of April, 1865, after giving other pecuniary and specific bequests, bequeathed to Frederick Rowland Roberts and John Sinnett, whom she appointed executors of her will, 3,000l. "upon trust, to be by them applied in aid of an endowment for the Welsh church now in the course of erection at Aberystwith," and as to, for and concerning the residue of her personal estate and effects, subject to the payment of her debts, funeral and testamentary expenses and legacies, she bequeathed the same to the said F. R. Roberts and J. Sinnett, "upon trust, to be by them applied in aid of erecting or of endowing an additional church at Aberystwith aforesaid." The testatrix died on the 10th of December, 1866, and the suit was instituted for the execution of the trusts of the will. The Chief Clerk, in pursuance of enquiries directed by the decree, found by his certificate that there was not any church answering the description of " an additional church at Aberystwith" being erected or being about to be erected at the time of the testatrix's decease; but the evidence on which this finding was based went to shew that at the date of the will there was a church in course of erection which was intended to be a chapel of ease to St. Michael's Church, Aberystwith, and was commonly called the Welsh church, from its being intended that the services in it should be conducted in the Welsh language. Vice Chancellor Bacon held that the 3,000l. legacy was well given, but that the gift of the residue in aid of erecting or of endowing an additional church failed for want of the existence of any such church, and the gift being for a particular object could not be applied cy-près. The Attorney-General appealed. The Solicitor-General (Mr. Jessel) and Mr. Hemming appeared for the appellant. Mr. Bristowe and Mr. Fellowes, for some of the next of kin. Mr. Kay and Mr. Speed, for others in the same interest. Mr. Amphlett and Mr. R. Hughes, for the plaintiff the executor. At the conclusion of the arguments the Lord Chancellor expressed himself satis fied, upon the construction of the will, that the testatrix had no particular church in contemplation and merely contemplated the building of an additional church at some future time, and there being at the death of the testatrix no additional church at Aberystwith, either being erected or about to be erected, a question arose whether the gift ought to be declared void if there were no probability of an additional church being erected, or whether in that event the gift could be applied cy-près. Another question arose under the Church Building Act, 43rd Geo. 3. c. 108, which enables testators to give lands or tenements not exceeding five acres, or goods and chattels not exceeding in value 500l., for or towards the erecting, rebuilding, repairing, purchasing or providing any church, &c., and he directed these questions to be re-argued. by The case was now (Jan. 17) re-argued The Solicitor-General (Mr. Jessel) and Mr. Hemming, for the Attorney-General. -A gift to erect or endow a church is good independently of the statute, inasmuch as the trustees may, consistently with the trust, lay out the whole fund in the endowment Edwards v. Hall, 11 Hare, 1; s. c. 6 De Gex, M. & G. 74; s. c. 22 Law J. Rep. (N.s.) Chanc. 1078, 25 ib. 82; Philpott v. The St. George's Hospital, 6 H.L. Cas. 338; s. c. 27 Law J. Rep. (N.S.) Chanc. 70, 28 ib, 657, And a gift for the endowment of a future church is clearly good The Attorney-General v. The Bishop of Chester, 1 Bro. C.C. 444. The question of cy-près will probably not arise, as we are clearly entitled under the Church Building Act to apply the impure personalty, to the value of 5001, in erecting a church, and may employ the whole of the pure personalty in endowing it. But if the gift should fail, the doctrine of cy-près applies whether it fails before or after the testatrix's death Hayter v. Trego, 5 Russ. 113; Loscombe v. Wintringham, 13 Beav. 87; Bennett v. Hayter, 2 Beav. 81 They also referred to Vaughan v. Farrer, 2 Ves. 182; The Attorney-General v. Hyde, 2 The Attorney-General v. Nash, 3 Mr. Bristowe and Mr. Fellowes, for some, and Mr. Kay and Mr. Speed, for others, of the next of kin.-A gift to erect is clearly void, and a gift to endow must fail for want of something to be endowed― Edwards v. Hall (ubi supra). And the gift being for a particular purpose, which has failed, the cy-près doctrine does not apply Cherry v. Mott, 1 Myl. & Cr. 123; The Attorney-General v. Boultbee, 2 Clark v. Taylor, 1 Drew. 642; Simon v. Barber, 5 Russ. 112. Trye v. The Corporation of Gloucester, Russell v. Kellett, 3 Sm. & G. 264; Marsh v. The Attorney-General, 2 Girdlestone v. Creed, 10 Hare, 480; Mr. Amphlett and Mr. R. Hughes appeared for the plaintiff, the executor. THE LORD CHANCELLOR.-I really do not entertain any doubt as to what is to be done in the present case. As far as I can judge from what has been stated, there is a possibility of a church being built at Aberystwith, and therefore I think it very probable that we may never arrive at the application of the cy-près doctrine at all. It is plain, from the authorities, that upon the true construction of the will, the bequest itself must be taken to be a bequest for the purpose of aiding in the erecting of any additional church or endowing an additional church at Aberystwith. That is the plain direction of the testatrix without reference to any period. I differ so far from the Vice Chancellor, who thought that she intended by the direction in her will to confine her executors to a case in which there should be either an actual church erected and requiring endowment, or a church in progress of erection at the time of her death. As to the difficulty that arises upon the possible remoteness of her intention being carried into effect, I think the case of The Attorney-General v. The Bishop of Chester (ubi supra) is a complete answer. In that case the very point which arises here was suggested. There was a sum of 1,000l. left for a good charitable purpose, namely, for the purpose of establishing a bishop in the king's dominions in America. There was no bishop in America. The sum being only 1,000l. was not very likely in itself to be sufficient to establish a bishop. Nothing can be more remote or unlikely to happen within a reasonable period than the appropria tion of that fund to that particular object. The Court did not direct any application of the fund according to the cy-près doctrine; it would not allow the fund to be dealt with immediately, but said that the fund must remain in hand for a time with liberty to apply, "because it is not known that any bishop will be established." But that the Court would continue to retain it for ever, waiting until a bishop should be appointed, is, I think, a very doubtful proposition. I was pressed with the difficulty which would arise in a case where the cy-près doctrine might possibly apply, as to what is to be done if, after a very long period, the fund did not seem to be applicable to its purpose in favour of charities. Undoubtedly there is case after case where, if there is anything in esse to which the fund of the testator can be properly applied, an enquiry has been directed as to whether the fund can be applied in the way directed. One of the last of that class of cases was Russell v. Jackson (ubi supra), where there was a secret trust for the foundation of a Socialist school. The Court declared the gift void, as to the real estate, and chattels real, and directed an enquiry into the nature of the trust contemplated, probably the same sort of enquiry as was directed in Thompson v. Thompson (1), where the testator directed an annuity to be paid to a literary man to enable him to assist in extending the knowledge of those doctrines to which the testator had turned his attention and pen. The Court held that, provided the literary works of the testator were consistent with religion and morality, this was a charity to which the law of England would give effect, and an enquiry was directed accordingly. The first enquiry always is whether the thing which is pointed at can be achieved. If it can all question of cy-près is at an end, and it is premature to say anything on the subject. The course, therefore, that seems to me the plain one to take upon the first part of this case is to direct an enquiry at chambers whether or not the funds which are effectually given to the trustees for the purpose of aiding in erecting a church or endowing a church at Aberystwith, or any, and what part thereof, can be so laid out and employed. Then with regard to the question as to the 5001., I do not entertain any doubt. The case stands thus-Supposing there is nothing in the way of the question of pure or impure personalty, the testatrix having given the whole of her residuary estate for the purpose of aiding in erecting an additional church, or in endowing an additional church, the executors and trustees would be authorised either to apply the whole in erecting a church, or in endowing a church, or such part as they thought fit in erecting, and such part as they thought fit in endowing; and I distinguish this case from that of Girdlestone v. Creed (ubi supra), because in that case (1) 1 Coll. 395. there was direction to lay out the money in building and endowing, and but for the saving statute (43 Geo. 3. c. 108), which says that you may, to the extent of 5001., apply money towards the building of churches, the bequest for the building and endowing would, upon several authorities, have been a totally void bequest, because the one object could not be separated from the other. Then it is said that the Court cannot construe the trust by referring to the statute any more than you can construe a trust by a reference to the statute of mortmain (2): the will must be looked at irrespective of the statute, and it is not to be said, because the statute says that 5001. may be taken for building, that therefore it was the testatrix's intention to employ only 5001. for building and to leave the rest for endowing; but that argument does not touch a case in which the testatrix says that you may apply the estate in such a way as you think fit, either in building or endowing. I do not see any reason why the trustees are not to devote the fund in their hands to either of the two purposes to which the testatrix has directed it to be applied. Mr. Bristowe contended that this was not the way in which the intention ought to be carried into effect; but I think the true construction is that you are to place in the hands of trustees all that they may use for either of the purposes which the testatrix has mentioned. You place in their hands, therefore, all her pure personalty and so much of the mixed personalty as amounts to 500l., and hand over the rest to the next-of-kin. When you have done that, they may apply the 500l. if they think fit, wholly in building, and the whole of the other fund, which is pure personalty, towards the other object which the testatrix had in view, and it is the duty of the trustees to carry out the intentions of the testatrix as they best can. I shall reverse the order of the Vice Chancellor so far as it is appealed from, and declare that the sum of 5001. and no more shall be set apart by the trustees and executors out of the impure person (2) See Tatham v. Drummond, 2 Hem. & M. 262; s. c. 34 Law J. Rep. (N.s.) Chanc. 1. alty towards aiding in erecting an additional church at Aberystwith, and the whole of the pure personalty towards the endowing of such additional church, subject to the enquiry I have referred to, and without prejudice to any question in case that enquiry should be answered in the negative. Reserve further consideration. Costs of appeal to be costs in the cause. Solicitors-Messrs. Raven & Bradley, for appellant; Mr. E. Balden, agent for Mr. F. R. Roberts, Aberystwith; and Messrs. Blaxland & Son, agents for Messrs. Hughes & Sons, Aberystwith, for respondents. WICKENS, V.C. In re WILKINSON'S MORTGAGED ESTATES, and in re 25 & 26 Vict. c. 108. 1872. March 23. Statutory Jurisdiction-Petition-Mortgagor and Mortgagee-Power of SaleSale of Land apart from Minerals. Mortgagees of real property, except the minerals, were allowed upon petition to exercise their power of sale by selling apart from the minerals, although a bill for foreclosure had been filed by them, and subsequent incumbrancers and persons interested in the equity of redemption opposed the petition. G. Y. Wilkinson, in 1841, granted certain lands (except the mines and minerals lying thereunder) and a mansion. house and premises unto Edward Dodd, his heirs and assigns, subject to a proviso for redemption, to secure 3,000l. There were similar mortgages to other persons in subsequent years, in some of which the mines and minerals were excepted. In April, 1849, Dodd transferred his mortgage to the petitioners, who at the same time lent to Wilkinson an additional sum on the same security. The mortgage deed of 1841 contained the usual power of sale. The petitioners had entered into possession, and had sold portions of the lands, excepting the mines and minerals, to various parties. The petitioners had filed a bill against the mortgagor and subsequent incum brancers in April, 1871, praying for accounts of what was due on the various securities, and for payment, and in default for foreclosure. All the defendants had appeared, and notice of motion for a decree had been served upon them. On the 16th of February, 1872, an offer was made by a Mr. Markham to purchase the property included in the security of 1841, with the exception of the minerals, for a sum of 10,000l., and the offer being considered an advantageous one, a conditional agreement had been entered into for a sale. The petitioners prayed for a confirmation of the agreement to sell the property with an exception of mines and minerals in and under the property, and the rights and powers of or incidental to the working, getting or carrying away of such mines and minerals. The petition was not entitled in the cause. Mr. Hardy and Mr. Langworthy, for the petitioners, referred to Laslett v. Cliffe, 2 Sm. & G. 278; Re Beaumont's Mortgage Trusts, 40 Law J. Rep. (N.S.) Chanc. 400; s. c. Law Rep. 12 Eq. 86. Mr. C. Hall, for respondents who supported the petition. Mr. Davenport, for the wife and children of the mortgagor who had settled the equity of redemption, opposed. Mr. Ince, for other respondents, also opposed the petition, on the ground that a suit having been instituted, the petition ought to have been entitled in the suit. WICKENS, V.C., said that the decision in In re Beaumont's Mortgage Trusts (ubi supra) was conclusive to shew that the Act 25 & 26 Vict. c. 108 applied to mortgagees as well as to trustees, and therefore he had jurisdiction to say that the power in this case must be read as if it had expressly authorised a sale of the surface separate from the minerals. The evidence satisfied him that the power of sale would be more productive if the surface and minerals were sold separately. He was not asked to sanction any particular sale which there might have been Company-Directors-Misrepresentation -Fraudulent Issue of Shares. A bank honoured cheques of two directors, countersigned by the secretary of a railway company. This was done on the written authority of three directors:-Held, that the railway company having no power to borrow in that manner, the directors were liable for misrepresentation to the bank. Preference shares and debentures, on which nothing was paid, were issued as paid up to two directors, and transferred to nominees of the bank, as security for the above loan. The transfers were cancelled at the instance of the nominees. The Union Bank of London advanced large sums of money to the Watford and Rickmansworth Railway Company, in honour of certain cheques signed by two of the directors, and countersigned by the secretary of the railway company; this was done on the authority of a request signed by three directors, dated July, 1860. The bank not being repaid, pressed for payment of the debt, and NEW SERIES, 41.-CHANC. upon the request of the manager of the bank that shares and debentures should be handed to the bank as collateral security, the following transaction was carried out in the early part of January, 1865. The railway company had then power, under an Act passed in July, 1863, to raise 30,000l. on preference shares, and in the event of the whole of that sum being subscribed, to raise 10,000l. by mortgage. They issued 20,000l. preference shares and 10,000l. debentures, in the names of Lord Ebury and Mr. Dillon, two of their directors, and these were transferred to Mr. Beattie and Mr. Barton, managers of the bank, as trustees, for the purpose of securing the bank the sums then owing to them. The plaintiffs in this suit were Messrs. Beattie and Barton and the public officers of the Union Bank of London. The defendants were five directors of the railway company, Mr. Forbes, the secretary, and the company. The prayer of the bill was very com plicated, but the relief sought, so far as it is necessary to be stated for this report, was, that the directors should be made personally liable to pay the money advanced, and that the two first plaintiffs should be relieved from all liability on the shares and debentures (on which nothing really had been paid), either by having them cancelled, or by having the transfers only cancelled, and by having their names removed from the registers of shareholders and mortgagees. The railway was in the hands of a receiver in a creditor's suit, and by leave of the Court obtained in that suit, an answer was put in, and the company was represented at the bar. The facts will be found more fully stated in the judgment of the Vice Chancellor. The Solicitor General, Mr. Swanston, Mr. Chas. Wood, and Mr. T. A. Roberts, for the plaintiffs, contended that the directors were liable for constructive misrepresentation upon authorising a borrowing which was ultra vires of the company, and for an actual misrepresentation in giving to the plaintiffs documents which were not merely no security, but on which 3 E |