master. 1832. WILKINSON V. MALIN. structed at that school. We are of opinion that that ap- Erch. of Pleas, plication of the funds comes within the terms of the trusts; and that, where trustees are appointed to apply funds for the relief of the poor of a parish, they may, in the exercise 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 schoolAt 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 1832. บ. MALIN. Exch. of Pleas, is a public trust, or of a public nature, namely, a trust to apply funds for the repair of the church, and for other WILKINSON subjects in which the whole parish were interested; therefore, we think it comes within the principle to which I have 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 churchwardens 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, namely, 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 1832. WILKINSON v. MALIN. when the notice was given, there were ten trustees, so that Exch. of Pleas, the persons who gave notice did not even constitute a majority of the whole body. In the next, even if they did 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 407. 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 Exch. of Pleas, ed, that the parties were seised, without stating that they 1832. were seised as trustees. However, we do not conceive WILKINSON V. MALIN. that that makes any difference on the evidence produced. The trust deed under which the schoolmaster was appointed, was produced, or assumed to be produced. That deed limits the nature of the appointment, and regulates also the manner in which he may be dismissed; and the evidence under it is not at all inconsistent with the statement of the title and the right stated on the face of the replication: the legal title stated in the replication corresponds entirely with what appears in evidence. We are of opinion, therefore, that this ranges itself precisely within the decision on the former point; and that, though on the face of the replication they are not stated to be seised as trustees, yet sufficient appears for this purpose. By the production of the trust deed upon the trial, and the nature and limitation of the appointment, and the right of removal, as evidenced by that trust deed, the Court entertain no doubt but that an appointment to the situation of schoolmaster may be made without writing. The remaining question which has been argued arose upon the motion in arrest of judgment. The plea was liberum tenementum; the replication was liberum tenementum (in the same person), to which was added a deduction of title; and the question is, whether, after verdict, it is sufficient, without having first alleged that they were seised in fee; and then, after deducing a regular title, that the trustees who were so seised in fee regularly appointed by a majority the schoolmaster; but, instead of stating a seisin in fee, the premises were stated to be the soil and freehold of certain trustees, and that those trustees were appointed previously to the election by the majority. It is not disputed, I think, at the bar; and it is quite clear, that to have stated a seisin would have been sufficient after verdict. We think, therefore, that, it having been stated that it was their soil and freehold in the replication, is 1832. cured by verdict, as much as it would have been cured if Exch. of Pleas, a general seisin had been stated, without stating a seisin in fee. We are of opinion, therefore, that the rule should be discharged. WILKINSON บ. MALIN. county in which the venue is re tained, in an action for goods DEBT for the balance of an account for axle-trees and An undertaking springs delivered. Plea, the general issue, with notice of evidence in the set-off for eight axle-trees and eight bundles of steel returned and delivered to the plaintiff, as per invoices sent to him, and for cartage thereof to the defendant's premises from the canal wharf. The venue had originally been laid in Yorkshire, had been changed to Middlesex, and retained in Yorkshire, upon the usual undertaking to give material evidence in that county. The cause was tried in Yorkshire, before Bolland, B., when it appeared that the plaintiff was an iron master at Sheffield, and the defendant a coach-spring smith in Curtain Road, Middlesex. The plaintiff proved a contract in Middlesex for the sale of the axles and spring steel, to be delivered by the plaintiff at a wharf in Islington, and that the goods in question were delivered at the defendant's premises in Curtain Road. The plaintiff's book-keeper then proved that he made out two invoices containing an account of the quantities, prices, &c. of the goods, which he sent by post addressed to the defendant at Shoreditch, on the same day on which the goods were forwarded by water; and that the charges were the current charges of the day. Notice was given to produce these invoices, which were sold and delivered, is satisfied by proof of letters, containing invoices of goods, having been put into the post office in that coun ty at the time the goods were forwarded. A defendant was arrested for was arres defence was, that the goods were of bad quality and had been returned to the plaintiff, who sent them back. The plaintiff re covered 151. only; and, upon an affidavit, uncontradicted, that the defen dant had objected to the quality of the goods, and the plaintiff had agreed to take them back:-Held, that the defendant was entitled to costs under the statute 43 Geo. 3, c. 46, s. 3, the arrest being without reasonable or probable cause. |