

different principle;” and he refers to T h e C ~ r p o r a ~ w ~ O f ~ e w c a s t t e v. T h e Attorney-

genera2 (12 Clark and F. 402), and other cases, One of them is T h e A t ~ o ~ e ~ - g e n e r ~

v. ~ ~ e w a ~ ~ ~ ~ ~ ~ T r c n t (1 Hare, 395), where the corporation was not allowed to sell

charity lends which in the oours,e of time had become intermixed with its own. In

The A € ~ o r ~ e ~ “ g e n e ~ a ~ v. T h e o~~~ S e a C o 7 ~ p a ~ ~ (4 Beav. 453), the bargain was

altogether beneficial to the charity, and so was not impeached. Tke case of Attorney-

ge?zeral v. Nart (Pre. Ch. 22%) is not‘ in point, because there the trustees of the charity

had acted in ~cordance with the directions of the vestry, the r e p r ~ e n t ~ t i v e s of the

cestt& que trust, and of course that made the alienation valid ; and in T h e Attorney-

general v. Pcfnbroke Ha22 (2 Si. and St. 441, afiirnied 1 Russ. and M. 70) the arrange-

ment was provident at the time it was made, and only beeam% ot~erwise by acc~denta~

circumstances which afterwards happened. T h e Attorney-general v. E2011 Moses (2

Mad. 294), and T h e Attorney-geaeral v. Wray (Jac. 307), are not in point, for in both

of them the leases were made by persons who had by Act of Parliament an unlimited

power of leasing. But The Attorney-general v. ~ r ~ ~ t h (13 Yes. 56%), shows that

even n long lease of charity lands may be set aside though granted at a rent fair et

the time of making it ; but as Lord EIdon said (id. 5?5), ‘‘ not increasing in seventy

years,” a fact which he held to justify the Court in calling for an ~xplanation, and

for proof that the lease was reasonable.

Then as to the Statute of Limitations. There is nothing in that statute which

applies its provisions to charity estates. That, statute w w meant to reduce all!

remedies for the recovery of real estate to the condition of actions of ejectment, and to

make the rules of law applicable to suits in equity. But it had regard to legal

rights, and the corporations mentioned in the preamble to the statute, are those

havirig a direct legal interest in the subject. The word “ person ” may in that sense

apply to them, but not to corporations, which are mere trustees for

othara. Such cases were not included in the earlier Acts. T h e Attorney-

general v. Christ’s Hospital (3 Myl. and K. 344), which was the last case

before the statute, decided that length of time will not prevail against charity trusts

where the land was purchased with notice of thenz; T h e A t ~ o r n e ~ - g e n e r a ~ v. B r e t t k g -

hnrn (3 Beav. 9I), is to the same effect,

the t~~nsac t ion k ew the nature of the property and the purposes to which it was

applied. In T h e ~ ? ~ c o ? ~ ~ ~ ~ ~ ~ ~ ~ o c ~ e t ~ , e c. v. ~ ~ h ~ r ~ s (1 Dru. and War. 258),

Lord Chancellor Sugden intimated an opinion, that case8 of this kind were not

included @=] in the 3 and 4 Will. 4, c. 21, but appeared to have constituted a casus

o ~ ~ s ~ ~ . It is true that in T h e C o ~ ~ ~ ~ s ~ ~ e r s of C ~ ~ ~ ~ a ~ Z e ~ ~ t ~ o n s v. ~ ~ b r ~ n t s

(2 Jo. and Lat. 182), his Lordship applied the statute in the case of a charity, but

assuming this latter decision to be correct, stilill the statute does not apply here, for

here there was no one in existence against whom it could begin to run. In T h e

At torney-generl v. Persse ( 2 Dru. and War. 67), where a rentcharge was created

as a salary for a schoolmaster, Lord Chancellor Sugden held that the statute did

not begin to run until after the appointment of the schoolmaster had taken place,

That rule applies here. There must be a legal right to be enfarced, and a person

legally entitled to enforce it. Thus, suppose there was a charity to raise portions

for a certain number of poor maidens to be nominated by the Lord Mayor, it is

clear that no poor maiden before n o ~ i n a t ~ o n could have a right to the fund, and none

therefore could sue for it, and consequently n e one could be barred till froni the time

when that right accrued. There i s

no one here entikled, as of legal right, to enforce the provident ad~inistration of

this fund. There

arc no terms in the statute which embrace either the Attorney-general, or the in-

1272

It was so purchased here. Both pa&im

The present case is exactly in that condition.

The ~ t t o r n e ~ - ~ e n e r a l i s therefore a necessary party to the suit.

ST. MABY ~ ~ A ~ ~ A ~ ~ ~ , OXFORD 9. A.-@. C1857-J VI EI.L-C.. a03

definib and u n a s c e ~ a i n ~ objects of a charity. It is, therefore, inappl~cable here.

The word " s u c c ~ o r ~ ' in the i n ~ ~ ~ ~ t i o n cl&use$ i s the only word that appears

to bear any such ~ e a n i n g , but that word cannot be applied to the poor of this day

8s the " succ~sors " of the poor tsf the day when this transaction to& pIace, for

one does not claim by, through, or under the other. The p r~ne ip~e &at& in ICSaeg

v. C o ~ s - [ 2 ~ ] - ~ k e r (12 Ves. 136), must be applied in the present case. mere

lands were devised for debts, m d the question was whether the creditors were

barred by lapse of time, and Sir W. Grant held that they constituted a class, and so

were not within the ordinary rule a8 to laches of individuals; yet there the creditors

were persons c a p a b ~ ~ of poss~sing legal in^^^ and of enforeing them. That i s

not the case here, the poor do ntst form a dass, but each individual stands on his

own ~ndividual right, They have no righh as succe~ors, and therefore can have

no d ~ s a b i l i t i ~ as such.

(Lord ~ e n s ~ e y d a ~ e . - ~ i s is not a right of an individual pauper to relief, but

is a trust for the benefit of the ~ n h a b i ~ n ~ who are liable by ~~u~ ta relieve

the poor.

(Mr. R. Palmer mention^ the cases of the parish of C~erkenwel~, The ~ ~ L o T n e ~ -

geaeral v. ~~~e~ (2 Rues. 101 a), and SelEm v. ~ ~ c ~ o l ~ $ (2 Russ. 10.1 e.), where

all the inhabitants claimed a right to present to the living, and where they had

~ n $ t i ~ u ~ a s it to enforce that right).

If the trustxm in such a case disregard their duty, the A t ~ r n e ~ g e n e r a l one

can protect the cestui p e trust, and as between him and the trustees, or those who

claim under them, the statute cannot be a bar, Lewellk v. Muckworth (2 Eq. Cas, Ab.

579, pl. 8). An i n f o ~ a t i o n of the Attorney-general is no doubt " a suit" withia

$he meaning of the 24th and 25th swtions of the statute; but as no object of the

aharity could bring it without the fi.t of the A t ~ ~ e y - g e n e r a ~ ~ the delay of the

At~rney-general cannot a f h t hie rights, A t the same time the right of the A ~ r n e y -

general to probet the charity would @xi& n o t ~ i t h s ~ n d i n g a concuxrence on the

part of the objects of the charity in the ~ i sapp l i ca t~on f the estate. C o r p o T a ~ ~ ~

of ~ ~ e ~ c ~ ~ ~ e a. !i'& EzWJ ~ ~ ~ o r n e ~ - g e ~ r u ~ (12 Cla k and F. 402), and there i s no

instance of the A t ~ ~ e y ~ ~ n e r a l b ing barred by the operation of the Statute of

Limitat~ons where he appeared by infor~a t ion to enforce a chari~able use.

In the same way the Statute has been held not to appIy in a case of mere

want of actual possession, S~~~~ v, ~~o~~ (9 Exch. 562), or of a rent reserved on a

demise, Grant v. El&& (9 Mee. md W e h 113), nor to tithes under 2 and 3 Will.

4, c. 100; The Dem of Ely v. Bliss (2 De Gex, Macn. and Gord.). Where there i s

no personal representation the statute will not, even as regards bills of exchange, begin

to run till the grant of letters of administration, Mwrray v. The Base Zndia CO%-

pany (5 B. and AI. 204). Suppose a charity

for ma~ntaining a school, the children thereby i n ~ n d ~ to be benefited must be

p~rpe tua~ly incapable of suing. The language of the statute cannot be a p p ~ ~ e d to

persons labouring under a perpetual legal disabil The Attorney-gen~ral here

r e p r ~ e n t ~ the Crown, and appears for persons who r possessed the legal means

of intmfering fox themselves. In such a case the S ~ t u ~ of' Limita~~ons cannot be

mltde a~p l~cab le to bar their rights,

o ~ e r a t ~ n g a a~nst his ~ r u s ~ , if, p o s s ~ ~ n g thB power to compel the trustee to do

his duty, the cestui pzce trmL does not use that power, ~ o ~ ~ e ~ e n v. A n e ~ s ~ e ~ (2 Sch.

and L. 607, 629). The

principle of the courts as to the Statutes of Limitations is not to minimise their

applicat~on, SaZkeZd v. ~ o h n s t ~ e (1 Mac. and G. 242 ; 1 Hall and T. 329).

The Lord ance cell or^ after fully ~ a t ~ n ~ the case, ~ a ~ d . - ~ o u ~ h there c e ~ & i n l y

is not, as far as I am aware, any positive law which p ~ h i ~ i ~ the sale of charity

lands, yet it is obvious that S U G ~ a sale can very rarely be justiiled. For, in the

first place, it is plain that persons who give lands to a charity, devote them. for ever

to the purpo~es of that charily, and such is always the e x p r ~ i u n used in such gifts,

the gifts being made to the charitable object " for ever." With the belief that the

charity will endure for erer, it is ~ x t s e ~ e l y ~n~probable that they c m have con-

1273

mere must be =me mode in which they could sue.)

That principle must be ~ p p ~ ~ e d here.

Mr. C. Rail appeared for the par~shes but did not ~ d r ~ s the Bouse.

Mcr. R, Palmer in reply.-A ces$ui gm trust may be bound by len

That i s exactly the situation of the parishes [ZOti] here.

VI E.L.c., 206 ST. MARY ~ A G D A L E ~ ~ OXFORD S. A.-o. E18571

tempxated the sale of the lands, or that they can be considered as having intended

to give authority to sell them. Where the origin of a charity does not appear.

and a sale has taken place a t a very distant date, and has since been acquiesced

in, those facts may afford ground to presume that there was originally power to

sell. Such a presumption, where circumstances warrant it, may reasonably be

of Limitations, could not have been lawfully had without such a power, unless there

were circumstances to justify the sale. In cases of that sort, therefore, if there has

The enjoyment, independently of the Statute

been long enjoyment under a sale, and no account of what the origin of the charity

was, the presumption is not unreasonable that there might have been, although w e

do not discover it, a power to enable the parties holding the charity lands to sell

them, and that it is under that power that the sale has been made.

E2061 NOW, here reliance was placed upon the fact that this charity property had

been enjoyed ever since the end of the s e v e n ~ n ~ o r the beginning of the eighteenth

century, in a way entirefy i n ~ n s i s ~ n t wi h the notion that there was not, & power

of dealing with it, at all events, in some mode different from that in which charity

lands are ordinarily dealt with, because there had been, certainly on two or three

occasions, leases granted by the parish which are clearly inconsistent with what is

considered the ordinary management of charity property, one lease for fifty yearsr

which ended in 1730 or ther~bouts , and another lease for sixty-one years, which

did not terminate until 1798; and i t was contended that, in whatever way this land

might have come into the possession of the parish of St. Olave, these were circum-

stances that led to the presumption that the parish officers had more than the

ordinary power of charity trustees in dealing with this land, and that consequently

the sale in 1790 to Magdalen College might be justified.

The Master of the Rolls was, however, of opinion, that in this case there were no

c ~ r c u m s t ~ i i c ~ showing the sale to have been expedient., and that there had not been

such a length of enjoyment as would justify the pr~umpt ion that there was x

power of sale. In that view of the case 1 am strongly inclined to concur.

But the question then arises whether the last Statute of Limitations pre-sents 8

bar. If this had been an ordinary

trust, not for a charity, but for an individual, the statute certainly would have

afforded a bar. The sections upon which reliance were placed were the 1st and

2d, and 24th and 25th [His Lordship read them.]

Those are the enactments that. relate to ordinary trust estates; but the Master

of the Rolls considered that charities [SO71 are not within the operation of the

statute. My Lords, I have given to this case my best attention, and I feel bound

to say that in that view of i t I cannot concur. Before the late statute, courts of

equity were not bound by former Statutes of Limitations in dealing with trust

estates, but their proceedings were in analogy to those statutes. Where they had

tn deal with legal interests, they acted in obedience to the statutes, but not so in

respect & trust estates. Obedience implies command; and as the statutes were

silent as to trusts, there was no command to be obeyed. They did, however, act in

analogy to the statutes, for reasons which will be perfectly obvious, considering the

large proportion of pmperty in this country which is held as trust property, and

not by persons having a legal interest. It would have been extremely inconvenient

i f there had not practicalIy been the same rule acted upon in courts of equity as in

courts of law. With respect, however, to that particular species d trust which had

charity for its object, courts of equity did not follow the analogy of the statuteg.

The grounds of distinction were, that laches cannot be imputed in cases of charity,

and perhaps also there was a leaning towards such a mode of applying property,

and this feeling might likewise operate, that the parties most interested are generally

among the classes most in need of aid, and least able to assert their rights. These,

I presume, were the principles on which the courts acted in refusing to consider

the Statutes of Li~i ta t ions as a guide, even by way of analogy, when they were

deaIing with charity estates. I must, however, remark that, from my experience,

I have come to the conclusion that this practice.has frequently led to very great

hardship, and that in attempting to be just towards certain classes, such as the

poor, the consequence often was that there was great injustice done k the classes

above them.

1374

f made in favour of long enjoyment.

The Master of the Rolls thought i t did not.

ST. MARY ~ ~ A ~ R ~ L E ~ , OXFOBD /U. A.-G. [I8571 vx B.L.c., aos

[2083 The question, however, now is, what has been the effect of the late s t a ~ u ~ ?

Are char~%ies within those &WO s ~ t i o n s , 24 and 25, or are they not? I have come

to the conclus~o~~ that they are. Charities

are trusts, a favoured sort of trust, no doubt; but stilt a charity is trust, and

nothing more. Lord Bt. Leonards r e ~ a r k e d truly, that c h a r i ~ ~ e s ~ o ~ u ~ ~ ~ ~ e , axe

not mentiuned in the s ~ t u ~ , and e x p r w s ~ his surprise that that om~ssion had

occurred; but at i s not ~ a ~ r i a l ~ for trusta ~ n e r a l ~ y are ~ e n ~ ~ o n e d , and that

~ncludw c~~aritable trusts, unless they are expressly e ~ c e ~ t e d , and there c e ~ a i n ~ y is

no such exception. The right is barred by section 24, unlws in a case where section

25 prevents its operat~on ;and in thk case it could unly prevent the operation o f

sect~on 24 i f the c o ~ ~ e had held the land on an express trust for the ch~rity, which

it c ~ ~ i n ~ y did not.

There has been no express d e c ~ s i o ~ on the subject; but the ~ u ~ t ~ o n has been

more &an once considered by Lord St. Leonards, when he was b r d ~hancellor of

Ireland. First? in the case of The i ~ ~ o ~ ~ T ~ ~ e ~ X o c ~ ~ of € ~ r o ~ e s ~ ~ ~ Xchools v.

~ ~ c ~ r ~ (1 Dru. and War. 258), where there had bem a written ~ k n o w l e d g ~ e n t

which took the case out of the operation of the ~ a t u t e ;therefore, whatever was the

law upon the subject? Lord St. Leonards, then Lord Chancellor of Ireland, said it

c ~ ~ a ~ n l y could not apply in that case.

~ ~ o n d ~ y , there came before him the case of The ~ ~ ~ ~ ~ ~ e ~ - ~ e ~ ~ e r ~ v. Perss (2

Dru, War. 67). There the testator had d~rwted a school to be built, and bad c ~ a ~ e d

his estate with an annu~ty for the benefit of the sch#~mas~r . Lord St. Leonards

held, that until zt schoolmaster was appointed, the trust, consisting of the payment

of an a n ~ u ~ t y for his [209j benefit, could not arise, and as no such a p p o i n ~ e n t

had been made, the s ~ ~ u ~ had not begun to run.

La&ly there was the case of Tlte C o ~ ~ ~ ~ ~ s ~ o ~ ~ ~ . ~ of C ~ ~ r ~ ~ l e ~ o ~ ~ ~ ~ ~ s v.

~~~~~~~~ (2 $0. and Lat. 182).

to trusteea in fee, upon trust to conwy ?&em to certain persons in strict s e ~ l e m ~ n t

c h ~ r g ~ vi& the p a ~ e n t of & ~ n u ~ t i ~ s for the benefit of various chari th . h i -d

8%. Leonards held, &at so long as the fee ~ ~ a i ~ ~ in the t r u ~ ~ , the statute did

not operate, the trust reposed in the& being an ~xpms trust within &e exceptiua

of the 25th section. Bad his Lurdship farther e x p r ~ e d his opinion to be, thaf;

eves if the trustem had made a convey an^ according to &e directions of the will,

still the statute would not have o p e r ~ ~ , for that the persons ~~~~~ under &he

~ a v e ~ a ~ c 0 would have been, as t ~ m s e l v ~ and the e ~ ~ ~ t ~ e s , trustees

h o ~ d i ~ g on an exprws trust the ch. eharge, subject ta which the conveya~ce

was ta be made, being in substance a trust, and an express trust. I n that case,

however, he expressed a clear opinion that cliaritable busts are barred by the statute,

unless they are b ~ u ~ h t w ~ t h ~ ~ t e excep t~~n af the 25th section: I have reason ta

know khat s u ~ ~ u e n t ~ n s i d ~ r a ~ ~ n ha9 in no respect altered iris ~ ~ d s ~ ~ i p ' s opinion.

Ia &he repost of the judgment. of tkte Mbster of the h l l s in the p r ~ ~ t case, his

Honour expresses his concurrence in the view of the statutes thus h k e a by Lord

St. k n a r d s . But he ~ n s i d e r e d that here the bar c r ~ ~ by the 24th section did

of opinion, first, that the A t ~ ~ ~ e y - g e n e r a ~ waw not a person

or interest witbin the meaning of the statute; and, secondly,

that, putt~ng the A ~ t o ~ e ~ - ~ n e r a l out of the ~~1~~ ~ u ~ t i o n , there were no other

persons who GouXd have instituted mch a suit, and ~l~erefore h liken^ the ewe to

that of the charity for &e s ~ o o ~ a s ~ r in, The ~~~0~~~~~~~ v. Yemse. I

~ a ~ u r ~ i t h - h i s H o n y r in t ~ ~ n k i n g t1~a.t the ~ t ~ ~ e y - ~ n e r a i is not a person

claiming. any c&ii€G or interest with~n the meaning of the st&ute. Thai A t ~ ~ e y -

g&eraI is. on$ a part of the ~ a c h i n e r ~ by which the rights of at22ers are sought to

be enforced. Her is no more a party claiming a right Wan, in an ordinary

action at law, the ~ t t o ~ e y on &he record i s such a person. We must look a t the real

l ~ t i g ~ n ~ in th is case, and not at t.hose by whose i n t e ~ ~ e n ~ i ~ n the rights; in dispute

we e n d e a v o ~ r e ~ to be. sustained.

But here I feel ~ u n d to say E diger from L h . t s l ~ ~ ~ ~ ~ of the Rolls. The parties

really seeking relief ia this suit are the poor of the two parishes of St. OXave and

St. J o h . I am clearly of opinion that they are " a class of person&" within &e true

intent and meaning of the i n ~ r p r e t a t ~ o ~ of that phrase givea in the first elause

of the statut~. Swtion 24 create3 a a ~ u i t a ~ l e bar against any (' person 'I assert-

1275

Thwe sections apply in terns to all trusts.

fa %hat case there had been a devise of real

I

s

VI B.L.c., a n ST. MARY ~ A ~ D A L E N , OXFORD v, A.-G. [1857]

ing an equitable right to land; and in the interpretation clause we are told that

the word '' ' person ' shall extend to a body politic, corporate, or collegiate, and

to a class uf creditors and other persons, as well as an individual; " m d I am of

opinion that the poor of the parish c o n s t ~ t u ~ a class of persons within the meaning

of that i n ~ r p r ~ t a t i o n clause. I think 80, because the second section enwts that

no '' persort " shall bring a n action to recover land but within twenty years next after

the time at which the right to bring such action shall have first accrued, that is,

adopting the interpretation in the first section, the poor of t b parish shall not bring

an action but within twenty years. This, therefore, would prevent the poor of

the1 parish from bringing an action after the prescribed time. But here E2111

there is no question as to an action. This is a suit in. equity by o r on behalf of

the poor of the parish. Seetion

24 enads that no person shall bring m y suit in equity to recover any land but

within the same period within which he might have brought an. action at law if

his right had bean a legd right. This section, therefore, bars the equitable, just.

as section 2 had barred the legal remedy. The right of the poor of the parish

must be either a legal o r an equitable right'. There is no third class of rights

known to our law, and by one or other of these sections the right, whether fegal or

equitable, is barred, unless indeed the right, treating it as equitable, i s saved by

the 25th section. The effect of this clause is to save the right of the cestui que

trust, that is, in this case, the right of the poor against the trustee, but not against

Here the Defendants were certainly not

I do not deem i t material to consider whether the legal title of the1 Defendants

is to- be attributed to the conveyanw made to them by the parish officers of the two

parishes, o r to the fine and non-claim. The Defendants certainly acquired the

legal estate, and they were certainly purchasers from, the trustees for a valuable

consideration.

It was, indeed, argued a t your Lordships' bar that the parish officers from whom

the Appellants purchased were not really the trustees, and, consequently, that the

Appellants were not purchasers for value within the true intmt and meaning of the

26th section, The parish officers were, in fact, the

truskea; for they were the persons in legal possession, not for the benefit of them-

selves, but for the benefit of the charity; and they sold to the Appellants for value,

and made to1 E2121 them a good legal title. The Defendants were thus clearly brought

within the exprms words of the 25th section.

On them grounds, I think that the information ought to have been dismissed, my

reasons to sum tkem up being shortly these: The r e d Plaintiffs are t.he poor of

the two parish@. They are " a class of persons " within the first section of the

statute. They are mere cestui que trusts, f o r the law recognises no rights except

legal and equitable. A suit, by i n ~ o ~ a t i a n of the ~ ~ r n e y " g e n e r ~ , is in truth a

- suit by them. They cannot sue except within twenty years, unless the suit is by

them aa cestui que trusts against their trustee. This is not such a suit, b u s e the

president and scholars of the college are not trusteas, but purchasers for value

from the trustees.

Lord Wensleydale,-In this case two questions arise for your Lordships' con-

sideration. The first, whether the Appellants, the ~efendants in the Court below,

acquired a good title, at law and in equity, to the strip of land which they purchased

in 1790 from the parishes of St. Olave and St. John, Horsleydown, for a rent-

charge of.&1:16 a year for ever. The second, whether the Attorney-general, suing

on behalf of those parish=, is barred by &atutc?l3 and 4 Will. 4,c. 27, from recovering

the land in question.

The Mastw of the Rolls, before whom the cause was heard, decided on both

these points against the Appellants. I agree with that very learned Judge on

the first question, but not on the second, and think, after full consideration,

that your Lordships ought to reverse his decree, on the ground that the Attorney-

general, suing, as in this case, for a charity, is barred by the Statute of Limitations.

It does not appear in whom

the title to the fee-simple of the; [213] land was vested a t the time the Act of the

6 Geo. 2 was passed. That Act deals with land which had, before the making of

1276

How does the statute apply to such a proceeding?

t purchasers for value from the trustees.

i the trustws; they were purchasers for value from the trustees.

But this is a mere fallacy.

!

It is not necessary to say much on the first point.

ST. NABY ~ A ~ ~ A L ~ ~ ~ OXFORD 9. A.-G. f18571 VI H.L.c., a e

the Act, been given and g r a n ~ d to, and a p p r o p r ~ a ~ nd applied for, the service

and benefit of the parish of St. Olave in genersl, but it does not r ~ g n i s e a title ia

any one: it gives a statutory tiUe to the rwtor or senior c h u ~ h w a r d e ~ with the

consent of the vestry, to d e leases of the lands settled for char~table purposes, but

no more; it gives no power, under any c i ~ ~ ~ ~ n ~ , to convey the lands; and

though, sfter a p o s s ~ s ~ o n of more than sixty years, every reaso~ble, p r e s u ~ p t ~ o n

should be m d e to a t t r i b u ~ that possession to a legal title, I do not think it ought

t o be done in this case. Where the statute empower8 the ~ n v e y i n g parties in the

feoffment of 3rd March 1790 to lease only, we cannot possibly presume that they

already h d any greater power. The consent of the vmtry to the actud ~nveyance

of the land might, f think, be pres~med, but not a legal title to convey in fee.

It becomes u ~ ~ s a ~ t h e r ~ o r e to consider wheth~r a trustee in fw for charib

able purposea could sell or convey a If ha can, it must km where

there is p r e s ~ p t ~ o n from the n of the trust that the land was originally

conveyed with a power to dispose of it in the most ~ e f i c i a l way for the, charity,

and not merely to apply the renta and profits to its use.

The other question, which is a t ~ n d e d with more d ~ ~ c u l t y , tand i& a vv im-

~ r t a n t one, is whether the Statute of ~ i ~ i ~ t ~ o ~ , 3 and 4 WiIL 4, e. 27, appjiw

to a ~ h a ~ i t a b l e trust, a;dd bars the A ~ ~ e y - g e n e r ~ , e p ~ # n t ~ n g the crown a8

p ~ e ~ s p nd suing on ~ h a l € of the o b j ~ of &e trust, if the ~ t a t ~ t a b ~ e ,

time has There is no doubt that none of the previous statutes of limit&-

tion, in arred ~ u ~ t a b l e rights, nor can there E2141 be any doubt that

courts of equity always held that the t e rn prescribed fox binding legal rights also

bound ~ u ~ t a b l ~ rights, except as between a ceslizvi qzle trust, and a trustee in the cage

of exprms and ~aritable &us

3 m d 4 Will. 4, e. 27, undo meant to fix sj limit to all

a ~ o ~ d i n g to the natural and ~ n ~ r u c t i o n of the w

to all persons claiming any 1 ity. By the i n ~ ~ r e t ~ t ~ o ~ clause ~ s e c t ~ ~ n

l}, the word '' persoa '' $ d a d persons, as well as i n d i ~ ~ d u a ~ , and under

that denomina~ion all the poor of the parish for the time being, who certainly have

an interest in the appl~cation of the rents and pro$& of the land to the p u ~ o s e s of

the charity, seem to me iio be ~ n c l u d ~ ~ so dso the recbre and chu~hwardens of

immediate d ~ s t r i ~ u ~ ~ o n of those rents

to w h i c ~ khey wexe o ~ ~ ~ a ~ y d e g t i n ~ ,

uld, for t h ~ s % l v e s and the rest, aad

w ~ ~ o u t the Atto~ey- genera^, file s bill against the ~ e € e ~ d a n t a , o have the rent*

and profits distributed to the charitable uses to which they were originally destined,

or whether the A t t o ~ e ~ g e n e r a l was a necessary party to the suit; for if he was,

it seems to me clear that he i s only an i n s t ~ m e n t o e n f o ~ ~ the r ~ g ~ ~ of those who

are entiiiled to the ~ n ~ t s of he ~ h a ~ i t y , and stands in the same situation as they do

with respect to those rights ; and if the c l ~ ~ m ~ n t a on whose behalf he is suing are

barred, he must also ba barred. I316 has no independent title of his own ; he must

succeed or faiI as they are entitled to succeed o r fail; and if the S ~ t ~ ~ of Limits-

tions is a bar to them, it is a bar to &e A~rney-general.

I think, therefore, that the 24th section of the Act is a [ZlGJ bar to all classes

e n t i ~ e d to sue, and tharefore to the Atto~ey"genera1 ~ s u ~ n g as

reason of more than t w ~ n ~ years having elapsed since they had

of the renta and p ~ $ t s of the c h a r ~ ~ y estate. If they had had the legal intr;rwt

in the land, their right o€ entry or action would have accrued in year 1790,

and would have been long ago barred.

This subject was under the con&deration of Lord St. Leonardrr when Lord Chan-

cellor of Irelacnd, in several cases cited a t your Lordships' bar, and be finally pro-

aounced his opinion in the case of the C o ~ ~ ~ ~ o n e ~ of ~ ~ ~ t ~ ~ ~ e ~~t~~~~ r,

~ ~ ~ ~ t s (2 Jo. and L@t. XS2), that the 24th seotion of the datutct barred c h ~ r i ~ b l e

t~~ unless the 25th section took the p ~ ~ ~ c u l ~ r case out .cl.f its o p e r ~ t ~ ~ n . I entirely

concu~ in that opinion, and have EWOR to befieve, from p e ~ o n a l communi^^

tion, that his Lordship has no doubt as to the propriety of that decision,

It remains for your ~ordships to consider. whether the 25th section applies to

this case, and continu~s the right of the c e s ~ ~ p e t r ~ s ~ tQ the time of filing &is

i n f o ~ ~ t i o n i their behalf. The 25th section provides [his Lordship read it.]

I277

to a purchaser.

there was no limit of time. The ~ a t u ~

,

I

VI H.L.C., $316 W~~HTWICK v. LORD [1857]

This section is certainly not very happily expressed; but I wppose i t means-

indwd that was admitted at the bar-that the remedy of the cestui que trust for

an abuse of an exprms trust vested in the trustee continues against him, and those

claiming under him, though the estate. is conveyed away, and is not barred by the

expiration of the statutable period as against him, though as to the ~ u ~ h a ~ r from

him, for a valuable consi~ration, the right to sue begins from the d a b of the con-

veyance to tlie purchaser, and therefore is barred in ordinary cases by the expiration

of twenty years from that time, and, where dis.[216]-abilitim occur, by the expiration

of the longer period allowed in such cases. It seems to me that under this section

the Attorney-general, suing on behalf of the objects of this charity, is barred by the

expiration of twenty yeam from the date of the conveyance to the Appellants,

If the land is vested in this case in any trustee upon an exprsss, trust, M it

probahly is, the Appellants either claim under that trustee, or they do not. If they

do, it must be by virtue of the mnveyance of 3 March 1790, for tliak i s the only

~onveyance to them, and it is for a valuable con~iderati~n, and then the lapse of

twenty years from that day icr in that case a bar tcl the suit. If they do not, the

general rule in the 24th section appliw, and the Attorney-general i s equally barred

by the lapse of twenty years from the date of possession, the statute making i t

equally a bar whether i t is with or without notice of the trust.

The remedy agaioat the trustees for a breach of trust, if these trustees can be

discovered, is preserved against them, and those claiming under them without

valuable consideration, i f there be any.

The ~iole question in this case, therefore, i s whether the Attorney-general, ming

on behalf of the cestui que trust, is wholly exempt from the operation of the statute.

If he is, it must be by inadvertence; for i t is, I think, obvious that the framer of the

statute had in view every claim, both legal and equitahle, to real property, and meant

to establish a general rule for the great object of quieting titlw, and giving security

to long and quiet possession, But, in my opinion, for the reasons before given, the

Attorney-general has; no independent title; he is only an ins~uIne~I t to ob%ain

justice for those really interested; and if they have Ioet their claim by lapse of time,

his, which is in part theirs, is also I&.

[217] I therefore concur with my noble and learned friend in advising your

Lordship to reverse the decree of the &faster of the Rolls.

Decree reyersed, and cause remitted tn, the Court of chance^, with a declaration.

Lords’ Journals, 13 June 1857.

8TUBBS W I ~ ~ T W I C E , - ~ ~ ~ ~ ~ ~ ; LUCU L O R D , - ~ ~ s ~ o ~ ~ ~ ~ t [February 27,

March 2,3, June 13,18571.

IXews’ Dig. vi. 262, 273. See

~ ~ c d o n a ~ ~ v. ~ ~, 1877,8 Ch. D. 101 j ~~~~~~ v. Bebb (19~0) 2 Ch. 107.1

~ ~ ~ - ~ e ~ ~ ~ e - ~ ~ ~ e C l . g e - ~ ~ e c ~ t o T - T r m s t e e - ~ ~ ~ e .

S.C. 26 L.J. Ch. 825; 3 Jur. N.S. 699; 5 W.R. 713.

A person having a charge for life on re&due, has, to the extent of that charge,

the rights of a residuary legatm, and i s entitled to have the residue ascer-

tained and secured within, i f possible, one year after the death of the

testator. It is the duty of the executor to do all in his power t o effect that

object. 9

In a case in which the will gave no specific directions as to the payment of debts,

the executor, who was also the ultimate residuary legatee, having taken on

himself (after the trustees n a m d in the will had renounced) bo a d m i ~ i s ~ e r

the estate, did not ascertain and secure the residue a t the end of the year,

but wwked part of the property (a mal-mine) t o a profit f o r several years,

when i t ceased to be of any value. On a bill, at the suit of the person having

the charge on the residue, praying that the will might be establish^ and

accountx taken :

EIeld, (agrming a decretal order of the Lords Justices), that the executor was not,

1278