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MALIN.

an office taking effect out of, and as coupled with, an in- Ezch. of Pleas,

1832. terest in land.

On the eighth issue, the verdict cannot be supported, WILKINSON as it is not stated who the persons are, in the majority of whom a right to dismiss is alleged, nor that they were any of those by whom the plaintiff was appointed. It is also alleged, that seven persons were seised in fee of the land, from whom it appears on the pleadings that an interest in land passed; but the evidence is, that five only professed to part with that interest. The plaintiff, as in Doe d. Warner v. Brown, must have either an estate for life, which could not be created, except by deed, or a tenancy from year to year, determinable by a regular notice to quit, which has been determined by notice from the five trustees. Doe v. Summersett, Doe v. Jones, Doe v. M'Kaeg. The education of poor children is not one of the purposes of the charity, as directed by the words, " relief of the poor," which must be limited to bodily relief of the poor, such as is afforded by the poor laws, and would go in diminution of the poor-rate, and the doctrine of cy pres does not apply. Judgment should be arrested, because all the replications, except the seventh and eighth, are bad; as the legal title of soil and freehold set out in the plea are confessed, but are not avoided by the statement of another and a better title. The plaintiff claims a particular estate, created by the " then trustees,” but does not shew a derivative title from a seisin in fee. The title, as trustees, is merely equitable; and, therefore, this is a defect or omission to state any title, which would be bad on demurrer, and not an ambiguity as in Huntingtower v. Gardiner (a), or a title defectively or inaccurately stated, as in Harris v. Beavan (6). The first seisin in fee should have been clearly stated; King v. Coke (c), Lambert v.

(a) 1 B. & C. 297.

(6) 1 M. & P. 633; S. C. 4 Bing. 646. (c) Cro. Car. 384.

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Exch. of Pleas, Stroother (a); soil and freehold does not shew the estate, 1832.

or the commencement of it. 1 Saund. 347, n.(6). Ward v. WILKINSON Harris would only cure the statement that the defendants

were" trustees of a certain charitable fund;" and in that case Lord Eldon differed from the other Judges. The omissions, therefore, are not cured by verdict or pleading over. Rushton v. Aspinal (6), Buxendin v. Sharp (c),

Avery v. Hoole, Jackson v. Pesked (d) per Lord Ellenborough, C. J., Butt v. Howard (e), Mitchell v. Walker (f).

The Court took time to consider, and now judgment was delivered by

Lord LYNDHURST, C. B.-One of the points argued at the bar, and which stands for the decision of the Court, is, whether or not the plaintiff was duly appointed master of the school, which is the subject of this inquiry. A charity was established in the reign of Henry the Sixth, and certain trustees were appointed, to whom certain estates were conveyed for certain purposes specified, viz. for the relief of the poor, the repair of the church and highways, and of a particular bridge, and to pay the fifteenths, when it should be required, to defray the expenses of soldiers. Thus, all the objects I have enumerated, were objects of a public nature, to which these trustees were appointed, to take certain estates and apply their produce to them. It has been considered for many years, that, under that part of the trusts which enabled the trustees to apply these funds for the relief of the poor, they were at liberty to apply part of the funds to instruct the poor children of the parish. A school-house has been accordingly built, and those poor children have been in(a) Willes, 218, 225.

(d) | Mau. & Selw. 234. (6) Doug. 658.

(e) 4 Barn. & Ald. 655. (c) 2 Salk. 662.

(1) 5 Term Rep. 260.

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structed at that school. We are of opinion that that ap- Exch. of Pleas, plication of the funds comes within the terms of the trusts; and that, where trustees are appointed to apply funds for Wilkinson the relief of the poor of a parish, they may, in the exer cise of their discretion, apply those funds, or part of them, for the education of the poor children of the parish; that being an applying the funds for the relief of the poor, within the language of an instrument of this description. Now, in this case, at the time when the plaintiff was appointed schoolmaster, there were seven trustees: those seven trustees met for the purpose of electing a schoolmaster. At that meeting, five of the seven trustees concurred in his appointment, and two dissented, but did nothing upon that dissent. It was stated merely in evidence, that five concurred, and two dissented; but the latter did no act, as it appears in the evidence, consequent upon that dissent. It is unnecessary, however, in the view which we take of the subject, to say whether or not that is to be considered as a concurrent election by the seven, because we are of opinion, that, in a case of this description, where all the trustees were assembled for the purpose of making the election, and the majority of them so assembled concurred in the appointment of a schoolmaster, the act of the majority, in that respect, is to be considered as the act of the whole body. This is a trust of a public nature, and we are of opinion, that, when trustees are appointed for the purpose of performing a trust of a public and general nature like this, the act of the majority is the act of the whole. In the case of Grindley v. Baker, Eyre, C. J., says, that, where persons are intrusted with powers of a general nature, and they all meet for the purpose of performing their duty, the act of the majority is the act of the whole. That case was recently cited in Curtis v. The Kent Waterworks Company by one of the learned Judges, and was adopted by him and apparently by the whole Court. We are of opinion that this

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Exch. of Pleas, is a public trust, or of a public nature, namely, a trust to 1832.

apply funds for the repair of the church, and for other WILKINSON subjects in which the whole parish were interested; there

fore, we think it comes within the principle to which I bave referred. But it was said at the bar, that the principle only applies to cases where the trustees are appointed under some public authority, as, under an act of Parliament or some public body. We are of opinion that it is not subject to that limitation; and in fact, in the Shipton School case, Withnel v. Gartham, the charity was founded, and its officers were appointed, not by any public authority, but, as in the present case, by an individual. It is true, in that case, the churchwardens and vicar for the time being were the trustees, and that the church wardens usually acted by a majority; but that was merely made use of as a circumstance from which it was to be inferred that the intention of the donor was, that the act of the majority should bind the whole, and should be considered as the act of the whole body. Other circumstances were also there relied upon, nainely, that the objects of the trusts would be defeated if one dissenting trustee should prevent the application of the funds in the manner directed by the trusts. Now, that would apply equally in this case, and, considering the nature of the trusts, we are of opinion, that it was the intention of the founder, and fairly to be collected from the objects he had in view, that the act of the majority of the trustees should bind the rest.

The next question that arises for consideration, arises on the ninth and last issues, being, whether the master was duly and properly dismissed. Now, the dismissal was in this form: there was no public meeting, nor any declaration by a majority assembled at a public meeting, that the schoolmaster should cease to act in that situation; but five out of the trustees, not assembled in that formal manner, gave notice that the schoolmaster should, within a certain time, retire from his office. In the first place, at the time

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when the notice was given, there were ten trustees, so that Exch. of Pleas,

1832. the persons who gave notice did not even constitute a majority of the whole body. In the next, even if they did WILKINSON constitute a majority of the whole body, it is the whole body that is to dismiss, and not a majority of it. So that, if there is a meeting, and a majority are for dismissal, then the declaration of the majority is not merely the declaration of the majority, but of the whole body; which whole body does, in fact, dismiss. Therefore, in a case of this description, where there was no meeting, and where five individuals gave their opinion, or said that the dismissal should take place in a short time, or that the party should cease to act as schoolmaster, we are of opinion that that is not a valid dismissal within the meaning of this trust.

Both notices stand on the same footing, and are governed by the same principles. Though I have hitherto stated the second question to relate to the dismissal of the schoolmaster, the actual terms of the last issue are, whether the interest and right of possession were lawfully put an end to and determined before the trespass complained of. And it becomes material, therefore, to consider next what his interest and right of possession were. He was appointed at the salary of 401. a year, and with permission to occupy the dwelling-house, and a right to occupy it as long as he continued schoolmaster. That occupation was incident to his appointment of schoolmaster, and he had no interest in the house distinct from his interest of appointment of schoolmaster; as soon, therefore, as he was properly removed from his office of schoolmaster, we should in effect decide that his interest and right of possession in the premises had ceased. Another question, however, arose out of the form of the issue, which was this, that the assembly did not duly appoint the plaintiff upon the terms, among others, that he should hold till dismissed by a majority; and in that issue, and upon that replication, nothing is stated with respect to the trustees; but it is merely stat

VOL, 11.

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