The plaintiff in the action of Hempstead v. The Phoenix Gas-light and Coke Company sued the defendants for negligence in the management of their gas, whereby it exploded and injured the plaintiff's house. The case of Hempstead and Wife v. The Phoenix Gaslight Company, was an action by the same plaintiff and his wife against the same company for injury to the female plaintiff, claiming damages for the injury to her, arising from the explosion, and also damages for

the husband for loss of consortium.

The defendants applied at chambers for an order to consolidate the actions under the 40th section of the Common-law Procedure Act, 1852, which is as follows:-In any action brought by a man and his wife for an injury done to the wife in respect of which she is necessarily joined as a co-plaintiff, it shall be lawful for the husband to add thereto claims in his own ight, and separate actions brought in respect of such laims may be consolidated, if the court or a judge night think fit, provided that in the case of the death of either plaintiff, such suit, so far as only relates to he causes of action, if any, which survives, shall abate. The judge at chambers, Pigott, B., made the order sprayed.

Lyell now moved for a rule, calling upon the deendants to shew cause why the order should not be et aside, on the ground that the liberty given by the ection of consolidating actions, only referred to cases where the separate claim of the husband was in repect of injuries to his wife. THE COURT, however, was of opinion that the secion comprehended both cases, and-Refused the rule.

COURT OF CHANCERY.

time were too unwell to leave their house, signed the The bill then alleged that the plaintiffs, who at the receipt without legal advice, and without having consulted their friends, and were, in fact, ignorant of their legal rights and position with respect to compensation, and relied upon the assurances of Dr. Cooper, Mr. Hill, and Mr. Woodward, the surgeons in question: that the plaintiffs had since discovered that these three gentlemen were employed by the company as agents to settle with them, and that they had been deceived, and that the sum of 157. was grossly inadequate: that the plaintiffs, on the 24th February, claimed on account of their injuries the sum of 1700l.: 1865, commenced an action against the company, and that on the 14th March the defendants pleaded not guilty, and had since added a second plea, that since the cause of action, and before the commencement of the suit, the plaintiffs received and accepted from the defendants the sum of 157. in full satisfaction of the causes of action. The bill then charged that, under the circumstances, it was inequitable that the defendants should avail themselves of the payment of, or the receipt for, the 157., and prayed that it might be declared that the receipt ought to stand only as a receipt for 157., and not as a satisfaction of the plaintiffs' claims; and that the defendants might be restrained from relying on their second plea, and from setting up, or relying on, the payment of 15l., or upon the receipt as a satisfaction of the damages claimed, except to the extent thereof.

To this bill the defendants put in a general de

Bill in aid of action—Jurisdiction-Railway companyCompensation-Fraud-Limited relief.

To an action for compensation for injuries from a railway accident, the company pleaded a receipt in full; the plaintiff then filed a bill alleging the receipt to have been obtained by fraud, and praying that the company might be restrained from setting it up, but for no further relief:-Held, on demurrer, that although the plaintiff might have met the defendants' plea by equitable replication, he was entitled under the old jurisdiction, notwithstanding the Common-law Procedure Act, 1854, sect. 85, to come to equity for the relief needed for the purposes of his action, and that he had rightly limited the prayer of his bill to such relief.

This was an appeal from a judgment of Sir R. T. Kindersley, V. C., overruling a general demurrer to a ill filed in aid of an action at law, to recover compenation for injuries received from a railway accident. The bill, which was filed by Mr. Stewart, a coachnaker of Worcester, and his wife, contained statenents to the following effect:

:

That on the 3rd August, 1864, the plaintiffs were Jassengers on the Great Western Railway, by an excursion train from Worcester to Crumlin, in the county of Monmouth.

That on the return journey from Crumlin to Worester, the excursion train, through the negligence of the railway company's servants, came into collision at the Pontypool station with a coal train, and Mrs. Stewart's leg was broken, while Mr. Stewart received injuries on his head, chest, and back.

The bill then stated the circumstances under which No. 553, VOL. XI., NEW SERIES.

before Vice-Chancellor Kindersley on the 22nd June, when his Honor delivered the following judgment:

"The first question that presents itself on this demurrer is, whether the facts that are alleged in the bill, assuming them to be proved, are sufficient to induce the Court to come to the conclusion that the receipt and quittance, which are the subject of the suit, ought not to stand as an impediment to the recovery by the plaintiffs of such damages as they are entitled to, supposing that instrument had never been executed. On that first dry question, I feel no doubt that this Court will prevent that instrument from being so set up. The material question, however, is, supposing the allegations, if proved, sufficient to entitle the plaintiffs to relief in this court, are those allegations, therefore, necessarily such as to constitute a fraud, of which a court of law will take cognisance as fraud? Now, there is a very great distinction between equitable fraud and fraud regarded by a court of law. To draw the line between them, and to give such a definition of the one and of the other as should meet all possible cases, would be a very difficult, if not an impossible, task; and without pretending to lay down an abstract definition of equitable fraud as distinguished from legal fraud, I am clearly of opinion that the facts here alleged are not such as to constitute that sort of fraud of which a court of law would take cognisance. Here is a corporate body, acting by its directors or managers, with subordinate agents and persons acting under them. I apprehend, that in order to constitute fraud at common law, it is not enough to shew that fraud in the sense of misrepresentation, and undue advantage of the position of the parties said to be imposed on, has been committed, but the extent of the fraud must be brought

e e

home to the party to the action who is charged with it. Now, in the case of a corporation like this, the body of the directors may be supposed to have no more cognisance of the details of this transaction than a stranger, and on that ground, I apprehend, it would be impossible to make out that this was a fraud committed by the defendants to the action, so as to prevent them from setting up the instrument so obtained. But with regard to equitable fraud, a court of equity will take into account all the circumstances of the case-not only the act and intention of the party, but the circumstances under which the act was done; the position of the party who is said to be imposed on; his being inops consilii; his being in a state of bodily, and therefore mental, weakness; and so on. Non constat, that these are sufficient to constitute legal fraud. On these grounds, I think that this is a case in which this Court may give relief, but that it does not follow that a court of law would hold the circumstances to be such as to constitute that kind of fraud which would be either pleaded to the action, or replied in answer to a plea. I think, therefore, that upon that ground the demurrer cannot be allowed.

"There is, however, another important ground, which is, that assuming that a court of law would not hold that there was here such fraud as could be replied to a plea setting up the receipt as a defence, still a court of law may now, under the last new law, take cognisance of equitable pleas, and also of equitable replications; that is to say, replications of matters which in themselves constitute equitable, and not legal grounds. And it has been observed, that it is now established, that if a party who may have an equitable defence comes into this court, he is not precluded from its assistance; but if he has attempted the equitable defence in a court of law, then he is too late to come to this court. Then it is suggested, that in this case the party coming here has himself elected his tribunal. But has he done so ? It is true that he selected a tribunal for the purpose of determining the amount of compensation which ought to be given to him; but it is the defendants who have set up this instrument as a defence, and the plaintiff says, I did not select the court of law to try that question. That is not the question in my action for damages, and you are setting up a new defence.' It appears to me, therefore, that this case does not come within the principle of a party selecting a legal tribunal to try an equitable question, and that the plaintiff is not precluded from coming to this court. For these reasons, the demurrer cannot be allowed."

From this decision the defendants now appealed. Glasse, Q. C., G. L. Russell, and H. James, for the defendants, in support of the demurrer, contended that the case made by the plaintiffs' bill might have been made the subject of an equitable replication to the defendants' plea in the action under the Commonlaw Procedure Act, 1854, sect. 85, and that although the fraud alleged was the act of subordinate agents of the company, still the company had adopted that act, and claimed the benefit of the contract; and therefore, if fraud there was, it amounted to legal fraud, and could have been pleaded by the plaintiffs. Moreover, the plaintiffs' bill did not pray for sufficient relief to enable this Court to exercise its jurisdiction, but was limited to depriving the defendants of their right to set up the receipt. [They referred to 17 & 18 Vict. c. 125, s. 85; Collins v. Blantern (2 Wils. 341); and Eastern Counties v. Brown (6 Exch. 314).] Baily, Q. C., Wickens, and Garth, in support of the bill, were not called upon.

The Common-law Procedure Act, 1854 (17 & 18 Vict. c. 125, s. 85).

12

LORD CHANCELLOR (Lord WESTBURY).—I should have very little difficulty in coming to the conclusion that this might be made the subject of an equitable replication, as it has been called, to the plea. I should have very little difficulty in coming to the conclusion, that a corporation, claiming the benefit of a contract and setting it up, and adopting the act of their agent, must leave the act of the agent subjected to any fraud committed by him, in obtaining for them that which they claim the benefit of. But I have got a bill here that seeks relief upon grounds that are the old accustomed and settled grounds of jurisdiction in this court. I am asked to decline to exercise that jurisdiction on this ground, that the relief that is sought is limited to depriving the defendants of the right to set up the instrument obtained by a surprise and by misrepresenta tion; and I am told that it would have been quite right to have filed a bill, provided the bill went on to pray complete relief, namely, to pray compensation in the nature of damages for the accident which the plaintiffs have sustained. I do not think that there was any obligation upon the plaintiffs to extend their bill in that way. I think it would have been very inconvenient to this Court to have assumed jurisdiction in that particular. I think it most probable, nay, almost certain, that this Court would have declined to interfere with the consideration of the circumstances and would have sent the whole cause of action to be tried before a jury. I think, therefore, that this bill has been limited very properly to seeking the interference of this Court to the extent to which it was needed-to the extent which I cannot refuse to go without repudiating its old jurisdiction, and that it would have been wrong if the bill had sought to transfer to this Court a cause of action which I do not think the Court would have interfered with which the Court could not have interfered with with so much advantage, and so much regard to justice being done, as if it had left it to a jury; and I think, therefore, that the prayer of the bill has been very properly limited in that respect.

It by no means follows, that because a statute gives a court of common law jurisdiction in certain matters of equity, that, therefore, this Court should decline to exercise that jurisdiction; neither can I admit that the circumstance of the plaintiffs having previously brough an action, and thereby given occasion for this defero to be set up, is a reason why I should refuse to give the the relief which is needed for the purposes of that 30 tion, because they decline to transfer to this Cour which they are under no obligation to do, the who of the original cause of action, which properly belong to a court of common law. An instrument has bee unfairly obtained which is an impediment to the plain tiffs succeeding in an action. The plaintiffs have right to have that instrument taken out of their wa and they are under no obligation to forsake the t bunal to which their cause of action properly belong and where they are already suitors, to transfer that its entirety to this Court as a price of this Court's in terference. This Court can most legitimately an effectually interfere by restraining parties from o taining any benefit from that instrument. I think is bound, if the case be proved, as it is now allege to exercise that jurisdiction; and on those group therefore, without giving any opinion upon the groun assigned by the Vice-Chancellor, I overrule this murrer, and dismiss the petition of rehearing, w costs.

Note for reference-Common-law Procedure Act, 185 sect. 85.

COURT OF APPEAL IN CHANCERY.

But where the right to present to the mastership had been exercised by the municipal corporation of a town for 350 years, the Court refused to interfere with their right.

This was an appeal by the defendants from a decree made by the Master of the Rolls on an information. The facts of the case appears sufficiently from the judgment of Lord Justice Turner. Previous informations as to this charity are reported in 2 Cro. Eliz. 790; Willes Rep. 608; and Adams v. Lambert (4 Rep. 96).

Sir R. Palmer, A. G., Hobhouse, and T. H. Terrell, for the information.

Baggallay and Wickens, for the appellants. The following cases were referred to:-The AttorneyGeneral v. St. Cross (18 Beav. 601; 8 De G., Mac., & G. 38; 2 Jur., N. S., 336); The Attorney-General v. The Fishmongers Company (5 My. & C. 11); and Re Shrewsbury (1 My. & C. 632).

Judgment was reserved until the 3rd July; when Sir G. J. TURNER, L. J., said-This is an information filed by the Attorney-General, ex officio, against the master and co-brethren of the hospital of St. John the Baptist, in the town of Bedford, the Rev. Henry Pearse, clerk, who is the master of the hospital and also the rector of the parish of St. John, in Bedford, and the mayor, aldermen, and burgesses of the borough of Bedford, for the purpose of subjecting to trusts for charity some considerable property alleged to belong to the hospital, which is an ancient foundation in the town of Bedford. The hospital appears at some very remote period to have been incorporated by the abovementioned title, and it has for centuries subsisted, and still subsists, under that title, and has used, and still uses, a common seal. It appears to have originally consisted of a master and two brethren, but in later times there seems to have been a larger number of persons, who, though called beadsmen, have assumed to act as brethren. There seems to have been from the earliest times a church belonging to the hospital, and this church has for many centuries been used as the church of the parish of St. John, in which parish the hospital is situated. For several centuries the offices of master of the hospital and rector of the parish have been held together, the master of the hospital being also rector of the parish. In the early times of the hospital the master appears to have been elected to the office of master by the co-brethren, and to have been instituted to the mastership by the Bishop of Lincoln on their presentation; but for the last 300 or 400 years he has been instituted by the bishop both to the mastership and rectory, on the presentation, first, of the mayor, and subsequently of the Corporation of Bedford. He has always, on the occasion of his being instituted, taken the oath of canonical obedience. There are many grants of land to the master and co-brethren, but only two or three of these grants refer in terms to any charitable purpose. There is no trace of any grant of land, or any other grant, for or in favour of the rectory of St. John's. There appears to have been a very long and protracted litigation re

which inquisitions were taken. The documents before us leave no doubt in my mind that throughout these proceedings the foundation was recognised as a charitable foundation. It appears, indeed, that in the course of these proceedings a sum of 12d. per week was ordered to be paid by the master and rector to twelve poor men, and payments of about the same amount seem to have been continued to be made up to the present time. We find also from the docu

ments before us, that in the time of Charles II there was a dispute between the Corporation of Bedford and one George Williams, who claimed, under a grant from the Crown, respecting the title to the mastership and rectory, and that this dispute led to proceedings in quare impedit, in which the Corporation of Bedford established their right to the presentation.

The informant's claim to have the property in question subjected to trusts for charity is based upon a charter of one Robert de Parys, the date and authority of which is disputed; and the information, after stating this charter (to which I shall presently refer) and a variety of documents which are relied on by the informant as supporting the title of the charity, and leading to the conclusions above mentioned, prays a declaration, that the whole of the lands belonging to or in the possession of the master and co-brethren belong to the hospital, and are subject to the trusts of the hospital as declared by Robert de Parys, and that no part thereof belongs to the rectory of the said parish of St. John, or to the master of the said hospital, otherwise than as such master, and that a scheme may be settled for the better administration of the property, having special regard to the poor of Bedford, and for the better application of the income to be derived from the property.

The defendants Pearse, the master, and the corporation of Bedford, resist this prayer, and their answers state the grounds on which they rely.

The defendant, the Rev. Henry Pearse, by his answer alleges that the ecclesiastical foundation known as the Hospital of St. John, Bedford, if not originally annexed to, had, for many centuries been annexed to and consolidated with the rectory of the parish of St. John, forming therewith one ecclesiastical benefice: that the foundation was a corporation aggregate, but that the corporation had for some centuries past existed only in name, and that he, the defendant Pearse, was the only member thereof: that the defendant was upon the resignation of his predecessor instituted (as to an ecclesiastical benefice) to the rectory of the parish church of St. John the Baptist, with the hospital of St. John the Baptist, in the town of Bedford: that the defendant had always considered the benefice as purely ecclesiastical, and as free from any payment or trust, except certain weekly payments to ten almsmen chosen by the rector for the time being: that in 1850 the governors of Queen Anne's Bounty, after full inquiry, made a loan to the defendant for the purpose of improving the rectory house, on the security of a mortgage of all glebe lands and tithes payable to the rector of the living of St. John the Baptist, and master of the hospital: that the property of the rectory and hospital ought to be considered as belonging to one consolidated benefice: that such property has from time immemorial been accustomed to be let upon leases for lives, or for forty years at ancient yearly rents, the incumbent for the time being receiving for his own use the fines paid upon the granting or renewal of leases, and also the rents reserved that such leases have been granted in the name of the master and co-brethren of the hospital of

St. John as a corporate body, and under their seal, but have been in fact granted by the rector for the time being at his sole free will and pleasure that it has been customary, on affixing the seal of the corporation to any lease, to do so in the presence of two of the almsmen, but that such almsmen have nothing further to do with granting the leases, and do not form part of the corporation.

The defendants, the corporation of Bedford, by their answer say, that "there is in the town of Bedford an ancient foundation known as an hospital, called the Hospital of St. John the Baptist; of its origin and constitution little can be ascertained with certainty, but it seems to have been founded (or refounded) about the middle of the thirteenth century, on the basis of some similar institution previously existing, and the corporate title of it as refounded appears to be 'The Master and Brethren of the Hospital of St. John the Baptist, in the town of Bedford, in the county of Bedford.' Whether the corporate body of it is or not composed of a master and co-brethren or beadsmen, or of what such corporate body is composed, is a question of great difficulty, on which we are unable to express an unqualified opinion, but it seems clear that the master of the hospital has, for some centuries (we believe for five at least, though how long we cannot precisely say) been the rector of the parish of St. John's, Bedford, and the parish church of St. John's, Bedford, has, during the same period been identical with what is supposed to have been the chapel of the hospital, and in fact we believe that from a time anterior to that at which the line between an ecclesiastical preferment and a charitable institution was clearly defined, the conjoined mastership and rectory has been considered as an ecclesiastical preferment. The so-called cobrethren or beadsmen have had, for many centuries at least, nothing to do with the corporation beyond a mere custom (which perhaps is modern), that two of a number of poor persons, commonly called the beadsmen, who are nominated by and receive small stipends from the master, should be present where leases are granted under the corporate seal; and it is doubtful whether they can be considered as forming part of the corporate body. Hence, in truth, whatever may be the real origin and constitution of what is called the Hospital of St. John the Baptist, it is impossible now to treat it as a charitable corporation, or as a charity in the ordinary sense of the word. The mastership of it has been from time anterior to legal memory merged in and united with, and has, in fact, become identical with, the rectory of the parish of St. John's, Bedford, while, on the other hand, the corporation, which was in name, and may have been once in fact aggregate, has substantially become a corporation sole in the person of the rector of St. John's. The extreme antiquity of the institution, and the difficulty of distinguishing, in such very early times, between charitable and purely ecclesiastical foundations, is greatly increased in the present case by the circumstance, that for a century and a half, commencing with the reign of James I, successive attempts were made to fix upon the institution, or on part of it, a character purely charitable, which attempts appear to have been supported, in some cases at least, by forgery of documents; and it would seem, even by the forgery of a supposed order of the Court of Exchequer. It can be easily understood, that the very difficult historical questions which arise with reference to the so-called hospital are greatly complicated by the fact, that at least two centuries and a half ago attempts, more or less successful, were made to tamper with the evidences of the original foundation."

The only material evidence in the case, in addition to the documents which are admitted, is an affidavit of William Henry Black, to the following effect:Mr. Black was formerly assistant keeper of public records, and he states that he had examined the documents produced in the suit; that there was not among the ancient deeds produced a single grant to the church of St. John's, Bedford, but that they all conveyed and assured to St. John's Hospital only; that prior to the Reformation, the Bishops of Lincoln canonically required the successive masters of the hospital to swear obedience; and that the records of the archdeaconry of Bedford, and of the diocese of Lincoln, contained no terrier relating to the church or hospital of St. John's, Bedford, though numerous terriers were found for all the other parishes of the town. The Master of the Rolls, upon the hearing of the cause, made a decree, declaring that the property of the hospital was impressed with a charitable trust; that the defendants, the corporation, had no power to dispose of the right of presentation to the mastership of the hospital, and that a scheme for the administration of the trust property, and future application of the revenues of the charity, should be settled by the judge in chambers; and that the costs of all parties ought to be taxed, and paid out of the funds of the charity.

The defendants, the corporation, have appealed from this decree, and we are now to dispose of that appeal. It was first contended, on the part of the appellants, that the property in question is ecclesiastical property, belonging wholly to the church, and that this Court, therefore, has no jurisdiction over it; that the property is affected by no trust, either for the rector or master, or for the poor; that the payments to the poor have been, and are, at the discretion of the rector or master; and that, even assuming that they are not merely discretionary payments, they must be measured by the amounts which have been ordinarily paid, and the jurisdiction of the Court would not extend beyond securing those payments. The points thus contended for on the part of the appellants strike at the very root of this information; and certainly, if they are well founded, this decree cannot, in my judgment, be maintained. We must consider these points, therefore, and it will be convenient to deal with them seriatim.

That this Court has no power over property simply and purely ecclesiastical, and not affected by any trust, any more than it has power over lay property not so affected, cannot, as I conceive, be doubted; but as little, as I think, can it be doubted, that if ecclesiastical property be affected by a trust, the power and jurisdiction of the Court to enforce and execute the trust attaches equally as it would attach upon lay property similarly circumstanced. The question, therefore, upon the first part of the appellants' contention must, as it seems to me, be, not whether the foundation of this hospital was an ecclesiastical or lay foundation (and I am disposed to think that it was an ecclesiastical foundation), but whether the property belonging to this hospital is or is not subject to a trust; and this question, again, depends, as I think, upon the authenticity and effect of the charter of Robert de Parys. The authenticity of this charter was disputed on the part of the appellants in the course of the argument before us. It was suggested on their part that it was a forged instrument, and it was said that Robert de Parys, who was the master of the hospital, although he may have had power to lay down rules for the government of the hospital, could have no power to regulate the terms of the foundation; but upon examining the documents before us, it is evident that Robert de Parys has been throughout treated as the founder of this hospital. He is mentioned to