where a power to do a particular act is given to several persons without authority to act severally as well as jointly, it can only be done by the whole body. Then that case does not apply to a foundation altogether private, or to private individuals appointed under it, and is a mere exception to the general rule as to a bare authority in Co. Litt. 112 b. "where power is given to executors to sell, all must join in the sale; and if one dies, it is regularly true that being but a bare authority the survivors cannot sell." The section itself (Litt. s. 169) points at the religious object for which the sale was directed to be had, viz. to raise a sum to be distributed for the testator's soul, probably (a) for saying masses, a superstition common and legal in Littleton's time. Lord Coke adds, "That if executors had been named by their names as J. S., J. N., J. D. and J. G. his executors, then though one died in the life of the testator the survivors could not sell after testator's death, because his words could not be satisfied" (b). Now here the trustees are named. Withnell v. Gartham and Barker v. Grindley were much argued on the inconvenience of obstinate opposition by one man. In the former case however the judgment proceeded on the necessity imposed by the deed on the vicar and churchwardens to appoint a schoolmaster, and that circumstance was treated as ancillary only. Besides the jury there found that a usage existed to elect a schoolmaster by a majority of the vicar and churchwardens. [Lord Lyndhurst C. B. Lord Kenyon founded his opinion that such majority might elect on the intention of the founder apparent on the deed, and without regard to the usage; and Mr. Justice Lawrence assented.] Lord Kenyon and Mr. J. Grose (a) Harg. and Butler's note 145 to Litt. s. 169. (b) Lord Kenyon, in Withnell v. Gartham, 6 T. R. 396, observes on this doctrine. 1832. WILKINSON บ. MALIN and Others. 1832. WILKINSON 7. MALIN and Others. adopt the observation of counsel, that the power given to the vicar and churchwardens was classed with the same power afterwards given by devolution from them to other bodies undoubtedly public. [Lord Lyndhurst C. B. That argument also turned on the intention of the founder; and if it were otherwise, then, though like the usage it might be considered a material fact by Lord Kenyon, he formed his opinion independently of either. Nor can the passage cited from C. J. Eyre's reported opinion in Grindley v. Barker be called a mere dictum; for as the principle there laid down is sufficient to decide that case, the judgment is a necessary conclusion from those premises. Where two principles exist on which a case may be decided, and both are mentioned in the judgment, but without resting it on either to the exclusion of the other, neither can be called a mere dictum.] The opinion so expressed by Eyre C. J. was unnecessary, for in that case the body of triers had a judicial power of a public nature confided to them under a public act, and thus resembled a jury assembled by similar authority; so that the act of the majority of triers would confessedly bind the minority. Whereas, here a schoolmaster was appointed by private individuals, under a private deed of foundation. [Lord Lyndhurst C. B. Your argument must go to this extent, that where the objects of a charity are of a public nature, and enumerated as in this instance, but the funds are only of a private nature, a majority of the trustees will not bind the minority.] The bequest of funds by a private person to other like persons, though for the benefit of the public, does not make the trust public. Cook v. Loveland (a) shows the case where a majority would have sufficed, being a grant from the crown to the master and wardens of a corporation, i. e. a public (a) 2 B. & P. 3, cited by Bayley J. 9 B. & C. 857. body. In Cortis v. Kent Water-works (a), the treasurer was held well appointed by a majority of commissioners under the terms of a local act. Rex v. Whitaker (b) distinctly shows that in a matter of public duty and trust, not of private authority, like a reference or award, the act of a majority, after a proper meeting, is good; so the distinction of a public trust from a trust or power of a private nature, is again stated by Bayley J. in Blackett v. Blizard (c). [Lord Lyndhurst C. B. The repairing highways is one of the objects here intended; as drainage was the object in Rex v. Whitaker.] Oldknow v. Wainwright is not applicable, for the act there held valid was done by a majority of a corporate body met in pursuance of summons to exercise their franchise of election. Secondly, This was an office taking effect not out of a power or authority or by way of appointment, but out of and as coupled with an interest in land; being by parol therefore it is bad, Owen v. Saunders (d). Passing to the 8th issue, whether the plaintiff was duly appointed schoolmaster of the school-house, to have the possession of the dwelling-house and premises, till his dismission "by a majority of persons, who for the time being should be seised of and in the said. premises;" there is no statement who the latter persons are, or that they were any of those by whom the plaintiff was appointed: whereas allegation as well as proof is necessary to support a verdict. Again, seven persons are alleged to be seised in fee of the land, and the pleading admits an interest in land to have passed from seven of them; but the evidence is, (d) In C. P., 1 Ld. Raym. 158; Saunders v. Owen, S. C. in error, in K. B. Salk. 250; 5 Mod. 368; 12 Mod. 199; Carth. 426; Colles's Parl. Cases, 70. 1832. WILKINSON บ. MALIN and Others. 1832. WILKINSON v. MALIN and Others. that only five at a meeting professed to part with that interest. The question is as in Doe d. Warner v. Brown (a), what estate is the plaintiff contended to have? If for life, there is no conveyance by deed; if at will, it has been determined by the notices to quit of five trustees, Doe v. Summersett, Doe v. Jones (b), Doe v. M'Kaeg (c). By the words "relief of the poor," the trustees have not power to divert the funds for their gratuitous education. Those words must be taken in the meaning of bodily relief, which would have been ascribed to them at the time they were used by the founder, and down to the enactment of poor laws. Such a literal construction being in diminution of the poor rate, would be within the terms of the grant, and would lead to no inconvenience, so that the doctrine of cy pres would not apply. [Lord Lyndhurst C. B. The terms "relief of the poor," are large enough to justify the trustees in this exercise of their discretion, by applying the funds at this day to educate the poor. Supposing the poor to receive assistance in the shape of food, &c., aliunde, could not the funds be otherwise applied?] Lastly, judgment should be arrested; for every replication but the 7th & 8th is bad, and was so held to be on demurrer, for confessing the legal title of soil and freehold set out in the plea, they do not avoid it by stating another and better. The plaintiff relies on a particular estate, created by certain persons designated as "the then trustees," but without carrying it up to a seisin in fee in them, or in any other named persons (d). On the contrary, he alleges their title and seisin to be only equitable, viz. as trustees. (a) 8 East, 166. (b) 1 B. & A. 135. (c) Ibid. 721. (d) Co. Lit. 303 b., and cases collected, Stephen on Pleading, 1 ed. 3528. Then no title at all is set out (a), and it is not a mere Cur. adv. vult. In this term Lord LYNDHURST C. B. delivered the judgment of the court.-One of the points argued at the bar, and which stands for the decision of the court is, 1832. WILKINSON บ. MALIN and Others. |